Hanson v. Moniteau County Sheriff's Department et al

Filing 49

ORDER: ORDERED that: (1) Defendants' motion for summary judgment (Doc. No 41 ) is granted; and (2) this case is dismissed. Signed on September 8, 2015 by District Judge Nanette K. Laughrey. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
RICHARD MICHAEL HANSON,
Plaintiff,
vs.
MONITEAU COUNTY,
MISSOURI, et al.,
Defendants.

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Case No. 13-4232-CV-C-NKL-P

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT AND DISMISSING CASE
Plaintiff, who currently is incarcerated at the Farmington Correctional Center in Farmington,
Missouri, has filed pro se this civil action pursuant to 42 U.S.C. § 1983, seeking relief for claimed
violations of his federally protected rights while he was confined in Moniteau County, Missouri.
Defendants are Moniteau County and the following Moniteau County officials: Sheriff Jeptha
Gump, former Jail Administrator Harry Curtis, and former Deputy Jailer Sharon Gathercol.
Previously, this Court granted Defendants’ motion to dismiss certain claims.

Doc. 28.

Plaintiff’s two remaining claims are as follows: (1) Defendant Curtis retaliated against him for a prior
lawsuit by placing him in solitary confinement, and (2) Defendant Curtis used excessive force against
Plaintiff, which Defendant Gump ordered and Defendant Gathercol witnessed but failed to stop.
Currently pending before this Court are Defendants’ motion for summary judgment and suggestions
in support thereof (Docs. 41, 42) and Plaintiff’s response thereto (Doc. 48).
Standard of Review
Pursuant to Fed. R. Civ. P. 56(a), a movant is entitled to summary judgment on a claim only
if he has made a showing that “there is no genuine dispute as to any material fact and [he] is entitled
to judgment as a matter of law.” See generally Van Wyhe v. Reisch, 581 F.3d 639, 648 (8th Cir.
2009); Mason v. Correction Medical Services, Inc., 559 F.3d 880, 884-85 (8th Cir. 2009). In

applying this standard, the Court must view the evidence in the light most favorable to the nonmoving party, giving that party the benefit of all inferences that may be reasonably drawn from the
evidence. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Recio v. Creighton University, 521
F.3d 934, 938 (8th Cir. 2008) (citation omitted).
The inquiry performed is whether “there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “The nonmoving party must show the
existence of facts on the record which create a genuine issue.” Larson v. Kempker, 414 F.3d 936,
939 (8th Cir. 2005) (citing Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). An
“adverse party may not rely merely on allegations or denials, but must set out specific facts – by
affidavits or other evidence – showing [a] genuine issue for trial.” Tweeton v. Frandrup, 287 F.
App’x 541, 541 (8th Cir. 2008) (citing Fed. R. Civ. P. 56(e)).
Undisputed Issues of Fact
On January 6, 2011, Plaintiff filed a prior lawsuit against Defendants while he was confined
at the Morgan County Jail. Case No. 11-4015-CV-C-NKL-P, Doc. 1. While that case was pending,
Plaintiff was again confined in the Moniteau County Jail in March and April of 2011. Doc. 1, p. 9;
Doc. 42, p. 2.

Defendant Curtis was employed by Moniteau County, Missouri, as the Jail

Administrator until April 2012. Doc. 42, p. 2. Defendant Gathercol was employed by Moniteau
County as a deputy jailer until her retirement in May 2012. Id. Defendant Gump is the Sheriff of
Moniteau County. Id.
During Plaintiff’s confinement at the Moniteau County Jail in March and April of 2011,
Plaintiff was placed in a cell at the front of the jail used for inmates with special needs or increased
monitoring. Doc. 42-2, p. 1. Due to complaints by Plaintiff about his cell, on April 13, 2011,
Plaintiff was transferred to the Morgan County Detention Center (MCDC), which was considered to

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be better equipped to deal with inmates with increased medical needs. Doc. 42, p. 3; Doc. 42-2, p. 2.
Defendant Curtis transported Plaintiff to the MCDC. Doc. 1, pp. 11-12; Doc. 42, p. 3.
Discussion
I. Defendants Gump, Gathercol, and Curtis are entitled to summary judgment on
Plaintiff’s retaliation claim.
As to Plaintiff’s claim that he was placed in solitary confinement in retaliation for filing a
previous lawsuit, “[l]iability under [42 U.S.C.] § 1983 requires a causal link to, and direct
responsibility for, the deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.
1990) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). Plaintiff, therefore, must present
specific allegations of fact as to either direct personal involvement, direction of others, or a knowing
failure to supervise or act, which resulted in Plaintiff’s injuries. See generally Mark v. Nix, 983 F.2d
138, 139-40 (8th Cir. 1993) (Section 1983 liability requires some personal involvement or
responsibility); Ronnei v. Butler, 597 F.2d 564 (8th Cir. 1979).
Furthermore, in order to prevail on his Section 1983 retaliation claim, Plaintiff must prove
that “but for” his previous claims against prison officials, Defendant Curtis would not have taken the
alleged actions against Plaintiff. Goff v. Burton, 91 F.3d 1188, 1191 (8th Cir. 1996). To avoid
liability on a claim of retaliatory discipline, Defendants simply must prove that there was “some
evidence” in support of their decision to place Plaintiff in the cell. See id. Broad and conclusory
allegations of retaliation are not sufficient to support a Section 1983 claim for a violation of
constitutional rights. Flittie v. Solem, 827 F.2d 276, 281 (8th Cir. 1987).
Plaintiff neither alleges nor presents evidence that Defendants Gump and Gathercol were
personally involved in his placement in solitary confinement.

