Eckert v. Bowen et al

Filing 71

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that Defendant Bowen's Motion for Summary Judgment (Doc. No. 50) be and it is granted. A separate Summary Judgment will be entered on this date. IT IS FURTHER ORDERED that Count II be and it is dismissed without prejudice. IT IS FINALLY ORDERED that Plaintiff's Motion to Extend Discovery for Limited Purposes of Conducting a Deposition (Doc. No. 40) be and it is denied as moot. Signed by Magistrate Judge Lewis M. Blanton on 7/26/13. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
SCOTT ECKERT,
Plaintiff,
v.
DALE BOWEN,
Defendant.

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No. 1:11CV211 LMB

MEMORANDUM AND ORDER
This matter is before the court on the Complaint of Scott Eckert alleging excessive use of
force under 42 U.S.C. § 1983. This case has been assigned to the undersigned United States
Magistrate Judge pursuant to the Civil Justice Reform Act and is being heard by consent of the
parties. See 28 U.S.C. § 636(c). Presently pending before the court is Defendant Bowen’s
Motion for Summary Judgment. (Doc. No. 50).
Background
Plaintiff was incarcerated at Southeast Correctional Center (“SECC”) in Charleston,
Missouri, at the time of the allegations asserted in his Complaint. Defendant Bowen was a
Correctional Officer I employed by the Missouri Department of Corrections (“MDOC”), and
assigned to work at SECC.
Plaintiff alleges that, on December 2, 2010, he was standing with his head and neck in
between the door and door frame of the cook’s office door at SECC, speaking with a cook
employed by the MDOC. Plaintiff claims that Defendant Bowen approached plaintiff from behind
and shoved him against the door, with knowledge that plaintiff’s head was in between the door
and door frame. Plaintiff alleges that, as a result of the actions of Defendant Bowen, he received

injuries to his head, neck and shoulder, blurred vision in his left eye, loss of hearing in his left ear,
and general pain and suffering.
In Count I of his Complaint, plaintiff alleges that Defendant Bowen subjected plaintiff to
cruel and unusual punishment by smashing his head between the door and door frame, in violation
of the Fourth and Fourteenth Amendments and 42 U.S.C. § 1983. Plaintiff brings his claim
against Defendant Bowen in his individual capacity, and seeks monetary damages, including
punitive damages.
In Count II of his Complaint, plaintiff asserts state law assault and battery claims against
Defendant Bowen.
Discussion
A.

Standard
The Court may grant a motion for summary judgment if “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The substantive law determines which facts are critical and which are irrelevant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes over facts that might affect the
outcome will properly preclude summary judgment. Id. Summary judgment is not proper if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the court of the basis of its motion.
Celotex Corp., 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving
party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of
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material fact, not the “mere existence of some alleged factual dispute.” Fed. R. Civ. P. 56(e);
Anderson, 477 U.S. at 248. The nonmoving party may not rest upon mere allegations or denials
of his pleading. Anderson, 477 U.S. at 258. “[A] properly supported motion for summary
judgment is not defeated by self-serving affidavits.” Conolly v. Clark, 457 F.3d 872, 876 (8th Cir.
2006) (citing Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005)).
In passing on a motion for summary judgment, the court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor.
Celotex Corp., 477 U.S. at 331, n.2. The court’s function is not to weigh the evidence but to
determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.
B.

Defendant’s Motion
In his Motion for Summary Judgment, defendant contends that he is entitled to qualified

immunity. Defendant also argues that he is entitled to summary judgment as a matter of law
because plaintiff cannot demonstrate defendant used excessive force in violation of his Eighth
Amendment rights. Specifically, defendant contends that plaintiff failed to establish a genuine
issue of material fact that he sustained a sufficiently serious constitutional violation because his
injuries are de minimis and the force defendant applied, if any, was de minimis. Defendant also
argues that plaintiff failed to show any evidence of malicious intent.
1.

