Holbrook v. Richards et al

Filing 20

RECOMMENDED DISPOSITION recommending that 14 Defendants' Motion for Summary Judgment be granted and Plaintiff's claims be dismissed with prejudice. Objections to R&R due no later than 14 days from the date the Recommended Disposition is received. Signed by Magistrate Judge Beth Deere on 1/22/10. (hph)

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION B R A N D O N SCOTT HOLBROOK V. C A S E NO. 4:09CV00203-BSM-BD DEFENDANTS P L A IN T IF F

M I C H A E L RICHARDS, et al.

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following recommended disposition has been sent to United States District J u d g e Brian S. Miller. Any party may file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the o b je c tio n . If the objection is to a factual finding, specifically identify that finding and the e v id e n c e that supports your objection. An original and one copy of your objections must b e received in the office of the United States District Court Clerk no later than fourteen (1 4 ) days from the date you receive the Recommended Disposition. A copy will be fu rn is h e d to the opposing party. Failure to file timely objections may result in waiver of th e right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325

II.

B ackground: P la in tiff, an inmate formerly housed at the Saline County Detention Facility

(" S C D F " ), filed this action pro se under 42 U.S.C. § 1983. (Docket entry #2) In his C o m p la in t, Plaintiff alleges that on March 7, 2009, Officer Michael Richards used e x c e s s iv e force in an incident that occurred at the SCDF. In addition, Plaintiff claims that S g t. Jimmy Lester failed to investigate the incident properly. Defendants Richards and L e ste r now have filed a motion for summary judgment. (#14) Plaintiff has not responded to the motion.1 Based upon the information in the record, the Court finds that Plaintiff has failed to demonstrate a genuine issue of material fact as to either Defendant so as to defeat the D e fe n d a n ts ' motion for summary judgment. Accordingly, the Defendants' motion (#14) s h o u ld be GRANTED. III. D is c u s s io n : A. S ta n d a rd

S u m m a ry judgment is appropriate when the evidence, viewed in the light most fa 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

On December 11, 2009, the Court provided Plaintiff an additional fourteen days to respond to the Defendants' motion. (#17) The Order was returned to the Court " u n d e liv e ra b le ." (#19) 2

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burden 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 ific facts which create a genuine issue for trial.'" (quoting Krenik v. County of Le S u e u r , 47 F.3d 953, 957 (8th Cir. 1995))). If the opposing party fails to carry that burden o r fails to establish the existence of an essential element of its case on which that party w ill bear the burden of proof at trial, summary judgment should be granted. See Celotex, 4 7 7 U.S. at 322. "Although it is to be construed liberally, a pro se complaint must c o n ta in specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1334, 1 3 3 7 (8th Cir. 1985). B. D e fe n d a n t Richards

P la in tiff claims that on March 7, 2009, he asked Defendant Richards's permission to go to his cell to get his Bible. Plaintiff states that, after he made his request, Defendant R ic h a rd s "got smart with [Plaintiff], using vulgar language." (#2 at p.4) Defendant R ic h a rd s then "rushed" Plaintiff, forcing him against the wall and causing his head to " b o u n c e " off of the wall. (#2 at p.4) Plaintiff claims that as a result of the incident, he s u s ta in e d a "knot" on his head. (#2 at p.5) D e fe n d a n ts attach to their motion for summary judgment, Defendant Richards's a ffid a v it. In the affidavit, Defendant Richards describes his version of the incident in 3

question. Defendant Richards states that Plaintiff was "out of control" and yelling, s c re a m in g , and cursing when Defendant Richards intervened. (#14) Defendant Richards e x p la in s that he "took [Plaintiff's] right arm with [his] right hand and put [his] left hand in the small of [Plaintiff's] back" in order to escort Plaintiff to his cell. (#14 at p.3) Defendant Richards specifically states that he "did not push [Plaintiff's] head against the w a ll," and that Plaintiff "did not sustain an injury to his head or to any other body part of h is body." (#14 at p.4) Although the accounts of the incident differ, there is no dispute th a t the Plaintiff made no request for medical attention. P la in tiff pled guilty to robbery on January 27, 2009. (#14 at p.3) Accordingly, on M a rc h 7, 2009, the date of the incident, Plaintiff was a convicted person. "[T]he Eighth A m e n d m e n t's ban on cruel and unusual punishment applies to excessive-force claims b ro u g h t by convicted criminals serving their sentences." Wilson v. Spain, 209 F.3d 713, 7 1 5 (8th Cir. 2000) (citing Whitley v. Albers, 475 U.S. 312, 318-322, 106 S.Ct. 1078 (1 9 8 6 )). When reviewing excessive force claims, courts should consider the objective n e e d for applying force, the relationship between the need and the degree of force used, th e threat the officials reasonably perceived, any other efforts used to diminish the s e v e rity of a forceful response, and the extent of the injury inflicted. Walker v. Bowersox, 5 2 6 F.3d 1186, 1188 -1189 (8th Cir. 2008) (citing Hudson v. McMillian, 503 U.S. 1, 7, 1 1 2 S.Ct. 995 (1992)). In excessive force 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 4