Insofar as Plaintiff alleges that

Defendant Curtis placed him in the cell in retaliation for filing a prior lawsuit, Plaintiff does not
present evidence disputing that the cell was at the front of the jail and was used for inmates with
special needs or increased monitoring. Plaintiff also does not present evidence disputing that he was

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transferred to MCDC due to his complaints about the cell and that the transfer occurred because it
was believed that MCDC was considered to be better equipped to deal with inmates with increased
medical needs. Therefore, Defendants have presented “some evidence” in support of the decision to
place Plaintiff in the cell until he was transported to MCDC. Conversely, Plaintiff’s allegation that
he was placed in the cell for retaliatory reasons is broad and conclusory and unsupported by
evidence.
Because Plaintiff has failed to present evidence that establishes a violation of his rights under
federal law, Defendants Gump, Gathercol, and Curtis are entitled to summary judgment on Plaintiff’s
retaliation claim.
II. Defendants Gump, Gathercol, and Curtis are entitled to summary judgment on
Plaintiff’s excessive force claims.
As to Plaintiff’s claims of excessive force, although “general factual allegations of injury
from the defendant’s conduct may suffice” to overcome a motion to dismiss, in response to a
summary judgment motion, “the plaintiff can no longer rest on such mere allegations, but must set
forth by affidavit or other evidence specific facts, which for purposes of the summary judgment
motion will be taken to be true.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal
quotations and citation omitted). Entry of summary judgment is mandated “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).
Despite the discovery period afforded to the parties, Plaintiff has failed to present to this
Court more than mere allegations that he was verbally and physically abused by Defendant Curtis.
Although Plaintiff claims that he has forthcoming evidence, Plaintiff does not provide that evidence
or state specifically what evidence will be produced and how it will establish the existence of the
necessary elements of his claims. For instance, in his reply, Plaintiff claims that “his ‘named

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witnesses’ will testify about what they saw happen at the jail and the medical policy” but does not
state how any of the named witnesses will establish the elements of excessive force or cruel and
unusual punishment upon which he will bear the burden. Doc. 48, pp. 11, 20.1 Moreover, Plaintiff’s
attached exhibits do not support his claims of abuse. Doc. 48-1.2
Notably, other than his mere allegations, Plaintiff fails to present any evidence that he
suffered an actual injury from Defendants’ actions. See 42 U.S.C. 1997e(e) (“No Federal civil action
may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior showing of physical injury.”); see also
White v. Holmes, 21 F.3d 277, 281 (8th Cir. 1994) (“While a serious injury is not necessary, some
actual injury is required in order to state an Eighth Amendment violation.” (citing Cummings v.
Malone, 995 F.2d 817, 822-23 (8th Cir. 1993))).
Because Plaintiff fails to present evidence to support his claims of abuse, Defendants Gump,
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Insofar as Plaintiff indicates that he needs additional time to obtain and submit evidence in this case, discovery
closed on January 16, 2015. After Plaintiff did not file his initial Rule 26 disclosures, Defendants filed a motion to
compel Plaintiff’s disclosures on February 25, 2015. Doc. 31. On March 13, 2015, Plaintiff filed a motion to
compel discovery, wherein he requested documents from the Morgan County Sheriff’s Department. Doc. 34. This
Court’s March 23, 2015, Order denied Plaintiff’s motion after finding that Plaintiff’s motion was untimely and that
Defendants did not have custody or control over the items in the possession of Morgan County. Docs. 36, 37. Later
that day, Plaintiff filed his responses to Defendants’ request for production of documents. Doc. 38. After
Defendants filed their motion for summary judgment, Plaintiff filed a motion to reopen discovery on June 22, 2015,
wherein he stated that his legal papers were lost by Missouri Department of Corrections staff members from October
16, 2014, to December 16, 2014, and that he still wanted to seek evidence from Morgan County. Doc. 44. This
Court denied that motion after finding Plaintiff dilatory in his discovery requests. Doc. 47.
In addition to being dilatory in seeking evidence from Morgan County, Plaintiff has been dilatory in his efforts to
obtain any of the potential evidence he mentions in his response and in obtaining relief for the alleged loss of his
documents by the MDOC. This Court further notes that Plaintiff did not present a personal affidavit in response to
Defendants’ motion for summary judgment, which would be independent of the discovery he wishes to seek in this
case. Plaintiff was fully aware of the importance of an affidavit to support his claims, in that this Court’s May 7,
2015, Order instructed Plaintiff that he must submit affidavits or discovery materials in response to Defendants’
motion for summary judgment and that “a response under oath is necessary.” Plaintiff even criticized his copy of
Defendant Curtis’ affidavit for being unsigned. Consequently, Plaintiff has not established that he should be
afforded yet more time to obtain and present evidence in this case.
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Plaintiff’s exhibits include an unsigned copy of Defendant Curtis’ affidavit, Plaintiff’s inmate medication log, and
what appear to be jail logs concerning Plaintiff’s medical treatment and interactions with staff. Doc. 48-1. The
inmate medication log and jail logs do not contain evidence relevant to Plaintiff’s claims of abuse. Although
Plaintiff claims that Defendant Curtis’ unsigned affidavit is evidence that Defendant Curtis is lying and does not
want to perjure himself, the copy of Defendant Curtis’ affidavit submitted to this Court is properly signed and
notarized. Doc. 42-2, p. 2.

