Roberts v. Davis et al

Filing 34

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment 24 is GRANTED. Signed by District Judge John A. Ross on 5/6/13. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CHRISTOPHER DUNE ROBERTS,
Plaintiff,
v.
STEVE R. DAVIS, et al.,
Defendants.

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No. 4:11-CV-2007 JAR

MEMORANDUM AND ORDER
This matter is before the court on Defendants’ Motion for Summary Judgment
(“Motion”; ECF No. 24). The Court issued two show cause orders for Plaintiff Christopher
Dune Roberts (“Plaintiff”) to respond to Defendants’ Motion. (ECF Nos. 31, 33). Plaintiff,
however, has not responded to Defendants’ Motion or the Court’s Orders. Accordingly, the
Court considers Defendants’ Motion fully briefed and ready for disposition. See Cusamano v.
Sobek, 604 F. Supp. 2d 416, 426 (N.D.N.Y. 2009)(“where a nonmoving party fails to adequately
respond to a motion for summary judgment, a district court has no duty to perform an
independent review of the record to find proof of a factual dispute—even if that nonmoving
party is proceeding pro se”).
BACKGROUND
In September 2011, Plaintiff was incarcerated in the Missouri Department of Corrections
(“MDOC”), serving two concurrent five-year sentences.

(Defendants’ Statement of

Uncontroverted Material Facts (“DSUMF”), ECF No. 25, ¶1). Plaintiff received a director’s
release on September 16, 2012. (Id., ¶2).

Officer Davis and Officer Lacy conducted their routine monthly cell searches in Housing
Unit 2, C-wing on September 10, 2011. (Id., ¶3). Cell searches of Housing Unit 2, C-Wing
began at 7:07 p.m. (Id., ¶4). As part of the wing cell search, Plaintiff’s cell was searched by
Officers Davis and Lacy. (Id., ¶5). Officers Davis and Lacy found contraband, consisting of
trash, which they disposed of. (Id., ¶6). Officers Davis and Lacy were in Plaintiff’s cell for
thirty-seven (37) seconds. (Id., ¶7). The cell searches concluded at 8:35 p.m. (Id., ¶8). A nurse
was present on the C-Wing in Housing Unit 2 from 8:32 through 8:54 to complete a med pass.
(Id., ¶9). Plaintiff did not complain that Officer Davis used force against him during a cell
search on September 10, 2011, from the time the cell searches concluded at 8:35 until the end of
the shift at 11:30 p.m. (Id., ¶10). Plaintiff did not request treatment from the nurse on the wing
after the alleged use of force during the second shift. (Id., ¶11). Plaintiff waited more than three
hours until the beginning of the next shift (the third shift) to complain of his injuries. (Id., ¶12).
The nurse recorded Plaintiff’s injuries as a knot on the left upper front of the head, knot on the
back of the head, open scratch on the inside of upper right arm, several closed scratches noted on
both sides of lower back. (Id., ¶13).
If a use of force is required at the Potosi Correctional Center (“PCC”), a report is written
and maintained by the Major’s Office. (Id., ¶15). No use of force report was filed in relation to
Plaintiff on September 9 or 10, 2011. (Id., ¶16). Officer Davis was moved out of Plaintiff’s
Housing Unit after Plaintiff complained of force. (Id., ¶17).
After the alleged use of force, an officer assigned to Plaintiff’s housing unit stated that he
overheard Plaintiff stating to other offenders in the wing on September 13, 2011, that “I set his
ass up. They will pull his ass out of this Housing Until now. That’s all you gotta do man.” (Id.,
¶18). Plaintiff apparently was referring to Officer Davis.

