Cook v. Lombardi et al

Filing 72

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of defendants Timothy Bertelsmeyer, Clive Hedrick, and Donald Walcott for partial summary judgment [Doc. #62] is granted. Judgment will be entered in favor of defendants Clive Hedrick and D onald Walcott at the conclusion of this case. IT IS FURTHER ORDERED that the Clerk of Court shall appoint counsel for plaintiff pursuant to the Plan for the Appointment of Pro Bono Counsel. A separate Notice of Appointment of Pro Bono Counsel shall be entered by the Clerk. Signed by District Judge Carol E. Jackson on 5/23/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JASON JERICHO COOK,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
GEORGE LOMBARDI, et al.,
Defendants.

Case No. 4:14-CV-1695-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendants Timothy
Bertelsmeyer, Clive Hedrick, and Donald Walcott for partial summary judgment,
pursuant to Fed. R. Civ. P. 56(a).1

Plaintiff responded, and the issues are fully

briefed.
I.

Background
A. Claims

Plaintiff Jason Jericho Cook, an inmate at the Potosi Correctional Center
(PCC) in Potosi, Missouri, initiated this 42 U.S.C. § 1983 action on October 2, 2014.
The Court dismissed claims against nine individual defendants and several official
capacity claims on October 24, 2014.

On June 1, 2015, the Court granted

summary judgment to three other defendants because, inter alia, plaintiff failed to
exhaust his available administrative remedies. Plaintiff has five remaining claims2:

1

Defendants’ motion for summary judgment does not address all of the plaintiff’s claims.
Consequently, the instant motion is construed as for partial summary judgment.
2

The Court gives plaintiff’s “pro se complaint” the benefit of a “liberal construction” because, “if the
essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district
court should construe the complaint in a way that permits the layperson’s claim to be considered
within the proper legal framework.” Rey v. United States, 786 F.3d 1089, 1091 (8th Cir. 2015). The
Memorandum and Order of October 24, 2014, explicitly left intact all individual claims against

(1) Plaintiff first claims three corrections officers—Timothy Bertelsmeyer,
Clive Hedrick, and Donald Walcott—used excessive force on him on February 7,
2014, in contravention of the Eighth Amendment.

All three defendants move for

summary judgment on those claims. Video footage submitted as an exhibit to the
instant motion captures the incident.3 As the video shows, the officers applied force
to plaintiff, which leaves only the question whether the amount of force applied was
unconstitutionally excessive in the circumstances.

Further, plaintiff testified that,

as to the excessive force claims: “I don’t think Walcott or Hed[rick] did anything
wrong.” Pltf. Dep. at 51:17–18.
(2)

Additionally,

plaintiff

claims

Bertelsmeyer

is

liable

for

“verbal

harassment” for repeatedly “calling” plaintiff “names” before and during the use of
force, which included referring to plaintiff as a “bitch” and, at least once, a “Chomo,” a derogatory reference to the crime of which he was convicted.
¶¶ 20, 66; Pltf. Dep. at 11:16–18, 29:7–8, 55:14–19.

Compl.

Bertelsmeyer did not

address whether that purported guard-on-inmate “harassment” claim is actionable.
(3) Plaintiff relatedly alleges Bertelsmeyer “deliberately” announced plaintiff’s
“status as a sexual offender,” i.e., a “Cho-mo,” “in the presence of other offenders”
“with the

intent to cause” other prisoners “to retaliate against” plaintiff,

Bertelsmeyer, Hedrick, and Walcott. Five separate claims against those defendants in their individual
capacities are discernible in the complaint.
3

In response to the instant motion plaintiff says the video, “could not and did not reflect what really
happened,” and that the “footage was misconstrued.” [Doc. #69 at 3] He makes only a conclusory
allegation that the video evidence is not to be believed because of the “camera angle” and “definition.”
Id. But the video is clear as to all of the relevant details, and plaintiff has provided no evidence from
which a reasonable juror could infer the video was doctored. Therefore, the Court adopts the version
of the facts evidenced in the uncontroverted video because, “[w]hen opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe
it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); see Wallingford v. Olson, 592 F.3d 888, 892
(8th Cir. 2010). Further, the Court does not consider four inmates’ affidavits submitted with the
complaint, because they are squarely contradicted by the video record.

2

“subject[ing] him to violent confrontations” and putting his “life in danger.” Compl.
¶¶ 66, 73–74.