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Gathercol, and Curtis are entitled to summary judgment on Plaintiff’s excessive force claims.
III. Defendants Gump, Gathercol and Curtis are entitled to qualified immunity.
As to Defendants’ claim that they are entitled to qualified immunity, the Court uses a two
pronged test to determine if a government official is entitled to qualified immunity. See Weiler v.
Purkett, 137 F.3d 1047, 1050 (8th Cir. 1998). The first prong of this test is to determine whether or
not the plaintiff has alleged a deprivation of a constitutional right. Id. The second prong of this test
is to determine if that constitutional right Awas so clearly established that a reasonable public official
would have known his or her conduct violated the Constitution at the time of the act.@ Id.
For the reasons set forth above, Plaintiff fails to establish a deprivation of a constitutional
right. As a result, Plaintiff fails to satisfy the first prong, and Defendants Gump, Gathercol, and
Curtis are protected from Plaintiff=s claims against them in their individual capacities by the doctrine
of qualified immunity.3
IV. Defendant Moniteau County is entitled to summary judgment.
As to Plaintiff’s claims against Defendant Moniteau County, Missouri, an entity of local
government may be held liable under Section 1983 only for acts by its officials or employees that
implement a governmental custom or policy, but may not be held vicariously liable for
unconstitutional acts by such employees. Monell v. Dep’t of Social Servs. of the City of New York,
436 U.S. 658, 691 (1978); Scheeler v. City of St. Cloud, 402 F.3d 826, 832 (8th Cir. 2005). For a
local entity to be liable under a custom or policy, there must be a deprivation of a constitutional right
and that deprivation must be the result of the local entity=s policy or the policy of a policy maker
acting under color of state law. Pembaur v. City of Cincinnati, 475 U.S. 469, 480-83 (1986); see also
City of St. Louis v. Prapotnik, 485 U.S. 112, 121-31 (1988) (“The city cannot be held liable under §

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Although Plaintiff also brings suit against Defendants Gump, Gathercol, and Curtis in their official capacities, they
are entitled to summary judgment in their official capacities for the reasons discussed below concerning Defendant
Moniteau County. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“A suit against a
public employee in his or her official capacity is merely a suit against the public employer.”).

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1983 unless respondent proved the existence of an unconstitutional municipal policy.”).
For the reasons set forth above, Plaintiff fails to present evidence that establishes the
deprivation of a constitutional right. Moreover, even though Plaintiff alleges that Moniteau County
has an unconstitutional policy that denies medication to inmates, Plaintiff fails to present evidence
establishing that the alleged retaliation and excessive force resulted from Moniteau County’s policy
concerning inmate medication. Because Plaintiff has failed to set forth a custom or policy of
Moniteau County that resulted in the deprivation of his constitutional rights, Defendant Moniteau
County, Missouri, is entitled to summary judgment.
Conclusion and Notice of Appellate Filing Fee
For the reasons explained above, and having considered Plaintiff’s ancillary evidence,
arguments, and claims, the Court finds that this case presents no unresolved issue of material fact and
that Defendants are entitled to judgment as a matter of law. Therefore, this Court will grant
Defendants’ motion for summary judgment.
Plaintiff is advised that if he appeals this dismissal, in addition to the $350.00 filing fee,
federal law now “‘makes prisoners responsible for [appellate filing fees of $505.00] the moment the
prisoner . . . files an appeal.’” Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (citation
omitted). Pursuant to Henderson, Plaintiff is notified as follows:
(a) the filing of a notice of appeal by the prisoner makes the prisoner
liable for payment of the full [$505] appellate filing fees regardless of
the outcome of the appeal; (b) by filing a notice of appeal the prisoner
consents to the deduction of the initial partial filing fee and the
remaining installments from the prisoner's prison account by prison
officials; (c) the prisoner must submit to the clerk of the district court
a certified copy of the prisoner's prison account for the last six months
within 30 days of filing the notice of appeal; and (d) failure to file the
prison account information will result in the assessment of an initial
appellate partial fee of $35 or such other amount that is reasonable,
based on whatever information the court has about the prisoner's
finances.
Id. at 484.

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Accordingly, it is ORDERED that:
(1) Defendants’ motion for summary judgment (Doc. No 41) is granted; and
(2) this case is dismissed.

/s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
UNITED STATES DISTRICT JUDGE
Jefferson City, Missouri,
Dated: September 8, 2015.

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