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McDowell v. Creg

United States District Court, E.D. Missouri, Southeastern Division

October 17, 2016

OTIS MCDOWELL, Plaintiff,
v.
HEATHER CREG, [1] Defendant.

          MEMORANDUM AND ORDER

          ABBIE CRITES-LEONI UNITED STATES MAGISTRATE JUDGE

         Plaintiff, an inmate at the Southeast Correctional Center (“SECC”), brought this action pro se under 42 U.S.C. § 1983 against Heather Creg, a Correctional Officer at SECC, in her individual capacity, alleging violations of his constitutional rights. This matter is before the Court on Defendant's Motion for Summary Judgment. (Doc. 31.) For the following reasons, the Court will grant Defendant's Motion for Summary Judgment.

         I. Background

         In his Complaint, McDowell alleges that Defendant Creg violated his Eighth Amendment rights by failing to protect him from an attack by another inmate. McDowell contends that, on April 2, 2014, Creg was the “Bubble Officer” in Housing Unit 5, and controlled all the doors and cell doors. (Doc. 1 at p. 8-9.) McDowell alleges that Creg allowed another offender out of his cell when he should not have been out of his cell. Id. at 9. He claims that the offender then came into McDowell's cell and cut him across the chest with a razor, and hit him in the eye with a wooden brush. Id. McDowell alleges that he sustained injuries to his right eye and his chest, and has received mental health counseling in response to the incident. Id. at 10-11. He seeks monetary relief against Creg. Id. at 12.

         In her Motion for Summary Judgment, Defendant argues that she is entitled to judgment as a matter of law because McDowell failed to properly exhaust his administrative remedies. Defendant further argues that McDowell has not established that she violated his Eighth Amendment rights, and that Defendant is entitled to qualified immunity.

         McDowell did not respond to Defendant's Motion for Summary Judgment, and the time for doing so has expired.[2]

         II. Summary Judgment Standard

         Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op. Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A genuine issue of material fact is not the “mere existence of some alleged factual dispute between the parties.” State Auto. Ins. Co. v. Lawrence, 358 F.3d 982, 985 (8th Cir. 2004). “Instead, the dispute must be outcome determinative under prevailing law.” Mosley v. City of Northwoods, 415 F.3d 908, 910-11 (8th Cir. 2005) (internal quotations omitted). A fact is material when it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         McDowell did not respond to Defendant's Statement of Material Facts (Doc. 32-1), as required under Federal Rule of Civil Procedure (“FRCP”) 56 and Local Rule 4.01(E). McDowell's status as a pro se prisoner does not excuse him from responding to Defendant's Motion “with specific factual support for his claims to avoid summary judgment, ” or from complying with local rules. Beck v. Skon, 253 F.3d 330, 333 (8th Cir. 2001). With his failure to respond, McDowell is deemed to have admitted all of the facts in Defendant's statement of uncontroverted facts. Turner v. Shinseki, No. 4:08-CV-1910 CAS, 2010 WL 2555114, at *2 (E.D. Mo. Jun. 22, 2010) (citing Deichmann v. Boeing Co., 36 F.Supp.2d 1166, 1168 (E.D. Mo. 1999), aff'd 232 F.3d 907 (8th Cir. 2000), cert. denied, 531 U.S. 877).

         Summary judgment is not granted for Defendant as a result of McDowell's failure to properly respond to Defendant's statement of material facts. Instead, the Court deems the facts set forth by Defendants as true. Reasonover v. St. Louis Cty., Mo., 447 F.3d 569, 579 (8th Cir. 2006). Defendant must still establish that she is entitled to judgment as a matter of law. See id.

         III. Facts[3]

         On April 2, 2014, McDowell, whose cell door was not locked, got into a physical altercation with another inmate at SECC, whose cell door was also unlocked. McDowell was not able to see the bubble from his cell to determine who, if anyone, opened either of the cell doors. McDowell did not speak to Defendant Creg on the date of the incident prior to its occurrence. McDowell did not have any knowledge of a dispute with the inmate that attacked him, and did not inform Defendant of any threats from the inmate that attacked him. Defendant did not learn of the altercation until the following day, April 3, 2014.

         The Missouri Department of Corrections (“MDOC”) has an administrative grievance procedure for inmates to internally grieve complaints against the department and its staff. If an inmate has what he believes to be a grievable issue, he must file an Informal Resolution Request (“IRR”) within fifteen calendar days from the date of the alleged incident.

         On May 29, 2014, McDowell submitted “SECC 14-964, ” an IRR, in which he alleged that Defendant failed to protect him from the incident that occurred on April 2, 2014. The IRR filed by McDowell was more than fifteen calendar days after the ...


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