Brown v. Otts et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
CE’DRICK J. BROWN 	PLAINTIFF
v. 	Civil No. 6:24-CV-06017-SOH-CDC
MAJOR FREDRICK OTTS; SERGEANT
B. MORGAN; and CORPORAL SHANLEVER 	DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, Ce’drick J. Brown, a prisoner, has filed the above-captioned civil rights matter
pursuant to 42 U.S.C. § 1983 generally alleging that Defendant Otts subjected him to excessive
force and Defendants Morgan and Shanlever failed to intervene in violation of his constitutional
rights when he was incarcerated at the Omega Supervision Sanction Center in Malvern, Arkansas.0F
1
(ECF No. 10). 	Plaintiff proceeds pro se and in forma pauperis (“IFP”). 	(ECF No. 3).
Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O.
Hickey, Chief Judge, United States District Court, referred this action to the undersigned for the
purposes of making a report and recommendation on the three pending motions for summary
judgment: Plaintiff’s Motion for Summary Judgment, (ECF No. 33), Plaintiff’s Second Motion for
Summary Judgment, (ECF No. 39), and Defendants’ Motion for Summary Judgment, (ECF No.
62).1F
2 	The Defendants have filed responses in opposition to Plaintiff’s motions for summary
judgment, see (ECF Nos. 38, 67). 	Plaintiff has filed a response in opposition to Defendants’
1 Plaintiff is currently incarcerated at the Arkansas Division of Correction (“ADC”), Cummins
Unit in Grady, Arkansas. 	(ECF No. 18).
2 Plaintiff has also filed a Motion to Appoint Counsel, (ECF No. 77), and a Motion to Sever, (ECF
No. 78). 	These motions will be addressed by separate order.
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motion for summary judgment. 	See (ECF No. 73). 	No party has filed a reply to their respective
motion for summary judgment. 	These motions are therefore now ripe for the Court’s
consideration. 	For the reasons described below, this Court recommends that Plaintiffs’ Motions
for Summary Judgment, (ECF Nos. 33 & 39), be DENIED, and that Defendants’ Motion for
Summary Judgment, (ECF No. 62), be GRANTED.
I. 	BACKGROUND2F
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Upon 	preliminary 	review 	of 	Plaintiff’s 	original 	complaint 	pursuant 	to 	28
U.S.C. § 1915A(a), this Court noted some potential legal and factual deficiencies with Plaintiff’s
claims and ordered that he submit an amended complaint by March 14, 2024, failing which this
matter would be subject to dismissal. 	(ECF No. 6). 	After requesting (and receiving) an
extension of time, Plaintiff submitted the Amended Complaint. 	(ECF No. 10).
The Amended Complaint asserts, in sum, that on January 26, 2024, Defendants Morgan
and Shanlever “rushed” him when he was in IPO Hrdlicka’s office and “wrestled” him to the
ground even though he was complying with their orders. 	See Amend. Comp. (ECF No. 10, p. 8).
Plaintiff claims that when Defendant Otts arrived at the scene, Defendants Sgt. Morgan and Cpl.
Shanlever restrained him on the floor while Defendant Otts placed his knee on Plaintiff’s neck,
using his body weight to apply pressure to Plaintiff’s neck, choking Plaintiff and causing him to
asphyxiate from lack of oxygen. 	Id., p. 10. 	Plaintiff says that he told Defendant Otts that he
could not breathe, but Defendant Otts nevertheless continued to push his body weight onto his
neck, and Defendants Morgan and Shanlever and IPO Hrdlicka did not intervene. 	Id.
3 The Court does not endeavor to describe every docket entry in this case, only those relevant to
the Court’s consideration of the motions for summary judgment currently before it.
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Upon preservice review of the Amended Complaint pursuant to 28 U.S.C. § 1915A(a),
this Court ordered service of the Amended Complaint on Defendants Major Fredrick Otts,
Sergeant B. Morgan, and Corporal Shanlever. 	(ECF No. 11). 	After Defendants filed their
Answer, this Court ordered that Defendants either submit a motion for summary judgment on the
issue of whether Plaintiff properly exhausted his administrative remedies before initiating this
lawsuit in accordance with 42 U.S.C. § 1997e(a) by July 15, 2024, or promptly file a notice stating
they did not intend to pursue an exhaustion defense. 	(ECF No. 17). 	On June 17, 2024,
Defendants filed the following notice, stating, in full:
Arkansas Division of Community Correction (ACC) Defendants
Freddie Otts, Brendon Morgan, and Thomas Shanlever (ACC
Defendants), by and through their attorneys, Attorney General Tim
Griffin and Senior Assistant Attorney General Michelle Banks, in
response to the Court’s Order (Doc. 17) hereby provide notice that
they do not intend to pursue an exhaustion defense in this matter.
(ECF No. 19).
This Court then entered an initial scheduling order governing discovery and setting
deadlines for filing summary judgment motions. 	(ECF No. 21). 	On Defendants’ request, this
Court extended the deadline to complete discovery twice, see (ECF Nos. 31-32; 36-37), and the
deadline to submit a motion for summary judgment four times, see (ECF Nos. 31-32; 36-37; 49-
50; 54-55).
Before the conclusion of discovery, Plaintiff filed his first Motion for Summary Judgment
consisting of an unsworn “declaration” in support of partial summary judgment. 	See (ECF No.
33). 	Defendants’ response contends that Plaintiff’s motion should be denied on the grounds that
it fails to comply with Local Rule 7.2(a) and Fed. R. Civ. P. 56.1 because it does not include a
separate brief and separate statement of facts. 	(ECF No. 38). 	Defendants also contend that
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Plaintiff’s Motion for Summary Judgment fails on the merits because Eleventh Amendment
sovereign immunity precludes suit against the Defendants in their official capacities for money
damages and the Defendants are entitled to qualified immunity in their individual capacities. 	Id.
Following this response, Plaintiff submitted a second Motion for Summary Judgment, along with
supporting documents, including a declaration sworn under penalty of perjury, a statement of
undisputed facts, and exhibits in support. 	See (ECF No. 39-41, 46).
Sometime after Plaintiff submitted his second Motion for Summary Judgment, Defendants
filed their own Motion for Summary Judgment, including a memorandum, statement of facts, and
eight exhibits in support arguing that the Defendants did not waive exhaustion as a defense to
Plaintiff’s claims, Plaintiff failed to properly 	exhaust his claims in accordance with 42
U.S.C. § 1997e(a), and that Plaintiff’s claims fail on the merits because the Defendants are entitled
to qualified immunity. 	(ECF Nos. 62-65). 	Separately, Defendants filed a response to Plaintiff’s
second Motion for Summary Judgment, along with a Response to Plaintiff’s Statement of
Undisputed Facts. 	(ECF No. 67-68). 	Later, Plaintiff filed a response in opposition to
Defendants’ Motion for Summary Judgment, including a statement of facts in dispute. 	See (ECF
No. 73). 	No replies have been filed.
II. 	LEGAL STANDARD
The 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.” Fed. R.
