Free Trial Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01049-EWN-KLM MITCHELL THEOPHILUS GARRAWAY, Plaintiff, v. KENNETH LINCOLN, et al., Defendants. ______________________________________________________________________________ PLAINTIFF'S TRIAL BRIEF ______________________________________________________________________________ Plaintiff Mitchell Garraway, by his attorneys, Shughart Thomson & Kilroy, P.C., respectfully submits his Trial Brief as follows: I. Preliminary Statement and Factual Background This case is a prisoner civil rights action under Bivens1, in which Mr. Garraway alleges Eighth Amendment excessive force claims against Defendants Kenneth Lincoln, Lee Rittenmeyer, and Mark Robles.2 The incident occurred in the special housing unit ("SHU") of USP Florence High. The SHU is a dangerous and volatile unit of the prison where inmates are sent to be punished through administrative segregation. In the SHU, inmates and guards are frequently in fear of one another. Indeed, it was in this very SHU of USP Florence High that a
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(1971).
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Bivens v. Six Unknown Names Agents of Federal Bureau of Narcotics, 403 U.S. 388

Mr. Garraway initially asserted claims against numerous defendants, in addition to Defendants Lincoln, Rittenmeyer and Robles, for violations of his First, Fifth and Eighth Amendment rights. With the exception of the Eighth Amendment excessive force claims against Defendants Lincoln, Rittenmeyer and Robles, the Court dismissed these claims in its September 25, 2006 Order Concerning Magistrate Judge's Recommendation.

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former group of guards, who called themselves the "Cowboys," systematically beat and abused prisoners in the SHU, using techniques so as to avoid leaving visible injuries. A number of the "Cowboys" were indicted and three were convicted. Although the Cowboys may no longer exist as a conspiratorial organization, beatings and other forms of abuse by guards upon inmates, including Mr. Garraway, still occur. The responsibilities of the guards toward the inmates are set forth in BOP documents known as Program Statements. This lawsuit arises from an incident in which Defendant Rittenmeyer ordered that Mr. Garraway be brought, against his will (and, in fact, carried), from the C-Range shower to Defendant Rittenmeyer's office, ostensibly to discuss with Mr. Garraway his thoughts as to sharing his cell with another inmate.3 Instead of discussing Mr. Garraway's cell arrangement, Defendant Rittenmeyer, together with Defendants Lincoln and Robles, viciously assaulted Mr. Garraway. More specifically, on February 12, 2003, at approximately 9:00 a.m., Officer Watson, a USP Florence High guard, advised Mr. Garraway that he was going to conduct a search of Mr. Garraway's cell. Officer Watson instructed Mr. Garraway to submit to hand restraints, and Officer Watson proceeded to handcuff Mr. Garraway's hands behind his back. Officer Watson then placed Mr. Garraway's legs in leg irons, in compliance with Defendant Rittenmeyer's standing directive that Mr. Garraway be placed in leg irons whenever he was removed from his

Defendant Rittenmeyer, who is the senior officer in charge of the SHU, knew that Mr. Garraway did not want to share a cell for obvious reasons -- it was too dangerous. Indeed, Defendant Rittenmeyer had previously attempted to force Mr. Garraway to share a cell with an individual much larger than Mr. Garraway. When this extremely large individual entered Mr. Garraway's cell, he immediately became aggressive and began fighting with Mr. Garraway. 2