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Another officer assigned to Plaintiff’s Housing Unit found a communication between
inmates stating that Plaintiff had contraband in his cell. (Id., ¶19). The note also stated,
“Grasshopper … he’s in Cell-29…didn’t he lie on COI Davis? Kez said he faked he’s [sic]
injuries.” (Id.). Plaintiff’s nickname is Grasshopper. (Id., ¶21).
Offender Queen stated that Plaintiff told Queen that Plaintiff had set up Officer Davis and
that Plaintiff had placed the marks on himself. (Id., ¶22).
Captain Marler began an initial investigation of Plaintiff’s claims on September 12, 2011,
with assistance from Officer Bollinger. (Id., ¶23). Capt. Marler and Officer Bollinger both
indicated that Plaintiff’s injuries could have been self-inflicted based upon the position of his
injuries. (Id.).
Prior to September 10, 2011, Plaintiff had claimed officers used force on him on three
occasions.

(Id., ¶24).

All of Plaintiff’s allegations were investigated and found to be

unsubstantiated. (Id.).
SUMMARY JUDGMENT 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. Citrate, 477 U.S. 317, 322 (1986);
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). 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.

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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
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.
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. 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. “‘Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.’” Torgerson, 643 F.3d at 1042 (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)).
DISCUSSION
I.

Statement of Facts

Under this Court’s local rules, “[a] memorandum in support for summary judgment shall
have attached a statement of uncontroverted material facts, set forth in a separately numbered
paragraph for each fact, indicating whether each fact is established by the record, and, if so, the
appropriate citations.” E.D. Mo. L.R. 4.01(E). In turn, “[t]he opposing party also shall note for
all disputed facts the paragraph number from movant’s listing of facts. All matters set forth in
the statement of the movant shall be deemed admitted for purposes of summary judgment unless
specifically controverted by the opposing party.” (Id.).

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Here, Plaintiff has not responded to Defendants’ statement of facts (or Defendants’
Motion). Consequently, the Court deems Defendants’ facts as admitted. See Moore v. City of
Desloge, 692 F. Supp. 2d 1122, 1128 (E.D. Mo. 2010) aff'd sub nom. Moore v. City of Desloge,
Mo., 647 F.3d 841 (8th Cir. 2011); Fed.R.Civ.P. 56(e)(2).
II.

Plaintiff’s Claims Under 42 U.S.C. 1983

In his Complaint, Plaintiff purports to allege claims under 42 U.S.C. §1983. (ECF No.
1). Plaintiff contends that Defendants Officer Steve R. Davis and Officer Rick Lacy, employees
of the Missouri Department of Corrections, violated Plaintiff’s Eighth Amendment Rights.
Specifically, Plaintiff alleges excessive use of force by Officer Davis and failure to protect by
Officer Lacy, during a search of Plaintiff’s prison cell.
A. Excessive Force Claim against Officer Davis
“When confronted with a claim of excessive force alleging a violation of the Eighth
Amendment, the core judicial inquiry is ‘whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.’” Santiago v. Blair,
707 F.3d 984, 990 (8th Cir. 2013)(quoting Hudson v. McMillian, 503 U.S. 1, 6–7, 112 S.Ct. 995,
117 L.Ed.2d 156 (1992)). “‘The Supreme Court recently clarified that the extent of any resulting
injury, while material to the question of damages and informative as to the likely degree of force
applied, is not in and of itself a threshold requirement for proving this type of Eighth
Amendment claim.’” Santiago, 707 F.3d at 990 (quoting Williams v. Jackson, 600 F.3d 1007,
1012 (8th Cir.2010)).1