Civ. P. 56(a). “A dispute is genuine if the evidence is such that it could cause a reasonable jury to
return a verdict for either party.” Ward v. Olson, 939 F. Supp. 2d 956, 961 (D. Minn. 2013) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). 	A fact is material only when its
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resolution would affect the outcome of a case. Anderson, 477 U.S. at 248.
Further, the moving party bears the initial burden of identifying “those portions of the
record which it believes demonstrate the absence of a genuine issue of material fact.” Jackson v.
United Parcel Serv., Inc., 643 F.3d 1081, 1085 (8th Cir. 2001). 	In response, the nonmoving party
“may not rest upon mere denials or allegations but must instead set forth specific facts sufficient
to raise a genuine issue for trial.” Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).
In considering a summary judgment motion, the court views all the evidence and inferences in the
light most favorable to the nonmoving party. Anderson, 477 U.S. at 255.
Here, the parties have filed cross-motions for summary judgment. 	In such instances, the
court is to “consider each motion separately.” Thompson-Harbach v. USAA Fed. Sav. Bank, 359
F.Supp.3d 606, 615 (N.D. Iowa 2019) (citing Wright v. Keokuk Cty. Health Ctr., 399 F.Supp.2d
938, 946 (S.D. Iowa 2005) (internal citations omitted)). 	The court, moreover, “views the record
in the light most favorable to plaintiff when considering defendant’s motion, and the court views
the record in the light most favorable to defendant when considering plaintiff’s motion.” Id. (citing
Weber v. Travelers Home & Marine Ins. Co., 801 F.Supp.2d 819, 825 (D. Minn. 2011)).
III. 	FACTS
Plaintiff requests summary judgment on the merits. 	See (ECF Nos. 33 & 39).
Defendants request summary judgment on the grounds that Plaintiff failed to properly exhaust his
administrative remedies in accordance with 42 U.S.C. § 1997e(a) and on the merits. 	(ECF No.
62). 	The Court turns first to the facts.
A. 	DCC Grievance Procedure
During the events giving rise to his claims, Plaintiff was incarcerated at the Omega
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Supervision Sanction Center, an Arkansas Division of Community Correction (“DCC”) facility.
See, e.g., (ECF No. 64-3). 	The DCC has a two-step (four stage) grievance procedure. 	(ECF No.
64-1, p. 1). 	This grievance procedure is available to DCC inmates. 	Id. 	There is no dispute
about this grievance procedure or Plaintiff’s grievances. 	See generally (ECF No. 64); (ECF No.
73).
The first stage of Step One is the informal complaint. 	See (ECF No. 64-1). 	At this stage,
the resident submits an informal “Complaint Form for Residents” to address a problem. 	If the
problem is not resolved informally, or if the resident receives no response to the informal
complaint, then he may submit a written formal grievance on a “Grievance Form for Residents”
within five days of the events giving rise to the complaint. 	Id. 	Absent obtaining an extension,
the grievance officer or other designee must respond to the grievance within 30 calendar days. 	Id.
Upon receipt of a grievance response, the resident may proceed to the appeal (Step Two). 	Id.
At Step Two, the resident may first appeal the grievance to the Center Supervisor, who
then issues a decision. 	Id. at p. 2. 	The resident may appeal the Center Supervisor’s decision
within five days of receipt of that decision to the Deputy Director of Residential Services. 	The
decision of the Deputy Director of Residential Services is final and “marks the end of the grievance
process.” 	Id.
While incarcerated at the Omega Unit, Plaintiff properly exhausted one grievance in
accordance with the DCC grievance procedure. 	Id. 	Plaintiff initiated a grievance on January 31,
2024, relating to a use of force incident that occurred on January 26, 2024. 	Id. 	Plaintiff followed
Step One and Step Two, and completed the grievance process on March 6, 2024, when the Deputy
Director of Residential Services issued her decision. 	Id. 	Plaintiff initiated this § 1983 lawsuit
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on February 21, 2024, when he filed his original complaint and motion to proceed IFP in this
District. 	See (ECF Nos. 1, 2). 	On April 5, 2024, Plaintiff submitted the Amended Complaint, as
ordered. 	(ECF No. 10).
B. 	January 26, 2024, Use of Force Incident
Turning to the substance of Plaintiff’s claims, there is no dispute about the events
immediately preceding the January 26, 2024, use of force incident. 	At approximately 6:11 am on
January 26, 2024, Defendant Shanlever saw Plaintiff turn and walk the wrong way. 	(ECF No.
64-4, p. 1). 	Defendant Shanlever called for Plaintiff to stop, but he kept walking. 	Id. 	Defendant
Shanlever started running towards Plaintiff while also calling out for Defendant Morgan for
assistance. 	Id. 	During the time it took for Defendants Shanlever and Morgan to catch up to
Plaintiff, he had already entered IPO Hrdlicka’s office and shut the door behind him. 	See (ECF
No. 64-7). 	By Plaintiff’s own admission, he verbally threatened IPO Hrdlicka and was aware that
he did not have permission to be in that hallway or in IPO Hrdlicka’s office. 	See (ECF No. 64-6,
pp. 2-4). 	Plaintiff was evidently frustrated about his release plan, something over which IPO
Hrdlicka has some authority. 	Id. 	The parties dispute what occurred after Defendants Shanlever
and Morgan arrived at IPO Hrdlicka’s office.
1. 	Plaintiff’s Account
Indeed, Plaintiff’s account about what happened next is somewhat inconsistent. 	In his
verified Amended Complaint, Plaintiff says that “Sgt. Morgan and Cpl. Shanlever rushed [him]
while in IPO Hrdlicka’s office and wrestled [him] to the floor as [he] was complying with their
every direct order and placed [him] in hand restraints.” 	(ECF No. 10, p. 8). 	Plaintiff repeats this
allegation in his unsworn declaration in support of his first motion for summary judgment, (ECF
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No. 33, p. 2), and his sworn declaration in support of his second motion for summary judgment,
(ECF No. 40, p. 3). 	But during Plaintiff’s sworn deposition, Plaintiff says that when Defendants
Shanlever and Morgan pulled him out of IPO Hrdlicka’s office, he “resisted a first” “out of reflex.
But then after they had got [him] to the ground, [he] had no choice but to comply . . ..” (ECF No.
64-6, p. 4).
According to Plaintiff, when he was on the ground, “they put [] handcuffs behind [his] back
and put shackles that’s on [his] feet behind [his] back, put [him] in handcuffs.” 	Id. 	Plaintiff says
that even though he was now apprehended, Defendant Otts positioned himself by his head and
placed his knee on his neck, at which time Plaintiff “started resisting again” and Defendant Otts
put more pressure on his neck. 	Id. at pp. 4-5. 	Plaintiff says that he told Defendant Otts that he
could not breathe, but Defendant Otts told him that he was not preventing him from breathing, so
Plaintiff continued to resist. 	Id. at p. 5. 	According to Plaintiff, Defendant Otts placed more
pressure on his neck as he resisted, until finally Plaintiff concluded that he “just had to finally just
submit, and pray let him—just let him have his way, just—and pray—and pray that he will
eventually ease up off of me.” 	Id. 	Plaintiff says that when he submitted, Defendant Otts released
pressure on his neck. 	Id. 	According to Plaintiff, Defendants Morgan and Shanlever failed to
intervene when Defendants Otts put his knee on his neck. 	(ECF No. 10, p. 10).