Eighth Amendment § 1983 Claims
To prove an Eighth Amendment violation, a prisoner must satisfy two requirements, one

objective and one subjective. Irving v. Dormire, 519 F.3d 441, 446 (8th Cir. 2008). The first
requirement tests whether viewed objectively, the deprivation of rights was sufficiently serious.
Id. The second requirement is subjective and requires that the inmate prove that the prison
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officials had a “sufficiently culpable state of mind.” Id. (quoting Farmer v. Brennan, 511 U.S.
825, 834 (1994)). In excessive force claims, the subjective inquiry is whether the force was used
“in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very
purpose of causing harm.” Id. (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)).
“The Eighth Amendment bars correctional officers from imposing unnecessary and wanton
pain on inmates, regardless of whether there is evidence of any significant injury.” Johnson v.
Blaukat, 453 F.3d 1108, 1112 (8th Cir. 2006) (citing Hudson v. McMillian, 503 U.S. 1, 9
(1992)). Nevertheless, the “Eighth Amendment’s prohibition of cruel and unusual punishments
necessarily excludes from constitutional recognition de minimis uses of physical force, provided
that the use of force is not of a sort repugnant to the conscience of mankind.” Hudson, 503 U.S.
at 9-10 (internal quotations omitted). “Officers may reasonably use force in a good-faith effort to
maintain or restore discipline but may not apply force maliciously and sadistically to cause harm.”
Id. at 6 (internal quotation omitted).
As an initial matter, plaintiff objects to defendant’s Exhibit B, plaintiff’s institutional
medical records, as hearsay. Defendant contends that plaintiff’s medical records qualify as
business records and are an exception to the hearsay rule. Defendant further argues that
statements made in plaintiff’s medical records are for the purposes of medical treatment.
Defendant has submitted Exhibit F, a Medical Records Affidavit for Exhibit B, in which Kimberly
Randolph, Medical Records Custodian of Potosi Correctional Center, certifies that the medical
records contained in Exhibit B have been maintained in the regular and ordinary course of the
business at that facility. The undersigned finds that plaintiff’s medical records are properly
authenticated and are admissible under the business records exception to the hearsay rule. See
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Fed. R. Evid. 803(6).
Plaintiff also objects to defendant’s Exhibit E, a handwritten, signed statement of plaintiff
filed under seal, as hearsay. Plaintiff contends that Exhibit E is not a sworn statement under oath,
nor is it certified as a business record. Defendant argues that Exhibit E is admissible as an
admission by a party opponent. The court agrees that plaintiff’s handwritten, signed statement
dated December 2, 2010, is admissible as an admission of a party opponent pursuant to Federal
Rule of Evidence 801(d)(2).
It is undisputed that, at approximately 1:00 p.m. on December 2, 2010, plaintiff was
standing in the doorway from the kitchen to the cook’s office with his head through the doorway,
with the left side of his neck resting on the door jam and the door resting on his right shoulder.
Defendant Bowen opened the cook’s office door and walked into the office. Plaintiff alleges that
defendant slammed the door for no reason on plaintiff, pinning his neck between the door and the
door frame, causing him injuries to his head, neck, ear, and eye which persist to this day.
Defendant contends that he did not intentionally shut the door on plaintiff’s head. Defendant also
claims that there is no evidence that the door shut on plaintiff’s neck, pinning the sides of his neck
between the door and the door jam.
Even if the court accepts that the door made contact with plaintiff’s neck, plaintiff cannot
support an excessive force claim because his injuries and the force applied were de minimis. The
Supreme Court has admonished the district courts to heed “Hudson’s direction to decide
excessive force claims based on the nature of the force rather than the extent of the injury.”
Wilkins v. Gaddy, 559 U.S. 34, 34 (2010) (per curiam). However, “the extent of the injury may
also provide some indication of the amount of force applied.” Id. at 37.
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Here, plaintiff was examined by a nurse approximately one hour after the incident, at
which time plaintiff complained of only a headache. See Def’s Ex. A at 20; Ex. B at 31-32.
Plaintiff stated to the nurse: “I have an old right sided neck and sholder[sic] injury from my high
school days but earlier today my head got cought [sic] by a closing door in food service and
H[sic] have a head ache [sic].” Def’s Ex. B at 31. Plaintiff denied blurred vision. See id.
Plaintiff’s eyes, ears, and balance were checked. Def’s Ex. A at 19. No bruises, cuts, or bleeding
was noted. See Def’s Ex. A at 79-80; Ex. B at 31-32. Plaintiff admitted that he had no visible
injury. Def’s Ex. A at 79-80. Plaintiff was found to be in no acute distress, and was diagnosed
with headaches. Def’s Ex. B at 32. Plaintiff was given acetaminophen. Id. When plaintiff
entered the MDOC in December 2009, it was noted that plaintiff had a history of headaches.
Def’s Ex. B at 3.
On the day after the incident, December 3, 2010, plaintiff returned to the medical unit and
complained of a headache. Id. at 31. Plaintiff was examined by Dr. Michael C. Hakala. Id. Dr.
Hakala noted that he did not see “any abrasion or bruising on neck or head.” Id. Dr. Hakala’s
assessment was cervical strain, left shoulder strain-mild, and headache. Id. Dr. Hakala prescribed
ibuprofen and advised plaintiff to do exercises he had previously been given from physical
therapy. Id. at 31, 192-95. Plaintiff had complained of neck and left shoulder pain in October
2010 and November 2010, and had been referred to physical therapy. Id. at 28-30. Plaintiff
reported that he had been experiencing these symptoms for five to seven years. Id. at 29.
Plaintiff’s alleged injuries of headaches and aggravation of pre-existing conditions are
insufficient to support a finding of a constitutional violation. See Andrews v. Fuoss, 417 F.3d
813, 818 (8th Cir. 2005) (“Andrews alleges at most very minor injuries, likely nothing more than
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the temporary and slight aggravation of pre-existing conditions [pain flare-up relating to preexisting neck and back conditions that left Andrews with a sore neck and horrible headache]”);
Lawson v. Vance, 41 Fed. Appx. 24, 25 (8th Cir. 2002) (unpub. per curiam) (assuming that the
defendant slapped inmate plaintiff without provocation, where plaintiff could not show some
visible sign of injury, the use of force was de minimis); Samuels v. Hawkins, 157 F.3d 557, 558
(8th Cir. 1998) (inmate failed to establish actual injury when he could not provide any evidence of
damage to his eyes, though he claimed his eyes were damaged).
Plaintiff also claims that he experienced ringing in his left ear and blurred vision in his left
eye as a result of the incident. First, despite plaintiff’s claim that he had no issues with blurred
vision in his left eye prior to the December 2010 incident, it was noted in December 2009 when
plaintiff entered the custody of the MDOC that plaintiff had a history of eye strain and wore
glasses. See Def’s Ex. B at 4. Second, plaintiff’s allegations of injuries to his left ear and left eye
is inconsistent with his testimony that the door only made contact with the right side of his neck.
Def’s Ex. A at 12-13.
Plaintiff has offered no evidence to support his claim that contact between the door and
the right side of his neck would cause injuries to his left eye and ear. Plaintiff admits he has not
seen an eye doctor or undergone a hearing test since December 2010. Def’s Ex. A at 52-53.
Plaintiff has also failed to support his claims that the incident at issue aggravated his pre-existing
injuries. In his Response to defendant’s Motion for Summary Judgment, plaintiff cites only to his
own deposition testimony regarding his injuries. Plaintiff’s own self-serving allegations do not
create a genuine issue of material fact that precludes summary judgment. See Conolly, 457 F.3d
at 876 (“[A] properly supported motion for summary judgment is not defeated by self-serving

