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Smith v. White

United States District Court, W.D. Kentucky, Paducah Division

January 8, 2020

RODNEY SMITH PLAINTIFF
v.
RANDY WHITE, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge

         Defendants, 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 GRANTED.

         I. BACKGROUND

         Smith 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.

         Defendants argue summary judgment is appropriate on all asserted claims.

         II. LEGAL STANDARD

         Summary 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).

         “[N]ot 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).

         “The 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).

         III. DISCUSSION

         “A 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. 1988).

         I. Fourth Amendment Claim

         Smith 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 exists.

         Defendants 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 by ...


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