Burgin v. Hoskins et al

Filing 51

MEMORANDUM AND ORDER re: 40 MOTION for Summary Judgment filed by Defendant Bryon Hoskins motion is DENIED. IT IS FURTHER ORDERED that this matter will be set for trial after a telephone conference with the parties is held on a date to be determined. Signed by Magistrate Judge Abbie Crites-Leoni on 12/21/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
GEORGE BURGIN,
Plaintiff,
v.
BRYON HOSKINS, et al.,
Defendants.

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Case No. 1:13CV10 ACL

MEMORANDUM AND ORDER
Plaintiff George Burgin, an inmate at the Southeast Correctional Center (“SECC”),
brought this action under 42 U.S.C. § 1983 against two defendants employed at SECC in their
individual capacities, alleging violations of his constitutional rights. This matter is before the
Court on the Motion for Summary Judgment of Defendant Bryon Hoskins. (Doc. 40.) For the
following reasons, the Court will deny Defendant’s Motion for Summary Judgment.
I.

Background
In Count I of his Complaint, Burgin alleges that Defendant Bryan Hoskins, a correctional

officer and member of a drug task force at SECC, used excessive force on him without
provocation in violation of the Eighth Amendment on September 8, 2010. Burgin claims that
Hoskins and the other members of the drug task force engaged in a pattern of unlawful conduct
against prisoners at SECC. Burgin further asserts that Jeff Norman, the Superintendent of
SECC, was aware of the unlawful conduct by the drug task force officers but failed to take
corrective action, assure proper training and supervision, or implement meaningful procedures to
discourage the officers from engaging in the unlawful conduct.
In Count II of his Complaint, Burgin alleges “cruel conditions” in violation of the Eighth
Amendment against Defendants Hoskins and Norman. Specifically, Burgin contends that

Defendant Hoskins, in falsely claiming that Burgin had swallowed drugs, caused Burgin’s
placement in a dry cell for nine days. Burgin alleges that Defendant Norman authorized
Burgin’s placement in the dry cell.
Finally, in Count III, Burgin alleges a state assault and battery claim against Defendant
Hoskins arising out of the September 8, 2010 incident.
On February 19, 2014, the Court granted Defendant Norman’s Motion for Summary
Judgment, finding that Burgin had failed to exhaust his administrative remedies with regard to
his claims against Defendant Norman.
On September 30, 2015, Defendant Hoskins filed the instant Motion for Summary
Judgment, in which he argues that he is entitled to judgment as a matter of law on Burgin’s
excessive force claim because Hoskins’ conduct at issue was appropriate to the disturbance
created by Burgin. Hoskins contends that he is entitled to summary judgment on Burgin’s cruel
conditions claim because Hoskins had no authority to originate or modify the conditions of
Burgin’s confinement to the “dry cell.” Hoskins further argues that he is entitled to qualified
immunity with regard to Counts I and II, and that he is entitled to official immunity on Count III.
II.

Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant a motion for

summary judgment if all of the information before the court demonstrates that “there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party.
City of Mt. Pleasant, Iowa v. Associated Elec. Co-op. Inc., 838 F.2d 268, 273 (8th Cir. 1988).
After the moving party discharges this burden, the nonmoving party must do more than show
that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). A genuine issue of material fact is not the “mere existence of some

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alleged factual dispute between the parties.” State Auto. Ins. Co. v. Lawrence, 358 F.3d 982, 985
(8th Cir. 2004). “Instead, the dispute must be outcome determinative under prevailing law.”
Mosley v. City of Northwoods, 415 F.3d 908, 910–11 (8th Cir. 2005) (internal quotations
omitted). A fact is material when it “might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The nonmoving party bears the burden of setting forth specific facts showing that there is
sufficient evidence in his favor to allow a jury to return a verdict for him. Anderson, 477 U.S. at
249; Celotex, 477 U.S. at 324. “If ‘opposing parties tell two different stories,’ the court must
review the record, determine which facts are material and genuinely disputed, and then view
those facts in a light most favorable to the nonmoving party – as long as those facts are not ‘so
blatantly contradicted by the record . . . that no reasonable jury could believe’ them.” Reed v.
City of St. Charles, Mo., 561 F.3d 788, 790 (8th Cir. 2009) (quoting Scott v. Harris, 550 U.S.
372, 380 (2007)). Self-serving, conclusory statements without support are not sufficient to
defeat summary judgment. Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th
Cir. 1993).
In ruling on a motion for summary judgment, the court must review the facts in a light
most favorable to the nonmoving party and give that party the benefit of any inferences that
logically can be drawn from those facts. Matsushita, 475 U.S. at 587; Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005). The Court may not “weigh the evidence and
determine the truth of the matter.” Anderson, 477 U.S. at 249. The court is required, however,
to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co.
v. Chemical Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).