1

Based upon this precedent, the Court does not address Defendants’ argument that they are
entitled to summary judgment because Plaintiff’s injuries were de minimis. See Williams, 600
F.3d at 1012 (the Supreme Court has “expressly rejected the theory that lower courts
may dismiss such claims based solely on the de minimis nature of the resulting injury”).
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Plaintiff’s Complaint alleges that Officer Davis used excessive force during the
September 10, 2011 search of his cell. Defendants contend that Plaintiff’s claim of excessive use
of force fails because the evidence demonstrates that Defendants applied no force on Plaintiff,
much less maliciously and sadistically and for the purpose of causing harm. (Memorandum in
Support of Defendants’ Motion for Summary Judgment (“Memorandum”), ECF No. 25, p. 3).
The evidence before the Court does not support a finding of excessive use of force.
First, eye witness accounts indicate that that cell search was conducted without the use of
force. Sergeant Brown was a witness to the cell search. Sgt. Brown stated that Plaintiff was
placed on a security bench during the search, was escorted back to his cell, and the restraints
were removed without incident. (ECF No. 26, Ex. H, pp. 5, 28). Likewise, Officer Donald Hale
was on the C Wing of Housing Unit 2 and conducted security checks after the alleged use of
force. Officer Hale said that he conducted numerous checks that night but Plaintiff never
indicated that he was injured or asked for medical attention. (ECF No. 26, Ex. H, p. 5). Officer
Hale also did a medication pass for Plaintiff with nurse Barbara Ross, whereby Plaintiff received
medication at the door of his cell. ECF No. 26, Ex. H, p. 5, 22, 27). Officer Hale stated that
Plaintiff had no injuries when he was standing at the cell door that evening, but that he had
marks on his body the following morning. (ECF No. 26, Ex. H, pp. 5, 22, 27). Finally, Officer
Andrew Cain conducted security checks in the C Wing of Housing Unit 2 the evening of the
alleged attack, but Officer Cain never saw any marks on Plaintiff. (ECF No. 26, Ex. H, p. 36).
Officer Cain stated that Plaintiff never tried to self-declare a medical request during his shift.
(Id.).
Defendants also point out that no report of use of force was made regarding the alleged
incident. A report must be prepared any time force is utilized at PCC. See ECF No. 25-6, Ex. F.

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No report was made regarding the purported use of force against Plaintiff on September 9 or 10,
2011. (Id.).
Defendants further cast doubt on Plaintiff’s claim because Plaintiff delayed in reporting
the alleged incident. Plaintiff waited more than three hours—until the next shift—to report his
injuries to Officer Tackett. (Memorandum, p. 6).
In addition, Defendants note that several people that observed Plaintiff’s injuries believe
that his injuries could have been self-inflicted. (Memorandum, p. 6). Officer Tackett observed
that “the offender had marks on him but appeared to me to be self-inflicted.” (Id.). Similarly,
Sergeant Scroggins indicated that some of Plaintiff’s injuries looked self-inflicted, and none
looked like Plaintiff had been assaulted because Plaintiff had no bruising. (Id.). Moreover,
Officer Bollinger, who photographed Plaintiff’s injuries, stated that “[w]ith the location of the
scratches, Offender Roberts could have done it.” (Memorandum, p. 7). Finally, Captain Marler,
who conducted the initial investigation into Plaintiff’s injuries, suggested that Plaintiff’s injuries
were self-inflicted. (Id.).
As further support of their Motion, Defendants detail other information that supports a
finding that Plaintiff’s injuries were self-inflicted. (Memorandum, p. 8). Officer Buckner stated
that he overheard Plaintiff telling other offenders on September 13, 2011 that “I set his ass up.
They will pull his ass out of this Housing Unit now. That’s all you gotta do man.” (Id.).
Similarly, Officer Leach found a note in Housing Unit 2. (Id.). The note appeared to be a
communication between two inmates that stated, “Grass hopper … he’s in Cell-29…didn’t he lie
on COI Davis? Kez said he faked he’s [sic] injuries.” (Id.).2 Plaintiff stated in his deposition

2

However, the offenders named in the notes denied knowing anything about the incident
and one refused to be interviewed. (Memorandum, p. 8).

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that his nickname is Grasshopper. (Id.). In addition, after the incident, Plaintiff moved into a
different cell and his new cell with a roommate named Queen.