2. 	Defendants Shanlever and Morgan’s Account
The accounts of Defendants Shanlever and Morgan are substantively the same.3F
4
4 While Plaintiff asserts that Defendant Morgan’s incident report following the use of force
incident contains falsehoods and is thus not credible, see, e.g., (ECF No. 73, p. 6), a court on
summary judgment does not weigh evidence or make credibility determinations. 	See Anderson,
477 U.S. at 252. Rather, the focus here is on whether there are material fact disputes that preclude
summary judgment.
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Defendants Shanlever and Morgan say that when they arrived at IPO Hrdlicka’s office, they
ordered Plaintiff to step out of the office. 	See (ECF No. 64-4, p. 1). 	Defendants Shanlever and
Morgan say that they gave Plaintiff several orders to face the wall, but Plaintiff continued to
“verbally threaten” IPO Hrdlicka and started trying to push past them to get to IPO Hrdlicka. 	Id.;
(ECF No. 64-5, p. 2). 	Defendants Shanlever and Morgan then placed Plaintiff on the ground
using the least amount of force necessary, at which time Defendant Otts, Lt. Sanford, Corporal
Ellis arrived to assist. 	See (ECF No. 64-4, p. 1); (ECF No. 64-5, p. 2).
Defendant Shanlever says that Defendant Otts placed Plaintiff in handcuffs and Cpl. Ellis
placed Plaintiff in leg irons. 	(ECF No. 64-4, p. 2). 	According to Defendant Morgan, once the
Plaintiff was placed in handcuffs, he tried to get up, and resisted when he, Defendant Otts, and Lt.
Sanford gave him verbal orders to stop. 	(ECF No. 64-5, p. 2).
Defendant Morgan says that after Plaintiff tried to get up when he was in handcuffs and
continued to disobey direct orders, Defendant Otts “applied the mandibular angle pressure point
until compliance was met” at which time he relieved the pressure. 	(ECF No. 64-5, p. 2).
According to Defendant Morgan, Cpl. Ellis then arrived with leg restraints and placed them on
Plaintiff, but even after he was placed in leg restraints, Plaintiff “attempted to kick cowards [sic]
staff members.” 	Id. 	Defendant Otts then gave Plaintiff verbal orders to stop resisting, and
Plaintiff complied, at which time he was escorted to the clinic for a “pre-lockup.” 	Id. 	Defendant
Morgan charged Plaintiff with prison disciplinary violations following this incident. 	Id.
Neither Defendant Shanlever nor Defendant Morgan witnessed Defendant Otts use
excessive force against Plaintiff and neither witnessed Defendant Otts place his knee on Plaintiff’s
neck. 	(ECF No. 64-4, p. 2); (ECF No. 64-5, p. 2). 	Further, neither observed Plaintiff
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demonstrating that he could not breathe; instead, both witnessed Plaintiff cursing and yelling and
resisting orders. 	(ECF No. 64-4, p. 2); (ECF No. 64-5, p. 2).
3. 	Defendant Otts’s Account
Defendant Otts responded to the call for assistance. 	(ECF No. 64-3, p. 2). 	When he
arrived, he observed staff struggling with Plaintiff. 	Id. 	He took Defendant Morgan’s handcuffs
and placed them on Plaintiff. 	Defendant Otts says that even though he, along with other staff,
repeatedly ordered Plaintiff to stop resisting, Plaintiff “continued to try and roll over and pull his
legs back and forth trying to kick staff.” 	Id. 	According to Defendant Otts, after Plaintiff failed
to comply with several additional orders to stop resisting, Defendant Otts “utilized the mandibular
angle pressure point to get Offender Brown to comply with orders. [He] applied pressure and
[Plaintiff] stopped resisting staff. [He] then relieved the pressure and continued to keep control of
[Plaintiff’s] head.” 	Id. 	Defendant Otts says that leg restraints were then applied, and he gathered
Plaintiff’s glasses from the floor and put them in his pocket for safekeeping before assisting
Plaintiff to his feet and escorting him to the clinic to be evaluated for injuries. 	Id. 	Defendant
Otts later learned that Nurse Hopson started the evaluation but then Plaintiff stated that he refused
treatment. 	Id.
According to Defendant Otts, the security footage shows him applying the “mandibular
angle pressure point” on Plaint at approximately 6:12:23 am. 	Id. at p. 6. 	Defendant Otts asserts
that this is a “standard use of force tactic taught in training. It means as [he] was holding
[Plaintiff’s] head/face (one side down, the other side up) to the floor to prevent him from moving
his head, [he] applied pressure at the base of his jaw below the ear, pressing towards the nose.”
Id. 	Defendant Otts says that no other force would have been used—including the mandibular
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angle pressure point—if Plaintiff had simply continued to calm down after he had been placed in
handcuffs and had not started kicking or trying to turn over. 	Id. 	Defendant Otts asserts that
Plaintiff never demonstrated that he was having trouble breathing, and that he did not witness
anyone (including himself) place his knee on Plaintiff’s neck. 	Id. at p. 7.
4. 	Security Video
There is one security camera in the “South Hallway,” where the use of force incident
occurred. 	(ECF No. 64-3, pp. 2-3). 	Video footage from that camera on January 26, 2024, shows
the following: At 6:10 am, IPO Hrdlicka enters her office and shuts the door behind her.4F
5 	Seconds
later, Plaintiff follows her into her office, where she is sitting at her desk, facing the door, and
shuts the door behind him. 	At 6:10:33 am, Officer Shanlever opens IPO Hrdlicka’s door, and
Officer Morgan, who is wearing glasses, follows closely behind him. 	(ECF No. 64-3, p. 3).
Officer Shanlever grabs his left arm, Officer Morgan grabs his right arm, and lead him out of the
office, Plaintiff is walking backwards so that his back remains against the camera, and he is still
facing IPO Hrdlicka. 	At approximately 6:10:42, Defendant Morgan points at the wall (or
something) behind Plaintiff, but Plaintiff does not turn around; instead, he points at IPO Hrdlicka
(who is now standing up next to her desk in her office) and starts moving towards her office again.
Defendants Morgan and Shanlever then hold onto Plaintiff, stopping him from re-entering IPO
Hrdlicka’s office. 	During this interaction, Defendants Morgan and Shanlever place Plaintiff on
the ground, face first. 	They appear to be trying to put Plaintiff’s arms behind his back. 	At this
point, at approximately 6:10:52, a third officer arrives on the scene, identified by Defendant Otts
5 	Unless otherwise noted, the facts in this section derive from the surveillance video. 	See (ECF
No. 64-7).
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as Lt. Sanford. 	(ECF No. 64-3, p. 4). 	Defendant Shanlever appears to be holding Plaintiff’s legs,
while Defendant Morgan and Lt. Sanford attempt to gain control of Plaintiff’s arms. 	At 6:11:02,
three additional officers arrive on the scene, including Defendant Otts and Lt. Baker, who is
wearing plain clothes. 	The video does not show what Defendant Otts does next, but Defendant
Otts says that during this time he is retrieving Defendant Morgan’s handcuffs and using them to
handcuff Plaintiff. 	(ECF No. 64-3, p. 3).
