Davis v. Webb et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment 97 is GRANTED. IT IS FURTHER ORDERED that Plaintiff's Motion to Strike Affidavit of Terry Webb 106 is DENIED. An appropriate Judgment will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 3/28/2014. (JWD)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
FREDERICK P. DAVIS,
TERRY WEBB, et al.,
Case No. 4:11-CV-1906-JAR
MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Summary Judgment (Doc. No.
97) and Plaintiff’s Motion to Strike Affidavit of Terry Webb. (Doc. No. 106) Plaintiff brings this
action under 42 U.S.C. § 1983 against defendants Terry Webb, Ian Wallace and Timothy
Lancaster, in their individual capacities, for alleged violations of his First Amendment rights.
Specifically, Plaintiff alleges Defendants disciplined him in retaliation for filing informal
resolution requests (“IRRs”) and grievances against prison officials. (Third Amended Complaint
(TAC), Doc. No. 75)1 In their motion for summary judgment, Defendants contend that Plaintiff’s
§ 1983 claim for retaliation fails as a matter of law. In addition, Defendants argue they are
entitled to qualified immunity.
As a threshold matter, Defendants argue that Plaintiff has failed to comply with Local
Rule 7-4.01(E) by failing to “specifically controvert” their Statement of Uncontroverted Material
Throughout their briefing the parties reference Plaintiff’s second amended complaint filed April 10, 2012 (Doc.
No. 22); however, Plaintiff was granted leave to file, and did file, a third amended complaint on December 28, 2012
(Doc. No. 75), which is the operative complaint to which the motion for summary judgment is addressed.
Facts. 2 (Reply, Doc. No. 58, pp. 1-2) Plaintiff’s pro se status does not excuse him from
responding to Defendants’ motion “with specific factual support for his claims to avoid summary
judgment,” Beck v. Skon, 253 F.3d 330, 333 (8th Cir. 2001), or from complying with local rules,
see Schooley v. Kennedy, 712 F.2d 372, 373 (8th Cir. 1983). See also Carman v. Treat, 7 F.3d
1379, 1381 (8th Cir.1993) (failing to allow pro se prisoner to disregard Federal Rules of Civil
Procedure). As a result of his failure to respond to Defendants’ statement of facts, Plaintiff is
deemed to have admitted all facts in Defendants’ statement of uncontroverted facts. Turner v.
Shinseki, 2010 WL 2555114, at *2 (E.D.Mo. June 22, 2010) (citing Deichmann v. Boeing Co.,
36 F.Supp.2d 1166, 1168 (E.D.Mo.1999), aff'd, 232 F.3d 907 (8th Cir.2000), cert. denied, 531
U.S. 877). However, Plaintiff’s failure to respond properly to the motion for summary judgment
does not mean that summary judgment should be automatically granted in favor of Defendants.
Even if the facts as alleged by Defendants are not in dispute, those facts still must establish that
they are entitled to judgment as a matter of law. Autry Morlan Chevrolet Cadillac, Inc. v. RJF
Agencies, Inc., 332 S.W.3d 184, 191 (Mo.Ct.App. 2010) (citations omitted). See also
Vandergrift v. Emerson, 2012 WL 15021, at *1 (W.D. Mo. Jan. 4, 2012).
In November 2010, Plaintiff Frederick Davis was an inmate in Housing Unit 5 at the
Potosi Correctional Center (“PCC”) in Mineral Point, Missouri. (Defendants’ Statement of
Uncontroverted Material Facts (SOF), Doc. No. 98-1, ¶ 7)
Defendant Timothy Lancaster was employed as an Administrative Inquiry Officer by the
Missouri Department of Corrections (“MDOC”) at PCC. As an Administrative Inquiry Officer,
Plaintiff has filed a Verified Statement of Material Facts in Genuine Dispute (Doc. No. 102-2), to which
Defendants have responded, denying the statements are material and noting that Plaintiff’s citations to the record are
either incorrect or do not exist. (Doc. No. 103-1) The Court will consider those statements where properly
supported; however, mere arguments, speculation and/or conclusions fail to create a genuine issue of material fact
sufficient to defeat summary judgment.
Lancaster investigated potential rule violations in the facility to ensure its safety and security.
(SOF, ¶¶ 1-2)
Defendant Terry Webb was employed as a Functional Unit Manager by the MDOC at
PCC. As a Functional Unit Manager, Webb was the hearing officer during disciplinary hearings.