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cell. Officer Watson escorted Mr. Garraway to the C-Range shower, locked Mr. Garraway into the C-Range shower, and left. Shortly thereafter, Officer Watson returned and advised Mr. Garraway that Defendant Rittenmeyer wanted to speak with him in his office. Mr. Garraway, in response, advised Officer Watson that he did not wish to speak to Defendant Rittenmeyer in his office. Officer Watson then exited from the C-Range shower. Mr. Garraway did not want to speak with Defendant Rittenmeyer in his office because Mr. Garraway was afraid that he would be either beaten or humiliated. Defendant Rittenmeyer had previously abused Mr. Garraway by taking his personal items and legal materials away and by attempting to force him to share a cell with a white supremacist. Mr. Garraway had lodged complaints against Defendant Rittenmeyer, and Defendant Rittenmeyer, in response, had revoked Mr. Garraway's shower privileges for seven continuous days. Moreover, Mr. Garraway understood that Defendant Rittenmeyer had abused other inmates. Among other things, he forced inmates to strip naked to humiliate them. Thus, in Mr. Garraway's view, a face-to-face meeting alone with Defendant Rittenmeyer and his selected deputies in his office did not seem prudent. From the cell door of the C-Range shower, Mr. Garraway saw Officer Watson walk from the C-Range shower door approximately 20 feet towards Defendant Rittenmeyer's office and speak to Defendant Rittenmeyer in front of the door leading to the SHU. Mr. Garraway heard Officer Watson advise Defendant Rittenmeyer that Mr. Garraway did not want to speak with Defendant Rittenmeyer. Mr. Garraway then heard Defendant Rittenmeyer state to Officer

Watson "get his [Mr. Garraway's] ass in his [Defendant Rittenmeyer's] office now; we're about

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to have some fun." Mr. Garraway saw Defendant Rittenmeyer swing his arms, clench his fists, and stomp his feet. Shortly thereafter, Officer Watson, accompanied by Officer Santiago and Officer Spann (and with Defendant Robles down the hallway), returned to the C-Range shower to escort Mr. Garraway to Defendant Rittenmeyer's office. After Mr. Garraway sat down in the shower refusing to go to Defendant Rittenmeyer's office, Officers Watson, Santiago and Spann forcibly carried Mr. Garraway to Defendant Rittenmeyer's office. This involved carrying Mr. Garraway up some stairs to the office. Officer Robles followed. Mr. Garraway's hands were still

handcuffed behind his back and his legs were still restrained by leg irons. Upon arriving at Defendant Rittenmeyer's office, Officers Watson, Santiago and Spann placed Mr. Garraway in a chair across from Defendant Rittenmeyer's desk. Defendant

Rittenmeyer and Defendant Lincoln were sitting at their respective desks. After Mr. Garraway was placed in the chair, Defendant Rittenmeyer then verbally assaulted Mr. Garraway by stating "you are a fucking coward, Garraway. You stabbed a white man in the back." Upon hearing this accusatory and uncalled for remark, Mr. Garraway, whose hands were handcuffed behind his back and whose legs were restrained by leg irons, stood and slowly began to hobble toward Defendant Rittenmeyer's office door. Before Mr. Garraway could hobble in his leg irons even a few feet, Defendant Rittenmeyer ordered the guards to "take him down, take his black ass down hard." Mr. Robles pushed Mr. Garraway in his chest and neck and stood on his leg irons to trip him. Meanwhile, Defendant Lincoln viciously punched Mr. Garraway in the jaw three times. Defendant Rittenmeyer again instructed his guards to "take his ass down hard now." Mr. Garraway was then savagely forced down to the ground, his head pounding hard into

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Defendant Rittenmeyer's desk.

Defendant Rittenmeyer, in a grand finale to the assault,

vigorously yanked on Mr. Garraway's handcuffs and sadistically kicked Mr. Garraway in the head four times with his military-style combat boots. While Defendant Rittenmeyer kicked Mr. Garraway in the head four times, he admonished Mr. Garraway "you don't leave my presence until I tell you to leave. Is that clear?" Mr. Garraway was then placed in ambulatory restraints and taken to the C-Range shower. While confined in the C-Range shower, Ms. Collins, a physician's assistant, came by purportedly to conduct a medical assessment of Mr. Garraway. Mr. Garraway explained to Ms. Collins the incident and the nature of the injuries he incurred during the assault. Ms. Collins, however, in her medical assessment, failed to include required information in response to questions on the official form. Instead, and without any supporting information, Ms. Collins, who is neither a psychologist nor psychiatrist, wrote in her report that Mr. Garraway has a personality disorder. Her examination was cursory at best. Regrettably, there was no videotape of the assault because Defendant Rittenmeyer calculatingly removed Mr. Garraway from the C-Range corridor, which is monitored by surveillance cameras, to his office, which is not equipped with any surveillance cameras. Moreover, after the assault, and contrary to Bureau of Prisons ("BOP") policy (see BOP Policy Statement 5566.05), no pictures or video tapes were taken of Mr. Garraway. Also, after the assault, Mr. Garraway was forced to remain in ambulatory restraints for three days. The ambulatory restraints prevented Mr. Garraway from removing his pants to relieve himself. Consequently, Mr. Garraway was compelled to relieve himself in his clothing and to remain in such clothing soiled with urine and feces.

