Fillmore v. Ordonez (829 F. Supp. 1544, 1993)

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on the motion of the plaintiff for summary judgment (Doc. 59) and on the defendants’ joint motion for summary judgment (Doc. 56).

Nature of the Claim

Plaintiff brings this pro se action for monetary damages pursuant to 42 U.S.C. § 1983 against the Sheriff of Osage County and several deputy sheriffs. Among other contentions, he argues that he was unlawfully arrested and detained for five days in the Osage County jail; that his briefcase was unlawfully seized and searched; that he was unlawfully prosecuted for obstruction of official duty; that he was denied meaningful telephone access to legal counsel; that he was denied certain law books and other legal materials he requested; that he was effectively deprived of adequate food because the defendants failed to provide a diet consistent with his religious beliefs; that he was denied a suitable mattress; and that he was subjected to the deliberate infliction of pain while in the defendants’ custody.

The defendants, Osage County Sheriff Miquel Ordonez and five deputy sheriffs, all deny that plaintiff was deprived of any of his federal rights during his arrest, booking, and detention in the Osage County jail. Defendant Ordonez, who is sued in his official capacity on two of plaintiffs claims, denies that he maintains any policy, regulation, custom, or procedure that denies anyone any rights protected by the Constitution or laws of the United States. With regard to plaintiffs other claims against Ordonez and his claims against the deputy sheriffs in their individual capacities, the defendants jointly contend that they are entitled to qualified immunity.

Jurisdiction and Venue

The court has jurisdiction of this matter pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). Venue is proper under 28 U.S.C. § 1391(b)(1) and (2).

Summary Judgment Standards

Under Fed.R.Civ.P. 56, the court is compelled to render summary judgment on behalf of a moving party if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Essentially, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510.

The moving party has the burden of showing the absence of a genuine issue of material fact. This burden “may be discharged by ‘showing’^-that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). “[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. The nonmoving party must go beyond the pleadings and designate specific facts, by affidavits, depositions, answers to interrogatories, and admissions on file, showing that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514.

The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues. United States v. O’Block, 788 F.2d 1433, 1435 (10th Cir.1986). The court must also consider the record in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). However, a mere scintilla of evidence in favor of the nonmoving party is insufficient to create a genuine issue of material fact. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.

When a defendant raises the affirmative defense of qualified immunity in a motion for summary judgment, the burden shifts to the plaintiff to come forward with facts or allegations which demonstrate that the defendant’s alleged violation of the law should have been apparent in light of preexisting law. Jantz v. Muci, 976 F.2d 623, 627 (10th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993). Once the plaintiff has done so, the defendant assumes the normal burden of a movant for summary judgment of establishing that no material facts remain in dispute that would defeat his claim of qualified immunity. Id. (citing Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th Cir.1989)).

Facts

For the purpose of resolving the parties’ summary judgment motions, the court makes the following findings of fact.

At approximately 9 p.m. on December 7, 1991, defendant Eldon Croucher, a deputy sheriff in Osage County, stopped a truck for speeding on U.S. Highway 56. Defendant Croucher had cheeked the truck’s speed with radar equipment at 69 mph in a 55 mph zone. The sole occupant of the truck was the plaintiff, Rodney Joe Fillmore, who immediately exited the truck and approached Deputy Croucher’s vehicle, asking why he had been stopped. He denied he had been speeding. He also denied he had been driving, but admitted he had been causing movement of the truck from which he had emerged.

Defendant Croucher had known plaintiff and his family for approximately 30 years, since their childhood days. When defendant Croucher asked plaintiff for his driver’s license, plaintiff responded that he did not have one. Upon defendant Croucher’s request, plaintiff produced the truck’s registration and proof of insurance. The truck was registered in the name of plaintiffs brother. Defendant Croucher then asked plaintiff whether he had a license in another state and whether he was driving with a suspended license. Plaintiff refused to answer, noting that driving with a suspended license was a crime. Defendant Croucher told plaintiff that if he did not respond to his questions, he would be arrested for obstructing legal process. Plaintiff again declined to respond, stating that he was not waiving any of his rights. Plaintiff was otherwise fully cooperative.

Defendant Croucher then placed plaintiff under arrest for obstructing an officer in the performance of his legal duty and for failing to display a driver’s license on demand. Plaintiff requested that defendant Croucher allow him to sign a Notice to Appear instead of arresting him, but defendant Croucher declined to do so. Plaintiff was handcuffed and pat-searched, and was then seated in defendant Croucher’s patrol ear.

