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Foote v. Degenhardt

United States District Court, E.D. Kentucky, Northern Division, Covington

December 21, 2018

ZACHARY FOOTE, Plaintiff,
v.
DANIEL DEGENHARDT, Defendant.

          MEMORANDUM OPINION AND ORDER

          William O. Bertelsman, United States District Judge.

         Defendant Daniel Degenhardt has filed a motion for summary judgment upon the claim asserted against him by plaintiff Zachary Foote.[1] [R. 18] Foote filed several documents in response to that motion [R. 20, 22, 23, 23-1, 26, 27] before his deadline to file a formal response expired. See [R. 19] The Court will liberally construe these filings as collectively constituting his response to the motion. The matter is therefore ripe for decision.

         This case arises from a brief altercation between Officer Degenhardt and Foote, an inmate at the Kenton County Detention Center (“KCDC”). At approximately 9:00 a.m. on the morning of May 17, 2018, Officer Degenhardt imposed an “in-house sanction” on Foote for having excessive bed linens at his bunk and for being disruptive. Foote alleges that at this time Degenhardt was overly aggressive towards his person and his property. [R. 1 at 5] An Incident Report created by Degenhardt states that he ordered Foote to stay at his bunk unless he was given permission to leave [R. 18-3 at 1]; Foote alleges that he was nonetheless unaware that he could not leave his bunk to use the restroom [R. 1 at 5].

         Thirty minutes later, Foote walked to the restroom in the unit to brush his teeth. Officer Degenhardt walked into the restroom area, ordered Foote to return to his bunk, and refused Foote's repeated requests that he first be allowed to spit out his toothpaste. Id. The parties agree that Foote spit out his toothpaste after he had left the restroom area, with Degenhardt asserting that Foote directed his spittle in his general direction. [R. 1 at 6; R. 18-3 at 1]

         Officer Degenhardt then took Foote to the ground, although the parties differ significantly as to the particulars. Foote alleges that Degenhardt acted without warning, forced him to the ground, choked him for a full minute before calling for backup, and then drove his knee into Foote's face, all while he was putting up no resistance. [R. 1 at 6] In his Incident Report, Degenhardt stated that he took Foote to the ground only after Foote refused a direct order to face away from him and to place his hands above his head so that he could be handcuffed. He further stated that once Foote was face-down on the ground, he applied a “vascular restraint” only after Foote attempted to tuck his hands underneath his body to prevent handcuffing. At this point Foote ceased resistance and was handcuffed. [R. 18-3 at 1]

         A surveillance video submitted by Degenhardt on CD-R [R. 16] offers additional perspective on these competing versions of events. The video footage has its limitations: there is no audio to confirm what was said between the two men, and the “action” occurs in only one-sixteenth of the frame in the upper left hand corner of the picture. However, it does show that after the men had exited through the open doorway of the restroom, Degenhardt pointed towards Foote as if directing him to do something. Foote - facing perpendicular to Degenhardt - raises both of his hands up and to his sides, expressing at least exasperation and perhaps agitation. Degenhardt points towards Foote a second time. At this point, Foote quickly turns his body to the left, first facing Degenhardt and then continuing to turn left until he faces partially towards the open doorway of the bathroom, and then appears to spit in that direction. Foote then immediately begins to walk away from Degenhardt. Without any visible pause, Degenhardt moves toward Foote and takes him to the ground, the entire process taking no more than 3-4 seconds. Over the next 20-25 seconds Foote at times appears docile, but at others can be seen moving, squirming, or actively resisting with his arms, legs, or both. Once he ceases, Degenhardt takes the next 10 seconds to handcuff Foote and to use a radio at his hip to call for assistance. Other officers appear almost immediately thereafter, at which time Foote is brought to his feet and escorted out of the unit. [R. 16 at 9:30:55 a.m. - 9:32:10 a.m.] Pictures taken of Foote after the incident show that he suffered a bloody nose and redness of the skin on the left side of his face. [R. 16]

         Foote does not indicate whether he received any disciplinary sanctions from LCDC for his conduct. However, he appears to have filed a grievance on May 19, 2018 challenging an action taken by the LCDC disciplinary committee. That grievance was rejected on May 20, 2018 as raising a non-grievable issue because Foote filed a general grievance rather than appeal through LCDC's separate grievance process for disciplinary appeals. [R. 1-1 at 1 (“You are attempting to grieve an issue that was decided on by the disciplinary committee. These decisions are appealed through the disciplinary appeal process, not the grievance instrument.”); see also R. 18-6 at 3] On May 19, 2018, Foote filed a second inmate grievance, this one complaining that Degenhardt used excessive force against him. That grievance was denied by the Shift Commander at Level II of the grievance process on May 20, 2018. Foote took no appeal from that denial. [R. 18-5]

