United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR., UNITED STATES DISTRICT JUDGE
case comes before the court on defendants' motion for
summary judgment (#55). The motion has been fully briefed and
is ripe for disposition. For the following reasons, the Court
will grant the defendants' motion for summary judgment.
proceeding pro se, brought this civil rights action
under 42 U.S.C. § 1983 against the defendants for
alleged violations of his Eighth Amendment
rights.Specifically, plaintiff contends that the
defendants used excessive force against him, that a defendant
touched him in a manner that constituted sexual assault, and
that the defendants were deliberately indifferent to his
medical needs following the use of excessive force. At all
relevant times of this lawsuit, plaintiff was an inmate at
Potosi Correctional Center (“PCC”) in the
Missouri Department of Corrections (“MDOC”). The
remaining defendants are correctional officers employed by
the MDOC at PCC.
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). Instead, the nonmoving party bears the burden of
setting forth affirmative evidence and specific facts by
affidavit and other evidence showing that there is a genuine
dispute of a material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986); Celotex, 477
U.S. at 324. In ruling on a motion for summary judgment, the
court must review the facts in a light most favorable to the
party opposing the motion and give that party the benefit of
any inferences that logically can be drawn from those facts.
Matsushita, 475 U.S. at 587; Woods v.
DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.
The Parties' Statements of Fact
Court notes that the plaintiff has not appropriately
responded to the defendants' statement of uncontroverted
material facts as required by Local Rule 7-4.01(E). That rule
requires that “Every memorandum in opposition [to a
motion for summary judgment] shall include a statement of
material facts as to which the party contends a genuine issue
exists. Those matters in dispute shall be set forth with
specific references to portions of the record, where
available, upon which the opposing party relies.”
Further, the rule states that unless specifically
controverted by the opposing party, all matters set forth in
the movant's statement of facts shall be deemed admitted
for purposes of summary judgment. Here, in plaintiff's
response to the defendants' motion for summary judgment,
plaintiff almost exclusively cites his unverified complaint
as evidentiary support for his statement of uncontroverted
material facts. An unverified complaint cannot be considered
as such evidence. Tweeton v. Frandrup, 287 Fed.Appx.
541 (8th Cir. 2008).
pro se status does not excuse him from responding to
defendant's motion with specific factual support for his
claims to avoid summary judgment, Beck v. Skon, 253
F.3d 330, 333 (8th Cir. 2001), or from complying with local
rules, see Schooley v. Kennedy, 712 F.2d 372, 373
(8th Cir. 1983). However, “[t]he Eighth Circuit has
determined that when a plaintiff fails to respond adequately
to a motion for summary judgment, a district court should not
treat such a non-response as sufficient to dispose of the
motion.” Lowry v. Powerscreen USB, Inc., 72
F.Supp.2d 1061, 1064 (E.D. Mo. 1999) (citing Canada v.
Union Electric Co., 135 F.3d 1211, 1213 (8th Cir. 1997).
“Courts should proceed to examine those portions of the
record properly before them and decide for themselves whether
the motion is well taken.” Id.
this in mind, the Court has reviewed the statements, the
responses, and the supporting documentation for any genuine
disputed facts. Although there are a multitude of disputed
facts, the material facts necessary to make the determination
on the claims alleged are undisputed and/or are deemed
admitted because they are not specifically controverted.
Facts for each claim will be discussed below. All facts are
undisputed unless otherwise noted.
Eighth Amendment - Excessive Force
noted, plaintiff was an inmate at PCC while the remaining
defendants - Steven Brouk, James-Riley Layton, and Donald
Hale - were correctional officers at PCC. On January 20,
2016, defendant Brouk, while on a security check, approached
plaintiff's cell after noticing that plaintiff had
covered the light and the windows within his cell - a
violation of institutional rules. Brouk directed plaintiff to
uncover the light and windows. Plaintiff refused and
indicated that Brouk should get away from his cell. Brouk
left the area of plaintiff's cell but returned
approximately twenty minutes later with defendant Layton to
conduct a search of plaintiff's cell. Brouk and Layton
directed, and plaintiff complied, to be cuffed up and removed
from his cell because they were going to search his cell for
contraband. Brouk and Layton escorted plaintiff down a
staircase and restrained plaintiff to a bench in a different
area of the institution during the search. Several articles
of contraband were revealed during this search.
further below, plaintiff alleges that while Brouk and Layton
escorted plaintiff down the stairs, Brouk grabbed
plaintiff's buttocks after making a remark about the size
of it. Both Brouk and Layton dispute this allegation. After
the search, Brouk and Layton escorted plaintiff back to his
cell, where they told plaintiff he would be subjected to a
strip search. Plaintiff resisted the search, indicated that
Brouk should not touch him, and demanded that a sergeant be
requested. Plaintiffs' requests were honored and
defendant Hale soon arrived at plaintiff's cell. When
Hale arrived, Layton indicated that ...