Thompson v. Villmer et al

Filing 93

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment [Doc. No. 77 ] is GRANTED as to Defendant Wendy Dashner and DENIED as to Defendant James Ford. IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment [Doc. No. 80 ] is DENIED. Signed by District Judge Henry Edward Autrey on 10/25/18. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTRN DIVISION
GREGORY THOMPSON,

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Plaintiff,
v.
TOM VILLMER, et al.,
Defendants.

No. 4:15CV1012 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Summary
Judgment [Doc. No. 77] and Plaintiff’s Motion for Summary Judgment, [Doc. No.
80]. The parties respectively oppose the others’ motion. For the reasons set forth
below, the Court denies Plaintiffs Motion and denies Defendants’ Motion only as
to Defendant James Ford. Defendants’ Motion for Summary Judgment is granted
as to Defendant Wendy Dashner.
Facts and Background
Plaintiff, an inmate in the Missouri Correctional System, brought this
Section 1983 action against Defendants claiming that his constitutional rights were
violated when he was subjected to an unnecessary and wanton use of force. The
following facts are taken from exhibits in the record and the parties’ respective
statements of uncontroverted facts.

Plaintiff was an inmate incarcerated at Farmington Correctional Center
(“FCC”) in the State of Missouri. Defendant James Ford (“Ford”) was a
Correctional Officer II (“CO”) at FCC. Defendant Wendy Dashner (“Dashner”)
was a Functional Unit Manager (“FUM”) at MCC, and was CO Ford’s supervisor.
It is undisputed that Plaintiff had no significant interaction with Ford or Dashner
before July 9, 2014.
On July 9, 2014, Ford was conducting a security check of Housing Unit 6
when he encountered Plaintiff playing cards in a cell with four other inmates.
When Ford passed the cell, a verbal exchange took place. Parts of Plaintiff’s and
Ford’s respective accounts of the subsequent events are in dispute:
Plaintiff’s sworn testimony, in summary: While walking near the cell where
Plaintiff was playing cards, Ford smelled bleach and asked the inmates playing
cards where the bleach came from. When no one responded, Ford said “Where did
you n****rs get this bleach from?”1 Plaintiff said “Whoa,” and told Ford “You
want us to respect you; you should respect us the same way.” Plaintiff testified
that this statement “blew a ticking time bomb” in Ford, who said “No, you come
with me.” Plaintiff followed Ford to the sally port, where Plaintiff saw FUM
Dashner. In the sally port, Ford took out a can of mace and began shaking it.