Defendant Otts describes what happens next as “calming period,” see id. at p. 5, during
which time Plaintiff appears to have calmed down and officers—including Lt. Baker—start
walking away. 	At this point, only the Defendants remain present at the scene—Defendants
Shanlever and Otts are standing next to Plaintiff, where he remains on the floor in a prone position
with his hands handcuffed behind his back and Defendant Morgan is kneeling next to Plaintiff,
outside the view of the camera. 	This calming period ends by 6:12:24 am when the video shows
Plaintiff moving his legs around, at this point Defendant Shanlever appears to try to take control
of Plaintiff’s legs and Defendant Otts kneels by Plaintiff’s head. 	The video does not show what
Defendant Otts is doing, but Defendant Otts says that at this point he “used both hands to restrain
Mr. Brown’s head: one to hold his head down and one at a pressure point.” 	(ECF No. 64-3, p. 6).
Defendant Otts says that after Plaintiff again refused to comply with directives, he applied the
“mandibular angle pressure point.” 	Id. 	During this time, all three Defendants were kneeling next
to Plaintiff, and it is difficult to see from the video what each Defendant is doing. 	But the video
shows Defendants helping Plaintiff to his feet and escorting him away from outside of IPO
Hrdlicka’s office at 6:15:32 am.
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5. 	ADC Policy
Arkansas Department of Correction (“ADC”) policy provides that “[t]he use of force is
sometimes necessary in a correctional environment to maintain safety and security.” 	(ECF No.
64-8, p. 1). 	Consistent with that policy, therefore, non-deadly force, defined as “force that is not
deadly,” “may be used when necessary to restrain, maintain or regain control of an inmate(s) with
a minimum of injury to state, inmate(s) and others.” Id. at pp. 1-2.
Relevant here, ADC policy allows for the use of non-deadly force in the following
situations: protecting individuals, “employees may use force to protect themselves or any person
from reasonably foreseeable injury by an inmate or others in the performance of their official
duties; and compelling compliance with orders, “[i]n ordinary day-to-day correctional situations,
employees may use non-deadly force to compel an inmate to comply with lawful orders when
other methods of persuasion are not effective and noncompliance jeopardizes safety and security
of the institution.” 	Id., p. 2.
The ADC use of force policy also addresses the degree of force. 	Specifically, pursuant to
policy, “[o]nly that amount of force necessary shall be used to restrain, regain or maintain control
of an inmate. 	The level of force used by staff shall be directly related to the amount of force used
by the inmate. 	Force shall not be used as a means of punishment.” 	Id., p. 3.
IV. 	ANALYSIS
There are three motions for summary judgment currently before the Court. 	The Court
addresses them chronologically.
A. 	Plaintiff’s First Motion for Summary Judgment (ECF No. 33)
Plaintiff’s first Motion for Summary Judgment fails for procedural reasons. 	Rule 56 of
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the Federal Rules of Civil Procedure governs motions for summary judgment. 	See Fed. R. Civ.
P. 56(c). 	Relevant here, “[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.” 	Fed. R. Civ. P. 56(a).
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by
(A) citing to particular parts of materials in the record,
including 	depositions, 	documents, 	electronically 	stored
information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.
Fed. R. Civ. P. 56(c)(1) (emphasis added).
Further, the Local Rules provide that “[a]ny party moving for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure, shall annex to the notice of motion a separate,
short and concise statement of the material facts as to which it contends there is no genuine dispute
to be tried,” see Local Rule 56.1, and Local Rule 7.2 requires a motion for summary judgment to
be “accompanied by a brief consisting of a concise statement of relevant facts and applicable law,”
Local Rule 7.2(a).
Here, Defendants contend that Plaintiff’s first motion for summary judgment should be
denied because it fails to comply with the Federal Rules of Civil Procedure and the Local Rules.
(ECF No. 38). 	This Court agrees.
Plaintiff’s first motion for summary judgment entirely consists of a self-styled “Declaration
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in Support of Plaintiff’s Motion for Partial Summary Judgment.” (ECF No. 33). 	The document
contains assertions in support of his conclusion that the Defendants used excessive force against
him in violation of his constitutional rights on January 26, 2024. 	Id. 	Contrary to the Federal
Rules of Civil Procedure, however, Plaintiff fails to cite to any evidence in the record that supports
these assertions—perhaps because at the time he submitted his motion for summary judgment,
discovery was ongoing. 	In any event, to the extent that Plaintiff intended for the Court to consider
the allegations themselves to be true, based on Plaintiff’s own personal knowledge, Plaintiff’s
motion does not qualify as an affidavit or (despite its title) a declaration because it is neither sworn
under penalty of perjury pursuant to 28 U.S.C. § 1746 nor notarized. 	Id. 	Additionally,
Plaintiff’s motion does not include a separate brief in support, in violation of the Local Rules.
Plaintiff’s first Motion for Summary Judgment is therefore procedurally deficient.
Although pro se pleadings are to be construed liberally, a pro se litigant is not excused from
complying with substantive and procedural law. 	Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.
1984). 	Plaintiff’s first Motion for Summary Judgment, (ECF No. 33), should therefore be
DENIED for failure to comply with the Federal Rules of Civil Procedure and this District’s Local
Rules.
Notably, moreover, setting aside Plaintiff’s failure to comply with relevant procedural
rules, shortly after Defendants docketed their response in opposition to Plaintiff’s motion for
summary judgment, Plaintiff filed a second, more detailed motion for summary judgment,
including a sworn declaration and a statement of undisputed facts in support. 	See (ECF No. 39).
The relief Plaintiff seeks in both motions is identical: judgment as a matter of law in his favor.
Accordingly, Plaintiff’s second motion for summary judgment—more well-developed than his
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first—serves as a sufficient vehicle to request the relief he seeks. 	Plaintiff’s first Motion for
Summary Judgment, (ECF No. 33), should also therefore be denied on the grounds that it is
duplicative of Plaintiff’s second motion for summary judgment.
B. 	Plaintiff’s Second Motion for Summary Judgment (ECF No. 39)
Plaintiff’s second Motion for Summary Judgment, (ECF No. 39), does not suffer the same
infirmities as the first—the second Motion for Summary Judgment includes a declaration sworn
under penalty of perjury pursuant to 28 U.S.C. § 1746, (ECF No. 40), a statement of undisputed
facts, (ECF No. 41), and copies of portions of his prison records related to his parole and the
disciplinary proceedings following the January 26, 2024, use of force incident, (ECF No. 46).
Procedurally sufficient, this Court then proceeds to consider the merits of Plaintiff’s motion.
Recall that the Amended Complaint asserts two claims for relief: (1) Defendant Otts used
excessive force against him; and (2) Defendants Shanlever and Morgan failed to intervene during
the excessive force incident.5F
6 	See (ECF No. 10). 	Plaintiff contends that he is entitled to
6 A significant portion of Plaintiff’s second motion for summary judgment discusses Plaintiff’s
disciplinary proceedings following the January 26, 2024, use of force event. 	See (ECF No. 40,
pp. 5-10); (ECF No. 41); (ECF No. 46, pp. 1-3). 	As the Court understands it, Plaintiff contends
that he was not afforded appropriate due process during his disciplinary proceedings in violation
of his constitutional rights. 	The problem with this claim (and the evidence he submits in support
of this claim) is that it was not raised in his Amended Complaint. 	See (ECF No. 10). 	Generally,
“a party typically may not assert a new claim in a motion for summary judgment.” 	Hildreth v.