Defendant Croucher asked the plaintiff if his truck was secure, and plaintiff responded that it was. Defendant Croucher explained that if plaintiff left the truck on the side of the highway, the county could not be held responsible for any damage. Plaintiff agreed. Defendant Croucher then exited his vehicle and approached plaintiffs truck to ensure that it was secure. He saw a briefcase and a zippered deposit bag resting on the seat of the truck, and he seized them. Next, he took the keys out of the truck and locked it behind him. Defendant Croucher did not conduct an inventory search of the truck, nor did he impound the vehicle. Defendant Croucher returned to the police car carrying plaintiffs briefcase and money bag. Plaintiff protested defendant Croucher’s search of the truck and the seizure of his personal property.

On the drive to the Osage County jail, defendant Croucher recited plaintiffs Miranda rights.

Upon their arrival at the jail, plaintiffs property was inventoried. He was carrying on his person approximately $465.00 in cash. In addition, he carried a Sam’s Club card showing plaintiffs picture, but bearing the name Gary Thompson. In addition, he was carrying two telephone credit cards, one bearing the name Oliver Douglas and the other the name Russell Briskie. Defendant Croucher demanded that plaintiff unlock and open the briefcase so he could search it, but plaintiff refused to do so, stating that the deputy sheriffs had no warrant or probable cause to search the briefcase. At some point, plaintiffs deposit bag was opened and searched without a warrant and without plaintiffs consent.

Defendants Nitcher and Manning were on duty at the jail when defendant Croucher arrived with plaintiff. They attempted to photograph plaintiff and take his fingerprints, as required according to jail policy for all persons booked into jail. Plaintiff refused, stating that he was not subject to K.S.A. 21-2501, the Kansas statute requiring fingerprinting of persons under certain circumstances. Defendants Nitcher and Manning threatened plaintiff with a charge of obstructing legal process if he refused to submit to their requests. However, plaintiff continued to refuse. Plaintiff also refused to don the standard orange jumpsuit worn by jail inmates because the garment contained synthetic fibers, explaining that his religion permitted him to wear only clothes made of natural fibers. Defendants did not force plaintiff to be fingerprinted or photographed or to wear the standard jail attire.

Upon his admission into jail, plaintiff immediately informed his jailers that his religion required a strict diet, which prohibited such foods as meat containing fat and pasteurized, homogenized milk. He also insisted that he was permitted to drink only distilled water. He subsequently submitted a written request to Sheriff Ordonez regarding his religious diet, listing citations to numerous biblical passages. Plaintiffs family offered to provide him with food, but defendants did not permit them to do so for security and health reasons.

Plaintiff repeatedly asked to use the telephone. At approximately 11 p.m., plaintiff was permitted to make a phone call. He placed a call to his brother for the purpose of seeking legal advice. Without plaintiffs knowledge, the call was surreptitiously recorded by the defendants.

Still wearing his own clothes, plaintiff was placed in a cell in the detoxification center of the Osage County jail, where he remained until late in the afternoon of the next day. Because the detoxification cell was not furnished with a mattress, chair, or even a pillow, plaintiff was required to sleep on the resilient raised floor of the cell. Plaintiff had previously incurred a back injury in a work-related accident and consequently had chronic back problems, which were exacerbated by sleeping without a mattress. Defendants Manning and Nitcher called plaintiffs doctor on the night of his arrest and were informed about plaintiffs back disorder.

On the night of his arrest, without the knowledge or consent of the plaintiff, defendant Croucher unsuccessfully attempted to open the combination lock of plaintiffs briefcase. He contacted the Osage County Attorney to ask how he could legally search the briefcase. He was advised to prepare an affidavit for a search warrant, and in the meantime contact the Tri-County Drug Enforcement Unit to have the briefcase checked by a dog trained to alert to the presence of drugs. Upon doing so, the dog alerted to the briefcase.

On Sunday, the following day, defendant Croucher obtained a search warrant and proceeded to forcibly open the briefcase. The contents of the briefcase included a specimen bottle containing seeds, a single clear capsule containing white powder, and a syringe. These items were sent to the Kansas Bureau of Investigation Laboratory for analysis.

In the meantime, the County Attorney received computer information from the state of Virginia indicating that Fillmore’s Virginia driver’s license had been suspended. On Monday, December 9, after conferring with Deputy Sheriffs Croucher, Manning, and Nitcher, the County Attorney charged plaintiff with one count of speeding in violation of K.S.A. 8-1336, one count of driving with a suspended driver’s license in violation of K.S.A. 8-262(a), one count of driving without his driver’s license on his person in violation of K.S.A. 8-244, and two counts of obstructing official duty in violation of K.S.A. 21-3808. One of the obstruction counts in the complaint was based upon plaintiffs failure to respond to defendant Croucher’s questions concerning his driver’s license, and the other on his refusal to be fingerprinted and photographed and to change into jail clothing upon being booked into jail.