(SOF, ¶¶ 3-4)
Defendant Ian Wallace was employed as the Deputy Warden for the MDOC at PCC. As
Deputy Warden, Wallace reviewed disciplinary hearing recommendations and decided whether
the violation justified referral to the administrative segregation (“ad-seg”) committee. (SOF, ¶¶
On or about November 23, 2010, Lancaster was interviewing offender David Stewart
regarding issues in Housing Unit 5. During the course of this interview, Stewart advised
Lancaster that Plaintiff was “mass producing” an IRR to file on staff Officer Brian Hall and had
approached him and other offenders to mass file this complaint. Stewart showed Lancaster
documents in Plaintiff’s handwriting that supported these allegations. (SOF, ¶¶ 8-10) Finding
Stewart to be a reliable informant because he had given truthful information numerous times,
Lancaster informed Warden Troy Steele of the allegations. Warden Steele instructed Lancaster to
place Plaintiff on Temporary Administrative Segregation status and conduct an inquiry. (SOF, ¶¶
Lancaster interviewed Plaintiff on December 14, 2010. (SOF, ¶ 13) Plaintiff stated he
showed offenders his grievance (Doc. No. 98-5) and admitted assisting offenders David Stewart
and Roland Alfred with their grievances. (SOF, ¶ 16) Lancaster also authorized a search of
Plaintiff’s cell, which produced documents supporting the allegations that Plaintiff was
circulating a mass IRR, namely three pages of a written complaint and one typed fill form
complaint against Officer Hall. (SOF, ¶ 14; Doc. No. 98-11)
Based on this information, on January 4, 2011, Lancaster issued Plaintiff a major conduct
violation for violating Rule 9.3 Inciting Organized Disobedience3 by “writ[ing] and show[ing] a
grievance to several offenders in an effort to persuade offenders to also file a complaint against
[Officer] Hall.” (SOF, ¶ 15; Doc. No. 98-5)
Webb was the hearing officer on Plaintiff’s Rule 9.3 Organized Disobedience
disciplinary hearing conducted on January 13, 2011. (SOF, ¶¶ 17, 18) Webb recommended
Plaintiff be found guilty of the conduct violation based on the evidence, including Lancaster’s
written report and the offender’s statements contained therein. (SOF, ¶ 21; Doc. No. 98-8)
Wallace reviewed the disciplinary hearing documents and Lancaster’s report and found
that Plaintiff’s statements merited referral to the ad-seg committee. (SOF, ¶¶ 22-24) Plaintiff was
disciplined for circulating mass IRRs, which is not allowed according to Department of
Corrections Policy, i.e., Rule 9.3 Inciting Organized Disobedience. (SOF, ¶ 27)
The standards for summary judgment are well settled. In determining whether summary
judgment should issue, the Court must view the facts and inferences from the facts in the light
most favorable to the nonmoving party. The moving party has the burden to establish both the
absence of a genuine issue of material fact, and that it is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247 (1986); Celotex Corp.
v Carrett, 477 U.S. 317, 322 (1986). Once the moving party has met this burden, the nonmoving
party may not rest on the allegations in the pleadings but must set forth by affidavit or other
Rule 9.3 prohibits “[i]nciting organized disobedience by encouraging offenders to assemble and refuse to disperse
or to engage in other acts of organized disobedience.”
evidence specific facts showing that a genuine issue of material facts exists. Fed. R. Civ. P.
56(e). At the summary judgment stage, the Court does not weigh evidence and decide the truth of
the matter, but rather only determines if there is a genuine issue for trial. Anderson, 477 U.S. at
To prevail on a § 1983 claim for retaliation in violation of the First Amendment, Plaintiff
must demonstrate “(1) that he engaged in a protected activity, (2) a government official took
adverse action against him that would chill a person of ordinary firmness from continuing in the
activity, and (3) the adverse action was motivated at least in part by the exercise of the protected
activity.” Santiago v. Blair, 707 F.3d 984, 991 (8th Cir. 2013) (citing Revels v. Vincenz, 382 F.3d
870, 876 (8th Cir. 2004)).
An inmate's claim for retaliation must fail where the alleged retaliatory conduct violation
was issued for an actual violation of a prison rule. Henderson v. Baird, 29 F.3d 464, 469 (8th Cir.
