United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
D. NOCE, UNITED STATES MAGISTRATE JUDGE.
the Court is the motion of defendant John Sharpe for summary
judgment. Plaintiff Rodney Cunningham has not filed a
response and the time for doing so has expired. The parties
have consented to the exercise of plenary authority by a
Magistrate Judge under 28 U.S.C. § 636(c). For the
reasons discussed below, the Court grants the motion.
a Missouri state prisoner, seeks relief under 42 U.S.C.
§ 1983 for his claim that defendant failed to protect
him from an attack by a fellow inmate, while defendant was a
Missouri correctional officer at a facility in Bonne Terre,
Mo. The Court has subject matter jurisdiction pursuant to 28
U.S.C. § 1343.
judgment is appropriate “[i]f there is no dispute of
material fact and reasonable fact finders could not find in
favor of the nonmoving party.” Shrable v. Eaton
Corp., 695 F.3d 768, 770-71 (8th Cir. 2012); see
also Fed. R. Civ. P. 56(a). The party moving for summary
judgment must demonstrate the absence of a genuine issue of
material fact and that it is entitled to judgment as a matter
of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The burden shifts to the non-moving party to
demonstrate that disputes of fact exist only after the movant
has made its showing. Id. It is the nonmoving
party's burden to proffer specific factual support by
affidavit or other evidence to avoid summary judgment.
Perry v. Martin, 2013 WL 6331474, at *1 (E.D. Mo.
Dec. 5, 2013). Also, pursuant to E. D. Mo. Local Rule
4.01(E), the movant's statement of uncontroverted
material facts is deemed admitted unless specifically
controverted by the opposing party. Plaintiff's pro se
status does not excuse him from any of these rules.
Willis v. Morgan, 2016 WL 3458158, at *1 (E.D. Mo.
June 24, 2016) (citing Beck v. Skon, 253 F.3d 330,
333 (8th Cir. 2001)).
the Eighth Circuit has decided not to treat a party's
lack of response to a motion for summary judgment “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)). Rather, when ruling on an
unopposed motion for summary judgment, district courts should
“review the facts in a light most favorable to the
party who would be opposing the motion.” Id.
The Court should also give the nonmoving party the benefit of
any reasonable inferences from those facts. Perry,
2013 WL 6331474, at *2 (citing Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)); Woods v. DaimlerChrysler Corp., 409 F.3d
984, 990 (8th Cir.2005)).
under Federal Rule of Civil Procedure 56(e)(3), the Court may
grant summary judgment only “if the motion and
supporting material- including the facts undisputed-show that
the movant is entitled to it.” See O'Mara v.
Scales Plumbing Co., LLC, 2018 WL 6248752, at *2 (E.D.
Mo. Nov. 29, 2018). Therefore, even though defendant's
statement of material facts is unopposed and thereby deemed
admitted, the Court must examine the entire record to grant
summary judgment. Id.
record before the Court the following facts are not disputed.
At all relevant times plaintiff Rodney Cunningham was
incarcerated at the Eastern Reception and Diagnostic
Correctional Center (“ERDCC”), a reception
facility of the Missouri Department of Corrections in Bonne
Terre, Mo. (Doc. 29, ¶ 2).
incident alleged in the complaint occurred on February 13,
2017. On that day, defendant John Sharpe was a correctional
officer at ERDCC and worked in the control center of Housing
Unit 6 (“HU 6”). (Id. at ¶ ¶
3, 6, 7). At approximately 6:30 p.m., defendant announced
over the intercom that those inmates attending programs
should hit their duress buttons, as it was time for the
programs release. (Id. at ¶ 9.). In the
meantime, inmate Ida Harris asked defendant if he could go
outside for a smoke, and defendant allowed it. (Id.
at ¶ 10). Harris was assigned as a dorm worker
in HU 6, in the C and D wings, and thus he had the freedom to
move from wing to wing to clean. (Id. at
¶ 8). At the same time, defendant mistakenly
opened plaintiffs door for programs. (Id. at ¶
11). Plaintiff approached the control center to ask defendant
what he needed, and then went outside to where inmate Harris
was. (Id. at ¶ 12). There were no officers in
the yard with plaintiff and Harris. (Id. at ¶
13). Defendant went back to the programs release, but when he
looked outside and noticed that plaintiff and Harris were
engaging in a physical altercation, he immediately called an
emergency code and ended the altercation with two other
officers. (Id. at ¶¶ 14-15).
issued conduct violations to both plaintiff and Harris due to
the altercation. (Id. at ¶ 16). At his
interview on the conduct violation, plaintiff stated,
“I was called out in front of Housing Unit 6 and was
forced to defend myself.” (Id. at ¶ 17).
At the disciplinary hearing on February 16, 2017, plaintiff
testified that he was called outside, attacked, but was not
on any call out. (Id. at ¶¶ 18, 19).
Plaintiff was found guilty at the hearing, in which evidence
of plaintiff s involvement in a physical altercation was
presented, but plaintiff did not request any witnesses.
(Id. at ¶ ¶ 18, 20).
made an Informal Resolution Request (“IRR”)
around February 21, 2017, claiming that defendant risked
plaintiffs safety by directing him to go outside where inmate
Harris was to attack him. (Id. at ¶ 22). After
the denial of his IRR, he filed both a grievance and a
grievance appeal, both of which were denied. (Id. at
¶ ¶ 23-27).
Failure to Protect Claim
alleges that defendant instigated “and aided the
assault upon my person by inmate Ira Harris.”
(Doc. 1 at 5). According to plaintiff, Harris had a
plan to attack him and defendant participated in this plan by
unlocking plaintiffs cell door when plaintiff was not on any
religious call out and ordering him to meet Harris in the
dark, “who was waiting in ambush for
[plaintiff].” (Id.) In doing this, plaintiff
argues defendant exhibited ...