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Defendants' punches and kicks to Mr. Garraway's head, together with Defendants' causing Mr. Garraway's head to hit Defendant Rittenmeyer's desk, caused Mr. Garraway to suffer contusions and bruises. Additionally, the injuries inflicted by Defendants on Mr.

Garraway have caused Mr. Garraway to experience difficulties with bright lights. Although Defendant Rittenmeyer lodged an incident report against Mr. Garraway regarding the assault, accusing Mr. Garraway of assaulting one of his officers, Defendant Rittenmeyer failed (contrary to procedures) to provide the disciplinary hearing officer ("DHO") the statements allegedly supporting his skewed version of the events. Mr. Garraway's counselor, however, appointed to assist Mr. Garraway in connection with the incident report, obtained responses to Mr. Garraway's interrogatories submitted to Officer Santiago, and this document was provided to the DHO. In his answers to Mr. Garraway's interrogatories, Officer Santiago stated that Mr. Garraway's hands were handcuffed behind his back and that his legs were restrained by leg irons during the incident. Moreover, Officer Santiago stated that he did not observe Garraway lunge at Officer Spann or behave in an aggressive manner. The DHO

subsequently expunged the incident report. By expunging the incident report, the DHO found that Mr. Garraway did not commit any prohibited act. II. Legal Argument "[T]he unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Hudson v. McMillan, 503 U.S. 1, 5 (1992); Serna v. Colorado Department of Corrections, 455 F.3d 1146, 1152 (10th Cir. 2006) (citing Whitley v. Albers, 475 U.S. 312, 319 (1986)) ("After incarceration, the Eighth Amendment prohibits 'the unnecessary and wanton infliction of pain' on prisoners."). To determine whether a

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prison official's use of force was "unnecessary and wanton," the Court analyzes "whether [the] force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 6-7; Serna, 455 F.3d at 1152 (same). The Court considers "the need for [the use of] force, the relationship between the need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Hudson, 503 U.S. at 7. (Quotations omitted). Although the extent of the inmate's injuries is also relevant, an inmate need not show a "significant injury" or a certain level or type of injury to state a claim. Id. at 7, 9; see United States v. LaValle, 439 F.3d 670, 688 (10th Cir. 2006); DeSpain v. Uphoff, 264 F.3d 965, 978 (10th Cir. 2001) (Because the pain inflicted on plaintiff was both "unnecessary and wanton," plaintiff need not show "significant and lasting injuries."). The Tenth Circuit has articulated two "prongs" that a plaintiff must show to prevail on such a claim: (1) that "the alleged wrongdoing was objectively harmful enough to establish a constitutional violation," and (2) "that the officials acted with a sufficient culpable state of mind." Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003). The Court can infer malicious, sadistic intent from the conduct itself where "there can be no legitimate purpose" for the officers' conduct. Id. at 1213. The objective component of an excessive force claim is "contextual and responsive to contemporary standards of decency." Id. at 1212 (citing Hudson, 530 U.S. at 8). "The subjective element of an excessive force claim 'turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'" Id. (citing Giron, 191 F.3d at 1289 (quoting Whitley, 475 U.S. at 32021).

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In an excessive force claim "where prison officials were using force to keep order," the Court must balance "the need 'to maintain or restore discipline' through force against the risk of injury to inmates." Giron v. Corrections Corp. of America, 191 F.3d 1281, 1289 (10th Cir. 1999). The policy strikes an appropriate balance between the need to resolve dangerous