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affidavits.”). See also Stanback v. Best Diversified Prods., Inc., 180 F.3d 903, 909 (8th Cir.
1999) (finding general statements in affidavits and depositions are insufficient to defeat a properly
supported summary judgment motion). Further, plaintiff testified that the pain in his left shoulder
from his pre-existing injury has remained the same since the December 2010 incident. Def’s Ex.
A at 34. Thus, plaintiff has failed to demonstrate injuries that are sufficiently serious to establish a
constitutional violation.
Similarly, plaintiff has failed to establish that the force allegedly used by Defendant Bowen
was more than de minimis. Plaintiff contends that Defendant Bowen shut the door so hard and so
fast on plaintiff’s head that plaintiff “did not realize what was happening.” Doc. No. 62 at 8.
Plaintiff’s statements do not provide any indication as to the amount of force applied. Plaintiff’s
actions immediately following the incident, however, belie his claim that Defendant Bowen used
more than de minimis force. Plaintiff admits that he did not report the incident, finished his shift,
and returned to his cell. See Def’s Ex. A at 79; Ex. E. Plaintiff indicated in his statement that the
incident was “no big deal,” and that defendant was “just playing.” Def’s Ex. E. Plaintiff was
evaluated by the medical unit later that day only because he was directed to by prison staff after
they became aware of the incident. See Def’s Ex. A at 17.
Plaintiff’s lack of injuries are also indicative of the amount of force applied. See Wilkins,
559 U.S. at 37 (“the extent of the injury may also provide some indication of the amount of force
applied”). Plaintiff claims that a large, metal kitchen door used in a prison facility was forcibly
shut on his head, pinning the sides of his neck between the door and the door jam. See Def’s Ex.
C (photographs of door). Despite the serious nature of these claims, when plaintiff saw the nurse
approximately one hour after the alleged incident, no signs of an injury were noted. See Def’s Ex.