1994), cert. denied, 515 U.S. 1145 (1995); Goff v. Burton, 7 F.3d 734, 738 (8th Cir.1993), cert.
denied, 512 U.S. 1209 (1994); Orebaugh v. Caspari, 910 F.2d 526, 528 (8th Cir.1990). Thus,
prison officials may successfully defend a retaliatory discipline claim by showing “some
evidence” that the inmate actually committed a rule violation. Hartsfield v. Nichols, 511 F.3d
826, 829 (8th Cir. 2008) (citing Goff, 7 F.3d at 738-39). Under this standard, “a report from a
correctional officer, even if disputed by the inmate and supported by no other evidence, legally
suffices as ‘some evidence’ upon which to base a prison disciplinary violation, if the violation is
found by an impartial decisionmaker.” (Emphasis added.) Id. at 831. If a court concludes that the
“some evidence” standard is satisfied, then it need not reach the issue of whether there is
sufficient evidence connecting the plaintiff’s discipline with his exercise of First Amendment
rights. Id. at 829.
In support of their motion, Defendants argue that Plaintiff has failed to establish any
element of his retaliation claim. First, Plaintiff was not engaged in a constitutionally protected
activity. While Plaintiff admittedly has a right to use the grievance process himself in accordance
with prison policies and procedures, he does not have a constitutional right “to incite other
inmates to file grievances or to assist other inmates in filing lawsuits.” Rouse v. Benson, 193
F.3d 936, 941 (8th Cir. 1999) (citing Williams v. Nix, 1 F.3d 712, 716 (8th Cir.1993) (“[A]n
individual inmate does not have a constitutional right to ‘practice’ jailhouse law”); Nickens v.
White, 622 F.2d 967 (8th Cir.1980) (prison officials justified in prohibiting circulation of a
petition in spite of restrictions on inmate's right to freedom of expression, based on reasonable
security concerns)). (Mem. In Supp., Doc. No. 98, pp. 6-7) Further, Plaintiff cannot show he
was disciplined in retaliation for exercising his rights because “some evidence” existed to
support Plaintiff’s conduct violation and because he received a hearing before a non-biased
decision maker. (Id., pp. 7-13)
Plaintiff responds that Defendants have failed to demonstrate the validity of the conduct
charge. (Response, Doc. No. 102-1, pp. 2-3) He challenges Defendants’ characterization of the
documents found in his cell as a “petition/mass IRR,” and repeatedly states that such a
“petition/mass IRR” was never found. Plaintiff argues there was no evidence that he either
“encouraged offenders to assemble” or “refused to disperse” pursuant to the language of Rule 9.3
or that any other offenders were written up for the same conduct. (Id., pp. 4-5) He also points to
alleged “technical” errors (fabricated dates) in the conduct charge and discipline action report as
suggestive of a retaliatory motive. (Id., pp. 5-6) Plaintiff further responds that Defendants have
failed to address his racial averments. (Id., p. 3)
In reply, Defendants state that Plaintiff’s allegations of racial discrimination were
directed at Officer Brian Hall, a non-party, and, therefore, not material to his retaliation claim.
(Reply, Doc. No. 103, pp. 3-4) Further, Rule 9.3 is not limited to acts of disobedience by
assembling and refusing to disperse; the Rule expressly includes engaging “in other acts of
organized disobedience.” 4 (Id., p. 7) Whether other offenders were written up is not material to
his claim. (Id., p. 4) Defendants maintain that regardless of the terminology used, Plaintiff
conceded that a mass IRR is passing around the same IRR for others to use. (Davis Depo., Doc.
No. 98-2, 34:16-37:24, 41:1-46:23) Finally, accidently writing the wrong year on a report,
particularly at the start of the new year, is not “affirmative evidence of a retaliatory motive.” 5
(Reply, p. 7)
Plaintiff alleges Lancaster filed a false conduct violation because he wanted him removed
from the housing unit. (TAC, ¶ 13; Deposition of Frederick Davis (Davis Depo.), Doc. No. 98-3,
77:25-81:17) Lancaster wrote the conduct charge based on the undisputed evidence of record
that Plaintiff was reported by another offender, that Plaintiff admitted showing his IRR to other
offenders, and that a search of Plaintiff’s cell uncovered letters with comments and instructions
Arguably, circulating a mass IRR is a violation of Rule 9.3 prohibiting the incitement of organized disobedience.
Certainly the Rule could be drafted to make this clearer.
The Court notes that Plaintiff himself made a similar mistake at his deposition:
Q: Today is January 10th, 2013, correct?
Q: It is not?
