Anderson v. Lambordia et al
MEMORANDUM AND ORDER re: 17 MOTION for Summary Judgment filed by Defendant Jarome Kizer, Defendant Kevin Spitzer. IT IS HEREBY ORDERED that defendant's motion for summary judgment (#17) is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that summary judgment is GRANTED to defendantSpitzer. IT IS FINALLY ORDERED that summary judgment is DENIED as to defendantKizer. Signed by District Judge Stephen N. Limbaugh, Jr on 4/4/14. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
GEORGE LAMBORDIA, et al.,
Case No. 1:13CV21SNLJ
MEMORANDUM AND ORDER
This matter is before the Court on the defendant’s motion for summary judgment (#17),
filed December 24, 2013. The plaintiff has not responded, and the time for doing so has passed.
Thus, this matter is now ripe for disposition.
Plaintiff has not responded to the defendant’s statement of uncontroverted facts;
therefore, all the facts set forth by defendant are deemed admitted for the purpose of summary
judgment. Fed. R. Civ. P. 56(e); Local Rule 7-4.01(E).
At all relevant times, plaintiff was an inmate at the Southeast Correctional Center
(“SECC”). On the morning of May 2, 2012, inmates in plaintiff’s housing unit wing were taking
showers. When plaintiff returned from the showers, he found that his cell had been searched and
his property strewn about the cell. Plaintiff became upset because his toothpaste and deoderant
had been stepped on. When plaintiff asked to see a superior officer to complain, he was taken
from his cell and placed on a restraint bench in the middle of the wing. Plaintiff’s arms were
restrained behind his back. Plaintiff was later removed from the restraint bench by defendants
Jerome Kizer and Kevin Spitzer, who were both employed as corrections officers at SECC at that
time. Defendant Kizer began to escort plaintiff back to his cell. Plaintiff was angry and began
cursing defendant Kizer and calling him names. Further, plaintiff did not cooperate with
defendant Kizer and resisted the escort. According to defendants, and in order to bring plaintiff
under control, defendant Kizer turned toward plaintiff and placed him against a metal mesh
phone cage in the wing. Then plaintiff and defendant Kizer moved back to the middle of floor.
While defendant Kizer escorted plaintiff, defendant Spitzer escorted plaintiff’s cellmate
back to the cell. However, defendant Spitzer became aware of the disturbance involving plaintiff
and defendant Kizer, so Spitzer restrained the cellmate on the restraint bench and went to assist
Kizer. With assistance from two other officers, defendants were able to gain control of plaintiff
by bringing him to the floor. Then plaintiff was placed in leg restraints and carried to a restraint
cage. Shortly thereafter, plaintiff was evaluated by a nurse. He told the nurse that he was dizzy,
his head hurt, and that he had abrasions on his knee and shoulder. The nurse competed her exam
and noted no injuries to plaintiff.
Since the incident, plaintiff states that he has headaches just about every day. During the
headaches, he experiences pain just behind his left eye. Plaintiff stated that he cannot be certain
that his headaches are caused by the May 2, 2012 incident. Plaintiff states that the abrasions he
received during the incident healed in two or three weeks. Plaintiff also claims his back was
injured during the incident, but he did not complain to the nurse about that at the time, and he
said he is scheduled to see a doctor to figure out why his back keeps stiffening up.
Finally, plaintiff stated at his deposition that he put himself into the situation because he
got angry about his toothpaste.
Plaintiff brought this action against defendants Kizer and Spitzer in their individual and
official capacities, alleging an excessive force claim.1 Defendants filed the pending motion for
Summary Judgment Standard
Courts have repeatedly recognized that summary judgment is a harsh remedy that should
be granted only when the moving party has established his right to judgment with such clarity as
not to give rise to controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th
Cir. 1977). Pursuant to Federal Rule Civil Procedure 56(c), 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 material fact and the moving party is entitled to judgment as a matter of law.”
Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the
moving party. City of Mt. Pleasant, Iowa v. Assoc. 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). Instead, the nonmoving party bears the burden of setting
forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a
verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
In ruling on a motion for summary judgment, the court must review the facts in a light
most favorable to the party opposing the motion and give that party the benefit of any inferences
Claims against other defendants were dismissed by the Court pursuant to 18 U.S.C. §
that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 8th Cir.
