United States District Court, W.D. Arkansas, Hot Springs Division
HOLMES, III CHIEF U.S. DISTRICT JUDGE
proceeds in this matter pro se and in forma
pauperis pursuant to 42 U.S.C. § 1983. Currently
before the Court is Defendant's Motion for Summary
Judgment. (ECF Nos. 27, 28, 29).
filed his Complaint and First Amended Complaint on January
17, 2018, in the Eastern District of Arkansas. (ECF No. 2,
3). It was transferred to this District on January 18, 2018.
(ECF No. 4). Plaintiff was directed to file a Second Amended
Complaint and did so on February 2, 2018.
(“Complaint”) (ECF No. 10). After an Order from
the Court (ECF No. 11), the Arkansas Department of Correction
(“ADC”) Ouachita River Unit submitted a completed
inmate funds certification (ECF No. 13), and Plaintiff was
granted IFP status on March 23, 2018. (ECF No. 14).
alleges his constitutional rights were violated by the use of
harassment and excessive force against him while he was
incarcerated in the ADC Ouachita River Unit. Specifically,
Plaintiff alleges that on April 6, 2017, in the RPU section
of the Unit, Defendant Efrid “tricked” Plaintiff
into coming out of his cell by stating he was conducting a
random cell search. (ECF No. 10 at 4). When Plaintiff came
out of his cell, Plaintiff was handcuffed and placed in
restraints. Once Plaintiff was restrained, Defendant Efrid
informed him that he was going to attend a classification
review. Plaintiff alleges Defendant Efrid knew that he
“always refuse[d] to go to optional classification
review, since I have that right.” Plaintiff alleges he
refused to attend the review, and “sat on the floor.
That way I couldn't be moved against my will, because I
had restraints on my ankles and handcuffs behind my
back.” (Id. at 4).
alleges another officer suggested that Plaintiff be lifted
and carried to a “transport/restraint” chair,
which was a short distance away. (Id. at 4).
Plaintiff alleges Defendant Efrid refused to do so, and
instead “insisted on handling me the hard way to
purposely inflict pain, instead of the easiest way
possible.” (Id. at 4). Plaintiff alleges this
“hard way” consisted of Defendant Efrid carrying
him under his armpits and by his right arm in order to keep
him from falling. Plaintiff alleges Efrid twisted his arm to
make him walk on his own “so he wouldn't have to
work hard to carry me.” (Id. at 5). Plaintiff
alleges this “made his right thumb press harder against
the sharp edge of the handcuffs, hurting my thumb. . . .
(Id. at 5). Plaintiff alleges this “made my
right thumb swollen, purple discolorated, and numb for over a
month after the incident.” (Id. at 5).
further alleges Defendant Efrid refused to call the nurse to
treat his thumb after the incident. Plaintiff alleges he
received no response to the sick call he submitted, and
believes the officers never sent it in order to hide the
evidence of his injuries. (Id. at 6). Plaintiff
alleges Nurse Hart saw him a month later and gave him
Naproxen and told him if she had seen the swelling and
discoloration, he would have qualified for an x-ray.
filed their Motion for Summary Judgment on August 29, 2018.
(ECF Nos. 27, 28, 29). That same day, the Court entered an
Order directing Plaintiff to file a Response to the Summary
Judgment Motion by September 19, 2018. (ECF No. 30). To date,
Plaintiff has not filed his Response and has not otherwise
communicated with the Court.
Order directing him to Respond to the Summary Judgment Motion
(ECF No. 30), Plaintiff was advised that failure to comply
with the Court's Order 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
Plaintiff's Complaint is a verified Complaint, 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).
Court in Roberson pointed 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. . .” McClanahan v. Young, No.
4:13-cv-04140, 2016 WL 520983, *1 (D.S.D. Feb. 5, 2016).
Those portions of the Defendants' statement of material
facts that do not conflict with [Plaintiff's verified
complaint] are deemed admitted.” (Id.).
judgment is appropriate if, after viewing the facts and all
reasonable inferences in the light most favorable to the
nonmoving party, Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986), the record
"shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). "Once a party
moving for summary judgment has made a sufficient showing,
the burden rests with the non-moving party to set forth
specific facts, by affidavit or other evidence, showing that
a genuine issue of material fact exists.” National
Bank of Commerce v. Dow Chemical Co., 165 F.3d 602, 607
(8th Cir. 1999).
non-moving party "must do more than simply show that
there is some metaphysical doubt as to the material
facts." Matsushita, 475 U.S. at 586. "They
must show there is sufficient evidence to support a jury
verdict in their favor." National Bank, 165
F.3d at 607 (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986)). "A case founded on
speculation or suspicion is insufficient to survive a motion
for summary judgment." Id. (citing, Metge
v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985)).
“Conclusory, non-specific statements in an affidavit or
verified complaint” are also insufficient.
McLanahan, 2016 WL 520983, at *6 (citing
Chavarriaga v. N.J. Dep't of Corr., 806 F.3d
210, 222 (3d Cir. 2015). “When opposing parties tell
two different stories, one of which is blatantly contradicted
by the record, so ...