Smith v. Etter

Filing 50

ORDER denying 41 Defendant Etter's Motion for Summary Judgment. Signed by Magistrate Judge Beth Deere on 6/23/09. (jct)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS J O N E S B O R O DIVISION C O R N E L I U S MARQUEL SMITH V. M I K E ETTER, et al. Case No. 3:08CV0153 BD DEFENDANTS P L A IN T IF F

ORDER N o w pending is Defendant Etter's motion for summary judgment (docket entry # 4 1 ). For the following reasons, the Court DENIES Defendant Etter's motion (#41). I. B ackground: P la in tif f , a pre-trial detainee at the Craighead County Detention Facility (" C C D F " ), filed this action pro se under 28 U.S.C. § 1983. In his Complaint, Amended C o m p la in t, and Second Amended Complaint, Plaintiff alleges that Correctional Officer M ik e Etter used excessive force against him on September 9, 2008, while the Plaintiff w a s detained at the CCDF (#1, #5, and #11). Defendant Etter has now filed a motion for summary judgment (#41). In the m o tio n , Defendant Etter argues that he is entitled to judgment as a matter of law because th e force that he used on Plaintiff was objectively reasonable, and Plaintiff has failed to p ro d u c e any evidence that he sustained any injury as a result of Defendant Etter's c o n d u c t. In addition, Defendant Etter argues that he is entitled to qualified immunity. Plaintiff has now responded to Defendant Etter's motion (#49). Based upon the in f o rm a tio n contained in Plaintiff's response, the Court finds that Plaintiff has created a

genuine issue of material fact precluding judgment as a matter of law. Accordingly, D e f e n d a n t Etter's motion for summary judgment (#41) is DENIED. II. D is c u s s io n : A. S ta n d a r d :

S u m m a ry judgment is appropriate when the evidence, viewed in the light most f a v o ra b le to the nonmoving party, presents no genuine issue of material fact. FED. R. C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 246 (1986). Once the moving party has successfully carried its b u rd e n under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the p le a d in g s and by depositions, affidavits, or otherwise, designate "specific facts showing th a t there is a genuine issue for trial." FED. R. CIV. P. 56(e); Mosley v. City of N o r th w o o d s , 415 F.3d 908, 910-11 (8th Cir. 2005) ("The nonmoving party may not rest o n mere allegations or denials, but must demonstrate on the record the existence of s p e c if ic facts which create a genuine issue for trial.") If the opposing party fails to carry th a t burden or fails to establish the existence of an essential element of its case on which th a t party will bear the burden of proof at trial, summary judgment should be granted. See Celotex, 477 U.S. at 322. B. E x c e s s iv e Force Claim:

T h e Eighth Amendment protects inmates from the unnecessary and wanton in f lic tio n of pain by correctional officers, regardless of whether an inmate suffers serious

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injury as a result. Hudson v. McMillian, 503 U.S. 1, 9 (1992). However, "section 1983 is in te n d e d to remedy egregious conduct, and not every assault or battery which violates s ta te law will create liability under it." Askew v. Millard, 191 F.3d 953, 958 (8th Cir. 1 9 9 9 ) (citing Harberthur v. City of Raymore, 119 F.3d 720, 723 (8th Cir. 1997)). O f f ic e rs do not violate the Eighth Amendment when they use force reasonably "in a g o o d -f a ith effort to maintain or restore discipline." Hudson, 503 U.S. at 9. In excessive f o rc e cases, it must be "determined whether the force was applied `in a good faith effort to maintain or restore discipline, or maliciously or sadistically to cause harm.'" Estate of D a v is v. Delo, 115 F.3d 1388, 1394 (8th Cir. 1997) (quoting Hudson, 503 U.S. at 6). "Whether a situation justifies the use of force to maintain or restore discipline is a fact s p e c if ic issue that turns on the circumstances of the individual case or the particular p riso n setting." Johnson v. Blaukat, 453 F.3d 1108, 1113 (8th Cir. 2006) (internal q u o ta tio n s omitted). Factors to be considered in deciding whether a particular use of force was re a s o n a b le include: whether there was an objective need for force; the relationship b e tw e e n any such need and the amount of force used; the threat reasonably perceived by th e correctional officers; any efforts by the officers to temper the severity of their forceful re s p o n s e ; and the extent of the inmate's injury. Hudson, 503 U.S. at 7.1

The Court notes that because Plaintiff was a pre-trial detainee at the time of the in c id e n t in question, his excessive force claim is grounded in the due process clauses of th e Fifth and Fourteenth Amendments rather than the Eighth Amendment. However, the 3

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Here, Plaintiff claims that on September 9, 2008, Defendant Etter entered the M1 B a rra c k s of the CCDF, grabbed Plaintiff by the neck, pushed him into the day room floor, th e n pulled out his taser gun. Defendant Etter does not dispute these facts, but rather a rg u e s that the force used was objectively reasonable in the light of Plaintiff's conduct. In the incident report provided by Defendant Etter in support of the pending m o tio n for summary judgment, Defendant Etter states that he was attempting to place the in m a te s in the M1 barracks in lock-down when he noticed Plaintiff walking towards him. Although Defendant Etter told Plaintiff to return to his cell, Plaintiff disregarded the order a n d continued to approach Defendant Etter. When Plaintiff was within an arm's length of D e f e n d a n t Etter, Defendant Etter, "not know[ing] [Plaintiff's] intentions," grabbed P la in tif f by the neck, pushed him back, and called for back up (#43 at p.2). At that time, D e f e n d a n t Etter drew his taser gun but did not use it. Officers Helton and Webb entered th e barracks, placed Plaintiff in handcuffs, and took him to the bonding room. In further support of his motion, Defendant Etter attaches the "Use of Force Report F o rm " completed by Officer Helton. In the report, Officer Helton notes that Plaintiff was irra te and did not follow orders when he entered the M1 barracks. Further, he states that P la in tif f was hostile, non-compliant, and shouted at Defendant Etter.