A: Oh. 2013? Yeah. I have -Q: It just changed.
A: -- problems with that, yeah. Right. (Doc. No. 98-2, 5:15-21)
to others on how to draft a similar letter. (Doc. No. 98-5; Davis Depo., Doc. No. 98-2, 34:1637:24) The Court finds this to be “some evidence” of conduct beyond simply assisting another
offender and is in fact evidence of encouraging or inciting disobedience in violation of Rule 9.3.
See, Earnest v. Courtney, 64 F.3d 365, 367 (8th Cir.1995) (per curiam) (officer's affidavit,
disciplinary report, and reliable confidential informants were “some evidence” of a rule
violation); Orebaugh, 910 F.2d 526 (plaintiff's admission to committing the offensive conduct
was “some evidence” of actual rule violation).
Plaintiff alleges Webb demonstrated bias at his January 13, 2011 conduct violation
hearing by failing to conduct an independent investigation and by not permitting him to call
witnesses, namely, those offenders interviewed by Lancaster, or to review a surveillance
videotape.6 (TAC, ¶¶ 15, 17; Davis Depo., Doc. No. 98-3, 59:4-60:25; 62:3-64:21; 82:15-84:11)
Prison officials, like other officials, are presumed to be impartial decision makers, and an
inmate’s subjective beliefs, without more, that the officials acted improperly, are insufficient to
survive summary judgment. Parks v. Dooley, 2011 WL 847011, at *24 (D.Minn. Feb. 11, 2011).
See also, deLlano v. Berglund, 282 F.3d 1031, 1035-36 (8th Cir. 2002).
In his affidavit, Webb states that as a hearing officer, he does not try a case or do a
separate investigation; rather, he reviews the evidence to make sure the conduct violation was
properly given. (Webb Affidavit, Doc. No. 98-6, ¶ 4)7 Webb further states that Plaintiff did not
Webb continued the hearing from January 6, 2011 to January 13, 2011 to accommodate Plaintiff’s request for
inmate counsel. (Webb Affidavit, Doc. No. 98-6, ¶ 7)
Plaintiff moves to strike Webb’s affidavit, arguing it contains a “perjurious averment,” i.e., that the conduct
violation was properly given. (Doc. No. 106) In resolving motions for summary judgment, the Court may “consider
only admissible evidence” and cannot use “affidavits . . . that were made without personal knowledge, consisted of
hearsay, or purported to state legal conclusions as fact.” Murphy v. Missouri Dept. of Corrections, 372 F.3d 979,
982 (8th Cir. 2004); Fed.R.Civ.P. 56(c)(4). Only when an affidavit does not meet the requirements of Rule 56(e) is it
subject to a motion to strike. It is the Court’s job to eliminate from consideration any argument, conclusions, and
give him the name of any witness he wished to call. (Webb Affidavit, ¶ 11) As for the
surveillance tape, Webb states the allegations against Plaintiff did not occur at a specific time or
place. (Webb Affidavit, ¶¶ 11-12) Webb recommended that Plaintiff be found guilty of the
conduct violation based on Lancaster’s report and investigation. It is well settled that the
charging prison guard’s statement alone is sufficient to support a disciplinary conviction.
Thornton v. Harmon, 2010 WL 2383904, at *2 n.2 (E.D. Ark Apr. 30, 2010) (citing Bandy-Bey
v. Crist, 578 F.3d 763, 766 (8th Cir. 2009); Hartsfield, 511 F.3d 826, 831).
Further, the Court previously ruled, on Plaintiff’s motion to compel, that disclosing the
identity of those individuals interviewed by Lancaster would implicate the safety and security of
both the individuals and the corrections facility, and denied the motion to compel. (Doc. No.
105) As for Plaintiff’s request for the surveillance tape from November 23, 2010, because the
allegations against him were not time or place specific, any video surveillance footage is not
relevant to this case.
Finally, Plaintiff acknowledges that Webb took him aside after the hearing and told him
his door was always open for Plaintiff’s complaints. (Davis Depo., Doc. No. 98-3, 83:14-84:11)
This action is certainly inconsistent with a retaliatory motive.
Plaintiff argues Wallace was retaliatory because he sided with corrections officers. (Davis
Depo., Doc. No. 98-2, 72:8-73:20) This unsupported conclusion is insufficient to show a
retaliatory motive. See Lewis v. Jacks, 486 F.3d 1025, 1029 (8th Cir. 2007) (citing Flittie v.
assertions unsupported by the evidence of record. Snider v. City of Cape Girardeau, 2011 WL 6331775, at *1 (E.D.
