Moore v. Holbrook

• Decision Date: 16 August 1993
• Docket Number: No. 92-3334,92-3334
• Citation: 2 F.3d 697
• Parties: William C. MOORE, Plaintiff-Appellant, v. Troy E. HOLBROOK; R. Ginn, Sgt.; John Burton, Sgt., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 697

2 F.3d 697

26 Fed.R.Serv.3d 843

William C. MOORE, Plaintiff-Appellant, v. Troy E. HOLBROOK; R. Ginn, Sgt.; John Burton, Sgt.,

Defendants-Appellees.

No. 92-3334.

United States Court of Appeals, Sixth Circuit.

Argued April 6, 1993.

Decided Aug. 16, 1993.

William C. Moore (briefed), pro se.

Thomas G. Eagle (argued and briefed), Landen & Eagle, Franklin, OH, for plaintiff-appellant.

Christian B. Stegeman, Asst. Atty. Gen. (argued and briefed), Michael James Harmon, Sr. Asst. Atty., Cincinnati, OH, for defendants-appellees.

Before: JONES and BATCHELDER, Circuit Judges; and ENGEL, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Plaintiff-Appellant William Moore appeals a district court judgment dismissing his civil rights action filed pursuant 42 U.S.C. Sec. 1983 against multiple prison guards who he claims assaulted him. He argues that the district court based its opinion on documents that the defense submitted in violation of FED.R.CIV.P. 56(e) and that there were genuine issues of material fact that prevented the issuance of summary judgment. He also contends that the district court erred by concluding that the injuries he received from the assaults were not serious enough to constitute a constitutional violation.

On April 26, 1990, a prison disturbance occurred at the Southern Ohio Correctional Facility where Moore was incarcerated. The disturbance consisted of inmates flooding the cellblock, starting fires, and throwing objects at inmates and prison officials. During the disturbance, Moore received various injuries. The parties dispute the circumstances surrounding Moore's injuries.

On January 23, 1991, Moore filed a civil rights complaint against defendants Holbrook, Ginn, and Burton pursuant to 42 U.S.C. Sec. 1983. Moore alleged that a day after the disturbance, April 27th, the three defendants came to his cell. He was ordered to place his hands outside the cell so he could be handcuffed. Moore complied with the request. After he was handcuffed, Moore contends that Holbrook then grabbed him by the collar and punched him in the face. Defendants Burton and Ginn then placed their "PR-24's" (although not identified in the record, these objects appear to be a type of stun gun) between Moore's arms and escorted him to a stairway. At this point Holbrook punched Moore in the mid-section. After Moore bent over due to the blow, Holbrook proceeded to punch him on the head and face. Following this beating, Ginn and Burton dragged Moore up the stairs and then held Moore down while Holbrook again kicked and punched Moore in the head and face. Moore claims that as a result of the incident, he suffered bruises to the head, face, and upper body. Moore claimed that defendants' actions violated his Eighth Amendment right to be free from cruel and unusual punishment.

The defendants moved for summary judgment. In their documentation to support their motion, defendants provided a different version of the incident. According to defendants, the major disturbance was still in progress on April 27th. Moore was one of several inmates involved in the disturbance. After complying with the order to be handcuffed, and while being escorted out of the area, Moore turned to Holbrook and grabbed his shirt collar. Burton and Ginn then used their PR-24's in a "come-a-long technique" in an attempt to control Moore. Holbrook grabbed the collar of Moore's jumpsuit in an attempt to restrain him. After being restrained, Moore was escorted to a set of stairs. As he was climbing the stairs, Moore slipped and fell on top of Holbrook. As a result of the incident, both Holbrook and Ginn received injuries which required them to seek medical attention and leave from their employment.

In his affidavit supporting his motion for summary judgment, Moore disputes defendants' version of the facts. In addition, he denied any involvement with the disturbance.

The district court accepted defendants' version of the facts erroneously stating that defendants' position was undisputed. The court then concluded that defendants' actions were justified and no Eighth Amendment violation had occurred.

