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Evans v. Hollenbeck

United States District Court, W.D. Arkansas, Fort Smith Division

March 26, 2019

BERNIE EVANS PLAINTIFF
v.
SHERIFF HOLLENBECK, DEPUTY BARNETT, and DEPUTY JOHN DOE a/k/a/ Engleman DEFENDANTS

          ORDER

          P. K. HOLMES, III 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 Defendants' Motion for Partial Summary Judgment by Defendants Hollenbeck and Doe/Engelman.[1] (ECF No. 25).

         I. BACKGROUND

         Plaintiff filed his Complaint on February 23, 2018. (ECF No. 1). He was directed to file an Amended Complaint, and he did so on March 12, 2018. (ECF No. 6). He alleges his constitutional rights were violated on May 19, 2017, while in the custody of the Sebastian County Detention Center. Specifically, Plaintiff alleges that Defendant Barnett physically assaulted him while he was in handcuffs, “breaking the bones in Plaintiff's face.” (ECF No. 6 at 4). In describing the custom or policy which violated his rights, Plaintiff alleges Defendant Barnett violated company policy by assaulting him. (ECF No. 6 at 5).

         Plaintiff alleges Defendant Doe/Engelman failed to stop Defendant Barnett from assaulting him, allowing Barnett to strike him several times. In describing the custom or policy which violated his rights, Plaintiff alleges Defendant Doe/Engelman failed to follow protocol during the assault. (ECF No. 6 at 6).

         Plaintiff alleges Defendant Hollenbeck failed to train and monitor Defendants, which resulted in the assault. (ECF No. 6 at 6). In describing the custom or policy which violated his rights, Plaintiff alleges Defendant Hollenbeck “failed to properly assure” that Defendants Barnett and Doe/Engelmann were trained “in regards to assaulting inmates.” (ECF No. 6 at 7).

         Plaintiff proceeds against all Defendants in their official and personal capacities. (ECF No. 6 at 4-6). Plaintiff seeks compensatory and punitive damages and any other relief the court deems appropriate. (ECF No. 6 at 7). Plaintiff's official capacity claims against Defendants Barnett and Doe/Engelmann were dismissed on March 26, 2018, pursuant to the PLRA preservice screening process. (ECF No. 12).

         Defendants filed their Motion for Partial Summary Judgment on September 13, 2018. (ECF No. 25). That same day, the Court entered an Order directing Plaintiff to file a response to the Motion by October 4, 2018. (ECF No. 28). In this Order 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). (Id.). Plaintiff failed to file any Response and has not otherwise communicated with the Court.

         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) (citing Roberson v. Hayti Police Dep't., 241 F.3d 992 (8th Cir. 2001)). “Those portions of the Defendants' statement of material facts that do not conflict with [Plaintiff's verified complaint] are deemed admitted.” McClanahan, 2016 WL 520983, at *1.

         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) and Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1109 (8th Cir. 1998) (Unsubstantiated and conclusory allegations in an affidavit, standing alone, “cannot create a genuine issue of material fact precluding summary judgment.”). “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).

         In this case, the facts set forth by the Defendants are deemed admitted except to the extent contradicted by the verified complaint. The question is, given the facts as pieced together by the Court, whether there are genuine issues of ...


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