Plaintiff was transferred to a regular cell on the afternoon of Sunday, December 8. He requested a thicker mattress because of his back problems, contending that the regular mattress was hard and lumpy. Initially he was told that no other mattresses were available. However, on December 11, the day after he submitted a formal administrative demand, he was provided a better máttress. Defendants refused to permit plaintiffs family to provide a mattress for him to use while he was detained in jail.

Each cell in the jail is equipped with an electronic communication and surveillance system which emits a soft beep every six seconds. A low-intensity light burns at all times, day and night. For safety and security reasons, inmates do not have the option of turning off either the beeper system or the light. The beeper and light disturbed plaintiffs sleep. Defendant Ordonez denied plaintiffs demand to have the ability to turn out the light.

While detained in jail, plaintiff was provided the meals normally served to jail inmates. He refused to eat the foods proscribed by his religious diet. Defendant Dunn, the deputy sheriff in charge of the jail, received plaintiffs request for compliance with his religious diet on Monday, December 9, her first day on duty since plaintiff had been detained. Defendant Ordonez was also aware of plaintiffs request. On December 9, Defendant Dunn asked plaintiff the nature of his religion. On December 10, plaintiff submitted a formal administrative demand for compliance with his religious diet. On December 11, he submitted a formal demand for enough food to sustain life. Nothing was done to comply with plaintiffs religious diet until the noon meal on Wednesday, December 11, when jail personnel began to provide him with additional servings of food on the regular menu that were not prohibited by his religious diet. On December 11 defendant Dunn supplied plaintiff with distilled water for the first time. By the evening meal on December 11, plaintiff was satisfied he was being fed sufficiently. Because plaintiff was provided inadequate amounts of foods permitted by his religious diet, he contends he was inadequately nourished for the first four days of his detention, prior to December 11.

On the evening of December 9, prior to the appointment of counsel to assist him, plaintiff submitted a written request to the Osage County Sheriff asking for a long list of legal materials. He was provided all of the Kansas statutes he requested, and photocopies of Kansas regulations he requested. Defendants did not supply the other requested legal materials because they were unavailable to the Sheriffs Office in Osage County. Plaintiff was provided all requested legal materials that were readily available to the Osage County Sheriffs Office. However, he was not provided access to a law library. Plaintiff did not request his assigned counsel to provide him with any legal materials on or after his appointment on December 11.

During his detention, plaintiffs request for physical contact with his visitors was denied. Just before he was released, he submitted a request to examine the contents of his jail record. However, he was released before the defendants had an opportunity to comply with this request. After his release, the plaintiff was notified that he could look at the file.

Plaintiff was permitted to make telephone calls to individuals of his own choosing seeking legal counsel, although some of his phone calls were limited in duration and plaintiff later learned that at least some of his calls had been monitored. On one occasion, either defendant Dunn or defendant Nitcher monitored a telephone call plaintiff made to another member of his family for the purpose of seeking legal advice concerning searching and censoring inmate mail. On another occasion, defendant Fozdick intentionally monitored one of plaintiffs telephone calls seeking legal advice from George Gordon.

On the evening of December 11, plaintiff fell to the floor while he was stepping out of the shower in his cell. He hurt his back when he fell, and consequently experienced severe pain. Plaintiff asked to be taken to Newman Memorial Hospital in Emporia. He was transported there by ambulance. Defendant Fozdick drove his patrol car to the hospital and was present when the ambulance arrived. Plaintiff was x-rayed and examined by a physician, who determined that he had possibly sprained his back. Plaintiff refused a shot for his pain. The physician, Dr. Devinder Kumar, diagnosed no significant injury and saw no reason to admit plaintiff to the hospital. Dr. Kumar wrote plaintiff a prescription for pain relief and released him for return to the jail.

While defendant Fozdick was dressing plaintiff for the return trip, plaintiff cried out in pain and begged Fozdick to stop. After plaintiff was dressed, defendant Fozdick placed plaintiff in a seated position in a wheel chair. Dr. Kumar directed that plaintiff be transported back to the jail in a manner that would not cause him pain. Although plaintiff asked to be returned to jail in either a van or an ambulance in which he could lie fiat, defendant Fozdick required him to sit up on the seat of the patrol car.

Plaintiffs first appeared before a judge on Monday, December 9. No probable cause determination was made by the court at this proceeding. The court offered to release plaintiff on his own recognizance, but plaintiff refused to agree to post a cash bond for religious reasons. The court appointed legal counsel to assist plaintiff at his arraignment on Wednesday, December 11. After a number of communications between plaintiff and the court, a bond was eventually approved on the morning of December 12, 1991, resulting in plaintiffs immediate release from detention on his own recognizance.