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Plaintiff testified that initially, he did not remember Ford’s use of a slur due to his concussion,
but that he was reminded of it by fellow inmates. Plaintiff testified that he does, in fact,
remember Ford using the slur now; the memory is based on more than the mere suggestions.
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Plaintiff asked Ford what he was going to do with the mace, to which Ford replied
“I'm going to spray you if you don't turn around and cuff up.” Plaintiff asked,
“You're going to lock me up because I said respect us like you want us to respect
you?” Ford told Plaintiff to not ask questions. Plaintiff turned to Dashner and said
“Hey, could you come out and talk?” and Dashner shook her head no. Plaintiff
then told Ford that he did not want Ford to cuff him, and requested that another
guard cuff him. Ford called another guard, who cuffed Plaintiff. Ford then used his
right hand to grab Plaintiff’s left arm and started walking out to the yard. Plaintiff
saw Dashner in the sally port as he and Ford exited. After Ford and Plaintiff had
walked about 10 feet, Plaintiff said “Man this some bull****. You’re going to
lock me up.” Plaintiff turned toward Ford, looking at him, and said “You’re going
to lock me up on that bullcrap, man? Man.” At this point, Ford yanked Plaintiff
back and jumped on Plaintiff’s back. Ford asked Plaintiff if he was resisting and
Plaintiff said “I ain’t did nothing. Get off my back, man.” Ford then wrapped his
legs around Plaintiff’s waist and put his arm around Plaintiff in a chokehold. Ford
did something that caused the pair to fall forward, and Plaintiff’s face struck the
concrete ground. On the ground, Ford continued to choke Plaintiff with his left
arm while hitting Plaintiff in the head with his right hand. Ford also tried to mace
Plaintiff, but Plaintiff moved his head to avoid the direct spray. Soon, other guards
came to intervene, at which point Ford got up. Plaintiff looked up and saw
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Dashner through a window of the housing unit. The other guards picked Plaintiff
up off the ground, shackled his legs and took him to administrative segregation in
Housing Unit 5. Plaintiff told those guards that his chest hurt and that he needed
medical attention. Plaintiff was put into administrative segregation and was sent to
hospital due to cardiac arrest 10 days later. Plaintiff claims he had a concussion,
and currently has a defibrillator and takes heart pills as a result of the use of force.
Defendant Ford’s sworn testimony, in summary: Ford walked past the
cell in which Plaintiff and three other inmates were “just hanging out.” Once he
had passed the call, someone said “What the f*** are you sniffing at?” This
prompted Ford to go back to the cell and say “Excuse me?” In response, Plaintiff
repeated “What the f*** are you sniffing at?” Ford asked Plaintiff to come out of
the cell, and Plaintiff complied. Ford asked Plaintiff to go into the sally port, and
Plaintiff complied. In the sally port, Ford asked Plaintiff to turn around and submit
to wrist restraints.2 Plaintiff told Ford to “f*** off” and that he would not submit
to wrist restraints for Ford. Ford then pulled out his pepper spray and told Plaintiff
he had one more chance to submit to wrist restraints. This time, Plaintiff complied,
and Ford cuffed him. Ford exited the sally port, escorting Plaintiff with a soft
empty hand escort – that is, with Plaintiff to the left and slightly in front him, with
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When asked in his deposition why Plaintiff needed to be restrained, Ford said Plaintiff “had
already been threatening me once.” When asked if cursing at someone is threatening, Plaintiff
replied, “Absolutely. When you are in a cell with three other offenders and you act that way,
that’s definitely aggressive.”
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Ford’s left hand just above Plaintiff’s elbow, and his right hand free. When the
door opened, Plaintiff began talking and cursing, though Ford cannot recall exactly
what Plaintiff was saying. Plaintiff walked cooperatively for about 10 feet.
Plaintiff, still talking, then pivoted to his right, turning his body to face Ford while
also pulling away from Ford’s soft empty handed escort. At this point, Ford
believed Plaintiff had the ability and means to hurt him, though he did not know
Plaintiff’s intent. Because Plaintiff had been verbally aggressive earlier, Ford was
afraid he would be aggressive again. Ford’s reaction was to prevent Plaintiff from
hurting him. To do so, he believed it was “necessary to take [Plaintiff] off his feet
to the ground and get him away from where he could head butt me, kick me, knee
me; anything he could use as a weapon, take it away.” Ford, who still held
Plaintiff’s left elbow in his left hand, reached up with his right hand and grabbed
Plaintiff’s right shoulder. He then pulled Plaintiff towards him, causing them both
to become unbalanced. Ford fell straight onto his back and neck onto some dirt.
Plaintiff landed “straight on top of” Ford, who then rolled Plaintiff off of him, and
immediately radioed an emergency call. While Ford and Plaintiff were still on the
ground, additional guards arrived and took Plaintiff away. Soon after, Ford
prepared a report of the incident, which was typed up by another officer and signed
by Ford. The report states that Ford placed Plaintiff face down on the ground.
When confronted with this inconsistency, Ford insisted that he had never placed
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Plaintiff face down on the ground and chalked the mistake up to “laziness” on his
part. Ford sustained several injuries in the incident.
Plaintiff filed an Informal Resolution Request on October 28, 2014. Ford
was the subject of Plaintiff’s IRR, and Dashner was mentioned as a witness.
Representatives of the Missouri Department of Corrections received and processed
Plaintiff’s IRR, grievance, and grievance appeal and issued rulings on the merits.
Legal Standard
Pursuant to Federal Rule of Civil Procedure 56(a), 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 any material fact and the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden is on the
moving party. City of Mt. Pleasant, Iowa v. Associated 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. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of
setting forth affirmative evidence and specific facts by affidavit and other evidence
showing that there is a genuine dispute of a material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex,
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477 U.S. at 324, 106 S.Ct. 2548. “A dispute about a material fact is ‘genuine’ only
‘if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th
Cir. 2000) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). A party resisting
summary judgment has the burden to designate the specific facts that create a
triable controversy. See Crossley v. Georgia–Pacific Corp., 355 F.3d 1112, 1114
(8th Cir. 2004). Self-serving, conclusory statements without support are not
sufficient to defeat summary judgment. Armour and Co., Inc. v. Inver Grove
Heights, 2 F.3d 276, 279 (8th Cir. 1993).
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 that logically can be drawn from those facts. Matsushita,
475 U.S. at 587; Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.
2005). The Court may not “weigh the evidence in the summary judgment record,
decide credibility questions, or determine the truth of any factual issue.”
Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000).
However, the court is required to resolve all conflicts of evidence in favor of the
nonmoving party. Robert Johnson Grain Co. v. Chemical Interchange Co., 541
F.2d 207, 210 (8th Cir. 1976).
Defendant Dashner
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Plaintiff claims that Dashner is liable for the violation of his Eighth
Amendment rights in that she failed to properly supervise Ford and did nothing to
stop Ford from “severely beating” Plaintiff. Plaintiff claims that there is a genuine
fact dispute as to whether Dashner observed Plaintiff being taken down by Ford.
Plaintiff testified at his deposition that “Dashner [was] sitting right there
looking through the window the whole time” that the incident was occurring.
Plaintiff also testified that when he asked Dashner to be his witness, she told him
“That’s between you and Mr. Ford” and said to not put her in that; that she has
nothing to do with it. However, Plaintiff neither testified nor presented evidence
that Dashner was looking out the window at the time the alleged constitutional
violation was taking place. Plaintiff testified that when he turned toward Ford, he
saw Dashner in the window. Although Plaintiff admitted that his back was to the
window once Ford jumped on his back, he adamantly asserted at his deposition
that Dashner must have seen the incident, because he also saw her at the window
when the guards picked him up off the ground.
Dashner testified that she remembered observing Ford and Plaintiff standing
together, apparently having a heated discussion. Dashner was either in the
sergeant’s office or sally port, though she testified that she could not remember
which one. Dashner testified that she did not intervene then because nothing
inappropriate was happening between Ford and Plainitff. Dashner testified that at
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some point she turned away and went into the control room. At this point, Ford
and Plaintiff were no longer within her view. Dashner testified that she never saw
Ford and Plaintiff outside in the yard, nor did she see Ford engage in a use of force
against Plaintiff.
Plaintiff claims that summary judgment should not be entered in favor of
Dashner because there is a fact dispute as to whether Dashner had notice of Ford
performing a “spontaneous use of force.” This argument is not well taken.
Plaintiff’s record testimony and statement of uncontested facts only address where
Plaintiff allegedly saw Dashner before and after the incident. They do not address
when or whether Dashner was actually looking at or in the direction of Plaintiff
and Ford. Plaintiff fails to allege specific facts showing that Dashner actually
observed the use of force. Rather the facts show only that Plaintiff could see
Dashner at certain times before and after the use of force. No factual dispute exists
as to the threshold issue of Dashner’s contemporaneous awareness of the incident.
Defendant Dashner is entitled to judgment as a matter of law.
Defendant Ford
Plaintiff claims that the take-down performed on him by Ford was a
violation of his Eighth Amendment right to be free from cruel and unusual
punishment. “The Eighth Amendment bars correctional officers from imposing
unnecessary and wanton pain on inmates, regardless of whether there is evidence
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of any significant injury.” Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir.2006)
(citing Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156
(1992)). “The unnecessary and wanton standard does not have a fixed meaning,
however, and the state of mind necessary to establish cruel and unusual
punishment depends on the nature of the claimed constitutional violation. Thus,
when correctional officers are accused of using excessive physical force, they act
with a wanton state of mind when the force is applied maliciously and sadistically
to cause harm.” Parkus v. Delo, 135 F.3d 1232, 1234 (8th Cir. 1998) (citing
Hudson, 503 U.S. at 6–7, 112 S.Ct. at 998–99; Whitley v. Albers, 475 U.S. 312,
320–21, 106 S.Ct. 1078, 1084–85, 89 L.Ed.2d 251 (1986)) (internal citations
omitted).
Ford’s state of mind in using force on Plaintiff is thusly a material fact, and
one that is in dispute. Plaintiff claims that Ford used racial slurs against him
immediately prior to the use of force.

