United States District Court, W.D. Arkansas, Fort Smith Division
HOLMES, III 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 Defendants' Motion for Partial
Summary Judgment by Defendants Hollenbeck and
Doe/Engelman. (ECF No. 25).
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).
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
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).
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).
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.
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)
(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.
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) 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).
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