OPINION & ORDER

[Resolving Doc. 16]

JAMES S. GWIN, District Judge.

Plaintiff James Jackson, a pro se Ohio prisoner, brings Eighth Amendment claims under 42 U.S.C. § 1983 and state law tort claims against Defendants Warden Brigham Sloan and Correctional Officer Barnes.1 On July 16, 2018, Defendants moved for summary judgment.2 On August 24, 2018, Plaintiff Jackson untimely opposed the summary judgment motion.3

The Court GRANTS Defendants' motion for summary judgment as to the Eighth Amendment § 1983 claims, and REMANDS the remaining claims to state court.

I. Legal Standard

Summary judgment is appropriate when "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."4 A court views the facts and all reasonable factual inferences in favor of the nonmoving party.5 If the movant satisfies his or her initial burden, the burden shifts to the nonmovant to set forth specific facts showing a triable issue.6

When a motion for summary judgment goes unopposed, a reviewing court is not required to conduct its own probing investigation of the record, and may properly rely on the facts advanced by the movant.7 The court, however, must "intelligently and carefully review the legitimacy of such an unresponded-to motion" to determine whether the movant has sustained her initial burden.8 The context of designated evidence "may challenge or defeat [an] assertion advanced by the movant, and reasonable inferences must be considered if apparent from the designated evidence and favorable to the nonmoving party."9

II. Discussion

A. The Court Strikes Plaintiff Jackson's Response to Defendants' Summary Judgment Motion

Defendants argue that Plaintiff Jackson has waived or abandoned any argument against summary judgment by failing to timely oppose their motion.10 The Case Management Plan established July 30, 2018 as the cutoff for filing responses to dispositive motions.11 Defendants timely moved for summary judgment. Plaintiff's July 30 opposition deadline came and went; Plaintiff Jackson did not oppose Defendants' motion. Jackson eventually opposed the motion on August 24, with an affidavit from inmate eyewitness Leroy Thompson. But the response was over three weeks late.

If a party misses a dispositive motion deadline, a court should grant an after-the-fact request for an extension of the deadline "only if [the party's] failure to act resulted from excusable neglect."12 Here, Jackson did not acknowledge that the response was untimely, let alone request an extension due to excusable neglect.13 The Court therefore strikes as untimely Plaintiff Jackson's response and the accompanying affidavit.

Also, the late-filed memorandum and affidavit gives no evidence sufficient to impact this Court's grant of summary judgment.14 The affidavit would not change the grant of summary judgment.

B. The Court Grants Defendants' Motion for Summary Judgment on the Eighth Amendment § 1983 Claims

Defendants moved unopposed for summary judgment on all of Plaintiff Jackson's claims. The Court first considers whether Defendants have sustained their burden of showing that they are entitled to judgment as a matter of law on the Eighth Amendment excessive force and denial of medical treatment § 1983 claims.

Under Celotex Corporation v. Catrett,15 "regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment . . . is satisfied."16 After Defendants moved for summary judgment on the Eighth Amendment claims, "the nonmoving party bears the `burden of producing in turn evidence which would support a jury verdict.'"17 The only evidence that Jackson has provided is the verified complaint. Because the complaint is verified, it is treated like an affidavit for purposes of summary judgment.18

1. Eighth Amendment Excessive Force Claim Against Officer Barnes

Plaintiff Jackson alleges that Officer Barnes intentionally slammed the "crash gate" onto his arm. He asserts that this use of force establishes an Eighth Amendment excessive force violation under § 1983, an assault and battery claim, and a negligence claim.

To prove an Eighth Amendment excessive force § 1983 claim, a plaintiff must show that force was used "maliciously and sadistically to cause harm," rather than used "in a good-faith effort to maintain or restore discipline."19 The Eighth Amendment's protections, however, do not extend to de minimis injuries.20

Plaintiff Jackson's verified complaint—the only evidence offered in opposition to the Eighth Amendment claim—gives only minimal evidence. And no evidence of sadistic conduct.

Plaintiff's evidence of the event is limited to what Jackson's allegations say:

Defendant Barnes disputes Jackson's generalized evidence that the crash-gate struck Jackson's upper arm. Barnes describes the crash gate as "lightweight and easily moved."22 He testifies that crash-gate did not strike Jackson.23

Defendants argue that Jackson's evidence is insufficient to establish a legally cognizable injury or that Officer Barnes acted with a malicious or sadistic state of mind when striking Jackson.24

There is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim."25 Celotex teaches that the moving party need not show the absence of a genuine issue of material fact. If a moving party points to an absence of evidence needed to support a claim, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'"26

The Court finds that Plaintiff fails to show evidence establishing an essential element of Jackson's Eighth Amendment claim. At best, Jackson suffered no more than a de minimis injury.

