Griffin v. Cash

          OPINION AND ORDER

          HON. MARK E. FORD UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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).

         I. BACKGROUND

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff also raised two claims against Defendant Burnet in his official capacity only^[1] 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).

         Defendant 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.

         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).

         II. LEGAL STANDARD

         Summary 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).

         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. 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).

         The 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.

         III. ANALYSIS

         Defendant 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, ...