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Cunningham v. Sharpe

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

April 22, 2019

RODNEY CUNNINGHAM, Plaintiff,
v.
JOHN SHARPE, Defendant.

          MEMORANDUM AND ORDER

          DAVID D. NOCE, UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         Plaintiff, 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.

         Legal Standard

         Summary 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)).

         However, 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)).

         Finally, 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.

         A. Undisputed Facts

         In the 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).

         The 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).

         Defendant 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).

         Plaintiff 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).

         B. Failure to Protect Claim

         Plaintiff 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 ...


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