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Burns v. Morgan

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

April 24, 2017

MICHAEL BURNS, Plaintiff,
v.
JERRY MORGAN, et al., Defendants.

          MEMORANDUM AND ORDER

         Plaintiff 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.

         I. Factual Background

         Plaintiff 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 Christopher Kennedy.

         Plaintiff 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.

         Defendants 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 computer system.

         As 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.

         A 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.”

         The 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 23:23:16.

         Plaintiff filed this lawsuit claiming defendants used excessive force against him and failed to obtain medical care for his ...


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