Murray v. Edwards County Sheriff's Department

248 F. App'x 993
Court of Appeals for the Tenth Circuit·Decided October 1, 2007·No. No. 06-3376·Published·Cited by 10 cases

Opinion

ORDER AND JUDGMENT*

TIMOTHY M. TYMKOVICH, Circuit Judge.

Ronald Murray appeals pro se from the district court’s grant of summary judgment in favor of defendants on all of his claims under 42 U.S.C. § 1983. His claims relate to his confinement in the Edwards County Jail (“Jail”) as a pretrial detainee for a period of approximately 11 months beginning in July 2003. He sought damages for numerous alleged violations of his constitutional rights, including the following: (1) the Jail was poorly ventilated, not adequately cooled or heated, unsanitary, and insect-infested; (2) lights outside of the cells remained illuminated 24 hours a day; (3) he was not provided with appropriate clothing and a means to wash his clothing; (4) he was denied all out-of-cell exercise or recreation; (5) he was not provided adequate medical, dental or psychological care; (6) he was denied visitation with friends; (7) his non-legal mail was screened or blocked; (8) he was not allowed physical access to the law library; (9) the phone system at the Jail was inadequate; and (10) he was prohibited from freely practicing his chosen religion.

[995] Mr. Murray and defendants filed cross-motions for summary judgment. The district court granted summary judgment in favor of defendants and Mr. Murray filed a timely appeal. For the reasons set forth below, we AFFIRM.

I. Standard of Review

“We review a district court’s grant of summary judgment de novo, viewing all the evidence in the light most favorable to the nonmoving party.” Barney v. Pulsipher, 148 F.3d 1299, 1306 (10th Cir.1998). Summary judgment is appropriate “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.” Fed. R.Civ.P. 56(c).

The moving party does not have to negate the nonmovant’s claims in order to obtain summary judgment. The movant only bears the initial burden of showing — that is pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case. If the movant carries this initial burden, the non-movant may not rest upon its pleadings, but must set forth specific facts showing a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.

Barney, 143 F.3d at 1307 (quotations, citations and alterations omitted).

II. Physical Injury Requirement

The district court’s first basis for granting summary judgment to defendants is that Mr. Murray failed to make any claim of injury other than assertions of mental and emotional distress. Therefore, the court concluded, his § 1983 claims were barred by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), which provides: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” Mr. Murray does not dispute that he seeks to recover damages for emotional or mental injury as a result of the alleged constitutional violations. But he argues that § 1997e(e) is ambiguous and should not be interpreted to require a physical injury if the claim alleges a constitutional violation which rarely results in physical injury, such as his claims under the First, Sixth, and Fourteenth Amendments. As Mr. Murray acknowledges, however, this court has already held that “[t]he plain language of the statute does not permit alteration of its clear damages restrictions on the basis of the underlying rights being asserted.” Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001). In Searles we rejected the contention that § 1997e(e) should not be construed to require the showing of a physical injury in a claim for violation of the First Amendment right to free exercise of religion. We concluded that “[t]he statute limits the remedies available, regardless of the rights asserted, if the only injuries are mental or emotional.” Id.

Mr. Murray argues in the alternative that he did allege physical injuries. When asked at his deposition to specify every physical injury he had sustained while at the Jail, he testified as follows:

Defendants’ Counsel: Any sort of physical impairment, muscle atrophy, bone deterioration, anything like that?
Mr. Murray: Not that I know of. You know, I’m not a medical expert or anything.
[996] Defendants’ Counsel: Well, but did you notice any conditions — change of conditions in your physical condition during Edwards County?
Mr. Murray: Well, I lost weight.
Defendants’ Counsel: Aside from losing weight?
Mr. Murray: That’s — several times I guess I had problems sleeping sometimes. Headaches every now and then. Those might just be typical ailments.

R., Vol. II, Doc. 191, Exhibit 2 at 67-8. The district court concluded that his only claim of physical injury was his alleged weight loss as a result of his inability to exercise outside of his cell. The court held, however, that the uncontroverted evidence showed that he weighed the same amount when he entered and left the Jail.1

Mr. Murray contends on appeal that he suffered other physical injuries including “headaches, muscle soreness and pains.” Aplt. Br. at 18. Nowhere in the exchange quoted above, nor anywhere else in his deposition, did he mention muscle soreness resulting from the conditions of his confinement in the Jail. Yet he subsequently filed a contradictory affidavit supporting his summary judgment motion, in which he complained of periodic sore and aching muscles. He did not explain in his affidavit why he failed to testify about sore muscles at his deposition. Nor did he attempt to clarify his prior testimony or claim that his affidavit was based on newly-discovered evidence. Therefore, we hold that Mr. Murray’s affidavit fails to create a material disputed fact regarding whether he suffered muscle soreness as a result of the conditions of his detainment in the Jail. See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986) (“[T]he utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony.”).2

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Murray v. Edwards County Sheriff's Department, 248 F. App'x 993 (10th Cir. 2007).

248 F. App'x 993 (Murray v. Edwards County Sheriff's Department) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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