Ross v. Carver et al

Filing 83

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendants' joint motion [Doc. 77] to strike plaintiff's motion for summary judgment [Doc. 75] is GRANTED to the extent that the Court will construe plaintiff's motion as his response to defendants' motions for summary judgment. IT IS FURTHER ORDERED that defendants' separate motions for summary judgment [Doc. 59; Doc. 66] are DENIED. IT IS FURTHER ORDERED that plaintiff's motions for appointment of counsel [Doc. 78; Doc. 81] are GRANTED, and that defendants shall grant appointed counsel access to all discovery materials related to this case including use-of-force investigation and prisoner-discipline material; videotapes; and relevant photographs and medical records. IT IS FURTHER ORDERED that plaintiff's remaining pro se motions for discovery are DENIED as moot. Signed by District Judge Stephen N. Limbaugh, Jr on 5/10/2022. (JMC)

Case: 4:19-cv-02971-SNLJ Doc. #: 83 Filed: 05/10/22 Page: 1 of 7 PageID #: 546

UNITED STATES DISTRICT
COURT EASTERN DISTRICT OF
MISSOURI SOUTHEASTERN
DIVISION
ROBERT ROSS,

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Plaintiff,
v.
CHARLES CARVER and
ZACHARY PHILLIPS,
Defendants.

Case No. 4:19cv2971- SNL

MEMORANDUM AND ORDER
In this 42 U.S.C. § 1983 suit, pro se plaintiff Robert Ross, a Missouri prisoner,
claims that two correctional officers used excessive force against him. The officers,
defendants Charles Carver and Zachary Phillips, separately move for summary
judgment. Plaintiff has not filed a response, and the time to do has passed; instead, he
has filed two largely duplicative motions for summary judgment, as well as motions
for counsel and for discovery. Defendants move to strike plaintiff’s summary
judgment motions as untimely, or to construe them as a response to their summary
judgment motions. Because plaintiff’s summary judgment motions are untimely but
were filed within the time to respond to the pending summary judgment motions, the
Court will construe plaintiff’s motions as his summary judgment response.
I. Summary judgment standard
Under Federal Rule of Civil Procedure 56(c), a district court may grant a motion