That announcement purportedly created “an unreasonable risk of

causing” plaintiff “physical and mental injury” and caused him “emotional distress.”
Id. ¶¶ 75–76; see id. ¶ 82.

It was not alleged in the complaint, nor has any

evidence been submitted, that plaintiff has been assaulted by other inmates
following

Bertelsmeyer’s

remark.

Nor

has

evidence

been

adduced

that

Bertelsmeyer made such a statement more than once, and that single alleged
instance occurred when the video shows no other inmates were present.
Bertelsmeyer did not move for summary judgment on that prospective failure-toprotect (i.e., exposure to risk of future injury) claim.
(4) Plaintiff next claims Bertelsmeyer made a single threat on plaintiff’s life
during the use of force, stating: “I’ll fuckin kill you.” Pltf. Dep. at 13:23–24, 47:3;
see Compl. ¶ 28; see also [Doc. #1-1 at 6]. The video record is silent, and so does
not contradict that allegation. Bertelsmeyer did not request summary judgment on
the alleged “death threat” claim.
(5) As to Hedrick and Walcott, plaintiff contends they failed to “stop” and
“report” Bertelsmeyer’s excessive use of force, a failure-to-intervene claim.
Dep. at 51:20–52:14.

Pltf.

Plaintiff acknowledges, however, that a non-defendant

sergeant—i.e., the person Hedrick and Walcott would have reported the incident
to—was “watching everything” from a monitoring “bubble” nearby, observing the
“whole incident.”

Id. at 12:1–3, 14:4–5.

Though neither guard addressed that

claim when moving for summary judgment, the failure-to-intervene claim is
inexorably intertwined with the excessive use of force claim against Bertelsmeyer.
Relevant to those claims, plaintiff seeks damages, an injunction preventing

3

the officers from using excessive force on him in the future, and an injunction
forbidding Bertelsmeyer from again harassing or coming into contact with plaintiff.
B. Facts
On February 7, 2014, Bertelsmeyer, Hedrick, and Walcott were escorting
plaintiff to his cell in the PCC’s “B” wing. Plaintiff’s arms were handcuffed behind
him.

Bertelsmeyer was walking behind plaintiff, while Hedrick and Walcott were

flanking him, holding his arms.

Bertelsmeyer was speaking to plaintiff.

Plaintiff

alleges Bertelsmeyer repeatedly called him a “bitch” on February 7, and at least
once referred to him as a “Cho-mo,” in reference to his “status as a sexual
offender.” Compl. ¶¶ 20, 66; Pltf. Dep. at 11:16–18, 29:7–8, 55:14–19.
Plaintiff “was trying to turn around and look at” Bertelsmeyer, but Hedrick
and Walcott continued to “push[]” plaintiff forward.

Pltf. Dep. at 32:15–22.

Attempting to “look at” Bertelsmeyer while “talking to him,” and because Hedrick
and Walcott “wouldn’t let” him, plaintiff “planted” his “feet and turned around
real[ly] quick[ly].” Id. at 32:22–25. The video confirms plaintiff planted his feet in
front of him, bracing himself against Hedrick and Walcott’s attempt to move him
forward. Plaintiff then started walking forward again, but he took a sudden step to
the right, jerking away from Hedrick and Walcott. Plaintiff turned around and to his
right, making an about face, while Hedrick and Walcott further attempted to
restrain plaintiff’s movement.

After regaining control, the officers began walking

plaintiff back toward the main entryway to the “B” wing.
As the officers did so, however, plaintiff again planted both feet in front of
him at an angle, resisting the officers’ forward movement.

He then juked to his

side, attempting to unpin his arms and wrest himself from Walcott and Hedrick. His

4

attempt to evade the officers caused him and Hedrick to lose balance, and both
men fell to the ground. Walcott immediately followed them down.
Hedrick and Walcott flipped plaintiff onto his stomach and restrained his
arms, head, and back.

Bertelsmeyer then dropped to the ground and restrained

plaintiff’s legs. Plaintiff claims Bertelsmeyer was “pushing” his legs “upwards, with
[plaintiff’s] knees bent, twisting [his] foot, like it was a top.” Id. at 33:15–17. He
alleges Bertelsmeyer was “trying to break” his foot. Id. at 33:17–18. During that
use of force plaintiff was all the while resisting the officers’ efforts to restrain him.
Approximately thirty seconds later, Bertelsmeyer released plaintiff’s legs and
stood up.

Walcott and Hedrick continued to hold plaintiff’s arms while releasing

their grips on his head.
position.

