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Whitlow v. Efrid

United States District Court, W.D. Arkansas, Hot Springs Division

December 19, 2018

ANTONIO WHITLOW PLAINTIFF
v.
SERGEANT EFRID DEFENDANT

          ORDER

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

         Plaintiff 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).

         I. BACKGROUND

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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.

         Defendants 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.

         In the 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 5.5(c)(2).

         If 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).

         As the 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.).

         II. LEGAL STANDARD

         Summary 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).

         The 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 ...


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