         In his complaint, Foote alleges that he suffered a bloody nose, bruises to the face and neck, and a broken tooth. Foote claims that Degenhardt used excessive force in violation of his constitutional rights, and seeks compensatory damages. [R. 1 at 7]

         Degenhardt seeks summary judgment on Foote's excessive force claim on two grounds. First, he claims entitlement to qualified immunity based upon the surveillance video footage filed into the record that shows, he contends, that he did not use force beyond that reasonably necessary to subdue Foote. [R. 32-1 at 2-3, 5-7] Second, Degenhardt contends that Foote did not appeal from the denial of his inmate grievance regarding Degenhardt's use of force, and therefore failed to exhaust his administrative remedies as required by law. [R. 32-1 at 3-4, 8]

         As previously noted, Foote responded to Degenhardt's motion with several letters and one motion.[2] In his first letter [R. 22] Foote requested discovery, a form of relief the Court had previously denied without prejudice on procedural grounds [R. 21]. Foote's second request suffers from the same defects as its predecessor: Foote did not support his request with the required affidavit or declaration, and failed to explain in particularized terms why the discovery was necessary to oppose Degenhardt's motion for summary judgment. The request for discovery, construed as arising under Federal Rule of Civil Procedure 56(d), will be denied. Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc., 280 F.3d 619, 627 (6th Cir. 2002); Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004).

         Foote also requested that the Court add Kenton County Detention Center and Jailer Terry Carl as defendants for violating his due process rights. [R. 22 at 2] The Court will liberally construe that informal request as a motion. Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999). However, that motion will be denied because Foote did not tender an amended complaint including his proposed claims against these persons. See Kuyat v. BioMimetic Therapeutics, Inc., 747 F.3d 435, 414 (6th Cir. 2014). In addition, KCDC is not a suable defendant. Lambert v. Hartman, 517 F.3d 433, 439-40 (6th Cir. 2008). The Court could construe that claim as one against Kenton County itself, Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994), but Foote makes no claim that Degenhardt acted pursuant to and consistent with a policy or custom of Kenton County, and therefore fails to state a claim for relief against the county. Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). And Jailer Carl is not liable for Degenhardt's actions under a theory of respondeat superior merely because he employs him. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Because it appears that the proposed amendment would be futile, leave to amend will be denied. Kottmyer v. Maas, 436 F.3d 684, 692 (6th Cir. 2006).

         Foote also filed a motion requesting that the Court appoint counsel to represent him in this matter. [R. 23] Title 28, United States Code § 1915(e)(1) authorizes a federal court to appoint counsel to represent a pro se party in civil litigation, but only in truly exceptional circumstances. Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003). When considering whether to grant such a request, the court considers the complexity of the case, the movant's likelihood of success on the merits of the claim, and the ability of the plaintiff to represent himself adequately. Cleary v. Mukaskey, 307 Fed.Appx. 963, 965 (6th Cir. 2009). Here, Foote's excessive force claim is not substantively or procedurally complex. Degenhardt's summary judgment motion asks, at bottom, only whether it was sufficiently clear that he used “too much” force, and whether Foote followed a straightforward grievance process to its conclusion. While Foote has made mistakes in prosecuting his claim, such missteps are typical of pro se litigants, and the Court has afforded him additional latitude in procedural matters and indulged a liberal construction of his claims. Considering the Lanier factors, the Court concludes that this case does not present the kind of extraordinary circumstances which would warrant the appointment of counsel in this civil matter.

         Turning to the substance of Degenhardt's motion for summary judgment, a moving party must establish that even viewing the record in the light most favorable to the nonmovant, there is no genuine dispute as to any material fact and that she is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a); Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014). The court reviews all of the evidence presented by the parties in a light most favorable to the responding party, with the benefit of any reasonable factual inferences which can be drawn in his favor. Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005).

         First, Degenhardt's argument that he is entitled to qualified immunity against Foote's excessive force claim is convincing. A government official is entitled to qualified immunity against a claim for damages “insofar as [his] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Estate of Hill by Hill v. Miracle, 853 F.3d 306, 312 (6th Cir. 2017) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Although the defendant must plead qualified immunity as an affirmative defense, the plaintiff bears the burden of proving that a reasonable official in the defendant's shoes would have clearly understood that he was under an affirmative duty to refrain from such conduct. Id. (citing Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir. 2002)). When reviewing the reasonableness of an officer's use of force, the Court must do so from the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). Because ...


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