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Stone v. Penister

United States District Court, E.D. Arkansas, Pine Bluff Division

January 3, 2018



         The following Proposed Findings and Recommendation have been sent to United States District Judge J. Leon Holmes. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.


         I. Introduction

         Plaintiff Thomas Stone, an inmate in the custody of the Arkansas Department of Correction (“ADC”), filed this pro se civil rights complaint against Sergeant Sherion Penister, an ADC employee. See Doc. No. 1. Stone does not indicate whether he sues Penister in her official and/or individual capacities. Id. Stone also does not specify what relief he seeks. Id. Stone alleges that Penister used excessive force against him in an incident at the ADC's Tucker Maximum Security Unit. Specifically, Stone alleges that during pill call, Penister reached through his cell door and hit his left ear and then sprayed him despite no provocation. Id. at 1.

         Before the Court are Defendant Penister's motion for summary judgment, supporting brief, and statement of undisputed material facts (Doc. Nos. 26-28). Stone did not file a response to Penister's motion although he filed two notices addressed to a Mr. Arnold stating that he did not understand letters he had received and that he needed a lawyer. See Doc. Nos. 30 & 31.[1] Because Stone failed to controvert the facts set forth in Penister's statement of undisputed facts, Doc. No. 28, those facts are deemed admitted. See Local Rule 56.1(c). Penister's statement of facts, and the other pleadings and exhibits in the record, establish that the material facts are not in dispute and that Penister is entitled to summary judgment as a matter of law.

         II. Standard of Review

         Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for summary judgment, the court must view the evidence in a light most favorable to the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002). The nonmoving party may not rely on allegations or denials, but must demonstrate the existence of specific facts that create a genuine issue for trial. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). 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. Id. (citations omitted). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case. Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes that are not genuine or that are about facts that are not material will not preclude summary judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th Cir. 2010).

         III. Undisputed Facts

         The undisputed facts listed below were submitted by Defendant Penister and are supported by the following documents attached to Penister's statement of undisputed facts: Stone's status assignment sheet (Doc. No. 28-1); the Declaration of Sharon Penister (Doc. No. 28-2) which includes copies of two disciplinaries received by Stone on February 14, 2016; an incident report by Captain Everett Litzsey describing an incident occurring on February 14, 2016 (Doc. No. 28-3); an incident report by Sergeant Darnzell Miller describing an incident occurring on February 14, 2016 (Doc. No. 28-4); a Condensed Health Services Encounter report covering Stone's medical encounters from February 8, 2016, to February 22, 2016 (Doc. No. 28-5); Stone's written responses to Penister's first set of interrogatories (Doc. No. 28-6); and the Declaration of Nathan Ware (Doc. No. 28-7). Stone has not refuted these facts or challenged the admissibility of the supporting documents.

1. Thomas Stone is an inmate incarcerated in the ADC. Doc. No. 28-1 at 1.
2. Stone was housed at the Maximum Security Unit in Tucker, Arkansas when he filed this case. Doc. No. 1 at 1.
3. Stone was housed at the Maximum Security Unit on February 14, 2016. Doc. No. 28-1 at 1.
4. Stone was housed in Cellblock 8, cell 5. Id. at 2.
5. His cell was located on the bottom tier. Doc. No. 28-2 at 3.
6. Sherion Penister is a Sergeant employed by the ADC. Id. at 1.
7. At approximately 12:30 p.m. on February 14, 2016, Defendant Penister was conducting a security round inside Cellblock 8. Id. at 3.
8. While she was conducting her security check, she observed Stone in his cell, staring at her. Id.
9. Stone then yelled at Penister using profanity and a racial slur. Id.
10. Penister gave Stone a direct order to stop yelling profanity, but he refused. Id.
11. Penister left the cellblock. Id.
12. That same day, at approximately 2:00 p.m., Penister again entered the Cellblock 8. Id. at 8.
13. She was present to assist staff in passing out meal trays and to escort Nurse Nathan Ware around the cellblock for ...

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