United States District Court, W.D. Arkansas, Hot Springs Division
OPINION AND ORDER
MARK E. FORD UNITED STATES MAGISTRATE JUDGE.
proceeds in this matter pro se and in forma
pauperis pursuant to 42 U.S.C. § 1983. Currently
before the Court is Defendant's Motion for Summary
Judgment. (ECF Nos. 34, 35, 36).
filed his Complaint on December 22, 2017, in the Eastern
District of Arkansas. (ECF No. 2). It was transferred to this
District on December 27, 2017. (ECF No. 3). On January 3,
2018, the Court entered an Order directing Plaintiff to file
an Amended Complaint, and Plaintiff did so on January 10,
2018. (ECF No. 7). He filed a Supplement on January 22, 2018.
(ECF No. 9). The Amended Complaint was brought against
Sheriff Mike Cash and TJ Burnet. (ECF No. 7). On June 26,
2018, Defendant TJ Burnet was dismissed as a party in this
case because Plaintiff failed to provide accurate service
information for him. (ECF No. 24).
alleges his constitutional rights were violated while he was
incarcerated in the Hot Spring County Jail
(“HSCJ”) in November and December of 2017. (ECF
No. 7 at 6). He alleges that from 11/1/2017 through
11/15/2017, and 12/4/2017 through 12/7/2017, inmates were
told that mail supplies and postage for indigent prisoners
would no longer be available. (Id. at 4). The
commissary was then shut down, so there was no opportunity to
buy mail supplies or postage. (Id.). He alleges this
prevented him from contacting his family or his lawyer
because he could not afford to put money on a phone.
(Id. at 5). He alleges this caused him to
“lose all right” to his son. (Id. at 7).
He proceeds against Defendant Cash in his official and
personal capacity for this claim. (Id. at 4).
Plaintiff seeks compensatory and punitive damages.
(Id. at 7; ECF No. 9).
also raised two claims against Defendant Burnet in his
official capacity only for the dates of 11/1/2017 through
11/15/2017. (ECF No. 7 at 5-7). First, he alleges that he
received no recreation call “the whole time” he
was there. He alleges the inmates would write grievances, but
“they” would throw them away. (Id. at
5-6). Second he alleges the inmates were told that they would
be put on a 1, 000-calorie diet because the food budget was
low. (Id. at 6). Plaintiff states they are supposed
to receive 2100 calories per day. (Id. at 7).
Cash filed his Motion for Summary Judgment on October 1,
2018. (ECF Nos. 34, 35, 36). On October 3, 2018, the Court
entered an Order directing Plaintiff to file his Response to
the Motion. (ECF No. 37). To date, Plaintiff has not filed
his Response, nor has he otherwise communicated with the
Court must consider the facts set forth in Plaintiff's
verified Complaint in ruling on the Motion for Summary
Judgment. 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) (facts alleged in a verified complaint
need not be repeated in a responsive affidavit in order to
survive a summary judgment motion).
judgment is appropriate if, after viewing the facts and all
reasonable inferences in the light most favorable to the
non-moving 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.
McClanahan v. Young, 4:13-CV-04140-RAL, 2016 WL
520983, at *6 (D.S.D. Feb. 5, 2016) (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).
facts set forth by Defendant are deemed admitted except to
the extent contradicted by facts alleged in the
Plaintiff's verified complaint. The question is, given
the facts as pieced together by the Court, whether any
genuine issues of material fact exist regarding the violation
of Plaintiff's constitutional rights.
Cash first notes that Plaintiff was in HSCJ for only two days
in November 2017 for a hearing. (ECF No. 35 at 1; ECF No.
36-2). Defendant Cash argues summary judgment is appropriate
in his favor because: (1) Plaintiff failed to allege any
policy or custom of HSCJ which violated his rights; (2) he
had no personal involvement with Plaintiff's alleged
violation; (3) he is entitled to qualified immunity; and, ...