Proby v. Russell et al

Filing 94

MEMORANDUM AND ORDER : 37 MOTION for Summary Judgment filed by Plaintiff George Proby, Jr. is DENIED.. Signed by District Judge John A. Ross on 3/31/16. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GEORGE PROBY, JR.,
Plaintiff,
v.
TERRY RUSSELL, et al.,
Defendants.

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Case No. 4:14-cv-1620-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff George Proby, Jr.’s (“Proby”) motion for
summary judgment. (Doc. No. 37.) Proby is a Missouri inmate, and initiated this action pro se
against a multitude of prison officials. Proby alleges that Defendants violated his constitutional
rights related to his placement and retention in administrative segregation.

He moves for

summary judgment against all named Defendants except Noel Obi and Bradley Hall. For the
reasons set forth below, Plaintiff’s motion for summary judgment will be denied.
BACKGROUND
Proby is currently incarcerated at Jefferson City Correctional Center (“JCCC”), a
Missouri Department of Corrections (“DOC”) facility located in Jefferson City, Missouri. On
October 17, 2012, Proby was incarcerated at Eastern Reception, Diagnostic and Correctional
Center (“ERDCC”), a DOC facility in Bowling Green, Missouri. The individual Defendants in
this case were and are employees of DOC who held various positions at the two facilities.
According to the complaint, on October 17, 2012, Proby was involved in an incident in
the ERDCC mess hall wherein he allegedly engaged in a fight with another inmate. Defendants
Frederick Nelson and Patricia Jones were the first officers to respond to the fight. Nelson

alleged that he was kicked in the head by Proby. The record establishes that following the
incident in the mess hall, Proby was transferred to JCCC, assigned to administrative segregation,
and received three conduct violations for assaulting another offender and for assaulting a
corrections officer. Proby originally filed administrative complaints, but apparently abandoned
them at the grievance stage, though this is the subject of some dispute between the parties.
Proby received numerous classification hearings which would have allowed him to advance
through several “phases” of JCCC’s program by which inmates are afforded more privileges,
including in November and December 2012, and February, May, July, September, and December
2013. Due to conduct violations, Proby progressed slowly through the phase system, and was
not ultimately promoted to the next phase until December 2013. Proby alleges that he was
denied the right to a hearing following the initial mess hall incident and before being transferred
to administrative segregation. He moves for summary judgment based on this purported “denial
to the plaintiff of due process of law.” (Doc. No. 37.)
DISCUSSION
Legal standard
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. v. Catrett, 477
U.S. 317, 322-23 (1986). The initial burden is placed on the moving party. City of Mt. Pleasant,
Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988).

If the record

demonstrates that no genuine issue of fact is in dispute, the burden then shifts to the non-moving
party, who must set forth affirmative evidence and specific facts showing a genuine dispute on
that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

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In determining whether summary judgment is appropriate in a particular case, 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. Benford v. Correctional Med. Servs., 2012 WL 3871948,
at *4 (E.D.Mo. Sept. 6, 2012) (citing 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. Id. (citing
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.” Id.
(quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)).
Analysis
Proby’s sole argument for summary judgment is that he was not given a fair disciplinary
hearing prior to his transfer to a new prison and administrative segregation, which denied him
due process of law. Proby has submitted a statement of undisputed facts, but he fails to cite to
the record for the facts he asserts, as required by Local Rule 7-4.01(E). Defendants dispute
major portions of Proby’s factual allegations, and Proby has not submitted uncontroverted
evidence of his allegations into the record. For example, Proby alleges in his statement of facts
that “Plaintiff was found guilty, without a disciplinary hearing, or no [sic] evidence submitted to
support either charge that [Defendants] filed against Plaintiff.” (Doc. No. 40 at 4.) This fact is
critical to Proby’s sole argument in his motion for summary judgment.

But Defendants

controvert this fact; they state that “[t]he Disciplinary Action Reports indicate that Plaintiff had
an opportunity to be heard, but refused to sign a waiver of rights in order to make a statement.”
(Doc. No. 48 at 4.) At least some evidence in the record supports Defendants’ position. See,
e.g., Doc. No. 68-13 at 199, 203 (evidence appearing to support that Proby refused to offer

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testimony at a hearing prior to the imposition of discipline); Doc. No. 68-3 (affidavit of
Defendant Alan Butterworth).
A claim premised on the denial of due process first requires a plaintiff to demonstrate that
he was deprived of a liberty interest. Proby alleges he was deprived of a liberty interest by being
assigned to administrative segregation without a fair hearing and in violation of his due process
rights. Without addressing the matter of whether the facts, as Proby has presented them, would
entitle Proby to relief, the Court finds that Proby has failed to adduce uncontroverted evidence
that he was denied a fair hearing. Thus, construing the facts in favor of Defendants, the
nonmoving party, Proby’s motion for summary judgment fails.
Because the initial burden is placed on the moving party, and Plaintiff’s motion for
summary judgment does not establish the non-existence of any genuine issue of material fact, it
is therefore properly denied. See City of Mt. Pleasant, 838 F.2d at 273 (holding that the moving
party has the burden of clearly establishing the non-existence of any genuine issue of fact that is
material to a judgment in its favor).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. No.
37) is DENIED.

________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
Dated this 31st day of March, 2016.

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