United States District Court, W.D. Arkansas, Fayetteville Division
HOLMES, III CHIEF U.S. DISTRICT JUDGE
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).
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
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.
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.
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).
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
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).
SUMMARY JUDGMENT STANDARD
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.
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
was booked into the WCDC on April 14, 2015. (ECF No. 14-2 at
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).
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.
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