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Rogers v. Brouk

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

August 4, 2017

COREY JEMELL ROGERS, Plaintiff,
v.
STEVEN BROUK, et al., Defendants.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR., UNITED STATES DISTRICT JUDGE

         This 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.

         I. Factual Background

         Plaintiff, 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.[1]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.

         II. Legal 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). 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. 2005).

         III. The Parties' Statements of Fact

         The 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).

         Plaintiff's 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.

         With 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.

         IV. Discussion

         A. Eighth Amendment - Excessive Force

         As 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.

         Discussed 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 ...


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