City of Des Moines, 773 F. App’x 334, 335 (8th Cir. 2019) (Mem.) (citing Gilmour v. Gates,
McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004)). 	Instead, the “correct manner for a party
to assert a new claim is to seek to amend its complaint.” 	Bragg v. Husqvarna Forestry Products,
N.A., Inc., Case No. 4:20-CV-4054, 2021 WL 2346012, at *3 (W.D. Ark. June 8, 2021) (citing
Gilmour, 382 F.3d at 1315)). 	Plaintiff did not do this. 	Rather, he brought his own motion for
summary judgment asserting a claim he did not raise in his Amended Complaint. 	Accordingly,
Plaintiff should not be permitted to raise a due process claim for the first time in his second motion
for summary judgment. 	See id. 	To the extent therefore, that Plaintiff raises a due process claim
in his second motion for summary judgment or in his response to Defendants’ motion for summary
judgment, it is not properly before this Court and the Court will thus not consider it.
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summary judgment on both claims. 	See (ECF No. 39). 	In response, Defendants argue that
undisputed facts do not support Plaintiff’s motion. 	See (ECF No. 67). 	This Court agrees with
the Defendants. 	The Court starts with Plaintiff’s excessive force claim.
1. 	Excessive Force
“After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel
and unusual punishment forbidden by the Eighth Amendment.” 	Burns v. Eaton, 752 F.3d 1136,
1138 (8th Cir. 2014) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). 	“The infliction of
pain in the course of a prison security measure, therefore, does not amount to cruel and unusual
punishment simply because it may appear in retrospect that the degree of force authorized or
applied for security purposes was unreasonable, and hence unnecessary in the strict sense.” 	Id. at
1138-39 (quoting Whitley, 475 U.S. at 319). 	Accordingly, “whenever prison officials stand
accused of using excessive physical force in violation of the Cruel and Unusual Punishments
Clause, the core judicial inquiry is that set out in Whitley: whether force was applied in a good-
faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” 	Id. at
1139 (quoting Hudson v. McMillian, 503 U.S. 1, 6-7 (1992)). 	This inquiry “turns on such factors
as the need for the application of force, the relationship between the need and the amount of force
that was used, and the extent of injury inflicted, from which inferences may be drawn as to whether
the use of force could plausibly have been thought necessary, or instead evinced such wantonness
with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it
occur.” 	Jackson v. Gutzmer, 866 F.3d 969, 974 (8th Cir. 2017) (quoting Whitley, 475 U.S. at
321).
Plaintiff specifically claims that Defendant Otts used excessive force against him by
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placing his knee on his neck when he was on the floor. 	(ECF No. 10). To address Plaintiff’s
excessive force claim, this Court first establishes what led up to Defendant Otts’s use of force.
i. 	Defendants Morgan and Shanlever
It is undisputed that Plaintiff was not permitted to enter the hallway where IPO Hrdlicka’s
office was located. 	It is also not disputed that IPO Hrdlicka did not give Plaintiff permission to
enter her office. 	While Plaintiff asserts, under penalty of perjury, that Defendants Morgan and
Shanlever “rushed [him] while in IPO Hrdlicka’s office and wrestled [him] to the floor as [he]
were [sic] complying with their every direct order,” (ECF No. 40, p. 3), Defendants Morgan and
Shanlever dispute this account, asserting that Plaintiff was ordered to step out of the office and
face the wall, but he continued to verbally threaten IPO Hrdlicka, see, e.g., (ECF No. 64-4, p. 2).6F
7
Plaintiff’s version of events, moreover, is clearly contradicted by security footage, which plainly
shows Plaintiff leaning against IPO Hrdlicka’s desk and being led out of her office by Defendants
Morgan and Shanlever. 	(ECF No. 64-7). 	While there is no sound, the video shows Defendant
Morgan pointing to the wall behind Plaintiff and then placing his hands on Plaintiff’s shoulders.
Id. 	Pointedly, the surveillance video shows Plaintiff trying to move past Defendant Morgan to
re-enter IPO Hrdlicka’s office, a place where he entered uninvited in the first place. 	Id. 	Contrary
to Plaintiff’s allegations,7F
8 therefore, the evidence shows that Plaintiff was not complying with
Defendant Morgan and Shanlever’s orders. 	Wallingford v. Olson, 592 F.3d 888, 892 (8th Cir.
2010) (“When opposing parties tell two different stories, one of which is blatantly contradicted by
7 In opposition to Plaintiff’s second motion for summary judgment, Defendants incorporate by
reference their own motion for summary judgment, brief in support, and statement of facts. 	See
(ECF No. 67, p. 2).
8 Indeed, in his deposition, Plaintiff admitted that he “resisted at first” when Defendants Shanlever
and Morgan pulled him out of IPO Hrdlicka’s office. 	See (ECF No. 64-6, p. 4).
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the record, so that no reasonable jury could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment.”) (quoting Scott v. Harris, 550
U.S. 372, 380 (2007)).
On this record, it was therefore not unreasonable for Defendants Shanlever and Morgan to
lead Plaintiff out of IPO Hrdlicka’s office. 	Further, the amount of force used—Defendant Morgan
placing his hands on Plaintiff to physically guide him out of the office—was proportionate to the
need to remove Plaintiff from an area of the prison where he had no business being. 	When
Plaintiff not only failed to comply with Defendant Shanlever and Morgan’s orders to exit the office
and face the wall but also tried to re-enter IPO Hrdlicka’s office, it was not unreasonable for
Defendants Shanlever and Morgan to direct Plaintiff on the floor in a prone position and further
restrain him in handcuffs. 	Given Plaintiff’s noncompliance and viewing the facts in the light most
favorable to the Defendants, Defendants Shanlever and Morgan had more than a plausible basis to
believe some degree of force—namely, placing him on the ground and restraining him with
handcuffs—was necessary to protect, if not themselves, then IPO Hrdlicka. 	See Jackson, 866
F.3d at 974 (“Prison administrators should be accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judgment are needed to preserve internal order
and discipline and to maintain institutional security.”) (quoting Hudson, 503 U.S. at 6).
ii. 	Defendant Otts
This brings the Court to Defendant Otts’s conduct. 	It is undisputed that Plaintiff was on
the ground, in a prone position, when Defendant Otts arrived on the scene. 	(ECF No. 64-7). 	The
Defendants assert, and Plaintiff does not dispute, that Defendant Otts placed Plaintiff in handcuffs.
See (ECF No. 64-3, p. 2); (ECF No. 64-4, pp. 1-2); (ECF No. 64-5, p. 2). 	At this point, Plaintiff
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was on the ground, his hands were restrained behind his back, and he was no longer resisting. 	No
additional use of force was necessary, and indeed, none was used. 	The security footage shows
prison officials walking away from the scene and Defendants Otts and Shanlever standing up. 	See
(ECF No. 64-7).
