Johnson v. Kellison

ANDREW L. JOHNSON, Plaintiff, v. TIMOTHY J. KELLISON, CHRISTOPHER REISS, andEUGENE MARTINEZ, Defendants.

Civil Action No. 18-cv-02112-RM-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

September 25, 2020

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Defendants' Motion for Summary Judgment [#70]¹ (the "Motion"). Plaintiff, who is proceeding pro se,² filed a Response [#95] to the Motion, Defendants filed a Reply [#96], and the Court permitted Plaintiff to file a Surreply [#97]. See Minute Order [#102]. The Motion [#70] has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.L.CivR 72.1. See [#78]. The Court has reviewed the briefs, the entire case file, and the applicable law, and is sufficiently advisedin the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#70] be GRANTED in part and DENIED in part.

I. Summary of the Case³

At the outset, the Court notes that Plaintiff has not explicitly admitted or denied Defendants' recitation of the case, as provided in the Motion [#70]. Thus, the Court essentially adopts Defendants' recitation to the extent it appears well-supported by the evidence and to the extent that Plaintiff has not directed the Court's attention to, nor actually provided, opposing evidence elsewhere in his briefs.

Plaintiff is a former inmate who, at all times relevant to this lawsuit, was held at the Boulder County Jail ("BCJ") as a pretrial detainee. Plaintiff was arrested for a bond violation and brought to BCJ on October 19, 2017. Defs.' Ex. A [#70-1] (copies of entries into Plaintiff's electronic Inmate Record contained in the Jail Management System). While waiting to complete the booking process, Plaintiff twice used the telephones in the booking area waiting room, once for about four minutes and the second time for about sixteen minutes. Defs.' Ex. B [#70-2, #73] (two videos from two different angles of the waiting room showing each of the calls).

At 6:55 a.m. the next morning, October 20, 2017, Plaintiff was formally booked and transferred to cell 9 on the second floor of BCJ's intake module. Defs.' Ex. D [#70-7] at 1.(copy of an incident report regarding the incident involving Plaintiff the morning of October 20, 2017). Shortly thereafter, Plaintiff approached Deputy Theron Crawford ("Crawford"), a non-party, while he was completing paperwork in the officer workstation. Id. Plaintiff requested various items such as a KITE request form, paper, pencils, and a grievance form. Id. Deputy Crawford asked Plaintiff why he wanted a grievance form. Id. Plaintiff apparently became belligerent, telling Deputy Crawford that it was his constitutional right to get a grievance form and demanding to see a sergeant. Id. Deputy Crawford told Plaintiff to go to lockdown and that he would give him his requested items when he completed his paperwork. Id. Plaintiff refused. Id. Deputy Crawford repeated his order for Plaintiff to go to lockdown several times, but Plaintiff still refused. Id.

Deputy Crawford left his workstation and entered the intake module along with Deputy C. Howland ("Howland"), another non-party. Id. Deputy Crawford once again told Plaintiff to go lockdown immediately. Id. Plaintiff raised his voice, puffed out his chest, and demanded that Deputy Crawford provide him with a second grievance form so that he could grieve Deputy Crawford for "being an asshole." Id.; Defs.' Ex. E [#70-8] at 1 (copy of a second incident report regarding the incident involving Plaintiff the morning of October 20, 2017). Deputy Howland called for back-up and several other deputies arrived. Ex. D [#70-7] at 1; Ex. E [#70-8] at 1. Plaintiff eventually went up the stairs and entered cell 9 but refused to close the door after Deputy Crawford instructed him to do so. Ex. D [#70-7] at 1-2. Deputy Crawford closed the door himself and determined that Plaintiff should serve a two-day module segregation for his refusal to follow instructions, although this was later reduced to one day. Id. at 2.

At 9:30 a.m., Deputy Sheree Fournet ("Fournet"), another non-party, removedPlaintiff from his cell so that he could meet with his Public Defender. Ex. E [#70-8] at 1; Defs.' Ex. F [#70-9] (copy of the entry into Plaintiff's electronic Inmate Record contained in the Jail Management System). Plaintiff met with his attorney in the multi-purpose room, after which Deputy Fournet escorted him back to cell 9. Ex. E [#70-8] at 1. Deputy Fournet informed Plaintiff at this time that he would be serving a two-day module segregation for his actions earlier that morning. Id. When he reached his cell, Deputy Fournet had to tell Plaintiff numerous times to go into his cell and shut the door. Id.