analysis is the same. The Court must determine whether the force applied was objectively re a s o n a b le in the light of the situation facing the officer. Andrews v. Neer, 253 F.3d 1 0 5 2 , 1060 (8th Cir. 2001) (citing Johnson-El v. Schoemehl, 878 F.2d 1043, 1048-49 (8th C ir. 1989)). 4

In Plaintiff's Second Amended Complaint, he claims that he was "struck with e x tre m e force" without justification or provocation (#11). In addition, in his response to th e motion summary judgment, Plaintiff claims that he was grabbed and choked in front o f other inmates "because of nothing" (#49). Plaintiff also states that the force used was e x c e s s iv e . Furthermore, Officer Helton's statement in support of Defendant Etter's motion f o r summary judgment is consistent with the facts alleged in the Amended Complaint. In h is Amended Complaint, Plaintiff alleges that when Officer Helton and Webb entered the M 1 barracks, Plaintiff was yelling about the incident that had just transpired asking other in m a te s if they had seen the incident and screaming that Defendant Etter had just grabbed h is neck (#5). Although force may be used by correction officers in a good faith effort to m a in ta in discipline, there are material questions of fact in this case, including whether the f o rc e d used was necessary to maintain order or whether the amount of force used was c o m m e n s u ra te with the situation. Additional material issues include whether Plaintiff f a ile d to comply with orders given by Defendant Etter or whether the application of less f o rc e would have been sufficient in the situation. Because the Court must "view the facts a n d the inferences to be drawn from them in the light most favorable to the nonmoving p a rty," Defendant Etter is not entitled to summary judgment at this time. Wells Fargo F in . Leasing, Inc. v. LMT Fette. Inc., 382 F.3d 852, 855-56 (8th Cir. 2004).

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C.

A c tu a l Injury:

D e f e n d a n t Etter also argues that he is entitled to summary judgment because P la in tif f has failed to present any evidence that he suffered any actual injury. However, in his Second Amended Complaint, Plaintiff claims that he "suffered swollen g la n d s /lim p h n o d e s in [his] neck, pressure on [his] spinal cord . . . constant pain, h e a d a c h e s , and blurred vision" (#11). These allegations are sufficient to create a genuine is su e concerning a material fact. Accordingly, Defendant Etter is not entitled to summary ju d g m e n t based on a lack of injury. D. Q u a lifie d Immunity:

"A state official is protected from suit by qualified immunity so long as the o f f ic ia l's `conduct does not violate clearly established statutory or constitutional rights of w h ic h a reasonable person would have known.'" Irving v. Dormire, 519 F.3d 441 (8th C ir. 2008) (citing Reece v. Groose, 60 F.3d 487, 491 (8th Cir.1995)). In analyzing w h e th e r an official is entitled to qualified immunity, the Court must first determine whether the alleged facts, considered in a light most favorable to the injured party, d e m o n s tra te that the defendant violated the injured party's rights. Bearden v. Lemon, 475 F .3 d 926, 929 (8th Cir. 2007)(quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151 (2 0 0 1 )). If a violation occurred, the Court then must determine whether the constitutional rig h t was clearly established from the perspective of a reasonable official in the d e f e n d a n t's position at the time of the defendant's conduct. Id.

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"For a right to be deemed clearly established, the `contours of the right must be s u f f ic ie n tly clear that a reasonable official would understand that what he is doing v io la te s that right.'" Buckley v. Rogerson, 133 F.3d 1125, 1128 (8th Cir. 1998) (quoting A n d e rso n v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034 (1987)). In other words, " [ o ]f f ic ia ls are not liable for bad guesses in gray areas; they are liable for transgressing b rig h t lines." Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004) (internal quotation o m itte d ). It is "well established that a malicious and sadistic use of force by a prison official a g a in s t a prisoner, done with the intent to injure and causing actual injury, is enough to e s ta b lis h a violation of the Eighth Amendment's cruel and unusual punishment clause." F o u lk v. Charrier, 262 F.3d 687, 702 (8th Cir. 2001). "It is also clearly established that f o rc e may be justified to make an inmate comply with a lawful prison regulation or order, b u t only if the inmate's noncompliance also poses a threat to other persons or to prison s e c u rity." Treats v. Morgan, 308 F.3d 868, 875 (8th Cir. 2002). At the time of the incident alleged, the law was clearly established that " c o rre c tio n a l officers do not have a blank check to use force whenever a prisoner is being d if f ic u lt." Treats, 308 F.3d at 875 (citing Hickey v. Reeder, 12 F.3d 754, 759 (8th Cir. 1 9 9 3 )). Accordingly, at this time, Plaintiff has created a genuine issue of material fact as to whether Defendant Etter used excessive force against him on September 9, 2008, and D e f e n d a n t is not entitled to qualified immunity.

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III.

C o n c lu s io n : D e f e n d a n t Etter's motion for summary judgment (#41) is DENIED, this 23rd day

o f June, 2009.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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