The opinion of the court was delivered by: Harold A. Baker United States District Judge
This cause is before the court for consideration of the defendants' supplemental motion for summary judgment. [d/e 182].
The pro se plaintiff originally filed his lawsuit pursuant to 42 U.S.C. §1983 against 60 defendants. On November 30, 2006, the court granted in part and denied in part the pending motions for summary judgment. See November 30, 3006 Court Order. The court instructed the surviving defendants to file a supplemental motion for summary judgment addressing the surviving claims. The defendants have complied and the plaintiff has filed a response.
The ten surviving defendants including Joel Starkey, Rusty Allen, Ryan Forsyth, Eric Linn, Adam Croft, Dennis Dahlbach, Craig Cramer, John Hageman, Josh Shettleworth, Francis Melvin and Patrick Hobart. The plaintiff's four surviving claims against these individuals include:
1) Defendants Starkey and Allen were deliberately indifferent to the plaintiff's serious medical condition on May 1, 2001 when the plaintiff suffered an insulin reaction.
2) Defendant Starkey wrote a false disciplinary report in retaliation for plaintiff's legal activities in June of 2001. The ticket was later expunged.
3) Defendants Forsyth, Linn, Croft, Dahlbach, Cramer, Hageman, Shettleworth and Melvin were all involved in "conspiracy and retaliatory conduct" from April 2001 to October of 2001 in response to the plaintiff's grievances and lawsuits.
4) Defendant Hobart used excessive force on December 24, 2001 when the plaintiff complained about a body cavity search.
The claims are against the defendants in their individual capacities only.
The court notes that this case is now more than three years old in large part due to the continuing struggle to identify the plaintiff's intended claims and defendants. In response to the supplemental motion for summary judgment, the plaintiff once again states that the court has not correctly identified his claims. The record of this case demonstrates that the court has been patient and lenient in providing repeated opportunities for the plaintiff to clearly articulate his claims. See March 9, 2004 Text Order; March 16, 2005 Court Order; June 3, 2005 Court Order; June 13, 2005 Court Order; February 9, 2006 Court Order, and November 30, 3006 Court Order. The only claims before this court are the four identified above.
The plaintiff did not respond to the statement of facts provided with either motion for summary judgment. The following facts are taken from the original motion for summary judgment as well as the supplemental motion and the attached documentation.
Defendant Joel Starkey wrote a inmate disciplinary report against the plaintiff on June 6, 2001 for sexual misconduct and insolence. Starkey states that he and Officer Adam Croft observed the plaintiff throw a piece of paper out onto the cell gallery. When the officers retrieved the paper, they found the contents to be sexual in nature. Therefore, Starkey wrote the disciplinary ticket.
When the Adjustment Committee heard the ticket, both Officer Starkey and Croft stated that they saw the plaintiff throw the paper, but they did not see him write the note. The committee further stated it was unable to "ascertain if Inmate Newsome is the author of the note by comparing the letter to a sample of Inmate Newsome's handwriting from his master file." (Def. Memo, Ex. B-4) The ticket was therefore dismissed.
Defendants Dahlbach, Cramer and Shettleworth took no disciplinary action against the plaintiff from April to October or 2001. Defendants Forsyth, Linn, Croft, Hageman and Melvin did write disciplinary reports against the plaintiff during this time period. The plaintiff was found guilty of at least one of the offenses charged in each ticket and none of the tickets were expunged. The defendants have provide copies of the disciplinary reports and resulting Adjustment Committee hearings.
The plaintiff in his deposition says on May 1, 2001, Defendant Starkey came to his cell to escort him to receive his insulin treatment. (Def. Memo #1, Plain. Depo, p. 156) The plaintiff says he feared that Starkey might hurt him and refused to come out of his cell. The medical notes also indicate that the plaintiff was refusing to come out of his cell but state that no reason was given. (Def. Memo #1, Plain. Depo, p. 156)). The plaintiff says about an hour and half later he felt he was having an insulin reaction. (Def. Memo #1, Plain Depo. p. 157) The plaintiff says he alerted correctional staff and received treatment within 10 or 15 ...