Mo. Dec. 19, 2011). Because striking a party’s pleadings is an extreme measure, motions to strike are viewed with
disfavor and infrequently granted. Stanbury Law Firm v. Internal Revenue Service, 221 F.3d 1059, 1063 (8th Cir.
2000) (internal quotations and citations omitted). The Court will, in its discretion, deny Plaintiff’s motion to strike.
The Court will consider the facts based on the evidence submitted, and legal arguments will be analyzed according
to those facts.
Solem, 827 F.2d 276, 281 (8th Cir.1987) (broad and conclusory allegations insufficient to
support a § 1983 retaliation claim). Moreover, these assertions are refuted by the record. The
record shows Wallace investigated Plaintiff’s previous complaints against Officer Hall by
coming to Plaintiff’s housing unit and observing Officer Hall. (Wallace Affidavit, Doc. No. 98-7,
¶¶ 11-12). Although Wallace found Plaintiff’s complaints unsubstantiated, Officer Hall was later
removed from the housing unit. (Davis Depo., Doc. No. 98-3, 84:12-86:2) Further, Wallace
reviewed Lancaster’s report and Webb’s findings, which qualifies as “some evidence” for
referring Plaintiff to the ad-seg committee.
Because the undisputed record is clear that “some evidence” exists that Plaintiff incited
organized disobedience in violation of prison rules, the Court will grant Defendants’ motion for
summary judgment on Plaintiff’s retaliatory discipline claim.
Defendants argue they are entitled to qualified immunity. (Mem. in Supp., Doc. No. 98,
pp. 13-15) In response, Plaintiff argues the Court has already ruled that Defendants are not
entitled to qualified immunity, relying on the Court’s orders denying Defendants’ motions to
dismiss. (Doc. Nos. 24, 50) The Court’s denial of Defendants’ motions to dismiss is not
dispositive of the argument raised in their motion for summary judgment. On a motion to
dismiss, the Court accepts as true all of the factual allegations contained in the complaint, even if
it appears that “actual proof of those facts is improbable,” and reviews the complaint to
determine whether its allegations show that the pleader is entitled to relief. Noel v. AT & T
Corp., 2013 WL 1283844, at *2 (E.D.Mo. Mar. 27, 2013) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555–56 (2007); Fed.R.Civ.P. 8(a)(2)). In its September 11 Order, the
Court concluded, after viewing Plaintiff’s allegations as true and in a light most favorable to him,
that a reasonable prison official would have known his actions constituted a violation of
Plaintiff’s First Amendment rights. (Doc. No. 50, p. 11) This matter is now before the Court on a
motion for summary judgment. As discussed above, summary judgment is appropriate when no
genuine issue of material fact exists in the case and the movant is entitled to judgment as a matter
of law. Celotex Corp., 477 U.S. at 322-23.
Government officials are generally afforded qualified immunity under § 1983 when
performing discretionary functions unless their conduct violates clearly established law. Nelson
v. Shuffman, 603 F.3d 439, 446 (8th Cir. 2010) (citing Beck v. Wilson, 377 F.3d 884, 889 (8th
Cir. 2004)). Qualified immunity should be granted when either of two elements has been
satisfied. A court first determines whether the facts, viewed in the light most favorable to the
plaintiff, establish a violation of a constitutional right. Pearson v. Callahan, 555 U.S. 223, 232,
(2009). The second question is whether the relevant constitutional right was clearly established at
the time of the alleged violation. Id. A court may consider either element of qualified immunity
first. Id. at 236. If a court determines the plaintiff’s right was not clearly established, it need not
analyze the second element but instead should grant the defendant qualified immunity. Id.
As discussed above, Plaintiff has failed to establish he was engaged in a constitutionally
protected activity when he encouraged other offenders to file complaints against Officer Brian
Hall. Plaintiff also failed to establish that Defendants disciplined him because he was engaging
in constitutionally protected activity, because “some evidence” existed that Plaintiff committed a
rule violation. Because Plaintiff’s claim of retaliatory discipline fails as a matter of law,
Defendants are entitled to qualified immunity with respect to this alleged retaliatory action.
Santiago, 707 F.3d at 993.
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment  is
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Affidavit of Terry Webb
 is DENIED.
An appropriate Judgment will accompany this Memorandum and Order.
Dated this 28th day of March, 2014.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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