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III.

Facts
The following facts are undisputed:1
Burgin is currently serving concurrent sentences for drug trafficking, assault, robbery,

and armed criminal action. Since his initial sentencing in 1996, Burgin has been convicted of
transporting contraband in prison, as well as unlawful use of a weapon inside a DOC facility. In
approximately 2006, Hoskins investigated Burgin’s stabbing of another inmate. In 2006 or 2007,
Hoskins uncovered a package of marijuana that Burgin was keeping in his groin area.
On September 8, 2010, Hoskins was assigned to the search team at SECC. The search
team’s mission was to locate and confiscate dangerous contraband in the possession of offenders
housed at SECC. On September 8, 2010, there were five members of the search team. In
addition to Hoskins, they were: Officers Spencer, Landers, Magill, and Arnold. The search team
was observing the recreation area, where offenders from different housing units convene, looking
for transfers of contraband between offenders.
What happened next is disputed by the parties. Hoskins states that he observed Burgin
approach another inmate, Offender Belford. Burgin received a small plastic-wrapped bundle
from Belford. Upon receiving the bundle, Burgin conducted a “celebratory dance,” and then
tucked the bundle into his sock. Believing that Burgin had received contraband from Belford,
Hoskins, along with Officers Spencer and Landers, approached Burgin in the recreational area
and asked him to step into the restroom to be searched. The search team selected the restroom
specifically because strip searches should be conducted in discreet areas. During the course of
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The undisputed facts are taken from facts that (1) Plaintiff admitted were undisputed in his
response or (2) Plaintiff alleged were disputed but failed to properly and/or directly controvert.
The movant’s statement of facts are deemed admitted if not specifically controverted by the party
opposing the motion with specific references to portions of the record as required by Local Rule
4.01(E) and Federal Rule of Civil Procedure 56(c)(1).

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the search, Burgin removed an item from his sock and began to swallow it. Hoskins ordered
Burgin to stop swallowing the item. When Burgin did not comply, Hoskins sprayed Burgin in
the face with pepper spray. Hoskins and another officer placed Burgin on the ground and
handcuffed him.
Burgin’s version of the events differs. Burgin denies that he possessed contraband on
September 8, 2010, and notes that no contraband was ever found on his person. Burgin contends
that he was asked to step into the restroom to be searched when he was in the recreation yard.
He believes that the bathroom was chosen for the confrontation by Hoskins because it lacked a
view from video cameras. Burgin contends that when he entered the restroom with Hoskins,
Hoskins harassed him about being a drug dealer. Hoskins then sat on Burgin’s chest, punched
him in the eye, and choked him with both hands. When Burgin continued to yell out for help,
Hoskins sprayed pepper spray inside Burgin’s mouth. Other staff members heard the commotion
and then responded to the restroom. When those staff members asked what had happened,
Hoskins claimed that Burgin had swallowed drugs. Burgin states that he was then taken to the
infirmary where his stomach was x-rayed and no drugs were identified on the x-ray.
The parties agree that, following the bathroom incident, Burgin was taken to a cell in
administrative segregation known as the “dry cell.” Burgin was videotaped being “stripped out,”
or removing all of his clothing and putting on restraints upon entering the dry cell. No injuries
are visible on Burgin in this video; although Burgin contends that the quality of the video and
lighting may have played a role in not seeing visible injuries. Burgin was seen by a nurse upon
being placed in the dry cell. The nurse allowed Burgin to wash his face. The nurse did not note
any injuries. Burgin was released from the dry cell after ten days. Hoskins was not involved in

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the decision to place Burgin in the dry cell, nor did he supervise Burgin’s confinement in that
cell.
V.

