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Anderson v. Strode

United States District Court, W.D. Kentucky, Bowling Green

September 25, 2018

DAVID ANDERSON PLAINTIFF
v.
JACKIE STRODE et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Greg N. Stivers, Judge

         Defendant Shawn Whittlesey, by counsel, filed a motion for summary judgment (DN 31). Plaintiff David Anderson, who is proceeding pro se, filed a response and supplemental response (DNs 33 & 35). For the reasons that follow, Defendant's motion will be granted.

         I.

         Plaintiff, a convicted prisoner at the Kentucky State Reformatory, filed a complaint and amended complaint pursuant to 42 U.S.C. § 1983 (DNs 1 & 6) complaining about his detention at the Warren County Regional Jail (WCRJ). On initial review of the complaint and amended complaint pursuant to 28 U.S.C. § 1915A, the Court allowed the Eighth Amendment excessive-force claim to proceed against Defendant Captain Shawn Whittlesey in his individual and official capacities for damages.

         In the complaint, verified under penalty of perjury, Plaintiff alleged that on June 5, 2015, “I was placed in restraint chair at the [WCRJ] for being aggressive toward Dept. Jailer Shane Dobbs. At Approximately 9:20 AM. At Approximately 9:40 Captain Shawn Whittlesey tased me because I had taken my right hand out of the restraints.” Plaintiff indicated that he asked for a copy of the medical report from when he was seen by medical after being tased but that Southern Health Partners told him there were no records for the date of the incident. Plaintiff attached two incident reports to the complaint regarding the June 5, 2015, incident. One report was by Lt. Eddie Pendleton, and the other was by Defendant Whittlesey.

         Following the filing of the complaint and amended complaint, Plaintiff filed a “Motion for Arguments” (DN 15) in response to Defendant's first motion for summary judgment on the issue of exhaustion of administrative remedies. Therein, Plaintiff set out additional facts regarding the June 5, 2015, incident. He stated:

I was in Cell A . . . at 0745 hours I reached out my tray slot to throw a milk crate at the door A-Side Isolation Door #47 and upon doing so Deputy Jailers Cert John Sanders, Shane Dobbs, Lt. Eddie Pendleton entered A-Side Isolation Door #47 & my cell #50 door was opened up as well I was talking to Shane Dobbs & Eddie Pendleton and they instructed me to stop acting up or they would strip me out and take all of my stuff and I told them we're gonna fight then they instructed me to stand up and go to the back of my cell but I refused to move and by doing so Shane Dobbs pushed on my chest 3 times with both of his hands and I then took a combative stance against Shane Dobbs and told him if you touch me again I will F- you up then Lt. Eddie Pendleton aimed his taser at me and get down now, lay on your stomach, put your hands behind your back and don't move and was handcuffed by Cert John Sanders and was escorted to booking I was then placed in the restraint chair for a period of four hours in Cell Big Two on camera I moved the chair rocking it to move it around the front of the cell after I got loose out of the restraints they put me back in them and told me if I get loose again they would tase me and put me in mechinicle restraints and I said go ahead and do so I will sue you for it because I know it is against the law to tase someone in restraints I then took my rights hand out because it hurt and then Captain Shawn Whittlesey entered Cell Big 2 and fired his taser in my right thigh for about 30 to 45 seconds then Lt. Eddie Pendleton entered Cell Big 2 to put my right hand back into the restraints after I ate lunch in the restraint chair I was then checked by Medical Tech Sabrina and was put on medical observation for being tased for a few days. I then filed a grievance the next day after being taken off disaplinary observation for my actions against Shane Dobbs and I did not get a response on my grievance until I got a copy of my grievance in legal mail here at Kentucky State Reformatory[.]

(DN 15).

         II.

         Summary judgment is proper “if the movant 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). The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         The moving party's burden may be discharged by demonstrating that there is an absence of evidence to support an essential element of the nonmoving party's case for which he has the burden of proof. Id. Once the moving party demonstrates this lack of evidence, the burden passes to the nonmoving party to establish, after an adequate opportunity for discovery, the existence of a disputed factual element essential to his case with respect to which he bears the burden of proof. Id. If the record taken as a whole could not lead the trier of fact to find for the nonmoving party, the motion for summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         Where the nonmoving party bears the burden of proof at trial, “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. The nonmoving party must do more than raise some doubt as to the existence of a fact; the nonmoving party must produce evidence that would be sufficient to require submission of the issue to the jury. Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F.Supp. 214, 217 (E.D. Mich. 1990). The moving party, therefore, is “entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof.” Id. (internal quotation marks omitted).

         III.

         A convicted prisoner's only avenue for pursuing an excessive force claim is through the Eighth Amendment's Cruel and Unusual Punishments Clause. Combs v. Wilkinson, 315 F.3d 548, 556 (6th Cir. 2002). When assessing a claim of excessive force, “the ‘core judicial inquiry,' [was] . . . ‘whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to ...


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