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Taylor v. Null

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

September 25, 2019

DAVID NULL, et al., Defendants.



         This matter comes before the Court on the motion for summary judgment filed by Defendants Bruce Milburn (“Milburn”) and David Null (“Null”), (collectively, “Defendants”). (Doc. 63). Also before the Court is Plaintiff Samuel L. Taylor’s (“Taylor” or “Plaintiff”) motion for adverse inference. (Doc. 57). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 35). For the following reasons, the Court will deny Defendant’s motion for summary judgment, and will grant Plaintiff’s motion for adverse inference in part, and deny it in part.

         I. Factual and Procedural Background

          Plaintiff brings this action under 42 U.S.C. § 1983, asserting a claim of excessive use of force. At the time of the events giving rise to his complaint, Plaintiff was an inmate at the Potosi Correctional Center (“PCC”). Defendants were employed at PCC as corrections officers.

         The following facts are either not in dispute or taken in the light most favorable to Plaintiff: Shortly before midnight on June 3, 2012, defendant Milburn and another corrections officer, Kenneth Ruble (“Ruble”) arrived at Plaintiff’s cell in the general population wing. Once there, they ordered Plaintiff to perform a work assignment. When Plaintiff refused, Milburn ordered him to “lock down” in his cell for failure to obey the order. Plaintiff complied with the lockdown order; he never threatened the guards, and he never gave any indication that he was not fully complying. Milburn and Ruble then left the area.

         Approximately twenty minutes later, Milburn and Ruble returned and ordered Plaintiff out of his cell and onto the main floor of the cellblock. Plaintiff complied without resistance. He was issued a conduct violation for failure to obey the order to perform his work assignment, and was informed that he was to be transferred to administrative segregation. Milburn or Ruble then handcuffed Plaintiff to a restraint bench. Plaintiff did not threaten the guards or resist being handcuffed to the bench. Ruble then walked away, positioning himself in a control center at the other end of the cellblock, from where he would have been able to see Plaintiff if he looked in that direction. Milburn picked up a metal lock that was attached by a chain to the restraint bench and proceeded to strike Plaintiff’s right hand near the middle finger. There is no contention that Plaintiff resisted or threatened Milburn or Ruble before or after being hit with the lock. Plaintiff’s finger was not broken, but he suffered bruising, soreness, and swelling of his hand.

         Null arrived after the lock incident and escorted Plaintiff to the prison medical facility. Upon arrival, Plaintiff told the nurse that Milburn had struck him, but the nurse denied that the incident occurred and refused to note Plaintiff’s injuries.

         Null then escorted Plaintiff from the medical facility to the administrative segregation unit. As they were walking through a corridor, Null placed his hand on Plaintiff’s head and shoved Plaintiff’s face into a concrete wall. The force of the shove was sufficient to crack three of Plaintiff’s teeth and cause his mouth to bleed. Plaintiff was not threatening Null or resisting prior to that use of force. After placing Plaintiff in a cell, Null conducted a strip search. Plaintiff remained handcuffed throughout the search and did not resist. Nevertheless, Null punched Plaintiff twice in the jaw, causing it to swell. Null then left Plaintiff alone in the cell.

         Shortly before dawn on June 4, Plaintiff obtained a medical service request form (“MSR”), which he used to request treatment for the injuries to his finger, face, and teeth. On June 5, in response to the MSR, a nurse came to Plaintiff’s cell and observed him through a glass window. The nurse did not remove Plaintiff from the cell for evaluation at the nurses’ station and she could only see plaintiff’s face through the window. She did not open the food tray port, through which she could have evaluated Plaintiff’s finger injury. Yet, the nurse reported performing a visual inspection, concluding that Plaintiff had no signs of injury and that his teeth were intact.

         Plaintiff filed a second MSR, after which he was seen by a different nurse on June 8, several days after the incident. That nurse determined that Plaintiff’s right middle finger was swollen and tender to the touch. She gave him Motrin, and referred him to a dentist for his teeth and to a doctor for his finger. On June 14, plaintiff was seen by a dentist, whose examination revealed that three of his teeth were chipped-injuries that were not present at Plaintiff’s previous dental examinations. On June 27, twenty-four days after being hit with the lock, Plaintiff was examined by a doctor. The doctor reported no remaining soft tissue swelling or discoloration of Plaintiff’s finger.

         PCC’s response to the intra-prison grievance Plaintiff filed reveals that video records existed of the areas in which the incidents allegedly occurred and for the timeframe in which they happened. Plaintiff requested preservation of and access to those video records. The video records have not been submitted in support of the defendants’ motion for summary judgment, and appear to no longer exist.