Discussion
As previously noted, Hoskins argues that he is entitled to judgment as a matter of law on

Burgin’s excessive force claim because Hoskins’ conduct at issue was appropriate to the
disturbance created by Plaintiff. Hoskins contends that he is entitled to summary judgment on
Burgin’s cruel conditions claim because Hoskins had no authority to place Burgin in the dry cell
or to modify the conditions of Burgin’s confinement to the “dry cell.” Hoskins further argues
that he is entitled to qualified immunity with regard to Counts I and II, and that he is entitled to
official immunity on Count III. The undersigned will discuss these claims in turn.
A.

Excessive Force Claim (Count I)
Section 1983 provides a cause of action for a person who is injured as a result of being

deprived of “any rights, privileges, or immunities secured by the Constitution” by a person acting
under “color of state law.” 42 U.S.C. § 1983.
“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).
“After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel
and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312,

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319 (1986) (quotation omitted). “The infliction of pain in the course of a prison security
measure, therefore, does not amount to cruel and unusual punishment simply because it may
appear in retrospect that the degree of force authorized or applied for security purposes was
unreasonable, and hence unnecessary in the strict sense.” Id. “[W]henever prison officials stand
accused of using excessive physical force in violation of the Cruel and Unusual Punishments
Clause, the core judicial inquiry is that set out in Whitley: whether force was applied in a goodfaith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”
Hudson, 503 U.S. at 6–7. See Wilkins v. Gaddy, 559 U.S. 34, 37 (2010).
Hoskins argues that he is entitled to summary judgment on Burgin’s excessive force
claim because Burgin was swallowing contraband, Hoskins’ use of force was appropriate for the
situation, and Burgin received only de minimis injuries, if any.
Burgin contends that Hoskins is not entitled to summary judgment because there was no
situation existing that required any use of force. Burgin points out that no contraband was found
on Burgin to support Hoskins’ account of the incident. Burgin argues that the video submitted
by Hoskins does not prove that he did not sustain any injuries.
In his Reply, Hoskins contends that whether or not contraband was recovered is irrelevant
to the issue of whether Hoskins employed excessive force in his search of Burgin. Hoskins
argues that Hoskins’ right to approach and search Burgin on suspicion that Burgin had received
contraband from another inmate is clear.
The Court disagrees with Hoskins’ assertion that whether drugs or other contraband were
recovered is irrelevant to the determination of whether excessive force was applied. Hoskins
contends that he had the right to conduct a strip search of Burgin based on his suspicion that
Burgin had received contraband. Burgin, however, is not challenging Hoskins’ right to conduct

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a strip search. Rather, Burgin contends that Hoskins used excessive force in grabbing him by the
throat, throwing him to the ground, sitting on his chest, punching him in the eye, choking him,
and spraying pepper spray inside his mouth when he started to scream for help. (Deposition of
George Burgin, Doc. 45-1, at 11.) Hoskins admitted that he sprayed Burgin in the face with
pepper spray, but contends that he did this to stop Burgin from swallowing drugs. Specifically,
Hoskins stated that, during the course of his strip search of Burgin, Burgin “reached down and
grabbed something out of his sock and put it in his mouth, and I told him to stop.” (Deposition
of Bryon Hoskins, Doc. 45-2, at 25.) Hoskins described the item Burgin swallowed as a “little
bag of what looked like marijuana…a green leafy substance.” Id. at 28.
An Eighth Amendment claim exists when, “an officer uses pepper spray without warning
on an inmate who may have questioned his actions but who otherwise poses no threat.” Treats v.
Morgan, 308 F.3d 868, 873 (citing Foulk v. Charrier, 262 F.3d 587, 691-92, 702 (8th Cir.
2001)). Because Hoskins’ sole justification for the use of pepper spray was Hoskins’ belief that
Burgin had swallowed a bag containing drugs, it is relevant that no drugs or any other
contraband were found on x-ray or were ever recovered during Burgin’s ten day stay in the dry
cell. Hoskins testified that Burgin’s cell was searched after the incident, and a prison staff
member collected and searched Burgin’s feces after each bowel movement during his stay in the
dry cell. (Doc. 45-2 at 33-35.) If Burgin’s account of the events is true and Burgin did not
possess drugs or other contraband posing a threat to Burgin, Hoskins’ actions in assaulting
Burgin and spraying him in the face with pepper spray were not taken in a good-faith effort to
maintain or restore discipline. Instead, Hoskins’ actions could be found to be “sadistic and
malicious.” Cowans v. Wyrick, 862 F.2d 697, 699-700 (8th Cir. 1988).