They rose at plaintiff’s sides, pulling him to a standing

Bertelsmeyer stood a few feet behind the group.

Plaintiff, flanked and

arms restrained by Hedrick and Walcott, and trailed by Bertelsmeyer, was then
escorted out of the “B” wing and into the “sally port,” a hallway outside the entry to
the wing.

As to Bertelsmeyer’s use of force while restraining plaintiff’s legs and

feet, plaintiff admitted at deposition:

“That use of force, I would not say was

excessive.” Id. at 33:5–34:4.
Once the quartet arrived in the hallway, Bertelsmeyer handcuffed plaintiff to
a restraint bench, attaching his existing handcuffs to a set of cuffs welded to the
bench. When he did so, Bertelsmeyer “started tightening the cuffs” on plaintiff’s
“wrists,” which allegedly has left “a scar.” Id. at 37:17–19. The officers finished
securing plaintiff’s arms and they walked away, returning a few minutes later.
Moments after they returned, plaintiff admits he “turned around and spit on”
Bertelsmeyer’s face.

Id. at 42:2.

The video shows plaintiff spitting on

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Bertelsmeyer from inches away.

According to plaintiff, the officers could have

“grabbed [his] face and restrained it,” and they would have been justified in doing
so because he had “just spit, so that’s a threat and [the officers] ha[d] to restrain”
him.

Id. at 42:3–8.

Further, plaintiff surmised, “after [he] spit, that’s all [the

officers] had to do,” the “minimum amount of force required” would have been “to
grab [plaintiff’s] face and restrain” him “again.” Id. Notably, however, the video
shows Walcott was at plaintiff’s feet attempting to secure him in leg restraints at
that time, in the path of where plaintiff would have preferred to be restrained.
Plaintiff testified Bertelsmeyer then “hit” plaintiff with his “fist or an open
hand” on the “front left side of [his] forehead” and “forced” plaintiff “over” the
restraint bench.

Id. at 43:15–44:9.

To the contrary, the video evidence shows

that as soon as plaintiff spit on Bertelsmeyer, both Hedrick and Bertelsmeyer
reached over plaintiff’s left shoulder and neck to pull his head, neck, and torso
down and forward, keeling him away from Bertelsmeyer but in the direction of
Walcott. Bertelsmeyer is not seen on the video hitting plaintiff’s forehead. In fact,
Hedrick’s arm, not Bertelsmeyer’s, was pressed against plaintiff’s neck, and
Bertelsmeyer was restraining plaintiff’s chest and shoulder with one hand and his
back with the other.
Two seconds later, both officers pulled plaintiff to the right and off the
restraint bench, away from Walcott, attempting to restrain his head and neck as
they did so. Plaintiff fell to the ground, landing on his right shoulder, right torso,
and head, with his arms extended behind him, still handcuffed to the restraint
bench. Hedrick and Bertelsmeyer quickly maneuvered plaintiff onto his stomach.
Over the course of the next fifty-five seconds, the video shows plaintiff first

6

shook his legs and resisted, even while still handcuffed to the restraint bench and
after having been taken to the ground.

He then further resisted as Hedrick and

Bertelsmeyer attempted to restrain his back, head, and neck. At that point Walcott
also got down on the ground and attempted to restrain and cuff plaintiff’s legs,
while plaintiff continued to thrash about. With all three officers on top of him, and
with his arms, back, head, and legs partially restrained, the video shows plaintiff’s
head and legs jerking back and forth as he continued to resist.
Plaintiff testified that while he was on the ground, Bertelsmeyer once uttered
some variation of: “I’ll fuckin kill you.” Id. at 13:23–24, 47:3; see Compl. ¶ 28.
Plaintiff does not allege that remark placed him in justified fear of imminent death,
merely that it “is possible” Bertelsmeyer could carry out the threat, [Doc. #1-1 at
6], and that the

remark was “malicious and deliberate.”

Compl. ¶ 28.

Bertelsmeyer was also “applying pressure” to his neck, and plaintiff meanwhile
“was trying to make sure that [his] forehead was on the floor,” to avoid breaking
his nose. Pltf. Dep. at 46:13–18. According to plaintiff, Bertelsmeyer then released
“the pressure on the back” of plaintiff’s “head,” at which point plaintiff “lifted up”
his head, and Bertelsmeyer then “smashed [his] face off the floor” several times.
Id. at 13:24–14:3.
The video instead shows that while plaintiff continued to move about as the
three officers were on top of him, Bertelsmeyer attempted to secure plaintiff’s head
and neck in one place with both hands. Plaintiff continued to struggle, however,
and Bertelsmeyer shifted positions multiple times as he attempted to counter
plaintiff’s movements.

