William C. Moore v. Troy E. Holbrook R. Ginn, Sgt. John Burton, Sgt. , 2 F.3d 697 ( 1993 )

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. § 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.Crv.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 cellbloek, 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 Hol-brook, Ginn, and Burton pursuant to 42 U.S.C. § 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 them 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 wib nesses 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 minimal civilized measure of life’s necessities.” Thus, no Eighth Amendment violation occurred. See Wilson, — U.S. at -, 111 S.Ct. at 2324.

The subjective component, in contrast, constitutes the deliberate indifference standard of Estelle v. Gamble. Id. at ---, 111 S.Ct. at 2324-27. The subjective component provides that the offending, non-penal conduct be wanton. Id. at -, 111 S.Ct. at 2326.

The subjective component does not have a fixed meaning. However, under the circumstances of heightened tensions, as in prison disturbance cases, wantonness constitutes malicious and sadistic acts whose very purpose is to inflict harm. Id. No actual injury needs to be proven to state a viable Eighth Amendment claim. Boretti v. Wiscomb, 930 F.2d 1150, 1154-55 (6th Cir.1991).

The day of the disturbance is critical in this case. According to Moore, the disturbance had ceased the day before the assault. If this is true, the Supreme Court’s Eighth Amendment analysis for prison disturbances is not applicable. In contrast, if the disturbance existed when the assault occurred, the district court’s analysis under Hudson and Whitley would be correct.

Another decisive issue of material fact that exists concerns the incident itself. Moore proffered evidence that he was subject to numerous beatings without reason. Defendants countered with evidence that Moore became disruptive and that his injuries were a result of a fall. Whether or not Moore was a victim of an assault is critical to his Eighth Amendment claim.

To determine whether a claim of assault rises to a level of constitutional magnitude, a court must consider the reasons or motivation for the conduct, the type of force used, and the extent of the inflicted injury. See Whitley, 475 U.S. at 320-22, 106 S.Ct. at 1084-86. The motivation of an assault is also relevant to an Eighth Amendment analysis. As the Supreme Court stated in Whitley: “the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on ‘whether the force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’ ” 475 U.S. at 320-21, 106 S.Ct. at 1084-85. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)).

Moore claims that he was savagely beaten on three occasions by the defendants for no reason. Under the Hudson and Whitley doctrines, Moore’s evidence would appear to show that defendants acted in bad faith. In contrast, defendants essentially claim that Moore’s injuries were a result of a fall. If defendants’ allegations are true, Moore was not subjected to malicious or sadistic behavior. Thus, the cause of Moore’s injury impacts his Eighth Amendment claim, thereby preventing the issuance of summary judgment for the defendants.

The final issue of fact that exists is Moore’s role in the disturbance. The defendants contend that Moore participated in the disturbance. Moore disputes this claim. This fact is material for it reflects on the reasonableness of defendants’ actions under the circumstances. As previously noted, defendants’ actions are evaluated as to whether the force they used was a good faith effort to maintain or restore discipline, or was maliciously and sadistically imposed to cause harm. Hudson, — U.S. at ---, 112 S.Ct. at 999-1001. Because the question of whether Moore was a participant in the disturbance influences the legal analysis as to the reasonableness of defendants’ actions, this disputed fact also prevents the issuance of summary judgment for the defendants. Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2509-10. Accordingly, for these reasons, the district court erred in granting summary judgment for the defendants.

Moore argues that the district court erred by concluding that because his injuries were de minimis, no Eighth Amendment violation occurred. In its opinion, the district court stated:

The injuries plaintiff incurred was [sic ] de minimis for purposes of Eighth Amendment analysis. Plaintiffs medical records indicate that he complained of soreness to his wrists, underarms, shoulders, and groin, and that he had an “edema” on his forehead, and that he did not dislocate or fracture his right shoulder. These constitute de minimis injuries for Eighth AMendment [sic] purposes because the need for Holbrook to use force was high and because plaintiffs temporary, de min-imis injuries show that the amount of force used on plaintiff was neither inordinate nor excessive. Rather than indicating a malicious and sadistic attack by defendants, plaintiffs injuries indicate that defendants’ tempered their response to fit the situation. Accordingly, defendants’ first use of force constituted a good-faith effort to maintain or restore discipline, rather than a malicious and sadistic attack for the purpose of harming plaintiff. Plaintiffs claim that defendants beat him a second time when they reached the stairway does not establish a wanton and unnecessary use of force. Although the need for the use of force was not high during the second beating, plaintiffs injuries were again de min-imis for the purposes of Eighth Amendment analysis. This is so because the temporary, de minimis nature of the injuries establishes that the amount of force defendants used was minimal and restrained. (citations omitted)

(R.33; pp. 7-8).

In Hudson, the Supreme Court was presented with the issue of whether the “minor” injuries which Hudson received from prison guards failed to satisfy an Eighth Amendment claim. Hudson, — U.S. at ---, 112 S.Ct. at 1000-01. The Court held that the extent of Hudson’s injuries provided no basis for the dismissal of his claim. Rather, the proper analysis was whether the force that was applied was in a good faith effort to maintain or restore discipline, or was maliciously and sadistically invoked to cause harm. Id. at -, 112 S.Ct. at 999. See also Caldwell v. Moore, 968 F.2d 595, 599-600 (6th Cir.1992); Cornwell v. Dahlberg, 963 F.2d 912, 918 (6th Cir.1992).

The district court properly summarized the analysis of an Eighth Amendment claim. Contrary to Moore’s argument, the district court did not state that it was dismissing Moore’s claim because his injuries were de minimus. The district court stated Moore’s minor injuries indicated that he was not subjected to malicious and sadistic attacks given the situation that the defendants faced. Therefore, the district court did engage in the proper legal analysis in determining whether Moore stated an Eighth Amendment claim.

Even though the district court conducted the correct legal analysis, its decision is flawed. As previously discussed, genuine issues of material fact exist in this case. Therefore, although the district court conducted the proper legal analysis, its decision is based on disputed facts. As a result, the district court improperly granted summary judgment to the defendants.

Finally, Moore contends that his affidavit in support of his cross-motion for summary judgment is undisputed and, therefore, he is entitled to summary judgment as a matter of law. Moore bases this argument on the fact that defendants’ evidence does not satisfy Fed.R.Civ.P. 56(e) and thus cannot be used to defeat his motion. Moore did not object to defendants’ evidence in the district court. Therefore, any objection to the evidence has now been waived and is not reviewable on appeal. Taft Broadcasting Co., 929 F.2d at 243-45. Furthermore, the evidence presented by both parties creates several issues of material fact that prevents either party from receiving summary judgment at this juncture of the litigation. The argument is without merit.

Accordingly, we REVERSE the judgment of the district court and remand the case for further proceedings consistent with this opinion.