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Hoskins also contends that Burgin has not established that he was injured as a result of
the alleged excessive force incident. Hoskins argues that the video footage of Burgin in the dry
cell shows Burgin’s “benign condition,” and that Burgin does not assert that the video is
inaccurate. (Doc. 50 at 2.) It is true that the video does not reveal any obvious injuries. It is
unknown, however, how long after the use of force incident the video was filmed. As pointed
out by both parties, there are no video cameras in the bathroom where the use of force incident
occurred. In addition, although Hoskins admits in his statement of facts that Burgin complained
of lingering pain from the pepper spray and that a nurse allowed him to wash his face as a result,
there is no documentation of this in the medical records provided. In fact, there is no reference at
all in the medical records provided by Hoskins to the fact that Burgin was sprayed in the face
with pepper spray. Similarly, there are no institutional records documenting the use of force
incident in the record, other than the administrative grievance records provided by Burgin.
Regardless of the dearth of evidence in this case, whether the Eighth Amendment was violated
turns on whether force was applied “maliciously and sadistically. . .to cause harm. . .whether or
not significant injury is evident.” Hudson, 503 U.S. at 9 (citations omitted).
The Court is required to view the facts in favor of Burgin and to resolve all doubts in
Burgin’s favor. With this in mind, the Court finds that the facts alleged in Burgin’s verified
complaint and deposition, and the deposition testimony of Hoskins create an issue of material
fact as to whether Hoskins used excessive force during the September 8, 2010 incident.
Hoskins next argues that he is entitled to qualified immunity on Burgin’s excessive
force claim. Under Eighth Circuit law, “[q]ualified immunity protects government officials
performing discretionary functions from liability for damages so long as ‘their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would

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have known.’” Curry v. Crist, 226 F.3d 974, 977 (8th Cir. 2000) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). The court employs a two-part inquiry “to determine whether a
lawsuit against a public official alleging a constitutional violation can proceed in the face of an
assertion of qualified immunity.” Serna v. Goodno, 567 F.3d 944, 951 (8th Cir. 2009). Courts
are to “consider whether, taken in the light most favorable to the party asserting the injury, the
facts alleged show the officer’s conduct violated a constitutional right.” Id. at 951-52 (citation
omitted). Further, courts ask whether the right was clearly established. Id. at 952. “Unless the
answer to both of these questions is yes, the defendants are entitled to qualified immunity.”
Krout, 583 F.3d at 564.
The Court has found that genuine issues of material fact exist as to whether Hoskins
applied excessive force maliciously and sadistically on September 8, 2010. The law is wellestablished that a malicious and sadistic use of force by a prison official against a prisoner, done
with the intent to injure and causing actual injury, is enough to establish a violation of the Eighth
Amendment’s cruel and unusual punishment clause. See Hudson, 503 U.S. at 9-10. Thus,
Hoskins is not entitled to qualified immunity on Burgin’s excessive force claim and Hoskins’
Motion for Summary Judgment will be denied as to this claim.
B.

Cruel Conditions Claim (Count II)
Burgin contends that Hoskins, in falsely claiming that Burgin had swallowed drugs,

maliciously and sadistically caused Burgin’s placement in a dry cell for ten days, where he was
shackled and bound, and subjected to the indignity of having his bowel movements searched.

“The Eighth Amendment prohibits punishments that deprive inmates of the minimal
civilized measure of life’s necessities.” Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996). In
order to support an Eighth Amendment violation, a prisoner must prove the existence of

