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Prisoner Education Guide

Eighth Circuit Finds Verified Complaint Defeats Summary Judgment Motion in Failure-to-Protect Case

by Matt Clarke

On August 20, 2018, the Eighth Circuit Court of Appeals rejected an appeal filed by officials at the Northeast Arkansas Community Corrections Center (NEACCC) in a lawsuit alleging they had failed to protect a prisoner from being physically and sexually harassed, threatened and assaulted, and instead punished him for reporting the abuse. 

While Willard Eugene Berry was incarcerated at NEACCC, he reported to Therapeutic Community Supervisor Brian Doss, Substance Abuse Counselor Carol McFarlin and Treatment Supervisor Karen Hardesty that he was being sexually and physically harassed, threatened and attacked by other prisoners. Not only did they fail to protect him from harm, allowing another prisoner to hurt him, Doss allegedly removed Berry’s writing materials for two weeks so he could not submit written complaints, and placed one of the abusive prisoners in the same cell with him. Ultimately, that prisoner hurt Berry. 

Berry filed a pro se verified complaint in federal district court under 42 U.S.C. § 1983 against Doss, McFarlin, Hardesty and other defendants. Later, in response to the district court’s order to provide greater specificity, he filed an unverified amended complaint. The defendants moved for summary judgment seeking qualified immunity, but only Doss filed a supporting declaration. Berry did not respond to that motion.

The court dismissed the other officials and some of Berry’s claims, but denied summary judgment on his failure-to-protect claim against Doss, McFarlin and Hardesty. In doing so, it rejected the defendants’ assertion that, because Berry had not responded to the summary judgment motion, the district court should accept Doss’ declaration as true; instead, the court found there were material issues of fact in dispute. The remaining defendants filed an interlocutory appeal.

The Eighth Circuit noted it did “not have jurisdiction to consider the appeal if ‘at the heart of the argument is a dispute of fact.’ ... Here, the [defendants’] arguments hinge on substantive factual disputes such as the extent and magnitude of harassment and threats experienced by Berry, the degree to which the [defendants] knew of the harassment and threats, and whether (and how) they sought to protect him.” 

The defendants’ version of the facts contradicted the verified factual statements in Berry’s original complaint, which, although it had been superseded by an unverified amended complaint, was accepted as the equivalent of an affidavit for summary judgment purposes. 

“The district court relied on Berry’s complaints as evidence to conclude there were material issues of fact in dispute as to whether and how the officials responded to Berry’s multiple complaints of physical and sexual harassment,” the Court of Appeals wrote. “This was proper to the extent those allegations were made in Berry’s original verified complaint.”

Therefore, the Eighth Circuit dismissed the appeal for lack of jurisdiction as it involved issues of fact, not law. Following remand, the district court set the case for trial and appointed counsel for Berry in November 2018. See: Berry v. Doss, 900 F.3d 1017 (8th Cir. 2018). 

Related legal case

Berry v. Doss


 

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