Oby v. Sturdivant et al, No. 4:2010cv00092 - Document 63 (N.D. Miss. 2012)

Court Description: MEMORANDUM OPINION re 62 Judgment. Signed by District Judge Sharion Aycock on 9/7/12. (cr)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI GREENVILLE DIVISION SHERMON OBY PLAINTIFF v. No. 4:10CV92-A-S LT. ROBERT STURDIVANT, ET AL. DEFENDANTS MEMORANDUM OPINION This matter comes before the court on the pro se prisoner complaint of Shermon Oby, who challenges the conditions of his confinement under 42 U.S.C. ยง 1983. For the purposes of the Prison Litigation Reform Act, the court notes that the plaintiff was incarcerated when he filed this suit. The defendants have moved [47] for summary judgment, and Oby has responded. The matter is ripe for resolution. For the reasons set forth below, the motion by the defendants for summary judgment will be granted and the instant case dismissed for failure to state a claim upon which relief could be granted. Summary Judgment Standard Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c). The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden. Beck v. Texas State Bd. of Dental Examiners, 204 F.3d 629, 633 (5th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986), cert. denied, 484 U.S. 1066 (1988)). After a proper motion for summary judgment is made, the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Beck, 204 F.3d at 633; Allen v. Rapides Parish School Bd., 204 F.3d 619, 621 (5th Cir. 2000); Ragas v. Tennessee Gas Pipeline Company, 136 F.3d 455, 458 (5th Cir. 1998). Substantive law determines what is material. Anderson, 477 U.S. at 249. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. Id., at 248. If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327. Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538 (1986); Federal Savings and Loan, Inc. v. Krajl, 968 F.2d 500, 503 (5th Cir. 1992). The facts are reviewed drawing all reasonable inferences in favor of the non-moving party. Allen, 204 F.3d at 621; PYCA Industries, Inc. v. Harrison County Waste Water Management Dist., 177 F.3d 351, 161 (5th Cir. 1999); Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995). However, this is so only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); see Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998). In the absence of proof, the court does not assume that the nonmoving party could or would prove the necessary facts. Little, 37 F.3d at 1075 (emphasis omitted). Undisputed Material Facts Oby claims that the defendants assaulted him on January 20, 2010, while he was housed at the Mississippi State Penitentiary. Medical personnel examined him the next day and found no injuries whatsoever. Oby filed a grievance through the Administrative Remedies Program ( ARP ), 2 and officials investigated his claims. Included in the ARP investigation was the Medical Record dated January 21, 2010, in which Oby claimed that he was beat up by c/o. However, upon observation by Nurse Jaretta Jones, inmate had no cuts, abrasions, bruises, or any evidence of being in an altercation. Dr. Lorenzo Cabe at the Mississippi State Penitentiary ( MSP ) reviewed Oby s records and also found no evidence of physical assault. The defendants provided Oby s full medical record with the instant motion. After officials reviewed Oby s prison file regarding allegations of misconduct on January 20, 2010, Oby did not receive a rule violation report. De Minimis Injury Oby claims that the defendants used excessive force against him in violation of the Eighth Amendment. This claim must fail based upon the evidence in the record. In order to balance the constitutional rights of convicted prisoners with the needs of prison officials to effectively use force to maintain prison order, the Supreme Court has held that to establish liability on the part of defendants the plaintiff must prove the force was applied maliciously and sadistically to cause harm, and not in a good-faith effort to maintain or restore discipline . . . . Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-21, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986)); see Rankin v. Klevenhagen, 5 F.3d 103 (5th Cir. 1993). However, [n]ot every malevolent touch by a prison guard gives rise to a federal cause of action. Hudson, 503 U.S. at 9 (citation omitted). The Eighth Amendment s prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind. Id. at 9-10 (citation omitted). Moreover, [i]n cases post-Hudson, certainly some injury is still required. Rankin, 5 F.3d at 108; see also Knight v. Caldwell, 970 F.2d 1430 (5th Cir. 1992), 3 cert. denied, 507 U.S. 926, 113 S. Ct. 1298, 122 L. Ed. 2d 688 (1993). A single incident of force or a single blow is de minimis and thus does not violate the Eighth Amendment. Jackson v. Colbertson, 984 F. 2d 699, 700 (5th 1993). Oby was examined by medical personnel the day after the incident and had sustained no injury of any kind. Oby s injuries, if any, were clearly de minimis; as such, his allegations do not rise to the level of a constitutional claim. As such, this case must be dismissed for failure to state a claim upon which relief could be granted. A final judgment consistent with this memorandum opinion will issue today. SO ORDERED, this the 7th day of September, 2012. /s/ Sharion Aycock U.S. DISTRICT JUDGE 4