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objectively harsh conditions of confinement, together with a subjectively culpable state of mind
by prison officials in condoning or creating the conditions. Choate v. Lockhart, 7 F.3d 1370,
1373 (8th Cir. 1993).
Hoskins argues that he is entitled to judgment on Burgin’s cruel conditions claim because
Hoskins had no authority over the conditions of Burgin’s confinement in the “dry cell,” nor did
he have authority to order Burgin to be confined in the dry cell at all.
Burgin acknowledges that Hoskins was not directly involved in the decision to place
Burgin in the dry cell, yet contends that his placement in the dry cell was the direct result of
Hoskins’ unlawful actions. Burgin contends that, if Hoskins had not initiated the contact with
Burgin and brought the false drug allegations against him, then no use of the dry cell would have
been considered by the prison administrator.
“Liability under section 1983 requires a causal link to, and direct responsibility for, the
deprivation of rights.” Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006).
Hoskins testified that a dry cell is “an empty cell without a toilet.” (Doc. 42-2 at 31.) A
mattress is brought in at night, from 10:00p.m until 6:00 a.m. Id. at 32. When the inmate has to
use the restroom, a “porta-potty” is brought into the cell. Id. The purpose of the dry cell is to
allow prison staff to retrieve contraband from the inmate’s bowel movements. Id. at 31. Even
though Hoskins did not directly place him in the dry cell or oversee his confinement in the dry
cell, Hoskins had to know that his allegation that Burgin had swallowed drugs would lead to his
confinement in the dry cell. If Burgin had in fact swallowed drugs, his confinement to the dry
cell for ten days would be reasonable. In this case, the Court has found that a genuine issue of
material fact exists as to whether Hoskins applied excessive force maliciously and sadistically on
September 8, 2010. It is undisputed that it was Hoskins’ actions that caused Burgin to spend ten

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days in the dry cell. Thus, a genuine issue of material fact exists as to whether Hoskins violated
Burgin’s Eighth Amendment rights by causing his confinement in the dry cell for ten days.
The Court further finds that Hoskins is not entitled to qualified immunity as to this claim
because a genuine issue of material fact exits as to whether Hoskins violated Burgin’s Eighth
Amendment rights, and the law concerning impermissible conditions of confinement is clearly
established. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
C.

State Law Assault and Battery Claim (Count III)
Burgin alleges that Hoskins’ actions in throwing Burgin to the ground and beating,

choking, and pepper spraying him without need or provocation was done maliciously and
sadistically to cause harm and constituted the tort of assault and battery under Missouri law.
Hoskins contends that he is entitled to official immunity on Burgin’s state law assault and
battery claim because he was acting in his official capacity and within the scope of his authority
as a member of the search team at SECC. Hoskins argues that he was executing a search on an
offender who he believed to be in possession of dangerous contraband and acted in front of two
other officers with identical missions.
Burgin argues that Hoskins is not entitled to official immunity because he acted in bad
faith or with malice. Burgin points out that, although Hoskins claims that he acted in front of
two other officers, Hoskins has not submitted any evidence from those two officers to support his
account and refute Burgin’s allegations.
“Under Missouri law, the official immunity doctrine protects public officials from

liability for injuries arising out of their discretionary acts or omissions, but not from liability in
claims arising from their performance of ministerial acts.” Reasonover v. St. Louis Cnty., Mo.,
447 F.3d 569, 585 (8th Cir. 2006) (cited case omitted). Official immunity does not apply,

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however, to discretionary acts done in bad faith or with malice. Id.; Twiehaus v. Adolf, 706
S.W.2d 443, 446 (Mo. 1986) (en banc). “The relevant definition of bad faith or malice in this
context ordinarily contains a requirement of actual intent to cause injury.” Twiehaus, 706
S.W.2d at 447. An allegation of “malicious motive or purpose or of conscious wrongdoing” is
sufficient under Missouri law to preclude application of the official immunity doctrine. See id.
In this case, Burgin alleges that Hoskins acted maliciously in committing the intentional
torts of assault and battery based on his actions of throwing Burgin to the ground and beating,
choking, and pepper spraying him without need or provocation. These allegations describe a
conscious abuse of official duty and power which fall within the scope of malice or bad faith.
Under these circumstances, whether official immunity applies is a question of fact which must be
considered by the jury. See Blue v. Harrah’s North Kansas City, LLC, 170 S.W.3d 466, 479-80
(Mo. Ct. App. 2005) (summary judgment inappropriate where facts created a genuine dispute
about whether officer acted in bad faith or with malice in making arrest, thereby precluding him
from claiming official immunity, and issue was for jury). Hoskins’ Motion for Summary
Judgment on Burgin’s state law claims on the basis of official immunity will therefore be denied.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment is
denied.
IT IS FURTHER ORDERED that this matter will be set for trial after a telephone
conference with the parties is held on a date to be determined.

/s/ Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 21st day of December, 2015.

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