Jackson gives almost no evidence of injury. Jackson's verified complaint alleges: "On November 8th, 2017, Plaintiff [went] to the medical department for an examination of the reported incident at which time Plaintiff right upper arm was swollen and bruised by the contusion made by defendant Barnes intentionally pushing the crash-gate onto his right arm."27

In response, Defendants offer the contemporaneous nurse notes created at the time Jackson went to the medical department. In those notes, the examining nurse described Plaintiff Jackson's arm condition at the time Jackson visited the medical department:

In considering Eighth Amendment excessive force claims, courts consider the objective severity of the inmate's injury and the subjective culpability of the official. For the objective element, we consider whether the official's conduct was "harmful enough" to implicate the Eighth Amendment.29 The objective requirement has a threshold, even if it is a low threshold.30 Prisoners need not prove that he or she has sustained significant injury. Nevertheless, merely pushing an inmate into a wall has been insufficient where there was no injury.31

In Hudson v. McMillian32 and Wilkins v. Gaddy,33 the Court clarified that significant injury is not required to make out an Eighth Amendment claim. Instead, "[t]he core judicial inquiry . . . was not whether a certain quantum of injury was sustained, but rather whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm."34

In Hudson, the Supreme Court held that the Eighth Amendment "excludes from constitutional recognition de minimis uses of physical force provided that the use of force is not of a sort repugnant to the conscience of mankind."35 The Wilkins Court explained:

The Court also need consider the subjective Eighth Amendment element. The question inquiry shifts "from the extent of [an inmate's] injury to the nature of the force—specifically, whether it was nontrivial and was applied . . . maliciously and sadistically to cause harm."37

Here, Plaintiff Jackson gives some evidence that Officer Barnes either allowed or caused a lightweight crash gate to strike Jackson's arm. The examining nurse saw no injury and no bruising. The Officer caused or allowed this claimed gate striking after Jackson delayed responding to Officer Barnes' order to return to Jackson's dormitory area.

Against these circumstances, Jackson fails to show sufficient subjective component to maintain an Eighth Amendment excess force claim.38

2. Eighth Amendment Denial-of-Medical-Treatment Claim against Officer Barnes

Plaintiff Jackson alleges that Defendant Officer Barnes neglected his medical needs after Officer Barnes slammed the crash gate on his arm. Jackson claims that this neglect establishes an Eighth Amendment denial-of-medical-treatment violation and a negligence claim.

To prove an Eighth Amendment denial-of-medical-treatment § 1983 claim, a plaintiff must show that the defendant was deliberately indifferent to his medical needs.39 To meet this standard, the plaintiff must show that the medical need was "sufficiently serious," and that the defendant was aware of a risk of serious harm to the plaintiff and disregarded that risk.40

Defendants argue that Jackson's evidence is insufficient to establish that Jackson's medical needs were sufficiently serious at the time of the gate incident or that Officer Barnes was subjectively aware of Jackson's medical needs and disregarded them.41

The Court agrees. Viewing all facts and factual inferences in Jackson's favor, the evidence does not show that Jackson's medical needs were "sufficiently serious," in that they were "so obvious that even a lay person would easily recognize the necessity for a doctor's attention."42 Jackson only claims some swelling and bruising on his upper arm.43

The evidence also does not show that Officer Barnes was actually aware of Jackson's need for medical treatment. Plaintiff Jackson did not specifically ask Officer Barnes for medical treatment.44 And he does not provide other circumstantial evidence of Officer Barnes' awareness of the need. Again, Jackson's best evidence—evidence not supported by the nurse who examined Jackson—only shows some swelling and bruising on Jackson's arm, and not until days after the incident.45

3. Eighth Amendment Supervisory Liability Claims Against Defendant Sloan

Plaintiff Jackson also brings the Eighth Amendment use-of-force and denial-of-medical-treatment § 1983 claims against Defendant Warden Sloan under a supervisory liability theory. To prove supervisory liability, a plaintiff must show that the supervisor condoned, encouraged, or knowingly acquiesced in the alleged misconduct.46 "The acts of [a supervisor's] subordinates are not enough, nor can supervisory liability be based upon the mere failure to act."47

Defendants have sustained their burden for both Eighth Amendment § 1983 claims. Plaintiff Jackson asserts that Warden Sloan did not take disciplinary action against Officer Barnes, or order an internal investigation.48 This does not show that Defendant Sloan condoned, encouraged, or knowingly acquiesced in Officer Barnes's alleged misconduct.

The Court concludes that both Defendants Sloan and Barnes are entitled to summary judgment on the Eighth Amendment § 1983 claims.

C. The Court Declines to Exercise Supplemental Jurisdiction over the Remaining State Law Claims, and Remands the Action to State Court

A district court may decline to exercise supplemental jurisdiction over state law claims if it has dismissed all claims over which it had original jurisdiction.49 "When all federal claims are dismissed before trial, the balance of considerations usually will point to dismissing the state law claims, or remanding them to state court if the action was removed."50

Defendants removed this case from state court. The Court had federal question jurisdiction over Jackson's Eighth Amendment § 1983 claims, and exercised supplemental jurisdiction over the remaining state law claims.

Because the Court has granted judgment for Defendants on the Eighth Amendment § 1983 claims, the Court declines to exercise supplemental jurisdiction over the remaining state law claims. The Court instead remands these claims to Ashtabula County Court of Common Pleas for resolution.

Conclusion

For these reasons, the Court GRANTS Defendants' unopposed motion for summary judgment as to the Eighth Amendment § 1983 claims. It REMANDS the remaining state law claims to the Ashtabula County Court of Common Pleas.

IT IS SO ORDERED.