United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
Michael Burns is a prisoner in the Missouri Department of
Corrections. He filed this 42 U.S.C. § 1983 claim,
pro se, against defendants Jerry Morgan and
Christopher Kennedy alleging violations of his Eighth
Amendment rights in connection with an altercation that took
place in and around his cell on July 29, 2012. Defendants
have moved for summary judgment (#40). The matter is fully
briefed and is ripe for disposition.
was incarcerated at the Eastern Reception Diagnostic and
Correctional Center at all times relevant to this case. On
July 29, 2012 at approximately 11:15 p.m., defendant
Corrections Officer Jerry Morgan instructed plaintiff to hand
over his food tray, cup, and spork. Defendant says plaintiff
refused to do so. Plaintiff says he went to retrieve the tray
but that defendant Morgan “tried to spray”
through the food port hole in the door but changed his mind,
closed the food port, and walked off. Defendant Morgan left
the cell and went to retrieve defendant Corrections Officer
states that, when defendants Morgan and Kennedy returned,
they entered his cell and struck him several times in the
face until plaintiff pushed his way out of the cell. It was
then plaintiff says that defendants slammed plaintiff onto
the floor. Plaintiff says that he suffered a broken nose,
swollen and black eye, and bruises and abrasions to his face,
head, and arms. Plaintiff states that he did not disobey any
orders and that he did not receive a conduct violation for
failing to follow orders. Rather, plaintiff claims defendants
used excessive force against him and then failed to get him
medical care for his injuries.
state that, when they returned to plaintiff's cell, they
gave plaintiff several directives to return the food service
items or to turn around and submit to wrist restraints.
Rather, defendants says that plaintiff covered the food port
with the tray. So defendant Kennedy motioned for the officer
in the control center to open the door to plaintiff's
cell. As defendants began to enter the cell, they say
plaintiff came at them aggressively, so defendants placed
plaintiff onto the floor and applied wrist restraints. Then
they secured plaintiff to a nearby restraint bench and
retrieved the food service items from plaintiff's cell. A
“spit mask” was placed over plaintiff's head
to prevent him from spitting on passers-by. After about 20
minutes, plaintiff was removed from the restraint bench and
escorted to his cell. The incident was reported to the Shift
Supervisor. Defendants also presented evidence that plaintiff
received a conduct violation for disobeying the order to
return his food service items at 11:15 p.m. on July 29, 2012.
Plaintiff objects that the conduct violation supplied by
defendants is not signed and it was not entered into the
reported in plaintiffs medical records, plaintiff was seen by
a nurse at 11:45 p.m. and was re-examined at 4:00 a.m..
Although plaintiff now says he suffered from the injuries
listed above, at the time, plaintiff initially complained he
was injured on the side of his face, but then later he stated
he was fine. Medical staff did not note any visible injuries.
Plaintiff says they were unable to see his face because of
the spit mask; however, plaintiff was able to remove the spit
mask after he was returned to his cell.
corrections supervisor conducted a use of force
investigation. He collected use of force reports from
defendants and other witnesses and obtained video footage of
the event. The Review Committee determined the officers had
failed to comply with “Post Orders” regarding
removal of an offender from a call, and they were counseled
on correct actions. But the Committee also found there were
“no exceptional circumstances and that only the amount
of force necessary was utilized.”
defendants supplied a copy of the video footage to the Court.
The video is low resolution, but it clearly shows
• A corrections officer is standing at the cell door at
23:18:13; the officer walks away at 23:18:35.
• Two corrections officers return to the cell door at
23:20:39. They move around and appear to communicate with
plaintiff behind the cell door.
• The two officers are still at the door when the door
opens at 23:22:25. At 23:22:27, the officers are moving
through the door when one of them appears to step back. It
appears that neither officer ever fully enters the cell. At
23:22:29, the two officers and plaintiff emerge through the
cell door and plaintiff is put on the ground.
• The officers then restrain plaintiff while he is lying
face-down on the ground, and they pull him to a standing
position at 23:23:03.
• Plaintiff is placed on the restraint bench at
filed this lawsuit claiming defendants used excessive force
against him and failed to obtain medical care for his