What happened next requires some discussion. 	Plaintiff asserts that he started resisting
again when Defendant Otts put his knee on his neck, restricting his breathing. 	(ECF No. 64-6,
pp. 4-5). 	Defendants Otts says that he did not put his knee on his neck, but rather used his hands
to apply “pressure at the base of [Plaintiff’s] jaw below the ear, pressing toward the nose,” and
only after Plaintiff started kicking his legs and trying to roll over. 	(ECF No. 64-3, pp. 5-6).
Defendant Otts asserts that he would not have used any force had Plaintiff not started kicking and
moving his legs. 	See (ECF No. 64-3).
The security video shows Defendants Shanlever and Otts standing next to Plaintiff until
Plaintiff’s legs start moving, at which time Defendant Shanlever moves to Plaintiff’s legs and
Defendant Otts crouches down on the floor by Plaintiff’s head. 	See (ECF No. 64-7). At this point,
the security footage does not specifically show Defendant Otts’s use of force. 	See (ECF No. 64-
7). 	Defendants Morgan and Shanlever, for their part, say that they did not see Defendant Otts
place his knee on Plaintiff’s neck. See (ECF No. 64-4; ECF No. 64-5).
On this record, viewing the facts in the light most favorable to Defendants, there are two
undisputed facts: (1) the type of force used and (2) when it was applied. 	Regarding the type of
force, while the Amended Complaint asserts that Defendant Otts placed his knee on his neck, see
(ECF No. 10, p. 10), Plaintiff’s statement of undisputed facts asserts that Defendant Otts applied
a “mandibular angle pressure point” to his neck when he was on the ground. See (ECF No. 41, p.
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1); see (ECF No. 73, pp. 12, 19 & 41). 	Further, Defendant Otts does not dispute that this was the
type of force he used against Plaintiff. 	(ECF No. 64-3). 	Indeed, it is undisputed that Plaintiff
was on the ground, facing the floor, when Defendant Otts used force against him. See (ECF No.
64-7). 	Viewing the facts in the light most favorable to Defendants, it is therefore unlikely that
Plaintiff could have seen, specifically, what type of force was being applied to his neck. 	On this
record, therefore, the Court finds that it is undisputed that Defendant Otts applied the “mandibular
angle pressure point” on Plaintiff.
The second fact that is undisputed is when the force was applied against Plaintiff. 	Here,
again, while Plaintiff asserts that he only started resisting again after Defendant Otts applied the
“mandibular angle pressure point,” (ECF No. 64-6, p. 4), the security footage clearly contradicts
this assertion. 	Instead, the security footage shows Defendants Shanlever and Otts standing up
next to Plaintiff after he was placed in handcuffs. 	When Plaintiff’s legs start moving, the video
shows Defendant Shanlever moving to try to gain control of Plaintiff’s legs while Defendant Otts
crouches down by Plaintiff’s head. 	(ECF No. 64-7). 	While the security video does not show
what, specifically, Defendant Otts was doing when he crouched down next to Plaintiff’s head area,
it very clearly shows that neither Defendant Otts nor Defendant Shanlever made any physical
contact with Plaintiff until after Plaintiff began moving and kicking his legs. 	Accordingly, the
Court finds that it is undisputed that Defendant Otts applied force against Plaintiff after he began
kicking and moving his legs. 	See Wallingford, 592 F.3d at 892.
The final question, then, is whether Defendant Otts’s use of force—the mandibular
pressure point—on Plaintiff after Plaintiff started to kick and move his legs violated the Eighth
Amendment prohibition on cruel and unusual punishment. 	This Court concludes that it did not.
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At the point when Defendant Otts applied the “mandibular pressure point,” Plaintiff was
moving around, kicking his legs, no longer compliant. 	It was therefore reasonable for officials to
conclude that additional force—beyond the handcuffs—was necessary to regain Plaintiff’s
compliance. 	Indeed, the officers’ actions were consistent with the Arkansas Department of
Correction (“ADC”) use of force policy, which allows for officers to apply only the amount of
force necessary to “restrain, regain, or maintain control of an inmate,” (ECF No. 64-8), and does
not, on its face, preclude the “mandibular pressure point” maneuver applied here.8F
9 By Plaintiff’s
own admission, moreover, consistent with that use of force policy, Defendant Otts stopped
applying force against Plaintiff when he stopped resisting. 	(ECF No. 64-6). 	While Plaintiff
repeatedly refers to Defendant Otts’s use of force as an “illegal maneuver,” he cites to no facts in
the record in support of his contention. 	See (ECF Nos. 39-41 & 46).
Further, while Plaintiff contends that Defendant Otts’s use of force made it difficult for
him to breathe, it is undisputed that he refused medical attention following the use of force event.
Contrary to Defendants’ contention, Plaintiff’s lack of a reported injury, by itself, does not defeat
his excessive force claim. 	See (ECF No. 63). 	Indeed, “the extent of any resulting injury, while
material to the question of damages and informative as to the likely degree of force applied, is not
in and of itself a threshold requirement for proving [an excessive force claim].” Santiago v. Blair,
707 F.3d 984, 990 (8th Cir. 2013) (citing Williams v. Jackson, 600 F.3d 1007, 1012 (8th Cir.
2010)). 	Here, the absence of a reported injury following the use of force event further supports
the conclusion that Defendant Otts’s use of force was not unreasonable under the circumstances,
9 Notably, moreover, failure to comply with prison policy does not, by itself, give rise to a
constitutional violation. 	See, e.g., Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997) (no
§ 1983 liability for violation of prison policy).
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notwithstanding Plaintiff’s contention that the use of force restricted his breathing when he was
not compliant. 	On this record, therefore, this Court finds that the undisputed facts, when viewed
in the light most favorable to Defendants, demonstrates that Defendant Otts’s use of the
mandibular pressure point when Plaintiff started kicking and moving his legs was the result of a
good faith effort to maintain and retore order and not applied maliciously and sadistically to cause
Plaintiff harm. 	Plaintiff’s Motion for Summary Judgment with respect to his claim against
Defendant Otts for using excessive force against him should therefore be denied.
2. 	Failure to Intervene
Plaintiff contends that Defendants Morgan and Shanlever failed to intervene when
Defendant Otts applied force against him. 	(ECF No. 10). 	“A law enforcement officer who
knows another officer is using excessive force has a duty to intervene.” 	Livers v. Schenck, 700
F.3d 340, 360 (8th Cir. 2012) (citing Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981)).
“Without an underlying constitutional violation, there can be no liability for failure to intervene.”
Peterson v. Heinen, 89 F.4th 628, 640 (8th Cir. 2023). 	Plaintiff’s claim against Defendants
Morgan and Shanlever is predicated on his claim that Defendant Otts used excessive force against
him. 	See (ECF No. 10). 	Because this Court finds that Defendant Otts’s use of force was not
excessive in violation of the Eighth Amendment, this Court similarly concludes that Defendants
Shanlever and Morgan are not liable for their failure to intervene. 	Plaintiff, therefore, is not
entitled to summary judgment as to this claim, either. 	Plaintiff’s second Motion for Summary
Judgment, (ECF No. 39), should therefore be DENIED.
