Webb v. Johnson

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

YOHAN WEBB, 4:21CV3042

Plaintiff,

MEMORANDUM

vs. AND ORDER

BRAD JOHNSON; TYSON HELM;

JOESPH WILSON; QUINTON

HOUCHIN; and JOSHUA EATON,

Defendants.

I. INTRODUCTION

Plaintiff, Yohan Webb, a state prisoner who appears pro se, has alleged (1) a

conditions-of-confinement claim against jail guards for allegedly not allowing him

out of his cell to shower on seven occasions between November 9-21, 2020, and (2)

a procedural due process claim against the jail’s director for allegedly not giving

Plaintiff notice or an opportunity to be heard before he was restricted to his cell for

39 days for refusing to have his temperature taken between October 12-18, 2020.

See Memorandum and Order entered on December 17, 2021 (Filing 76). This matter

is now before the court on Defendants’ motion for summary judgment based on

qualified immunity (Filing 161). Upon careful review of the record, the court finds

Defendants’ motion should be granted and Plaintiff’s action should be dismissed

with prejudice.

II. SUMMARY JUDGMENT STANDARD

“A party may move for summary judgment, identifying each claim or

defense—or the part of each claim or defense—on which summary judgment is

sought. 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. The court should state on the record the reasons for granting or

denying the motion.” Fed. R. Civ. P. 56(a).

In reviewing a motion for summary judgment, the court views the facts in the

light most favorable to the non-moving party and gives that party “the benefit of all

reasonable inferences that can be drawn from the record.” State Nat’l Ins. Co., Inc.

v. Washington Int’l Ins. Co., 304 F. Supp. 3d 827, 831-32 (D. Neb. 2018) (quoting

Minnesota ex rel. N. Pac Ctr., Inc. v. BNSF Ry. Co., 686 F.3d 567, 571 (8th Cir.

2012)). It is not the court’s function to weigh evidence in the summary judgment

record to determine the truth of any factual issue; the court merely determines

whether there is evidence creating a genuine issue for trial. See Bell v. Conopco,

Inc., 186 F.3d 1099, 1101 (8th Cir. 1999).

“There is a genuine dispute when the evidence is such that a reasonable jury

could return a verdict for the non-moving party.” Dick v. Dickinson State Univ., 826

F.3d 1054, 1061 (8th Cir. 2016) (internal quotations and citations omitted). “A fact

is material if it ‘might affect the outcome of the suit.’” Id. (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

The moving party bears the initial responsibility of informing the court of the

basis for the motion, and must identify those portions of the record which the moving

party believes show the lack of a genuine issue of material fact. Torgerson v. City of

Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the moving party does

so, the burden then shifts to the nonmoving party, who “may not rest upon mere

allegation or denials of his pleading, but must set forth specific facts showing that

there is a genuine issue for trial.” Anderson, 477 U.S. at 256. If the record taken as

a whole could not lead a rational trier of fact to find for the nonmoving party,

summary judgment should be granted. Smith-Bunge v. Wisconsin Cent., Ltd., 946

F.3d 420, 424 (8th Cir. 2019).

The initial burden on a moving party “may be discharged by ‘showing’—that

is, pointing out to the district court—that there is an absence of evidence to support

the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);

see also Bedford v. Doe, 880 F.3d 993, 996 (8th Cir. 2018) (“The moving party can

satisfy its burden in either of two ways: it can produce evidence negating an essential

element of the nonmoving party’s case, or it can show that the nonmoving party does

not have enough evidence of an essential element of its claim to carry its ultimate

burden of persuasion at trial.”); Johnson v. Wheeling Mach. Prods., 779 F.3d 514,

517 (8th Cir. 2015) (moving party need not produce evidence showing “the absence

of a genuine issue of material fact.”).

In response to the moving party’s showing, the nonmoving party’s burden is

to produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller

v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v.

Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party

“must do more than simply show that there is some metaphysical doubt as to the

material facts, and must come forward with specific facts showing that there is a

genuine issue for trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015)

(quoting Torgerson, 643 F.3d at 1042).

III. QUALIFIED IMMUNITY

Qualified immunity shields officials from civil liability in a 42 U.S.C. §1983

action when their conduct “does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Morgan v.

Robinson, 920 F.3d 521 (8th Cir. 2019) (quoting Pierson v. California, 555 U.S.

223, 231 (2009)). Qualified immunity involves a two-step analysis: “(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.” Id. at 523 (quoting Nord v. Walsh Cty., 757 F.3d 734, 738 (8th

Cir. 2014)). Unless both of these questions are answered affirmatively, a defendant

is entitled to qualified immunity. Moreover, courts are permitted to exercise their

sound discretion in determining which of the two prongs should be addressed first.