Though for approximately ten seconds over the course of

the entire altercation plaintiff’s head is obscured by Bertelsmeyer’s body, it

7

otherwise is visible in continuous contact with the floor. At no point does the video
show plaintiff lifting his head any discernable distance from the floor or
Bertelsmeyer “smashing” plaintiff’s face back down once, let alone multiple times.
Further, during the few seconds when plaintiff’s head is not clearly visible, the video
shows Bertelsmeyer was on top of plaintiff and applying downward pressure to hold
his head and neck in place, vitiating plaintiff’s allegation that Bertelsmeyer
repeatedly released his hold on plaintiff to facilitate “smashing” his face back down.
The altercation ended just over one minute after it began when a sergeant
emerged from the “bubble” and said that he would Mace plaintiff if he made any
“false moves.” Id. at 49:24–50:8. Plaintiff was then placed back on the restraint
bench, his cuffs were loosened, and he was instructed “not to make any sudden
moves.”

Id. at 50:18–51:2.

He was subsequently charged with assaulting a

corrections officer, creating a disturbance, and disobeying an order. [Doc. #63-8]
Plaintiff claims that, though Bertelsmeyer was admittedly justified in using some
force on him after he spit, Bertelsmeyer used more than “the minimum amount of
force required to restrain” him. Pltf. Dep. at 12:20–23.
According to plaintiff, the officers’ use of force left his face bleeding, his lip
“busted open” and “split,” his wrist bleeding, and his “shoulder hurt[ing].” Id. at
14:21–15:10, 16:19–22, 18:10–11. With the exception of plaintiff’s shoulder, it is
undisputed those injuries healed following the administration of routine pain
medication. Plaintiff also complained that his teeth were “chipped” or “a little bit
loose,” but he told a nurse tending to his injuries that it was “not a big deal.” Id. at
16:19–17:2.

A dentist later repaired plaintiff’s tooth.

Id. at 23:20–23.

On

February 20, 2014, plaintiff also told a nurse that during the incident he “got a

8

crack in [his] forehead,” but the nurse reported she was “unable to feel a crack in
his forehead.” [Doc. #63-7 at 10] Plaintiff did not complain of pain on palpation of
his head, dizziness, blurred vision, nausea, or vomiting. Id. He does not allege an
ongoing forehead injury.
A shoulder x-ray on February 14, 2014, revealed plaintiff’s right shoulder had
a “glenohumeral subluxation/dislocation.”

[Doc. #63-7 at 6]

He was also

examined by a physician on February 24, who “advised” plaintiff “of [the] probable
chronic nature” of the subluxation and who told plaintiff that it “may minimize” with
range of motion exercises. Id. at 11. Further evaluation, restrictions, and physical
therapy was “not medically indicated.”

Id.

Plaintiff was, however, seen by a

physical therapist on April 9, 2014. The therapist prescribed daily range of motion
exercises for the chronic shoulder condition. Plaintiff continues those exercises.
II. Legal Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a
matter of law.” In ruling on a motion for summary judgment the court is required
to view the facts in the light most favorable to the non-moving party and must give
that party the benefit of all reasonable inferences to be drawn from the underlying
facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving
party bears the burden of showing both the absence of a genuine issue of material
fact and its entitlement to judgment as a matter of law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986).

Once the moving party has met its burden, the non-

9

moving party may not rest on the allegations of his pleadings but “must set forth
specific facts,” by affidavit or other evidence, showing that a genuine issue of
material fact exists. United of Omaha Life Ins. Co. v. Honea, 458 F.3d 788, 791
(8th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).

Rule 56 “mandates the entry of

summary judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III. Discussion
A. Excessive Force
1. Hedrick and Walcott
Plaintiff testified that he does not believe Hedrick or Walcott used excessive
force on him during the incidents in question. See Santiago v. Blair, 707 F.3d 984,
990 (8th Cir. 2013) (explaining the excessive force inquiry). Therefore, no genuine
dispute of material fact exists that Hedrick and Walcott are entitled to summary
judgment on plaintiff’s excessive use of force claims.
2. Bertelsmeyer
“After incarceration, only the unnecessary and wanton infliction of pain
constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”
Burns v. Eaton, 752 F.3d 1136, 1138 (8th Cir. 2014) (quoting Whitley v. Albers,
475 U.S. 312, 319 (1986)).