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A at 79-80; Ex. B at 31-32. The day following the incident, Dr. Hakala noted that he did not see
“any abrasion or bruising on neck or head.” Def’s Ex. B at 31. Plaintiff’s lack of any visible sign
of injury following the incident contradicts plaintiff’s allegations.
In support of his claim that more than de minimis force was applied, plaintiff notes that
there was no need to use force on plaintiff, and that Defendant Bowen did not fill out a use of
force report regarding the incident. Defendant Bowen, however, has maintained that he did not
intentionally apply force by slamming the door on plaintiff’s head. Rather, Defendant Bowen
claims that he simply opened the door. Defendant Bowen’s failure to complete a use of force
report is consistent with Defendant Bowen’s claim that no force was applied.
Plaintiff’s claim that there were no cameras in the area in which the incident occurred and
that this demonstrates more than de minimis force was applied is also unavailing. Even if
Defendant Bowen were aware that there were no cameras in the area at issue, this fact is not
indicative as to the amount of force applied. Further, while no video footage is available, the
incident occurred in the presence of the cook and other inmates were nearby in the kitchen.
Finally, plaintiff points to the facts that the MDOC conducted an investigation, Defendant
Bowen refused to submit to a lie detector test, criminal charges were issued, and Defendant
Bowen was placed on administrative leave after he was arrested, in support of his claim that his
injuries and the force applied were more than de minimis. To the extent this evidence would be
admissible, it does not support plaintiff’s claim. The criminal charges against Defendant Bowen
were ultimately dismissed, and Defendant Bowen was only placed on leave while the charges
were pending. See Def’s Ex. 2 at 58-59. Defendant Bowen was rehired at the same position, and
held this position at the time of his deposition in connection with the instant matter. See id.

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Pursuant to Wilkins and Hudson, however, the de minimis nature of plaintiff’s injuries and
the force used does not end the Court’s inquiry. The overriding factor is whether the officers
used force “in a good-faith effort to maintain or restore discipline,” or applied force “maliciously
and sadistically for the very purpose of causing harm.” Hudson, 503 U.S. at 6. “The test for
reasonableness or good faith application of force depends on ‘whether there was an objective
need for force, the relationship between any such need and the amount of force used, the threat
reasonably perceived by the correctional officers, any efforts by the officers to temper the severity
of their forceful response, and the extent of the inmate’s injury.’” Johnson, 453 F.3d at 1112
(quoting Treats v. Morgan, 308 F.3d 868, 872 (8th Cir. 2002)).
As defendant maintains, even assuming plaintiff’s neck was shut in the door, plaintiff has
failed to show that Defendant Bowen intentionally caused this contact. Plaintiff claims that the
incident was not an accident because Defendant Bowen stated “guess you had your head stuck in
the wrong door this time.” Doc. No. 62 at 11, Def’s Ex. A at 11. Defendant Bowen testified that
he told plaintiff that “he was in the wrong door” because the door was marked out of bounds.
Pl’s Ex. 2 at 34-36. The fact that Defendant Bowen told plaintiff that he was in an area marked
out of bounds for offenders, a fact that plaintiff does not dispute, does not establish that defendant
shut plaintiff’s neck in the door “maliciously and sadistically” to cause harm. Hudson, 503 U.S. at
6.
In support of his claim that Defendant Bowen acted with malice, plaintiff argues that, if it
were an accident, Defendant Bowen’s response would have been “sorry,” or “I didn’t see you in
the door.” Doc. No. 62 at 10-11. Plaintiff, however, has not demonstrated that the door even
made contact with his body. Defendant Bowen has admitted that he saw plaintiff in the doorway,