Id. (quoting Nord, 757 F.3d at 738-39).

“A clearly established right is one that is ‘sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.’”

Id. (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). The clearly established

right should not be defined at a high level of generality, but instead must be

particularized to the facts of the case. Id. There does not need to be a case directly

on point, but existing precedent “must have placed the statutory or constitutional

question beyond debate.” Id. at 524 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)). Qualified immunity gives government officials “breathing room” to make

reasonable but mistaken judgments, and protects “all but the plainly incompetent or

those who knowingly violate the law.” Id. (quoting Stanton v. Sims, 571 U.S. 3, 6

(2013) (per curiam)).

“Qualified immunity is an affirmative defense for which the defendant carries

the burden of proof. The plaintiff, however, must demonstrate that the law is clearly

established.” Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002); see Creighton v.

Anderson, 922 F.2d 443, 447 (8th Cir. 1990) (“Once the plaintiff has demonstrated

that the law governing the plaintiffs’ rights was clearly established at the time of the

defendant’s acts, the defendant has the burden of proof with respect to all other

elements of the qualified immunity defense.”).

IV. SUMMARY JUDGMENT PROCEDURE

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).

This court’s local rules further specify that “[t]he moving party must include

in the brief in support of the summary judgment motion a separate statement of

material facts,” which “should consist of short numbered paragraphs, each

containing pinpoint references to affidavits, pleadings, discovery responses,

deposition testimony (by page and line), or other materials that support the material

facts stated in the paragraph.” NECivR 56.1(a) (underlining in original). “The

statement must not contain legal conclusions.” Id. The opposing party’s brief must

include “a concise response to the moving party’s statement of material

facts.” NECivR 56.1(b)(1). “Each material fact in the response must be set forth in

a separate numbered paragraph, must include pinpoint references to affidavits,

pleadings, discovery responses, deposition testimony (by page and line), or other

materials upon which the opposing party relies, and, if applicable, must state the

number of the paragraph in the movant’s statement of material facts that is

disputed.” Id.1

A party’s failure to comply with these requirements can have serious

consequences: The moving party’s “[f]ailure to submit a statement of facts” or

“[f]ailure to provide citations to the exact locations in the record supporting the

factual allegations may be grounds to deny the motion” for summary

judgment. NECivR 56.1(a) (underlining omitted). On the other hand, “[p]roperly

referenced material facts in the movant’s statement are considered admitted unless

controverted in the opposing party’s response.” NECivR 56.1(b)(1) (underlining

omitted).

Defendants’ brief (Filing 163) includes a separate statement of material facts

which complies with Rule 56.1(a)(1). Plaintiff, however, has not responded to

Defendants’ numbered statements of fact, as required by Rule 56.1(b). Accordingly,

those facts are considered admitted.2

Although Plaintiff is proceeding pro se, he is bound by and must comply with

all local and federal procedural rules. NEGenR 1.3(g); see Bunch v. Univ. of Ark.

1 The primary purpose of these rules “is to distill to a manageable volume the

matters that must be reviewed by a court undertaking to decide whether a genuine

issue of fact exists for trial. They are designed to prevent a district court from

engaging in the proverbial search for a needle in the haystack.” Jones v. United

Parcel Serv., Inc., 461 F.3d 982, 990 (8th Cir. 2006) (cleaned up). “Courts have

neither the duty nor the time to investigate the record in search of an unidentified

genuine issue of material fact to support a claim or a defense.” Libel v. Adventure

Lands of Am., Inc., 482 F.3d 1028, 1032 (8th Cir. 2007).

2 “Nebraska’s rule concerning summary judgment procedure places clear

requirements on the moving and opposing parties.” Tramp v. Assoc. Underwriters,

Inc., 768 F.3d 793, 799 (8th Cir. 2014). “[T]he rules clearly require that [the opposing

party] respond in kind, and in a specific fashion, to the statement of undisputed facts

asserted by [the moving parties] in their motion for summary judgment.” Id. (holding

district court properly considered the movant’s statement of facts admitted where

opposing party did not comply with NECivR 56.1(b)(1)).

Bd. of Trs., 863 F.3d 1062, 1067 (8th Cir. 2017) (status as pro se litigant does not

excuse noncompliance with local rules regarding summary judgment). Here, the

court even “referred [Plaintiff] to Federal Rule of Civil Procedure 56 and this court’s

corresponding local rule, NECivR 56.1, for guidance” in preparing his response to

Defendants’ motion for summary judgment (Filing 178). See Webb v. Johnson, No.