Plaintiff was tried on January 21, 1992. Just before trial, the court granted plaintiffs motion to dismiss, as a matter of law, the two obstruction charges. The case proceeded to trial on the remaining counts. The state dismissed the count charging plaintiff with driving with a suspended driver’s license because the prosecutor lacked the necessary documentation from the state of Virginia. Plaintiff was convicted by the court of the speeding charge and the charge of driving without having his driver’s license in his possession. He was fined a total of $118 and ordered to pay court costs. His convictions were affirmed by the Kansas Court of Appeals, and the Kansas Supreme Court denied plaintiffs petition for review. See State v. Fillmore, Case No. 92-68086-A (Kan.Ct.App. March 19, 1993) [849 P.2d 150 (table) ] (unpublished opinion), rev. denied (May 7, 1993).

The parties have stipulated that defendant Ordonez was the duly elected sheriff of Osage County at all relevant times, and as such had the jurisdiction and duty to maintain the Osage County jail. In addition, the parties agree that the defendants at all relevant times were acting in their respective capacities as law enforcement officers under color of state law. Defendant Croucher was authorized to enforce the Traffic Code of the State of Kansas, as well as other laws. Defendant Dunn served as jail sergeant in charge of the jail, and defendants Manning, Nitcher, and Fozdick served as jailers.

Analysis

Plaintiff brings his claims against the defendants pursuant to 42 U.S.C. § 1983, which reads in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ... for redress.

The Tenth Circuit Court of Appeals recently had occasion to discuss the breadth of § 1983 in a wrongful death action brought against a sheriff and deputy sheriff:

A word is called for about the breadth of § 1983. The law creates no rights and is not a carte blanche statute authorizing recovery for negligence or other common law torts standing by themselves. Indeed, in order to recover in federal court through § 1983 a plaintiff must show: (1) a federal constitutional right was violated; and (2) the individual violating the constitutional right did so under color of law. The civil rights law is not a general tool to discipline local law enforcement officers.... We are interested in whether the Sheriffs Deputy abused his “official power” by his allegedly negligent conduct.

Quezada v. County of Bernalillo, 944 F.2d 710, 714 (10th Cir.1991) (citations omitted).

A pro se litigant’s pleadings are to be construed liberally. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991); Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988). Nevertheless, it is not the function of the district court to assume the role of advocate for the pro se litigant. Hall v. Bellmon, 935 F.2d at 1110.

I. Official-Capacity Claims Ayainst Defendant Ordonez

Plaintiff asserts two claims against Sheriff Ordonez solely in his official capacity: unlawful imprisonment in violation of the Fifth and Fourteenth Amendments, and denial of his right to counsel under the Sixth and Fourteenth Amendments.

A suit against a government officer in his official capacity is not a suit against the individual, but rather against the official’s office. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989); Kentucky v. Graham, 473 U.S. 159, 165-68, 105 S.Ct. 3099, 3104-3106, 87 L.Ed.2d 114 (1985) (distinguishing official-capacity suits from personal-capacity suits). Local officials may be sued in their official capacities under § 1983 if the action alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690 & n. 55, 98 S.Ct. 2018, 2035 & n. 55, 56 L.Ed.2d 611 (1978). A local government official may also be sued in his official capacity for a constitutional deprivation based upon a governmental “custom,” even if such custom has not been officially approved through the local government’s official decision-making channels. Id. at 690-91, 98 S.Ct. at 2035-36.

However, a local official sued in his official capacity cannot be held liable unless the constitutional deprivation occurs pursuant to official municipal policy; hence, a local official cannot be held liable under § 1983 solely on the theory of respondeat superior. Id. at 691, 98 S.Ct. at 2036; Kaiser v. Lief, 874 F.2d 732, 736 (10th Cir.1989). Municipalities and their supervisory personnel are not liable for civil rights violations caused by individual law enforcement officers unless the plaintiff demonstrates an affirmative causal link between the misconduct of the officer and the adoption of a plan or policy showing authorization or approval of such misconduct. See D.T. by M.T. v. Independent School District No. 16, 894 F.2d 1176, 1187 (10th Cir.) (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976)), cert. denied, 498 U.S. 879, 111 S.Ct. 213, 112 L.Ed.2d 172 (1990). It is the plaintiff’s obligation to prove the direct nexus between the alleged constitutional torts and the official authorization or approval thereof by adoption of a plan or policy. Id. at 1187.

Plaintiff has presented no evidence whatsoever to demonstrate that he was detained in jail or denied counsel as a result of any local policy, regulation, ordinance, custom, or plan to the extent that Sheriff Ordonez may be held liable under § 1983 in his official capacity. On his unlawful imprisonment claim, plaintiff simply alleges that defendant Ordonez held him in custody between the time of his arrest on December 7 and his release on December 12. Surely plaintiff does not claim that Sheriff Ordonez did so in accordance with a local custom or policy of unlawfully detaining arrestees. On his claim that his right to counsel was denied, he contends that at least three of his telephone calls seeking legal advice were monitored by some of the defendant deputy sheriffs. He does not contend that the claimed deprivation was caused by execution