At 10:45 a.m., Deputy Fournet, along with another non-party jail official, served lunch to Plaintiff in his cell. Id. at 1-2. As she was leaving, Deputy Fournet attempted to close the cell door behind her, but Plaintiff put his foot in front of the door and demanded that he be allowed to call his private attorney regarding a court appearance that Plaintiff was scheduled to attend that day in Larimer County. Id. at 2. Deputy Fournet told Plaintiff that she would not permit the phone call and instructed Plaintiff three times to remove his foot so that she could close the door. Id. Plaintiff refused. Id. Deputy Fournet radioed for back-up, and Defendant Timothy J. Kellison ("Kellison") and Defendant Eugene Martinez ("Martinez") responded to the call along with Deputy Amber McNeil ("McNeil"), Deputy Chad Palmer ("Palmer"), and Deputy Stephen Gerhart ("Gerhart"), all three of whom are not parties to this action. Id. at 2-9.

Defendant Kellison and Deputy Fournet talked with Plaintiff for several minutes, but Plaintiff continued to refuse to obey their directions. Id. at 1-2, 7-11; Defs.' Ex. G [#70-10, #73] (video of jail module area). When their attempts to de-escalate the situation failed, Defendant Kellison stepped in and pushed Plaintiff back into the cell. Ex. E [#70-8] at 7. As Defendant Kellison attempted to shut the door, Plaintiff kicked the door towardDefendant Kellison and other jail personnel. Id. at 4, 6-7, 10. Reopening the door, Defendant Kellison drew his taser, pointed it at Defendant, and told Defendant to turn around and place his hands behind his back. Id. at 8. Plaintiff complied with this direction. Id. Defendant Kellison then entered the cell and placed Plaintiff in handcuffs. Id. Defendant Kellison, Defendant Martinez, and Deputies Foster, McNeil, and Gerhart, as well as a previously unmentioned jail official named Sergeant Heger, escorted Plaintiff out of his cell and down the stairs of the module, as shown by the surveillance video. Id. at 2-4, 6-9; Ex. G [#70-10, #73]. Plaintiff resisted by dragging his feet and being verbally abusive and antagonistic. Ex. E [#70-8] at 2-4, 6-9.

At the bottom of the stairs, multiple deputies worked to place Plaintiff in a restraint chair, as Plaintiff continued to physically resist, threaten physical violence, and call jail staff "faggots," "pussies," and "mother fuckers." Id. at 4. Defendant Christopher Reiss ("Reiss") arrived around this time, and his body-worn camera's video generally confirms these events. Defs.' Ex. H [#70-11, #73]. Once secured in the restraint chair, Jail Nurse McGurk checked Plaintiff's restraints to ensure that they were not too tight. Id.; Ex. E [#70-8] at 6-7; Defs. Ex. I [#70-12] (copy of the Chart Note Entries made into Plaintiff's medical record by members of the Health Services Unit medical staff). Plaintiff was then moved to a cell in the disciplinary module at approximately 10:52 a.m. Ex. E [#70-8]; Ex. H [#70-11, #73]. As confirmed by video, Defendant Reiss checked on Plaintiff at 2:00 p.m. and asked if he was ready to get out of the chair. Ex. H [#70-11, #73]. After a lengthy conversation with Plaintiff, Defendant Reiss stated he would return when Plaintiff was ready to get out of the chair. Id. At 2:30 p.m. two deputies and a nurse double-checked Plaintiff's ankle restraints to ensure they were not too tight. Ex. E [#70-8] at 3, 7. As confirmed by video, DefendantReiss returned at 3:44 p.m. and released Plaintiff from the chair. Ex. H [#70-11, #73]. Jail medical staff was present and noted no injury on Plaintiff other than some scrapes on the back of his left heel. Ex. E [#70-8] at 3-4; Ex. I [#70-12] at 2. There is no evidence that Plaintiff requested medical attention while at BCJ as a result of being in the restraint chair.

In the present Motion [#70], Defendants seek entry of summary judgment in their favor on all claims. Defendants initially construed the Amended Complaint [#6] as asserting four claims: (1) First Amendment access to the courts; (2) Fourteenth Amendment excessive force; (3) Fourteenth Amendment procedural due process; and (4) First Amendment retaliation. See generally Motion [#70]. Plaintiff's Response confirms these four claims but also asserts that he raised a Fourteenth Amendment claim regarding conditions of confinement. See [#95] at 13-20. Defendants therefore address this claim for the first time in their Reply [#96], and the Court therefore permitted Plaintiff to file a Surreply [#97]. Minute Order [#102]. Plaintiff seeks only monetary relief in this case. Am. Compl. [#6] at 13.

II. Standard of Review

The purpose of a motion for summary judgment pursuant to Fed. R. Civ. P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Under Fed. R. Civ. P. 56(c), summary judgment shall be granted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v....