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Vasquez v. Hill

United States District Court, W.D. Arkansas, Fayetteville Division

October 1, 2018

GIOVANNI VASQUEZ PLAINTIFF
v.
CORPORAL JOSHUA HILL DEFENDANT

          OPINION

          P. K. HOLMES, III CHIEF U.S. DISTRICT JUDGE

         This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. Plaintiff is incarcerated in the Washington County Detention Center (WCDC).

         Plaintiff alleges that Corporal Hill used excessive force against him on December 7, 2017. Specifically, he maintains that Corporal Hill shot him with pepper spray while he was attempting to back away.

         On July 16, 2018, Corporal Hill filed a Motion for Summary Judgment (ECF No. 12). That same day, an Order (ECF No. 16) was entered directing Plaintiff to file a response to the Motion for Summary Judgment by August 6, 2018.

         To date, Plaintiff has not filed a response to the Motion for Summary Judgment. He has not requested an extension of time to file his response. No. mail has been returned as undeliverable. Plaintiff has failed to comply with the Court's Order (ECF No. 16) requiring him to file his summary judgment response by August 6, 2018.

         Plaintiff was advised that failure to comply with the Court's Order (ECF No. 16) would result in: (a) all of the facts set forth by the Defendants in the summary judgment papers being deemed admitted by Plaintiff, pursuant to Local Rule 56.1(c); and/or (b) shall subject this case to dismissal, without prejudice, pursuant to Local Rule 5.5(c)(2).

         The Court must consider the facts set forth in Plaintiff's verified Complaint in ruling on the Summary Judgment Motion. A verified complaint is the equivalent of an affidavit for summary judgment purposes. See e.g., Roberson v. Hayti Police Dep't., 241 F.3d 992, 994-95 (8th Cir. 2001). In this case, the Court also has Plaintiff's sworn deposition testimony.

         As the Court in Roberson point out, “[a]lthough a party may not generally rest on his pleadings to create a fact issue sufficient to survive summary judgment, the facts alleged in a verified complaint need not be repeated in a responsive affidavit to survive the summary judgment motion. Id. The Court will “piece[] together [Plaintiff's] version of the facts from the verified complaint [and Plaintiff's sworn testimony at his deposition]. Those portions of the Defendants' statement of material facts that do not conflict with [Plaintiff's verified complaint and sworn deposition testimony] are deemed admitted.” McClanahan v. Young, No. 4:13-cv-04140, 2016 WL 520983 (D.S.D. Feb. 5, 2016).

         II. SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In this case, the facts set forth by the Defendants are deemed admitted except to the extent contradicted by the verified complaint or Plaintiff's deposition testimony. The question is whether given the facts as pieced together by the Court, there are genuine issues of material fact as to whether Plaintiff's constitutional rights were violated.

         I. DISCUSSION

         Defendant contends he is entitled to summary judgment for two reasons. First, he contends the force used was reasonable in the circumstances. Second, he maintains he is entitled to qualified immunity.

         (A). Facts

         Plaintiff was booked into the WCDC on April 14, 2015. (ECF No. 14-2 at 1).[1] His sole claim is that Corporal Hill used excessive force against him on December 7, 2017. Specifically, Plaintiff alleges that “while attempting to speak and back away from Cpl. Joshua Hill he shot me with the JPX when I was no threat to him or anyone around me.” (ECF No. 1 at 4).

         Plaintiff has sued Corporal Hill in his personal capacity only. (ECF No. 1 at 4)(ECF No. 14-9 at 34). Plaintiff was in pretrial status when the incident occurred.

         The policies of the WCDC provide that non-deadly physical force may be used only when an attack by a detainee on a facility employee, visitor, or other detainee is occurring, is clearly imminent, or when other lesser means have failed to achieve a legitimate and necessary objective. (ECF No. 14-7 at 4). Only the ...


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