This court's review of the grant of summary judgment is de novo. See EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

For the first time on appeal, Moore contends that the district court erred by relying on documents that defendants attached to their motion for summary judgment. Moore states that the documents are unsworn and unauthenticated. As such, they do not satisfy the requirements of FED.R.CIV.P. 56(e).

Rule 56(e) states, in part, that affidavits supporting a motion for summary judgment must: (1) be made on personal knowledge; (2) set forth facts as would be admissible in evidence; and (3) show that the affiant is competent to testify on the matters contained in the affidavit. Furthermore, sworn or certified copies of all documents referred to in an affidavit must also be attached to the affidavit. This court has ruled that documents submitted in support of a motion for summary judgment must satisfy the requirements of Rule 56(e); otherwise, they must be disregarded. See Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968-69 (6th Cir.1991); State Mutual Life Assurance Co. of America v. Deer Creek Park, 612 F.2d 259, 264 (6th Cir.1979).

The documents in question consist of photocopies of Moore's prison medical records, the investigation report of the incident made by prison officials, statements made by witnesses during the investigation, and a prior unpublished district court opinion made in an unrelated case. The documents are neither sworn nor certified.

Although the documents do not satisfy the requirements of Rule 56(e), the argument, nonetheless, does not justify reversal of the district court's judgment. Moore failed to object to the documents inclusion in defendants' motion for summary judgment. Because Moore did not raise the issue before the district court, it is not reviewable on appeal. See Taft Broadcasting Co. v. United States, 929 F.2d 240, 243-45 (6th Cir.1991). Although Taft recognized an exception to this rule in order to avoid injustice, id. at 244, the exception does not exist in this case. Accordingly, this issue is not reviewable on appeal. Id. at 243-44.

Moore also argues that the district court erred by granting summary judgment for the defendants. He contends that there are several genuine issues of material fact that prevents the issuance of summary judgment.

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. FED.R.CIV.P. 56. This court reviews the district court's grant of summary judgment de novo, EEOC v. University of Detroit, 904 F.2d at 334, viewing all facts and inferences drawn therefrom in the light most favorable to the nonmoving party. 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). The party seeking summary judgment bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553. However, in responding to a summary judgment motion, the non-moving party cannot rest on its pleadings but must present some "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. at 2553. By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. The requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).

The district court erroneously concluded that defendants' recitation of the facts was undisputed. After the defendants moved for summary judgment, Moore filed a cross-motion for summary judgment attaching a sworn affidavit to his motion. The affidavit explicitly contradicted defendants' version of the facts. The cross-motion also served as a reply to defendants' motion.

In examining the two versions of the incident, numerous issues of fact exist that prevent the granting of summary judgment for the defendants. First, Moore states that the prison disturbance occurred on April 26, 1990. The following day, April 27th, he was assaulted by the defendants. In contrast, defendants claim that the disturbance was in progress on April 27th and as a result, Moore was being removed from the area. This dispute is material in that it strikes at the heart of the district court's decision. The district court found that the assault occurred during the prison disturbance which permitted the defendants to use more force than normally necessary to control Moore, citing Hudson v. McMillian, --- U.S. ----, ----, 112 S.Ct. 995, 998, 117 L.Ed.2d 156 (1992) and Whitley v. Albers, 475 U.S. 312, 320-21 106 S.Ct. 1078, 1084-85, 89 L.Ed.2d 251 (1986).

In order to constitute a claim under the Eighth Amendment, the offending conduct must reflect an "unnecessary and wanton infliction of pain." Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 1412, 51 L.Ed.2d 711 (1977) (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976)). Such a claim has both an objective and subjective component. Wilson v. Seiter, --- U.S. ----, ----, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991).

The objective component of an Eighth Amendment claim requires that the pain be serious. Id. The Supreme Court addressed the objective component in Rhodes v. Chapman, 452 U.S. 337, 348-49, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981), noting that although double celling of inmates may be painful, it did not concern a deprivation of "the...