1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party.
Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).
As an initial matter, plaintiff’s claims against defendants in their official capacities must
fail because suits against state officials in their official capacity are considered to be suits against
the state. Kentucky v. Graham, 473 U.S. 159, 169 (1985). A suit against these defendants, sued
in their official capacity as employees of the Missouri Department of Corrections, is a suit
against the State of Missouri. Thus, defendants are entitled to summary judgment on claims
against them in their official capacity. Pennhurst State School & Hosp. v. Halderman, 465 U.S.
89, 100 (1984).
As for plaintiff’s claims against defendants in their individual capacities, 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
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, 130 S.Ct. 1175, 1177 (2010) (per curiam). However, “the extent of
the injury may also provide some indication of force applied.” Id. at 1178. Here, plaintiff’s
injuries appeared minimal in that the nurse noted that he had no injuries, but plaintiff alleges that
he had abrasions and that he continues to suffer from headaches.
Pursuant to Wilkins and Hudson, however, regardless of the nature of plaintiff’s injuries,
the Court’s inquiry does not end there. 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 to cause 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)). Defendants maintain that there is no showing that
defendant’s actions were malicious or sadistic. However, when viewed on the video surveillance
recording submitted to the Court, the Court cannot agree with the defendants’ characterization of
the events. The video shows that plaintiff initially was reluctant to leave the restraint bench (the
defendants’ facts seem to admit that plaintiff was not permitted to talk to a supervisor as
requested), but that he went with Kizer and appeared to offer no struggle whatsoever. Kizer led
plaintiff with plaintiff’s hand cuffed behind his back, and plaintiff had his head turned and was
talking to Kizer. Then, with no apparent warning or reason, Kizer threw plaintiff into a nearby
restraint cage. The Court can see that Kizer did not “place” plaintiff up against the cage —
plaintiff contacted the cage with force, and then Kizer led plaintiff away again. Although
plaintiff admits he was angry and suggests that he put himself in the situation because he got
angry about his toothpaste, the video shows at least a question of fact as to whether defendant
Kizer’s application of force was a “good-faith effort to maintain or restore discipline.” Hudson,
503 U.S. at 6. Summary judgment must therefore be denied with respect to defendant Kizer.
Plaintiff’s allegations against defendant Spitzer pertain only to the period of time after
Kizer pushed plaintiff into the cage. The video shows that, after Kizer pushed plaintiff into the
cage, Kizer and plaintiff continued to exchange words. Then defendant Spitzer assisted with
forcing plaintiff onto the concrete floor. The video supports that this second event — when
multiple officers forced plaintiff to the floor — was motivated by an effort to restore order.
Plaintiff claims Spitzer “hoisted” plaintiff into the air and slammed him onto the concrete floor,
but the video shows that no such thing occurred. Plaintiff was clearly (although perhaps
understandably) struggling with defendant Kizer, and defendant Spitzer’s involvement appeared
to be part of the officers’ good-faith effort to maintain or restore discipline, as asserted by
defendants. As a result, summary judgment will be granted to defendant Spitzer.
Remaining for trial are plaintiff’s claims against defendant Kizer. The Court will appoint
counsel to represent the plaintiff in a separate order. Counsel for the plaintiff may seek to
reopen discovery for a limited period of time in order to prepare for trial. The plaintiff should
await further order of the Court on those matters. However, because plaintiff has not filed any
document with this Court since September 2013 (nor did plaintiff even respond to the summary
judgment motion), plaintiff will be ordered by separate order to file with the Court a notice of his
intention to pursue his claim. Should plaintiff fail to respond, the Court will entertain a motion
by defendants for dismissal for failure to prosecute.
IT IS HEREBY ORDERED that defendant’s motion for summary judgment (#17) is
GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that summary judgment is GRANTED to defendant
IT IS FINALLY ORDERED that summary judgment is DENIED as to defendant
Dated this 4th day of April, 2014
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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