United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
CRITES-LEONI UNITED STATES MAGISTRATE JUDGE
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.
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
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.
did not respond to Defendant's Motion for Summary
Judgment, and the time for doing so has
Summary Judgment Standard
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).
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).
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.
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.
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.
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