         Plaintiff brought an earlier 42 U.S.C. § 1983 action against Defendants Null and Milburn.[1] See generally Case. No. 4:13-CV-1065-CEJ. That case, which was filed on June 4, 2013, and was presided over by now retired District Judge Carol E. Jackson of this district, was based on the same underlying circumstances as this case. During the course of that prior action, Defendants Milburn and Null brought a motion for summary judgment, in which they asserted arguments in support of their motion that are identical to the arguments Defendants assert in the instant case, i.e., that Plaintiff failed to exhaust his intra-prison administrative remedies, that Plaintiff cannot prove that Defendants used excessive force against him in violation of the Eighth Amendment, and that Defendants are entitled to qualified immunity on Plaintiff’s claims. Id., Doc. 98.

         Judge Jackson, in a thorough and well-reasoned order issued on July 22, 2015, found that “a genuine dispute of material fact exist[ed] regarding whether Taylor properly exhausted his claims, ” and “[t]herefore, defendants are not entitled to summary judgment on that basis.” Id., Doc. 132 at 5. With regard to Taylor’s allegations that Milburn used excessive force against him, Judge Jackson noted that “[b]ecause no evidence from disinterested witnesses has been submitted to rebut Taylor’s allegations, and because Milburn has not produced the video records, ” a “genuine dispute of material fact remains regarding whether Milburn used excessive force on Taylor by striking him with a lock.” Id. at 6. As to Taylor’s allegations against Null, Judge Jackson found that “[t]he Court’s analysis with regard to Milburn applies with equal force to Null. Null, like Milburn, cites only affidavits to support his assertion that he did not use any force on Taylor, ” which “Taylor counters with his deposition and affidavit.” Id. at 9. Judge Jackson went on to state that “[g]iven the competing testimony and in the absence of the video records of Null’s interactions with Taylor, a genuine dispute of material fact exists regarding whether Null shoved Taylor’s face into a concrete wall and later punched him twice in the jaw.” Id. She further noted that the medical records “are insufficient to rebut the allegations, ” as “the dentist’s observation that Taylor had three chipped teeth would seem to corroborate [Taylor’s] version of events, or at least not controvert it, ” and thus, related “credibility determinations remain for the trier of fact.” Id. With regard to Defendants’ qualified immunity[2] argument, Judge Jackson found that because there remained a genuine dispute of material fact regarding whether Milburn and Null used excessive force on Taylor, and because the right to be free from excessive use of force by guards under the circumstances alleged in this case had been long-established as of June 2012, any “reasonable official would have understood that Milburn and Null’s alleged actions violated Taylor’s Eighth Amendment rights, so they are not entitled to qualified immunity.” Id. at 11-12. Accordingly, Judge Jackson denied Milburn’s and Null’s motion for summary judgment, and set the matter for trial on August 15, 2016. Id., Docs. 132, 177, 184.

         However, in the midst of the parties’ trial preparation efforts, Plaintiff’s counsel sought, and was granted, leave to withdraw. Id., Doc. 187. After his counsel’s withdrawal, Plaintiff ceased to respond to or comply with various trial deadlines established in the Order Relating to Trial. Subsequently, Judge Jackson issued a Show Cause Order, in which she ordered Plaintiff to show cause as to why he should not be precluded from presenting evidence at trial for his failure to comply with the trial scheduling order. Id., Doc. 202. Plaintiff responded to the Show Cause Order, arguing that he had been unable to obtain stamps and writing utensils. Id., Doc. 204. Finding Plaintiff’s response unpersuasive, on August 9, 2016, Judge Jackson sanctioned Plaintiff pursuant to Federal Rule of Civil Procedure 16(f)(1)(C), which allows a district court to issue sanctions on a party that “fails to obey a scheduling or other pretrial order, ” and dismissed the case without prejudice to Plaintiff’s refiling. Id., Docs. 207, 208. Plaintiff filed a motion to reconsider, which Judge Jackson denied on September 16, 2016. Id., Docs. 210, 211. Plaintiff subsequently filed the instant action on January 19, 2017. (Doc. 1).

         II. Legal Standard on Summary Judgment

         Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013). The movant “bears the initial responsibility of informing the district court of the basis for its motion” and must identify “those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id. at 324. In determining if a genuine issue of material fact is present, the court must view the evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986). Further, a court must give the nonmoving party the benefit of all reasonable inferences that can be drawn from the facts. Id. However, “because we view the facts in the light most favorable to the nonmoving party, we do not weigh the evidence or attempt ...

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