C. 	Defendants’ Motion for Summary Judgment
This leaves Defendants’ Motion for Summary Judgment. 	(ECF No. 62). 	Defendants
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assert two bases for summary judgment: (1) Plaintiff failed to properly exhaust his administrative
remedies before initiating this action; and (2) Plaintiff has failed to assert a constitutional violation
and, in any event, the Defendants are entitled to qualified immunity. 	Id.
1. 	Exhaustion
Defendants move for summary judgment on the grounds that Plaintiff failed to exhaust his
administrative remedies before initiating this matter in accordance with 42 U.S.C. § 1997e(a).
Where, as here, a prisoner initiates a civil action over the conditions of his confinement, 42
U.S.C. § 1997e(a) of the Prison Litigation Reform Act (PLRA) requires the prisoner to exhaust his
administrative remedies before filing suit. 	42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731,
733 	(2001) 	(explaining 	that 	42 	U.S.C. § 1997e(a) 	“requires 	a 	prisoner 	to 	exhaust 	‘such
administrative 	remedies 	as 	are 	available’ 	before 	suing 	over 	prison 	conditions.”). 	This
requirement is mandatory. 	See Chelette v. Harris, 229 F.3d 684, 687 (8th Cir. 2000). 	In
determining whether a prisoner has first exhausted his administrative remedies, courts look to the
prison’s grievance procedure. 	Abdul-Muhammad v. Kempker, 486 F.3d 444, 446 (8th Cir. 2007)
(citing Jones v. Bock, 549 U.S. 199 (2007)). 	“[T]he degree of specificity required in a prison
grievance ‘will vary from system to system and claim to claim, but it is the prison’s requirements,
and not the PLRA, that define the boundaries of proper exhaustion.’” 	Id. (quoting Jones, 549
U.S. at 218)) (emphasis added). 	Thus, to satisfy Section 1997e(a)’s exhaustion requirement,
inmates must file grievances in accordance with the institution’s policies and procedures.
Washington v. Uner, 273 F. App’x 575, 577 (8th Cir. 2008) (citing Woodford v. Ngo, 548 U.S. 81,
91-92 (2006)).
It is undisputed that Plaintiff initiated a grievance on January 31, 2024, related to the use
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of force incident on January 26, 2024—namely, grievance OM-24-00050. 	(ECF No. 64-1, p. 2).
It is further undisputed that Plaintiff properly exhausted the DCC grievance procedure on March
6, 2024. 	Id. 	But Plaintiff initiated this action by filing a complaint and IFP application on
February 21, 2024, before he exhausted his administrative remedies. See (ECF Nos. 1-2).
In Johnson v. Jones, 340 F.3d 624 (8th Cir. 2003) the Eighth Circuit held that “[u]nder the
plain language of section 1997e(a), an inmate must exhaust administrative remedies before filing
suit in federal court.” 	Id. at 627 (emphasis in the original). 	Thus, the Eighth Circuit explained,
“in considering motions to dismiss for failure to exhaust under section 1997e(a), the district court
must look to the time of filing, not the time the district court is rendering its decision, to determine
if exhaustion has occurred.” 	Id. 	Accordingly, even though Plaintiff submitted the Amended
Complaint after he exhausted his administrative remedies, because he initiated this action before
completing the DCC grievance procedure, Plaintiff failed to exhaust his administrative remedies
in accordance with 42 U.S.C. § 1997e(a). 	To conclude otherwise would be to ignore that “the
language of section 1997e(a) clearly contemplates exhaustion prior to the commencement of the
action as an indispensable requirement, thus requiring an outright dismissal of such actions rather
than issuing continuances so that exhaustion may occur.” 	Johnson, 340 F.3d at 628 (emphasis in
the original).9F
10
10 In Allen v. Amsterdam, Case No. 23-3658, 2025 WL 911377, ___ F.4th ___ (8th Cir. Mar. 26,
2025), the Eighth Circuit concluded that the PLRA exhaustion requirement did not apply when the
plaintiff filed an amended complaint after being released from custody. Id. at *2. 	The facts here
are distinguishable from Allen and more analogous to Johnson v. Jones, 340 F.3d 624 (8th Cir.
2003)— here, Plaintiff was incarcerated at the DCC when he filed the complaint and Amended
Complaint. 	Accordingly, Plaintiff could have, but did not, wait to exhaust his administrative
remedies before initiating this action. 	Consistent with Johnson, therefore, Plaintiff failed to
exhaust his administrative remedies in accordance with 42 U.S.C. § 1997e(a).
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To be sure, “the [42 U.S.C. § 1997e(a)] exhaustion requirement hinges on the ‘availability’
of administrative remedies. 	An inmate must exhaust available remedies but need not exhaust
unavailable ones.” 	Smith v. Andrews, 75 F.4th 805, 808-09 (8th Cir. 2023) (internal omitted)
(cleaned up). 	“It follows that administrative remedies are ‘unavailable’ to an inmate under
[section 1997e(a)] when (1) the inmate was unable to file a timely grievance due to physical or
mental incapacity; and (2) the administrative system’s rules do not accommodate the condition by
allowing a late filing.” 	Id. at 809 (citations omitted) (listing cases). 	But, in this case, the record
clearly shows that Plaintiff not only had access to the DCC grievance procedure, but he used it.
The problem is that he did not complete that process prior to initiating this action, contrary to the
requirements of 42 U.S.C. § 1997e(a).
These findings, however, do not compel the Court to recommend granting summary
judgment for failure to exhaust simply because the Defendants plainly waived this argument.
After the Defendants filed their Answer to Plaintiff’s Amended Complaint, this Court issued a
bench order informing them that they must file a motion for summary judgment on the issue of
exhaustion within 60 days of the date of the order, or promptly file a notice informing the Court
that they did not intend to pursue exhaustion as a defense. 	(ECF No. 17). 	In response,
Defendants filed a notice on June 17, 2024, stating that “they do not intend to pursue an exhaustion
defense in this matter.” 	(ECF No. 19).
The PLRA exhaustion requirement is an “affirmative defense” that “can be waived.”
Stanko v. Patton, 228 F. App’x 623, 626 (8th Cir. 2007) (quoting Foulk v. Charrier, 262 F.3d 687,
697 (8th Cir. 2001)). 	This Court finds that the Defendants’ June 17, 2024, notice did just that.
The fact that the Court’s initial scheduling order mentions motions for summary judgment in the
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context of establishing deadlines does not detract from the fact that the Defendants specifically
waived pursuing an exhaustion defense. 	Accordingly, Defendants’ motion for summary
judgment on the grounds that Plaintiff failed to properly exhaust his administrative remedies in
accordance with 42 U.S.C. § 1997e(a) is denied. 	This Court, therefore, moves on to the merits.
2. 	Summary Judgment on the Merits
As to the merits of Plaintiff’s claims, Defendants contend that they are entitled to qualified
immunity. 	See (ECF No. 63). 	Qualified immunity involves a two-step inquiry: “(1) whether the
facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2)
whether that right was clearly established at the time of the defendant’s alleged misconduct.”
Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009) (citations omitted). 	“If the
answer to either question is ‘no’ then a defendant is entitled to qualified immunity.” 	White v.
Jackson, 865 F.3d 1064, 1074 (8th Cir. 2017) (citation omitted). 	Because the undisputed facts,
when viewed in the light most favorable to Plaintiff, do not establish that the Defendants violated
Plaintiff’s constitutional rights, Defendants’ Motion for Summary Judgment should be granted.
i. 	Excessive Force
As described above, it is undisputed that IPO Hrdlicka’s office is in an area where inmates
are not permitted and that he entered her office uninvited. 	See (ECF No. 64-6, pp. 3-4). 	It is
further undisputed that Defendants Morgan and Shanlever directed him to the ground in a prone
position only after he attempted to reenter IPO Hrdlicka’s office. 	See (ECF No. 64-7). 	While on
the ground, Defendant Otts placed Plaintiff in handcuffs. 	(ECF No. 64-3). 	What followed has
been described as a moment of calm, the surveillance video shows Plaintiff on the ground in a
prone position with his hands handcuffed behind his back, and Defendants Otts and Shanlever
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standing next to him. 	(ECF No. 64-7). 	Moments later, however, the surveillance video plainly
shows Plaintiff moving his legs, at which time Defendant Shanlever moves to Plaintiff’s feet and
Defendant Otts crouches down next to his head. 	Id. 	While the surveillance video does not show
what Defendant Otts does next, it is nevertheless undisputed that Defendant Otts then applied the
“mandibular pressure point” to gain Plaintiff’s compliance. 	(ECF No. 64-3). 	While Plaintiff
contends that he started moving around after Defendant Otts applied this pressure, (ECF No. 64-
6, pp. 4-5), this claim is clearly controverted by the surveillance video, (ECF No. 64-7), which
shows that Defendant Otts is standing up, away from Plaintiff’s head until Plaintiff starts moving
his legs. 	Finally, it is undisputed that Defendant Otts relieved the pressure on his neck when
Plaintiff stopped resisting, and that Plaintiff refused to be evaluated by medical personnel
following the use of force incident. 	See (ECF No. 64-6, p. 5); (ECF No. 64-3).
When viewing this record in the light most favorable to Plaintiff, the Court finds that
Defendant Otts had a plausible basis to believe that force was necessary to gain control of Plaintiff
so that he would not injure himself or others, and that Defendant Otts’s use of force was
proportionate to that need, especially considering that it is undisputed that Defendant Otts relieved
pressure on Plaintiff’s neck (and thus stopped using force against him) when Plaintiff stopped
resisting and that Plaintiff did not report any injury following the event. 	To the extent that a
different maneuver or tactic was available that would have achieved the same result—namely,
Plaintiff’s compliance—without leaving Plaintiff feeling like he could not breathe, “a mere dispute
over the reasonableness of a particular use of force or the existence of arguably superior
alternatives” should not result in the case going to the jury. 	Jackson, 866 F.3d at 975. 	On this
record, therefore, even when viewed in the light most favorable to Plaintiff, no reasonable juror
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would conclude that Defendant Otts applied force maliciously and sadistically to cause harm. 	See
Howard v. Barnett, 21 F.3d 868, 872 (8th Cir. 1994) (“One acts “maliciously” by undertaking,
without just cause or reason, a course of action intended to injure another; in contrast, one acts
“sadistically” by engaging in extreme or excessive cruelty or by delighting in cruelty.”). 	Rather,
Defendant Otts’s use of force was limited and proportionate to the need to regain Plaintiff’s
compliance after he began to kick and move his legs. 	Plaintiff, therefore, has failed to establish
that Defendant Otts used excessive force against him in violation of the Eighth Amendment.
Defendants’ Motion for Summary Judgment with respect to this claim (claim one) should therefore
be GRANTED.
ii. 	Failure to Intervene
With respect to claim two, Plaintiff asserts that Defendants Shanlever and Morgan failed
to intervene when Defendant Otts used excessive force against him. 	See (ECF No. 10). 	As noted
above, however, “[w]ithout an underlying constitutional violation, there can be no liability for
failure to intervene.” 	Peterson v. Heinen, 89 F.4th 628, 640 (8th Cir. 2023) (citation omitted).
For the reasons described elsewhere, this Court finds that Plaintiff has failed to establish that
Defendant Otts use of force against him on January 26, 2024, violated the Eighth Amendment
prohibition against cruel and unusual punishment as a matter of law. 	Accordingly, Plaintiff has
similarly failed to establish that Defendants Shanlever and Morgan violated his constitutional
rights in failing to intervene in Defendant Otts’s use of force. 	Defendants’ Motion for Summary
Judgment with respect to claim two should therefore also be granted.
iii. 	Official Capacity Claims
One final housekeeping matter: Plaintiff identifies the Defendants in their individual and
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official capacities. 	See (ECF No. 10). 	“A suit against a government official in his or her official
capacity is another way of pleading an action against an entity of which an officer is an agent.”
Baker v. Chisom, 501 F.3d 920, 925 (8th Cir. 2007) (citing Monell v. Dep’t of Social Services, 436
U.S. 658, 690 n.55 (1978)). 	Put differently, “the real party in interest in an official-capacity suit
is the governmental entity and not the named official.” 	Baker, 501 F.3d at 925 (quoting Hafer v.
Melo, 502 U.S. 21, 25 (1991)).
In this case, each defendant is alleged to be an agent of the State of Arkansas. 	But
“[n]either a state nor its officials acting in their official capacities are ‘persons’ under § 1983”
when sued for money damages. 	Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
Thus, state officials may only be sued in their official capacities for prospective injunctive relief.
Ex parte Young, 209 U.S. 123, 157-60 (1908); Fond du Lac Band of Chippewa Indians v. Carlson,
68 F.3d 253, 255 (8th Cir. 1995) (“Ex parte Young recognized that suits may be brought in federal
court against state officials in their official capacities for prospective injunctive relief to prevent
future violations of federal law.”). 	Even if Plaintiff has established a viable constitutional
violation (which he has not), prospective injunctive relief is not available to Plaintiff because he
is no longer incarcerated at the DCC, where the events giving rise to his claims occurred. 	See
Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (“[A] prisoner’s claim for injunctive relief
to improve prison conditions is moot if he or she is no longer subject to those conditions.”).
Rather, he is currently incarcerated at the Cummins Unit. 	See (ECF No. 18). 	Accordingly,
Defendants should similarly be granted summary judgment with respect to Plaintiff’s official
capacity claims.
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V. 	CONCLUSION
For the reasons discussed above, it is hereby RECOMMENDED THAT,
(1) Plaintiff’s first Motion for Summary Judgment, (ECF No. 33), be DENIED;
(2) Plaintiff’s second Motion for Summary Judgment, (ECF No. 39), be DENIED;
(3) Defendants’ Motion for Summary Judgment, (ECF No. 62), be GRANTED; and
(4) This matter be DISMISSED WITH PREJUDICE.
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
STATUS OF REFERRAL: No longer referred.
RECOMMENDED this 4th day of April 2025.
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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