United States District Court, W.D. Arkansas, Hot Springs Division
CLARENCE R. WILLIAMS, JR. PLAINTIFF
MRS. HOSMAN and LIEUTENANT MAXWELL DEFENDANTS
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.
a civil rights action provisionally filed pursuant to 42
U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1) and (3)(2011), the Honorable Susan O.
Hickey, United States District Judge, referred this case to
the undersigned for the purpose of making a Report and
before the Court is Defendants' Motion for Summary
Judgment. (ECF Nos. 20, 21, 22).
filed his Complaint on December 19, 2017. (ECF No. 1). He
alleges his constitutional rights were violated while he was
incarcerated in the Arkansas Department of Correction (ADC)
Ouachita River Unit. (Id. at 2). Pursuant to the
screening requirements of the Prison Litigation Reform Act,
Plaintiff's official capacity claims, as well as his
personal capacity claims against all Defendants except Hosman
and Maxwell, were dismissed on June 13, 2018. (ECF No. 12).
alleges Defendant Hosman improperly assigned him to utility
work which was beyond his medical classification. (ECF No. 1
at 6). Plaintiff alleges that Defendant Maxwell refused to
acknowledge that keeping lights on for 24 hours a day in the
isolation cells causes sleep deprivation and refused to make
appropriate changes. (ECF No. 1 at 9).
filed their Motion for Summary Judgment on August 2, 2018.
(ECF Nos. 20, 21, 22). On August 3, 2018, the Court entered
an Order directing Plaintiff to file a Response to the
Summary Judgment Motion by August 24, 2018. (ECF No. 23).
This Order was returned as undeliverable on August 14, 2018.
Plaintiff filed a Notice of Address Change on September 4,
2018, and the Order was resent. (ECF No. 24). 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. 23), 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 (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).
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 that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007).
case, the facts set forth by the Defendants are deemed
admitted except to the extent contradicted by the verified
complaint. The question is whether given the facts as pieced
together by the Court, there are genuine issues of material