harm.'" Estate of Davis v. Delo, 115 F.3d 1388, 1394 (8th Cir. 1997) (quoting Hudson, 5 0 3 U.S. at 6). "Whether a situation justifies the use of force to maintain or restore d is c ip lin e is a fact specific issue that turns on the circumstances of the individual case or th e particular prison setting." Johnson v. Blaukat, 453 F.3d 1108, 1113 (8th Cir. 2006) (in te rn a l quotations omitted). In any event, "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)). To prevail on an excessive force claim, the Plaintiff must have suffered actual in ju ry . While significant injury is not required, actual injury is. See e.g., United States v. M ille r , 477 F.3d 644, 647 (8th Cir. 2007) (actual injury requirement satisfied when in d iv id u a l had a bruised and swollen left eye and a reddish-purple face) and Dawkins v. G r a h a m , 50 F.3d 532, 535 (8th Cir. 1995) (bruising, facial lacerations, and elevated blood p re s s u re satisfied the actual injury requirement). A plaintiff cannot recover for de m in im is use of force unless the de minimis force is "repugnant to the conscience of m a n k in d ." Hudson, 503 U.S. at 9-10 (internal citation omitted); Crumley v. City of St. P a u l, 324 F.3d 1003, 1007 (8th Cir. 2003) ("a de minimis level of force of injury is in s u ffic ie n t to support a finding of a constitutional violation"). Although the parties' accounts of the altercation differ, even assuming Plaintiff's v e rs io n of the incident, his claim fails. Defendants correctly point out that Plaintiff has fa ile d to present any evidence that he suffered any "actual injury" as a result of the in c id e n t. Based upon the undisputed facts presented, Plaintiff neither sought nor received 5

any medical treatment for any alleged injury that he sustained in the altercation. Although Plaintiff claims that he suffered a "knot" on his head, such an injury is de m in im is , as a matter of law. See Cunningham v. Kern, 2006 WL 1999143, *6 (W.D. Ark. J u ly 17, 2006) (stating that "the injury that plaintiff claims to have suffered - a knot on his h e a d and headaches - is de minimis . . . [and] does not support plaintiff's claims that he w a s subjected to excessive force"). See also Wertish v. Krueger, 433 F.3d 1062, 1067 (8 th Cir. 2006) (noting de minimis injuries include "minor scrapes and bruises and lessth a n -p e rm a n e n t aggravation" of prior injury); Lawson v. Vance, 41 Fed. Appx. 24 (8th C ir. 2002) (unpub. per curiam) (assuming that the defendant slapped inmate plaintiff w ith o u t provocation, where plaintiff could not show some visible sign of injury, the use o f force was de minimis); Samuels v. Hawkins, 157 F.3d 557 (8th Cir. 1998) (inmate fa ile d to establish actual injury when he could not provide any evidence of damage to his e y e s , though he claimed his eyes were damaged); Gray v. Baird, 2009 WL 596458 (E.D. A rk . March 9, 2009) (finding that even if prison official stomped on Plaintiff's foot, such fo rc e was de minimis); Hobbs v. Foreman, 2008 WL 4542752 (E.D. Ark. Oct. 10, 2008) (fin d in g that force used was de minimis where plaintiff inmate sustained a cut on his head re q u irin g one butterfly stitch); and Wise v. Oglesby, 2007 WL 735499 (W.D. Ark. Feb. 1 6 , 2007) (inmate plaintiff failed to establish actual injury requirement when he sustained s m a ll cut on his lip, a few bruises, and a contusion on his nose). F u rth e r, Plaintiff has failed to show that any force used was "repugnant to the c o n s c ie n c e of mankind." Accordingly, Plaintiff cannot establish that he suffered any 6

constitutional violation, as a matter of law, and Defendant Richards is entitled to s u m m a ry judgment. C. D e fe n d a n t Lester

P la in tiff claims that Defendant Lester failed to properly investigate the incident th a t occurred between Plaintiff and Defendant Richards and failed to properly preserve th e surveillance video of the incident. Supervisors can be held individually liable only if th e y directly participate in a constitutional violation or if they failed to supervise and train o ffic e rs . See Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996). Plaintiff's a lle g a tio n s against Defendant Lester do not support an eighth amendment claim. Plaintiff h a s failed to provide any evidence that Defendant Lester acted with deliberate in d iffe re n c e or tacitly authorized any force used. Further, Plaintiff has failed to offer any e v id e n c e that Defendant Lester provided inadequate training or supervision. As a result, D e fe n d a n t Lester is entitled to summary judgment. Johnson v. Blaukat, 453 F.3d at 1113. IV . C o n c lu s io n : T h e Court recommends that Defendants' motion for summary judgment (#14) be G R A N T E D and that Plaintiff's claims be DISMISSED with prejudice. D A T E D this 22nd day of January, 2010.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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