4:21CV3042, 2022 WL 2657187, at *1 (D. Neb. July 8, 2022).

V. UNDISPUTED MATERIAL FACTS

The court finds there is no genuine dispute as to the following material facts

which are properly referenced in separate numbered paragraphs in Defendants’ brief

in support of their motion for summary judgment and which have not been directly

controverted by Plaintiff:

1. Plaintiff was arrested on October 10, 2020, was taken to the Lancaster

County Adult Detention Facility (“ADF”), and has remained there since. (Ex No 7

Webb Dep. at 9:19-25)

2. At all times relevant, Brad Johnson was employed as the Director of the

Adult Detention Facility during the relevant times in question. (Ex No. 2 ¶ 2)

3. At all times relevant, Joseph Wilson was employed as a correctional guard

at the Adult Detention Facility during the relevant times in question. (Ex No. 3 ¶ 2)

4. At all times relevant, Tyson Helm was employed as a correctional guard at

the Adult Detention Facility during the relevant times in question. (Ex No. 4 ¶ 2)

5. At all times relevant, Joshua Eaton was employed as a correctional guard

at the Adult Detention Facility during the relevant times in question. (Ex No. 5 ¶ 2)

6. From October 11, 2020, to November 4, 2020, Plaintiff was housed in J-

Pod, a unit of the ADF. (Ex. No. 2 ¶ 3)

7. On November 4, 2020, the Plaintiff was transferred to S-Pod and has

remained there ever since. (Ex. No. 2 ¶ 3)

8. In response to the COVID-19 pandemic, Lancaster County adopted Policy

14.I.1 Pandemic Response (COVID-19). (Ex. No. 2 ¶ 3)

9. The Pandemic Response Policy requires inmates at ADF to comply with

daily temperature screenings. (Ex. No. 2 ¶ 5)

10. The Pandemic Response Policy provides that inmates in S-pod who refuse

a temperature screening are to remain in their cell. (Ex. No. 2 ¶ 9)

11. The Pandemic Response Policy provides that inmates in S-pod who refuse

a temperature check are to be referred for disciplinary proceedings. (Ex. No. 2 ¶ 8)

12. Plaintiff refused all ADF attempts to take his temperature. (Ex. No. 7

Webb Dep. at 62:9-14)

13. Defendants Joseph Wilson only refused to release Plaintiff from his cell

based on the Pandemic Response Policy. (Ex No. 3 ¶ 5)

14. Defendants Tyson Helm only refused to release Plaintiff from his cell

based on the Pandemic Response Policy. (Ex No. 4 ¶ 5)

15. Defendants Joshua Eaton only refused to release Plaintiff from his cell

based on the Pandemic Response Policy. (Ex No. 5 ¶ 5)

16. Plaintiff admits that Defendants were just following policy when they

refused to release him from his cell. (Ex. No. 7 Webb Dep. at 51:13-23)

17. Plaintiff admits Defendants did not intend to punish him. (Ex. No. 8 Webb

Dep. at 69:12-73:11)

18. Plaintiff was provided 24-hour advance notice of all disciplinary hearings

against him between the dates of October 12-18, 2020. (Ex. No. 6 ¶ 4)

19. Plaintiff was provided a copy of the investigative report that were the basis

for all disciplinary hearings against him between the dates of October 12-18, 2020.

(Ex. No. 6 ¶¶ 3-4)

20. Plaintiff was given an opportunity to participate in the disciplinary

hearings between the dates of October 12-18, 2020. (Ex. No. 6 ¶ 6)

21. Plaintiff refused to participate in the initial disciplinary hearings between

the dates of October 12-18, 2020. (Ex. No. 6 ¶ 6)

22. Plaintiff appealed the outcome of his disciplinary hearings that occurred

between the dates of October 12-18, 2020. (Ex. No. 8 Webb Dep. at 40:11-14)

23. Plaintiff never appealed the disciplinary hearing based on an inability to

participate in the hearing or lack of notice. (Ex. No. 8 Webb Dep. at 40:7-10)

24. Defendant Brad Johnson did not participate in Plaintiff’s disciplinary

hearings in any way. (Ex. No. 2 ¶ 7).

25. Plaintiff acknowledged, “Brad Johnson don’t do disciplinary hearings

here.” (Ex. No. 8 Webb Dep. 42:16-17)

VI. ANALYSIS

The Eighth Circuit has determined that a conditions-of-confinement claim

brought by a pretrial detainee should be analyzed using an objective “punishment”

standard, rather than a subjective “deliberate indifference” standard. See Stearns v.