situations with minimal force and the need to ensure prisoner safety. Serna, 455 F.3d at 1153. The use of the amount of force must be considered in the context of the event. Glover v. Ortiz, 2006 WL 686479 (D.Colo.) (citing Hudson v. McMillan, 503 U.S. 1 (1992). Here, Defendants brought Mr. Garraway to Defendant Rittenmeyer's office, away from any video surveillance, so that they could brutally assault him. Defendants' assault upon Mr. Garraway was not in a good faith effort to maintain or restore discipline, but instead to maliciously and sadistically cause harm. At the time of the assault, Mr. Garraway's hands were handcuffed behind his back and, importantly, his legs were restrained by leg irons. Contrary to Defendants' assertions, Mr. Garraway, while restrained by leg irons, could not have lunged at, or charged, Mr. Watson or any other officer in Defendant Rittenmeyer's office. At best, Mr. Garraway could only hobble his way toward Defendant Rittenmeyer's office door after Defendant Rittenmeyer verbally assaulted Mr. Garraway by stating "you are a fucking coward, Garraway. You stabbed a white man in the back." Thus, in these circumstances, Mr. Garraway posed no realistic threat to Defendants or any other officers. There simply was no reason, other than to maliciously and sadistically inflict harm, to viciously punch Mr. Garraway in the jaw three times; to savagely force Mr. Garraway down to the ground, causing his head to pound hard into Defendant Rittenmeyer's desk; and to vigorously yank on Mr. Garraway's handcuffs after he was knocked to the ground and then

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sadistically kick Mr. Garraway in the head four times. Put simply, it was wholly unnecessary for Defendants to use this degree of force to restrain Mr. Garraway, who posed no threat to Defendants, as he already was restrained by handcuffs and leg irons. The Court can infer malicious sadistic intent from such conduct itself -- conduct which served no legitimate purpose. Indeed, these violent acts are consistent with Defendant Rittenmeyer's prophetic statement to Officer Watson, made just prior to the assault, to "get his [Mr. Garraway's] ass in my [Defendant Rittenmeyer's] office now; we're about to have some fun." Sadly, Defendant Rittenmeyer's sadistic idea of fun runs directly afoul of the Eighth Amendment's prohibition of cruel and unusual punishment. Further evidencing that Defendants assaulted Mr. Garraway to maliciously and sadistically inflict harm is Defendant Rittenmeyer's directive requiring Mr. Garraway to remain in ambulatory restraints for three days, thus compelling Mr. Garraway to suffer further humiliation by urinating and defecating in his prison clothes and being forced to remain in these clothes for days. Mr. Garraway's claims addressed specifically to these events have been

dismissed upon the Magistrate Judge's recommendations. Moreover, consistent with Defendants' unnecessary and wanton use of force, and contrary to BOP policy, Defendants predictably failed to photograph or videotape Mr. Garraway after the assault. Also evidencing that the assault was done maliciously and sadistically to inflict harm upon Mr. Garraway is the fact that although Defendant Rittenmeyer lodged an incident report against Mr. Garraway contending that Mr. Garraway assaulted one of his officers, he never

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followed up on this report. Indeed, the incident report was expunged, the DHO finding that Mr. Garraway did not commit any prohibited act. Finally, the fact that Ms. Collins purportedly found no injuries after performing, at best, a cursory assessment is not dispositive. Her examination was superficial, and she failed to

properly prepare the required report. Defendants' assault here was clearly repugnant to the Constitution. In any event, aside from the contusions and bruises resulting from Defendants' assault, Mr. Garraway has had problems with bright lights as a result of the assault. Accordingly, Defendants' assault upon Mr. Garraway was objectively harmful enough to establish a constitutional violation. Moreover, the evidence shows that Defendants acted with a sufficient culpable state of mind. By assaulting Mr. Garraway in the manner described above, Defendants clearly engaged in excessive force forbidden by the Eighth Amendment. Dated: September 14, 2007. SHUGHART THOMSON & KILROY, P.C. /s/ John D. Phillips John D. Phillips Michael D. Murphy 1050 17th Street, Suite 2300 Denver, CO 80265 (303) 572-9300 Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I certify that on September 14, 2007, a true and correct copy of the foregoing PLAINTIFF'S TRIAL BRIEF was filed and served via ECF, addressed as follows: Mark S. Pestal, Esq. Amy L. Padden, Esq. Office of the United States Attorney 1225 Seventeenth Street, #700 Denver, CO 80202 [email protected] [email protected] /s/ Mary Watters

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