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for summary judgment if all of the information before the court demonstrates that
“there is no genuine issue as to material fact and the moving party is entitled to
judgment as a matter of law.” Poller v.Columbia Broadcasting System, Inc., 368 U.S.
464, 467 (1962). The burden is on the moving party. City of Mt. Pleasant, Iowa v.
Assoc. 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. Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). Instead, the nonmoving party bears the burden of setting forth
specific facts showing that there is sufficient evidence in its favor to allow a jury to
return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 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. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983). The
Court is required to resolve all conflicts of evidence in favor of the nonmoving party.
Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir.
1976). However, the nonmoving party’s allegations must be supported by sufficient
probative evidence that would permit a finding in his favor on more than mere
speculation, conjecture, or fantasy. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007)
(quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)).
II. Factual Background
The following facts are undisputed. Plaintiff has a history of feigning medical
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emergencies and engaging in assaultive behavior towards prison staff. At the time of
the alleged excessive force, he was housed at Eastern Reception Diagnostic
Correctional Center where defendants were correctional officers.
Specifically, on March 18, 2019, plaintiff was escorted to a one-man cell
following a struggle with correctional staff who had been trying to cuff his legs to a
restraint bench. Once inside, he declared himself to be suicidal and banged his head
against the cell door. Defendants Carver and Phillips arrived on the scene, and Carver
entered the cell while Phillips held a camera. Carver ordered Ross, whose arms were
restrained behind his back, to submit to a strip search. The parties disagree as to what
happened next, and in accordance with the above-cited summary judgment principles,
the Court has resolved the evidentiary conflicts in favor of Ross based on his verified
complaint and deposition.
Specifically, Ross disobeyed “several directives” to remove his boxer shorts,
saying he was uncomfortable because he was in view of other inmates, and Carver
issued “warnings.” He then slammed Ross to the floor, punched him in the mouth, and
placed him in “some type of choke hold.” Phillips put down the camera he had been
using to film the encounter and landed “a few punches and knees towards [Ross’s]
sides.” They demanded that Ross, by then naked, stand up as back-up officers arrived.
Carver and Phillips then tried to back Ross towards the door so they could exit the cell,
and Ross spat blood at them. At that point Carver “aggressively” slammed Ross’s face
“against” or “towards” the wall. He then forced Ross towards the door, closed it, and
removed the restraints. Ross passed out. He suffered a “busted” mouth, split and
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swollen eye, and bruised ribs. A nurse photographed his face and treated his injuries
with glue and holding strips. He was also given x-rays.
III. Excessive force standard
The Eighth Amendment forbids the “unnecessary and wanton infliction of pain”
constituting cruel and unusual punishment. Hudson v. McMillan, 503 U.S. 1, 9-10
(1992). When a prison official is accused of using excessive physical force in 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.” Jackson v. Gutzmer, 866 F.3d 969, 974 (8th Cir. 2017). See also Ward v.
Smith, 844 F.3d 717, 721 (8th Cir. 2016) (“Because the use of force is sometimes
required in prison settings, guards are liable only if they are completely unjustified in
using force, i.e., they are using it maliciously and sadistically”). The applicable factors
include “the need for the application of force, the relationship between the need and the
amount of force that was used, and the extent of injury inflicted.” Whitley v. Albers, 475
U.S. 312, 321 (1986). “Whether a situation justifies the use of force to maintain or
restore discipline is a fact specific issue that turns on the circumstances of the
individual case or the particular prison setting.” Johnson v. Blaukat, 453 F.3d 1108,
1113 (8th Cir. 2006) (internal quotation marks and quoted cases omitted).
IV. Discussion
To begin, defendants argue that the Court should grant them summary judgment,
because Ross has failed to provide “evidence of specific material facts” that would
demonstrate a genuine issue for trial. [Doc. 77 at 5.] However, “when a plaintiff fails
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to respond adequately to a motion for summary judgment, a district court should not
treat such a non-response as sufficient to dispose of the motion.” Lowry v.
Powerscreen USB, Inc., 72 F.Supp.2d 1061, 1064 (E.D. Mo. 1999) (cited case omitted).
Rather, the court should “examine those portions of the record properly before them
and decide . . . whether the motion is well taken.” Id. Carver and Phillips also argue
that they used force only in a good-faith effort to maintain discipline, and that Ross was
the first to use force. [Doc. 60, Doc. 67.] Carver submits his affidavit, along with
papers from the use-of-force investigation and disciplinary proceedings against Ross, as
proof that Ross tried to headbutt him before Carver took him to the floor; that Ross bit
Carver’s hand, drawing blood, and refused to stop biting and struggling; and that Ross
tried to horse kick Carver after he was stripped. Under summary judgment principles,
however, Carver’s evidence does not trump the facts and reasonable inferences that find
support in Ross’s verified complaint and deposition. Rather, Carver’s evidence creates
genuine issues as to what factually occurred before and during the incident.
Accordingly, the Court finds genuine issues of material fact on whether the officers
used reasonable force to maintain order or whether they acted with excessive force.
In particular, a jury could reasonably conclude that Carver failed to act in good
faith when he slammed Ross to the floor and punched and choked him, given that
Ross’s wrists were restrained and he had not physically resisted the removal of his
boxer shorts. A jury might also conclude Phillips did not act in good faith to maintain
order when he kicked Ross, because Carver had Ross on the floor in a chokehold.
Slamming Ross’s face to the wall after he spat blood is a closer question, because blood
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is a biological hazard. Yet, viewing the record as a whole, the Court is unable to
conclude that no genuine factual issues exist on the reasonableness of the officers’ use
of force against Ross in his cell.
Relatedly, defendants argue they are entitled to qualified immunity. Courts apply
a two-part test in assessing a government official’s claim of qualified immunity, asking
whether the plaintiff has demonstrated a violation of a constitutional right and whether
that right was clearly established at the time of the violation. Williams v. Jackson, 600
F.3d 1007, 1012 (8th Cir. 2010). “[T]he Supreme Court has repeatedly instructed that
clearly established law . . . must be particularized to the facts of the case.” Boudoin v.
Harsson, 962 F.3d 1034, 1039 (8th Cir. 2020) (internal quotation marks and quoted
cases omitted). The Court finds that it was clearly established at the time of the
complained-of events that an inmate had an Eighth Amendment right to be protected
against the type of force supported by Ross’s evidence. Accordingly, defendants are
not entitled to qualified immunity in these summary judgment proceedings.
V. Motions for counsel and discovery
Ross moves for appointment of counsel, or for defendants to provide him
“proper access to evidence.” He complains that the record does not include, among
other things, pictures of his face and of the blood left on the cell wall after the incident;
the videotape of the struggle inside his cell; a videotape of the nurse treating his injuries
after the incident, and of Ross being escorted for x-rays; the x-rays of his ribs; and
statements from inmate and staff witnesses that were considered during the disciplinary
proceedings against him. [Doc. 75 at 9; Doc. 76 at 9-10.] He argues that he needs
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counsel to obtain the foregoing evidence. Ross also seeks leave to interview multiple
witnesses. Given the factual issues presented, the Court will appoint counsel, who can
address Ross’s concerns about the evidence.
Accordingly,
IT IS HEREBY ORDERED that defendants’ joint motion [Doc. 77] to strike
plaintiff’s motion for summary judgment [Doc. 75] is GRANTED to the extent that the
Court will construe plaintiff’s motion as his response to defendants’ motions for
summary judgment.
IT IS FURTHER ORDERED that defendants’ separate motions for summary
judgment [Doc. 59; Doc. 66] are DENIED.
IT IS FURTHER ORDERED that plaintiff’s motions for appointment of
counsel [Doc. 78; Doc. 81] are GRANTED, and that defendants shall grant appointed
counsel access to all discovery materials related to this case including use-of-force
investigation and prisoner-discipline material; videotapes; and relevant photographs and
medical records.
IT IS FURTHER ORDERED that plaintiff’s remaining pro se motions for
discovery are DENIED as moot.
Dated this 10th day of May, 2022.

__________________________
STEPHEN N. LIMBAUGH, JR.
SENIOR UNITED STATES DISTRICT JUDGE

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