United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER UNITED STATES DISTRICT JUDGE
a pro se prisoner's civil rights complaint filed pursuant
to 42 U.S.C. § 1983. Before the Court is a motion to
dismiss for failure to prosecute filed by Defendant [Doc.
29], a motion for summary judgment filed by Defendant [Doc.
31], a motion to strike filed by Defendant [Doc. 37], and a
motion to appoint counsel filed by Plaintiff [Doc. 41]. As
Plaintiff has not filed a response to Defendant's motion
for summary judgment and the time for doing so has passed
[Doc. 38], Plaintiff has waived any opposition to this
dispositive motion. Elmore v. Evans, 449 F.Supp. 2,
3 (E.D. Tenn. 1976), aff'd mem. 577 F.2d 740
(6th Cir. 1978); E.D. TN. LR 7.2. For the following reasons,
the motion for summary judgment [Doc. 31] will be GRANTED and
this action will be DISMISSED. Accordingly, the remaining
pending motions [Docs. 29, 37, and 41] will be DENIED as
Court has previously summarized Plaintiff's complaint as
In his complaint, plaintiff alleges that a lot of his rights
are being violated and were violated, and that he has no
felony convictions but only misdemeanor convictions [Doc. 1
p. 3]. Plaintiff also states that he was tazed and maced and
left in belly chains to die for eight hours or more and that
he has mental disabilities [Id.].
In a letter filed with his complaint, plaintiff states that
he had been undergoing therapy for a stabbing to his left
wrist and that, at the beginning of his incarceration, he was
placed in a holding cell [Doc. 1-1 p. 1]. Plaintiff further
alleges that the holding cell had no toilet and that when he
needed to use the restroom, he tried to get the guards'
attention but could not for hours [Id.]. Plaintiff
states that he finally kicked the door, at which point two
guards came in with chains [Id.].
Plaintiff alleges that he told the officers his needs and
that his wrist was injured, at which point defendant Simerly
maced him and placed him in belly chains even though he was
not resisting, and that this further injured his wrist
[Id.]. Plaintiff states that he filed many
grievances and got no help [Id.]. Plaintiff then
states that his head was smacked “off the wall”
and he was left in the cell for ten or more hours in belly
chains and that now his hand is numb all the time
[Id. at 2]. Plaintiff alleges that he was knocked
out when his head was smacked, that he has heard that the
officer who hurt him has Dated this to other inmates, that he
has post-traumatic stress disorder, and that after this
incident he was placed in isolation for twenty-five days with
no mat [Id.]. Plaintiff states that many police in
the jail and on the street do not like his mom or dad, so he
thinks that is why they have Dated this to him
[Doc. 6 p. 2-5].
SUMMARY JUDGMENT STANDARD
56(a) of the Federal Rules of Civil Procedure provides that
“[t]he court shall grant summary judgment 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.” In ruling on a motion for summary judgment, the
court must draw all reasonable inferences in favor of the
nonmoving party. McLean v. 988011 Ontario Ltd, 224
F.3d 797, 800 (6th Cir. 2000). Summary judgment is proper if
the evidence, taken in the light most favorable to the
nonmoving party, shows that there are no genuine issues of
material fact and that the moving party is entitled to
judgment as a matter of law.” Hartman v. Great
Seneca Fin. Corp., 569 F.3d 606, 611 (6th Cir. 2009)
(internal quotation marks omitted). The moving party has the
burden of conclusively showing the lack of any genuine issue
of material fact. Smith v. Hudson, 600 F.2d 60, 63
(6th Cir. 1979).
judgment is an integral tool for securing the “just,
speedy[, ] and inexpensive determination of every
action.” Celotex Corp. v. Catrett, 477 U.S.
317, 327 (1986). The moving party is entitled to judgment as
a matter of law “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of truth at trial.” Id.
district court cannot grant summary judgment in favor of a
movant simply because the adverse party has not responded,
but rather the court is required to, at a minimum, examine
the motion to ensure that the movant has met its initial
burden. Stough v. Mayville Cmty. Sch., 138 F.3d 612,
614 (6th Cir. 1998). In doing so, the court “must not
overlook the possibility of evidentiary misstatements
presented by the moving party.” Guarino v.
Brookfield Twp. Trs., 980 F.2d 399, 407 (6th Cir. 1992).
The court must “intelligently and carefully review the
legitimacy of  an unresponded-to motion, even as it
refrains from actively pursuing advocacy or inventing the
riposte for a silent party.” Id. In
the absence of a response, however, the Court will not
“sua sponte comb the record from the partisan
perspective of an advocate for the non-moving party.”
Id. at 410. If the court determines that the
unrebutted evidence set forth by the moving party supports a
conclusion that there is no genuine issue of material fact,
the court will determine that the moving party has carried
its burden, and “judgment shall be rendered
forthwith.” Id. (alteration omitted).
motion for summary judgment and the memorandum, statement of
material facts, and declaration filed in support thereof
[Docs. 31, 31-1, 32, and 33], Defendant Simerly has set forth
undisputed evidence regarding the incident at issue in
Plaintiff's complaint [Doc. 33 at 1- 4 that demonstrates
that all of the force Defendant Simerly used during the
incident at issue in ...