The trier of fact could reasonably find that

the use of derogatory, inflammatory language suggests a wanton state of mind and
that the use of force was malicious or sadistic. However, Ford categorically denies
using a racial slur. Because the record evidence shows that this material fact is
controverted, summary judgment as to Plaintiff’s claim against Ford is not
warranted.

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Similarly, Defendant Ford is not entitled to summary judgment based on
qualified immunity, due to the outstanding question of fact as to wantonness or
maliciousness. “The doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172
L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982)). “Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments, and protects all but
the plainly incompetent or those who knowingly violate the law.” Messerschmidt
v. Millender, 565 U.S. 535, 546, 132 S.Ct. 1235, 1244, 182 L.Ed.2d 47 (2012)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 2085, 179
L.Ed.2d 1149 (2011)) (internal quotations omitted). If Ford’s use of force was
wanton and malicious, then it would be a clear violation of the Eighth Amendment,
and Ford would not be entitled to summary judgment. See Hope v. Pelzer, 536
U.S. 730, 741, 122 S.Ct. 2508, 2516, 153 L. Ed.2d 666 (2002). A disputed
material fact bars summary judgment in favor of Ford based on qualified
immunity.
Conclusion

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Defendant Dashner is entitled to judgment as a matter of law. Judgment in
favor of Defendant Dashner will be entered upon resolution of the remaining issues
herein. On the other hand, there remains a material fact in dispute as to the claim
against Defendant Ford, precluding summary judgment.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Judgment [Doc. No. 77] is GRANTED as to Defendant Wendy Dashner and
DENIED as to Defendant James Ford.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary
Judgment [Doc. No. 80] is DENIED.
Dated this 25th day of October, 2018.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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