“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, 707 F.3d at 990 (quoting

10

Hudson v. McMillian, 503 U.S. 1, 6–7 (1992)).
Factors to be considered in deciding whether a particular use of force
was reasonable are 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.
Treats v. Morgan, 308 F.3d 868, 872 (8th Cir. 2002) (citing Hudson, 503 U.S. at 7).
“‘[T]he 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)).4
Where an “inmate ha[s] created a prison disturbance requiring some use of
force,” a court must determine, “whether the inmate’s testimony, viewed in light of
other relevant factors such as the extent of [his] injury and the security threat
reasonably perceived by [the] defendants, [would] support a reliable inference of
an unnecessary and wanton infliction of pain.” Id. (quotation marks and citation
omitted).

If no such reliable inference can be drawn, summary judgment is

appropriate.

See id.

In weighing those factors, however, a court is required to

“avoid[] the improper resolution of credibility issues,” which are assessments for
the trier of fact and not for summary judgment. Id. (quotation marks and citation
omitted).
As to Bertelsmeyer’s use of force when restraining plaintiff’s legs in the “B”
4

Consequently, the Court does not address Bertelsmeyer’s argument that he is entitled to summary
judgment because Cook’s injuries were de minimis. See Chambers v. Pennycook, 641 F.3d 898, 906–
07 (8th Cir. 2011) (“[T]here is no uniform requirement that a plaintiff show more than a de minimis
injury to establish an application of excessive force.” (citations omitted)). Consistent with Chambers,
the Court’s discussion regarding the severity of Cook’s injuries is directed to determining whether the
force Bertelsmeyer used was excessive.

11

wing during the initial altercation, plaintiff testified: “That use of force, I would not
say was excessive.” Pltf. Dep. at 33:5–34:4. Consequently, no genuine dispute of
material fact precludes summary judgment on that excessive force claim.
Further, during the confrontation in the “B” wing, the video shows plaintiff
strenuously resisted all three officers’ attempts to subdue him and restore
discipline, in spite of plaintiff being handcuffed.

Within five minutes of that

altercation Bertelsmeyer tightened plaintiff’s handcuffs, allegedly causing injuries to
his wrists that healed on their own, leaving only a purported scar. Tightening the
handcuffs was objectively justified in the circumstances given the threat that
plaintiff might again attempt to wrest himself free of the officers’ control, as he
later did. Plaintiff’s injuries from that application of force were also so minor as to
require

no

ongoing

medical

attention,

Bertelsmeyer tightened the cuffs

which

belies

any

suggestion

that

in excess of what was justified in the

circumstances. No reliable inference can be drawn that Bertelsmeyer’s tightening
the handcuffs resulted in an unnecessary and wanton infliction of pain because
plaintiff was not restrained sufficiently by the cuffs when they were looser in the “B”
wing. No reasonable juror could find that tightening the handcuffs was malicious
and sadistic, rather than a justified, good-faith attempt to restore discipline and
order in the minutes after the altercation in the “B” wing. Therefore, no genuine
dispute of material fact precludes summary judgment on that excessive force claim.
Next, contrary to plaintiff’s contention that Bertelsmeyer need only have
grabbed

his

face

in

response

to

the

spitting

attack,

noncompliance justified quickly taking him to the ground.

plaintiff’s

continued

As the video shows,

Bertelsmeyer and Hedrick first attempted to secure plaintiff in a forward position

12

away from Bertelsmeyer, the victim, but doing so put Walcott closer to the risk of
harm. Within two seconds, Bertelsmeyer and Hedrick moved plaintiff to the ground
in an attempt to gain control, which placed Walcott out of harm’s way.
The officers’ decision to take plaintiff to the ground after his attack may have
caused some of his superficial facial injuries when he landed, injuries that healed on
their own.

The officers’ efforts to restore discipline after plaintiff’s second act of

recalcitrance in ten minutes also resulted in his arms being hyperextended behind
him while still handcuffed to the bench, causing the now-chronic shoulder injury.
Though plaintiff’s shoulder injury is unfortunately ongoing, the video shows it was
the result of an objective need to use force to restore order and to prevent
additional injury to the officers in a tense situation requiring near-instantaneous
decision-making. No reasonable juror faced with the video evidence could conclude
that the split-second decision to take plaintiff to the ground in a manner that
incidentally injured him was a malicious or sadistic attempt to wantonly inflict pain
upon him. Accordingly, Bertelsmeyer is also entitled to summary judgment on that
excessive use of force claim.
Finally, the video leaves no doubt Bertelsmeyer’s efforts to restrain plaintiff’s
head and neck on the ground over the course of fifty-five seconds were not
excessive given the need to restore discipline. Plaintiff was resisting the entire time
he was on the ground until the sergeant arrived with Mace, and even with all three
officers holding him. Further, the first use of force in the “B” wing, then tightening
plaintiff’s handcuffs, and then securing him to the bench were all unsuccessful at
preventing his attack.

