United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge
James Beeler, Troy Belt, Wesley Burnett, Lauren Epley,
Brittany Fraliex, Monica McCullough, Benjamin Mitchell, Seth
T. Mitchell, Brian Neely, Marshall E. Peek, Charles Roberts,
Gage Rodriguez, and Randy White, collectively,
(“Defendants”) filed a Second Motion for an
Extension of Time, up to and including July 5, 2019 to file
their dispositive motion. [DN 78.] Defendants subsequently
filed a Third Motion for an Extension of Time, up to and
including July 17, 2019. [DN 81.] Since filing for that
extension, Defendants have filed their Motion for Summary
Judgment and for Leave to Exceed Page Limits [DN 82].
Plaintiff Rodney Smith (“Smith”) has responded.
[DN 83.] As such, this matter is ripe for adjudication. For
the reasons that follow, Defendants' Second Motion for an
Extension of Time is MOOT; Defendants'
Third Motion for an Extension of Time is
GRANTED; and Defendants' Motion for
Summary Judgment and for Leave to Exceed Page Limits is
filed this action in the Franklin Circuit Court on September
11, 2017. [DN 1-1.] Defendants removed this case to the
Eastern District Court of Kentucky. [DN 1.] Defendants then
moved for, and were granted, a change of venue to this Court.
[DN 7.] Smith initially filed several claims. However, this
Court has only allowed three claims to proceed. Smith alleges
a violation of the Fourth Amendment for unreasonable searches
against Lt. Rodriguez and Officer Neely in their individual
capacities. He asserts First Amendment retaliation claims
against Belt, Beeler, Burnett, Epley, Fraliex, McCullough,
Ben Mitchell, Seth Mitchell, Peek, Roberts, and Warden White
in their individual capacities. Finally, Smith alleges
Defendants Rodriguez and Neely violated his First Amendment
right to exercise his religion.
argue summary judgment is appropriate on all asserted claims.
judgment is appropriate where “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). In determining whether summary judgment
is appropriate, a court must resolve all ambiguities and draw
all reasonable inferences against the moving party. See
Matshushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
every issue of fact or conflicting inference presents a
genuine issue of material fact.” Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989).
The test is whether the party bearing the burden of proof has
presented a jury question as to each element in the case.
Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996).
Once the moving party has met its burden of production, the
nonmoving party cannot rest on its pleadings, but must
present significant probative evidence in support of the
complaint to defeat the motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49 (1986). The plaintiff must present more than a mere
scintilla of evidence in support of his position; the
plaintiff must present evidence on which the trier of fact
could reasonably find for the plaintiff. See Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986)). The plaintiff may accomplish this by
“citing to particular parts of materials in the
record” or by “showing that the materials cited
do not establish the absence…of a genuine
dispute…” Fed.R.Civ.P. 56(c)(1). Mere
speculation will not suffice to defeat a motion for summary
judgment, “the mere existence of a colorable factual
dispute will not defeat a properly supported motion for
summary judgment. A genuine dispute between the parties on an
issue of material fact must exist to render summary judgment
inappropriate.” Monette v. Electronic Data Sys.
Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).
fact that a plaintiff is pro se does not lessen his
obligations under Rule 56. The liberal treatment of pro se
pleadings does not require the lenient treatment of
substantive law, and the liberal standards that apply at the
pleading stage do not apply after a case has progressed to
the summary judgment stage. Boldry v. Gibson, 2019
U.S. Dist. LEXIS 54368 *8 (W.D. Ky. March 28, 2019) (quoting
Johnson v. Stewart, 2010 U.S. App. LEXIS 27051, *7
(6th Cir. May 5, 2010).
verified complaint carries the same weight as would an
affidavit for the purposes of summary judgment.” El
Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008). A
complaint only carries the same weight if it is
“subscribed by [the declarant], as true under penalty
of perjury that the forgoing is true and correct.”
Perry v. Agric. Dep't, 2016 U.S. Dist. LEXIS
25375 *66 (E.D. Ky. Feb. 29, 2016) (quoting 28 U.S.C. §
1746). Here, Smith has not signed his complaint under penalty
of perjury. Therefore, it is not a verified complaint and
does not carry the same weight as an affidavit for summary
judgment purposes. It has also been noted that “a
motion for summary judgment may not be defeated by factual
assertions in the brief of the party opposing it, since
documents of this nature are self-serving and are not
probative evidence of the existence or nonexistence of any
factual issues.” Banks v. Rockwell Int'l N. Am.
Aircraft Operations, 855 F.2d 324, 325 n. 1 (6th Cir.
Fourth Amendment Claim
has alleged that Lt. Rodriguez and Officer Neely first wedged
his pants and underwear between his buttocks “in an
attempt to cause what Petitioner believes the alleged missing
iPod to become dislodged”. [DN 1-1 at PageID 8.] Smith
also alleges Lt. Rodriguez subsequently used his hand to
search Smith's anal cavity. [Id.] Defendants
allege that Smith was never subjected to either search. The
Court finds that no genuine dispute of a material fact
rely on the affidavit statements made by Officer Neely and
Lt. Rodriguez, Lt. Seth Mitchell's review of the security
camera footage, and Smith's certification that he viewed
the footage to support their motion. Smith, in his response,
states the video is incomplete and should be shown in its
entirety to a jury. [DN 83-1 at PageID 1005.] Smith further
states that a complete viewing of the footage would show him
“being [brutally] forced into a room with my pants down
and the door closed behind me”. [Id.] This is
not probative evidence that Smith was subjected to an
improper search. Smith's speculation as to what the full
video may show is not enough to survive summary judgment.
Smith has not submitted affidavits or records that support
his position. Based on the probative evidence in the record
at this point, there is no dispute that the security footage
does not reflect Defendants searching Smith either by hand or