Inmate Servs. Corp., 957 F.3d 902 (8th Cir. 2020). This is because the Supreme

Court has held that the government may detain persons pending trial and “may

subject [them] to the restrictions and conditions of [a] detention facility so long as

those conditions and restrictions do not amount to punishment, or otherwise violate

the Constitution.” Bell v. Wolfish, 441 U.S. 520, 536-37 (1979).

The Court [in Bell] articulated two ways to determine whether

conditions rise to the level of punishment. A plaintiff could show that

the conditions were intentionally punitive. Alternatively, if there is no

expressly demonstrated intent to punish, the plaintiff could also show

that the conditions were not reasonably related to a legitimate

governmental purpose or were excessive in relation to that purpose. If

conditions are found to be arbitrary or excessive, it is permissible to

infer that the purpose of the governmental action is punishment that

may not constitutionally be inflicted upon detainees qua detainees.

Stearns, 957 F.3d at 907 (internal quotation marks and citations omitted).

Plaintiff cannot prove his claims against the jail guards using either approach.

The record shows these defendants were just following the Pandemic Response

Policy when they refused to release him from his cell, and that policy was reasonably

related to a legitimate governmental purpose—stemming the spread of Covid-19—

and was not excessive. See, e.g., May v. Higgins, No. 420CV00826BRWJJV, 2020

WL 4919562, at *3 (E.D. Ark. Aug. 7, 2020) (pretrial detainee who lost commissary

privileges for one week for refusing to have his temperature taken failed to plead

plausible procedural due process claim because isolating a detainee to prevent the

spread of Covid-19 is not punishment), report and recommendation adopted, No.

420CV00826BRWJJV, 2020 WL 4905833 (E.D. Ark. Aug. 20, 2020), appeal

dismissed, No. 20-2854, 2020 WL 8743616 (8th Cir. Oct. 1, 2020). Even if the

constitutionality of that policy might be open to debate, Defendants are entitled to

qualified immunity. Plaintiff has failed to show the law was clearly established in

November 2020 that it was unconstitutional for jailers to restrict inmates to their

cells for refusing to have their temperatures taken.

The evidence also conclusively establishes that Plaintiff received notice and

an opportunity to be heard before being disciplined in October 2020, but that he

refused to participate in disciplinary hearings. In addition, Director Johnson, the only

Defendant who is alleged to have denied Plaintiff’s right to procedural due process,

was not involved.3 In short, Plaintiff’ procedural due process claim is frivolous.

VII. PLAINTIFF’S MOTIONS

As a final matter, Plaintiff has filed two motions for reconsideration. First,

Plaintiff requests reconsideration of the court’s Memorandum and Order entered on

June 29, 2022 (Filing 165), denying his fifth request for appointment of counsel

(Filing 152) to represent him at the final pretrial conference. This motion (Filing

195) is moot because there will not be a trial and, in any event, is without merit.

Second, Plaintiff has filed a “motion to take judicial notice” (Filing 207) in which

he requests reconsideration of the court’s Memorandum and Order that was entered

on July 27, 2023 (Filing 202), denying his request for additional discovery (Filing

184) and seventh request for appointment of counsel (Filings 183). This motion will

be denied because Plaintiff has not shown that the order was entered as a result of a

3 The court allowed this claim to proceed to service of process by liberally

construing Plaintiff’s Amended Complaint as alleging that “Brad Johnson directed

the issuance of the disciplinary reports and restricted Plaintiff to his cell without

giving Plaintiff notice or an opportunity to be heard.” Memorandum and Order

entered on December 17, 2021 (Filing 76 at 11).

mistake of law or fact, or that there are any other grounds for relief. See Fed. R. Civ.

P. 60(b). Plaintiff's allegations of misconduct are unsubstantiated.

VIII. CONCLUSION

The court finds there is no genuine dispute as to any material fact and

Defendants are entitled to judgment as a matter of law.

IT IS THEREFORE ORDERED:

1. Defendant’s motion for summary judgment (Filing 161) is granted, and

Plaintiff’s action is dismissed with prejudice.

2. Plaintiff’s motion for reconsideration (Filing 195) is denied.

3. Plaintiff's motion to take judicial notice (Filing 207) is denied.

4. Judgment shall be entered by separate document.

Dated this 4th day of August 2022.

BY THE COURT:

fiuchirdk F Ac YH

Richard G. KG6pf

Senior United States District Judge

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