Offender Queen told an

investigator that Plaintiff told Queen that Plaintiff had set up Officer Davis. (Id.). Plaintiff
reportedly told Queen that Plaintiff had placed marks on himself and that he had set up Officer
Davis so that he would be removed from Housing Unit 2. (Id., pp. 8-9).
Thus, the Court finds the evidence does not support a finding that Officer Davis used
force on Plaintiff or that Officer Davis’ purported use of force was the cause of any of Plaintiff’s
injuries. The evidence supports only a finding that Plaintiff’s injuries were self-inflicted, and not
the result of any force used by Officer Davis. See Brown v. Raimondo, 9:06CV0773GTS/RFT,
2009 WL 799970, at *6 (N.D.N.Y. Mar. 25, 2009) aff'd, 373 F. App'x 93 (2d Cir. 2010)(granting
summary judgment to Defendants and dismissing Plaintiff’s Eighth and Fourteenth Amendment
claims because Plaintiff’s injuries “may have been self-inflicted” and because any force was not
administered with malicious intent); Goff v. Garcia, CIV.A. H-10-2487, 2011 WL 1831681, at
*5 (S.D. Tex. May 12, 2011)(granting summary judgment to Defendant on Plaintiff’s Eighth
Amendment claims because the injuries were either self-inflicted or occurred outside of the jail).
Accordingly, the Court grants Defendants’ Motion for Summary Judgment on Plaintiff’s §1983
claim for excessive use of force.
B. Failure to Protect against Officer Lacy
The Eighth Amendment imposes a duty on prison officials to “take reasonable measures
to guarantee safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). To state a
failure-to-protect claim, Plaintiff was required to allege that (1) defendants were aware of facts
from which they could infer the existence of a substantial risk of serious harm to him, (2) they

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actually drew the inference, and (3) they failed to take reasonable steps to protect him. Schofield
v. Hopkins, 491 F. App'x 772, 774 (8th Cir. 2012)(citing Farmer, 511 U.S. at 836–38, 844).
Here, Plaintiff fails to demonstrate that he suffered any harm as a result of Officer Davis.
The evidence indicates that Plaintiff experienced a standard cell search, which lasted only 37
seconds. As previously discussed, several eyewitnesses reported that Defendants never used
force on Plaintiff. Likewise, Plaintiff did not complain of an excessive use of force until several
hours later. Several officers reported that Plaintiff’s injuries appeared to be self-inflicted. And,
there was evidence that Plaintiff faked his injuries in order to set up Officer Davis.
(Memorandum, p. 11).
Consequently, the evidence also does not support a finding that Officer Lacy failed to
protect Plaintiff during Officer Davis’ alleged assault of Plaintiff. Plaintiff’s failure to protect
claim cannot lie because there is no evidence of an underlying unconstitutional use of force
against Plaintiff.

Reed v. Harrison Cnty., Mississippi, CIVA 1:07CV704-RHW, 2009 WL

235354, at *4 (S.D. Miss. Jan. 30, 2009)(granting summary judgment in favor of defendants and
dismissing plaintiff’s failure to protect claim where he suffered no injury). The Court grants
Defendants’ Motion for Summary Judgment on Plaintiff’s §1983 claim for failure to protect.
C. Qualified Immunity
Qualified immunity shields law enforcement officers from suit if they “[did] not violate
[a] clearly established statutory or constitutional right[ ] of which a reasonable person would
have known.” Gorra v. Hanson, 880 F.2d 95, 97 (8th Cir. 1989)(quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982))). Determining the question of qualified immunity involves the
following two-step inquiry: (1) whether the facts shown by the plaintiff make out a violation of a
constitutional or statutory right; and (2) whether that right was clearly established at the time of

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the defendant's alleged misconduct. Santiago, 707 F.3d at 989 (citing Saucier v. Katz, 533 U.S.
194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). If no reasonable factfinder could answer yes
to both of these questions, the officer is entitled to qualified immunity. Nance v. Sammis, 586
F.3d 604, 609 (8th Cir. 2009).
As discussed at length previously, the record is devoid of any evidence that Officers
Davis and Lacy violated Plaintiff’s constitutional rights.

Rather, the undisputed facts

demonstrate that Plaintiff’s injuries were self-inflicted and not the result of any excessive use of
force or failure to protect. Thus, as another basis, the Court finds that Defendants are entitled to
qualified immunity and grants summary judgment in their favor.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment [24] is
GRANTED.
Dated this 6th day of May, 2013.

_________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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