United States District Court, W.D. Arkansas, Hot Springs Division
MAGISTRATE JUDGE'S REPORT AND
MARK E. FORD 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, Chief United States District Judge, referred this
case to the undersigned for the purpose of making a Report
before the Court is Defendants' Motion for Summary
Judgment. (ECF Nos. 25, 26, 27).
filed his Complaint on November 17, 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. Plaintiff was
ordered to file amended complaints twice, and he did so on
November 30, 2017 and December 6, 2017. (ECF Nos. 7, 9).
Pursuant to the screening requirements of the Prison
Litigation Reform Act, Plaintiff's official capacity
claims against all Defendants were dismissed on February 21,
2018. (ECF No. 12).
suffered a head injury requiring five staples while being
cuffed and escorted from his cell on April 3, 2017. (ECF No.
1). In his Second Amended Complaint he characterized the
alleged incident as use of excessive force, cruel and unusual
punishment, and deliberate indifference to care of inmates.
(ECF No. 9 at 4). In his deposition, Plaintiff admits that
the injury may have been accidental. (ECF No. 25-14 at 13).
filed their Motion for Summary Judgment on September 24,
2018. (ECF Nos. 25, 26, 27). On September 25, 2018, the Court
entered an Order directing Plaintiff to file his Response to
the Summary Judgement Motion by October 16, 2018. (ECF No.
28). 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. 28), 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
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, given the facts as pieced
together by the Court, whether genuine issues of material