United States District Court, E.D. Arkansas, Western Division
JASON E. MITCHELL, ADC #136422 PLAINTIFF
JOHN STALEY DEFENDANT
MEMORANDUM AND ORDER
T. KEARNEY, UNITED STATES MAGISTRATE JUDGE
Jason Mitchell is a state inmate incarcerated at the Tucker
Unit of the Arkansas Department of Correction (ADC). He filed
this pro se action pursuant to 42 U.S.C. §
1983, alleging excessive force while he was incarcerated at
the Lonoke County Detention Center (Jail) in August, 2015
(Doc. No. 4). Plaintiff asks for injunctive relief
(Id., p. 5).
Lopez and Doe were dismissed from this action on October 16,
2015 (Doc. No. 13). Currently pending before the Court is the
Motion for Summary Judgment, Brief in Support, and Statement
of Facts, filed by remaining Defendant John Staley (Doc. Nos.
19-21). Plaintiff did not respond, and by Order dated May 25,
2016, this Court cautioned Plaintiff that his failure to
respond to the Motion within fifteen days of the date of the
Order would result in either all the facts set forth in the
Motion being deemed admitted by him, or dismissal of the
action, without prejudice, for failure to prosecute (Doc. No.
22). As of this date, Plaintiff has not responded to the
Motion and has not otherwise corresponded with the Court.
alleged that Defendant Staley called him to the day room on
August 13, 2015, and said he would be charged with a felony
for introducing contraband into the Jail. (Doc. No. 4, p. 6)
Plaintiff denied knowledge of this and Staley ordered him
back to his cell. (Id.) Staley then entered
Plaintiff's cell, pushed him against the back wall, threw
property everywhere, tore Plaintiff's mail and bent his
pictures. (Id.) Staley also hit Plaintiff in his
face three or four times before he walked out of the cell and
slammed the cell door. (Id.) Plaintiff was taken to
the "hole" in a flooded cell with no mat or
blankets. (Id., p. 7)
to Fed.R.Civ.P. 56(a), summary judgment is appropriate if the
record shows that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of
law. See Dulany v. Carnahan, 132 F.3d 1234, 1237
(8th Cir. 1997). "The moving party bears the initial
burden of identifying ‘those portions of the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material
fact.'" Webb v. Lawrence County, 144 F.3d
1131, 1134 (8th Cir. 1998) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (other citations
omitted)). "Once the moving party has met this burden,
the non-moving party cannot simply rest on mere denials or
allegations in the pleadings; rather, the non-movant
‘must set forth specific facts showing that there is a
genuine issue for trial.'" Id. at 1135.
Although the facts are viewed in a light most favorable to
the non-moving party, "in order to defeat a motion for
summary judgment, the non-movant cannot simply create a
factual dispute; rather, there must be a genuine dispute over
those facts that could actually affect the outcome of the
addition, "[a]ll material facts set forth in the
statement (of undisputed material facts) filed by the moving
party...shall be deemed admitted unless controverted by the
statement filed by the non-moving party...." Local Rule
56.1, Rules of the United States District Court for the
Eastern and Western Districts of Arkansas. Failure to
properly support or address the moving party's assertion
of fact can result in the fact considered as undisputed for
purposes of the motion. Fed.R.Civ.P. 56(e)(2).
Court agrees with Defendant that any monetary claim against
him in his official capacity should be dismissed, because
Plaintiff did not allege that his actions were taken pursuant
to an unconstitutional policy, practice, or custom, or any
widespread pattern of unconstitutional conduct. A suit
against a county official in his official capacity is the
equivalent of a suit against the county itself. Liebe v.
Norton, 157 F.3d 574, 578-9 (8th Cir. 1998). In order
for a county to be held liable for the unconstitutional acts
of its officials, Plaintiff must allege and prove that a
written county policy or pattern of widespread
unconstitutional conduct was the moving force behind the
unconstitutional actions. Jane Doe A v. Special School
District of St. Louis County, 901 F.2d 642, 646 (8th
Cir. 1990). Absent such an allegation, or a response from
Plaintiff, the Court finds the monetary claim against
Defendant in his official capacity should be dismissed.
also asks the Court to dismiss Plaintiff's excessive
force claim against him in his individual capacities, based
on qualified immunity, which protects officials who act in an
objectively reasonable manner. It may shield a government
official from liability when his or her conduct does not
violate "clearly established statutory or constitutional
rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity is a question of law, not a question of
fact. McClendon v. Story County Sheriff's
Office, 403 F.3d 510, 515 (8th Cir. 2005). Thus, issues
concerning qualified immunity are appropriately resolved on
summary judgment. See Mitchell v. Forsyth, 472 U.S.
511, 526 (1985) (the privilege is "an immunity from
suit rather than a mere defense to liability; and like
an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial.").
determine whether defendants are entitled to qualified
immunity, the courts generally consider two questions: (1)
whether the facts alleged or shown, construed in the light
most favorable to the plaintiff, establish a violation of a
constitutional or statutory right; and (2) whether that right
was so clearly established that a reasonable official would
have known that his or her actions were unlawful. Pearson
v. Callahan, 555 U.S. 223, 232 (2009). Defendants are
entitled to qualified immunity only if no ...