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and that he pulled the door open, away from plaintiff, to walk through it. Def’s Ex. D at 21-22.
There is no evidence that plaintiff sustained any injuries if contact between the door and his body
occurred, or that Defendant Bowen was aware of these injuries if they did occur. Consequently,
the fact that Defendant Bowen did not apologize after the alleged incident does not establish
malice.
The undisputed facts reveal that plaintiff and Defendant Bowen barely knew each other
prior to the incident at issue, and that they had a normal working relationship. Def’s Ex. A at 7678. There had been no incidents between plaintiff and Defendant Bowen prior to December 2,
2010. See id. No altercations occurred between plaintiff and Defendant Bowen after the alleged
incident. See id. at 72-73. Plaintiff did not report the incident or seek medical care immediately
after the alleged incident occurred, but instead returned to work. See Def’s Ex. A at 79. Plaintiff
indicated that he believed the incident was “no big deal,” and that Defendant Bowen was “just
playing.” Def’s Ex. E. As previously discussed, plaintiff was evaluated in the medical unit only
after he was directed to go there by prison officials, and no evidence of an injury was noted.
Plaintiff has failed to present any evidence that any contact plaintiff may have had with the door
was the result of malice on the part of Defendant Bowen.
As the Supreme Court has explained, “[w]hen the moving party has carried its burden
under Rule 56(c),” as defendant has done here, his “opponent must do more than simply show
that there is some metaphysical doubt as to the material facts.... Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine
issue for trial.’” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). Because plaintiff has not set forth

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specific facts showing that there is sufficient evidence to allow a jury to return a verdict for him,
the court will grant summary judgment to Defendant Bowen. See Anderson, 477 U.S. at 249;
Celotex Corp., 477 U.S. at 324.
Having found that Defendant Bowen is entitled to summary judgment on the merits of
plaintiff’s § 1983 claims, it is unnecessary to determine whether qualified immunity also applies.
2.

State Law Claims
As noted above, plaintiff asserts state law assault and battery claims against Defendant

Bowen in Count II of his Complaint.
District courts “may decline to exercise supplemental jurisdiction over” a state law claim if
“the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §
1367(c)(3). Because Defendant Bowen’s motion for summary judgment has been granted, the
court declines to exercise supplemental jurisdiction over plaintiff’s state law claims, and will
dismiss those claims without prejudice. See id.; United Mine Workers v. Gibbs, 383 U.S. 715,
726 (1966) (if federal claims are dismissed before trial, remaining state claims should also be
dismissed); Hassett v. Lemay Bank & Trust Co., 851 F.2d 1127, 1130 (8th Cir. 1988) (where
federal claims have been dismissed, district courts may decline jurisdiction over pendent state
claims as a “matter of discretion”).
Accordingly,

IT IS HEREBY ORDERED that Defendant Bowen’s Motion for Summary Judgment
(Doc. No. 50) be and it is granted. A separate Summary Judgment will be entered on this date.
IT IS FURTHER ORDERED that Count II be and it is dismissed without prejudice.

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IT IS FINALLY ORDERED that Plaintiff’s Motion to Extend Discovery for Limited
Purposes of Conducting a Deposition (Doc. No. 40) be and it is denied as moot.

Dated this 26th

day of July, 2013.

LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE

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