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Siau v. Simmons

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

June 17, 2019




         This is 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 and Recommendation.

         Currently before the Court is Defendants' Motion for Summary Judgment. (ECF Nos. 25, 26, 27).


         Plaintiff 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).

         Plaintiff 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).

         Defendants 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.

         In the 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).

         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.).


         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 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 genuine issues of material fact ...

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