No reasonable juror could find Bertelsmeyer’s efforts to

restrain plaintiff’s head and neck were malicious or sadistic given the obvious risk

13

plaintiff would again attack the officers.
Though plaintiff’s facial injuries were likely caused when he was in contact
with the floor, those injuries largely healed without medical intervention, save
plaintiff’s tooth, which was repaired.

No evidence has been adduced that those

injuries are anything other than the result of Bertelsmeyer’s attempt to hold
plaintiff in place while he continued to thrash about.

Nor does the video show

plaintiff being punched or repeatedly lifting his head off the ground, only to have
Bertelsmeyer “smash” it back down, contrary to plaintiff’s contention.

No

reasonable inference can be drawn that Bertelsmeyer’s efforts to hold plaintiff’s
head and neck resulted in an unnecessary and wanton infliction of pain exceeding
the good-faith effort to restore discipline given such minimal injuries. Bertelsmeyer
is therefore entitled to summary judgment on this excessive use of force claim.
B. Failure to Intervene
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). The application of that duty in the excessive use of force context can
be divided along two temporal lines of analysis, before and after the use of force.
As relevant here, after a guard begins to use excessive force on a prisoner, the
officer “who knows another officer is using excessive force has a duty to intervene.”
Livers v. Schenck, 700 F.3d 340, 360 (8th Cir. 2012) (citing Putnam v. Gerloff, 639
F.2d 415, 423 (8th Cir. 1981)).

To prove that an officer failed to intervene to

protect a prisoner from excessive use of force by a guard, the prisoner must show
that the guard used excessive force, that the officer knew about the excessive use
of force, and that the officer had the opportunity to intervene to prevent the

14

excessive force by his compatriot but failed to do so. Putnam, 639 F.2d at 423.
Plaintiff has failed to show a genuine dispute of material fact exists regarding
an essential element of his failure-to-intervene claims against Hedrick and Walcott.
Because no reasonable juror could determine that Bertelsmeyer’s use of force was
unconstitutionally excessive in the circumstances, it follows that Hedrick and
Walcott cannot be liable for failure to intervene during that use of force. Therefore,
Hedrick and Walcott are entitled to summary judgment on plaintiff’s failure to
intervene claims.

Further, because those are the only remaining claims against

Hedrick and Walcott, summary judgment will be entered in their favor at the close
of all proceedings in this matter.
C. Remaining Claims
Plaintiff has three remaining claims, all of which are asserted against
Bertelsmeyer: (1) officer-on-inmate verbal harassment claim; (2) failure-to-protect
claim based on an officer-created risk of harm by other inmates; and (3) deaththreat claim. These claims will be addressed at trial.
Previously, the Court denied plaintiff’s motion for appointment of counsel
without prejudice.

Because it now appears that the plaintiff would benefit from

legal assistance in preparing for and conducting the trial, counsel will be appointed
to represent him. See, Trotter v. Lawson, ___ F. App’x ___, No. 15-2014, 2016
WL 105667, at *2 (8th Cir. Jan. 11, 2016)(court “should seriously consider
appointing counsel when an indigent plaintiff states a colorable claim and the
nature of the case is such that he and the court would benefit from assistance of
counsel,” even though appointment of counsel “may have been unwarranted early
in the proceedings . . .”)(quotation marks and citations omitted).

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***
IT IS HEREBY

ORDERED

that

the

motion

of

defendants

Timothy

Bertelsmeyer, Clive Hedrick, and Donald Walcott for partial summary judgment
[Doc. #62] is granted.
Judgment will be entered in favor of defendants Clive Hedrick and Donald
Walcott at the conclusion of this case.
IT IS FURTHER ORDERED that the Clerk of Court shall appoint counsel for
plaintiff pursuant to the Plan for the Appointment of Pro Bono Counsel. A separate
Notice of Appointment of Pro Bono Counsel shall be entered by the Clerk.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 23rd day of May, 2016.

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