Marsh v. MO Dept. of Corr.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JAVON DUSTIN MARSH, )

)

Plaintiff, )

)

v. ) Case No. 4:23-CV-128-SPM

)

)

ROBERT A. RECKERT, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant Robert A. Reckert’s Motion for Summary

Judgment (ECF No. 38). The motion has been fully briefed. The parties have consented to the

jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

(ECF No. 51). For the following reasons, the motion will be denied.

I. FACTUAL BACKGROUND

This action arises from a use of force that occurred at the Eastern Reception Diagnostic

and Correctional Center (“ERDCC”) on February 7, 2022. On that date, Plaintiff Javon Marsh was

an inmate incarcerated at ERDCC, and Defendant Robert Reckert was a Missouri Department of

Corrections Sergeant working at ERDCC. Defendant’s Statement of Uncontroverted Material

Facts, ECF No. 40 (“DSUMF”) ¶¶ 2-3. At around 6:40 p.m., officers conducted a search of

Marsh’s cell. Id. ¶ 4. As part of that search, Marsh was instructed to strip down to his underwear

and shower shoes so that he could be examined for any contraband on his body. Plaintiff’s

Statement of Uncontroverted Material Facts, ECF No. 70 (“PSUMF”) ¶ 7. In the search, officers

found items in Marsh’s cell that he says were trash but that officers considered contraband.

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DSUMF ¶ 5, PSUMF ¶ 8. As a result of the search, Marsh was issued a conduct violation and was

told he would be moving from Housing Unit Four to the administrative segregation unit in Housing

Unit Two. DSUMF ¶¶ 6-10.

Reckert escorted Marsh to Housing Unit Two. DSUMF ¶ 11, PSUMF ¶ 11. Before the

escort began, Marsh turned around with his back facing Reckert, placed his arms behind his back,

and allowed Reckert to handcuff him. PSUMF ¶ 12. His arms were crossed, which significantly

restricted his range of motion and mobility. Id. Reckert and Marsh were joined by Officer Michael

Thompson. Id. ¶ 13. Marsh was still wearing only his underwear and open-toed shower shoes. Id.

¶ 18. The walk to Housing Unit Two from Housing Unit Four is at least a couple of minutes long

and takes place outside, along a concrete path surrounded by grass. DSUMF ¶ 10, PSUMF ¶¶ 16-

17. On the date in question, the weather was freezing, and the grass around the concrete path was

covered in snow. PSUMF ¶ 18.

Marsh was feeling tense and angry as the escort began, and he was visibly upset. DSUMF

¶¶ 14, 17. However, Marsh never aggressed against any of the officers and never acted angrily

toward any of the officers. PSUMF ¶ 30. During the escort, Marsh never resisted the officers, never

threatened the officers, never pulled away from officers, never tried to pull away from officers,

and never disobeyed any direct orders from officers. PSUMF ¶¶ 31-34.1 Early in the escort, Marsh

heard Reckert say, “Stop resisting!” Id. ¶ 19. Marsh testified that this was “an odd statement,

because [h]e was not resisting at all . . .” and was “simply walking.” Id.; Declaration of Javon

1 In the officers’ versions of events, Marsh repeatedly attempted to pull away from officers and

continued to be noncompliant after officers gave him multiple verbal directives to stop trying to

pull away. Marsh denied these claims both in his deposition testimony and in his Declaration. For

purposes of the instant motion, the Court must view the evidence in the light most favorable to

Marsh.

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Marsh, ECF No. 69-1 (“Marsh Dec.”), ¶ 19. Near the beginning of the escort, as Marsh passed by

Captain Howe (an officer who was not part of the escort) Marsh attempted to speak to Captain

Howe. DSUMF ¶¶ 18-20; Deposition of Javon Marsh, ECF No. 40-1 (“Marsh Dep.”) 30:18-31:15,

77:4-16. When asked in his deposition whether this attempt “could reasonably have been mistaken

as [Marsh] resisting,” he responded, “Yes.” Marsh Dep. 77:4-78:2. The record does not indicate

what Marsh said or how he acted during the attempt to talk to Captain Howe, and no officers

mention this attempt in their reports or elsewhere.

After the direction to stop resisting, Reckert suddenly slammed Marsh to the ground.

PSUMF ¶¶ 19-20; Marsh Dec. ¶¶ 19-20. Marsh’s shoulder forcefully hit the ground, causing

extreme pain. PSUMF ¶ 20. A third officer (Wells) then appeared, pulled Marsh’s dreadlocks, and

shoved Marsh’s face in a patch of dirt where snow had melted. Id. ¶ 21.

Marsh was then brought back to his feet and continued walking. Id. ¶ 22. As the walk

continued, Reckert and Thompson told Marsh to comply with orders and said he was not walking.

DSUMF ¶ 29. However, these were false accusations; Marsh was entirely compliant during the

entire escort. Marsh Decl. ¶¶ 31-34; Marsh Dep. 42:4-6. Marsh heard Thompson say, “Don’t grab

my hand.” DSUMF ¶ 28. This accusation was also false; Marsh was not grabbing Thompson’s

hand, and Marsh’s own hands were handcuffed behind his back. PSUMF ¶ 24. Reckert and

Thompson, assisted by another officer (Leyburn), then suddenly rushed Marsh off the path and

slammed him in the snow again. Id. ¶ 25. Leyburn sprayed him with pepper spray. DSUMF ¶ 33.

Marsh was again brought back to his feet and continued walking with officers to his cell in Housing

Unit Two. Id. ¶ 34. Marsh was briefly assessed by medical staff shortly after the uses of force and

was assessed again the next morning. Id. ¶¶ 42, 46; PSUMF ¶ 38.

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As a result of Reckert’s actions, Marsh was bleeding profusely, with multiple abrasions on

his body. PSUMF ¶ 28. Marsh sustained multiple injuries to his shoulder, wrists, and ankle. Id.

¶ 27. He still has permanent scars on his body, of which he has submitted photographs (taken

January 2, 2025) to the Court. Id. ¶ 29. As of January 2, 2025, he was still experiencing pain in his

shoulder. Id. ¶ 43.

The grievance process at ERDCC consists of an informal resolution request (“IRR”), a

grievance, and an appeal of denial of the grievance. Marsh Dep. 128:12-129:4. On February 22,

2022, Marsh submitted an IRR to ERDCC Corrections Case Manager II Timothy McFarland

describing the allegations of excessive force on February 7th and naming Reckert and Wells.

PSUMF ¶ 48; Marsh Dep. 125:7-10, 126:15-127:25. Marsh never saw the form again after he gave

it to Mr. McFarland. PSUMF ¶ 48. He does not have a copy of this IRR. DSUMF ¶ 52. Marsh

subsequently filed a grievance complaining that the February 22nd IRR had not been processed.

PSUMF ¶ 49; Ex. 1 to Pl.’s Compl., ECF No. 1-3. In that grievance, Marsh stated that on March

11, 2022, Marsh asked Mr. McFarland about the IRR, Mr. McFarland said it was being processed

and he would get Marsh a copy of it, but Mr. McFarland never did. Ex. 1 to Pl.’s Compl., ECF No.

1-3, at 2. That grievance was denied, as was Marsh’s appeal. PSUMF ¶ 49.

Marsh filed suit in this Court on February 3, 2023. The only claim currently remaining is

Marsh’s claim that Reckert used excessive force against him, in violation of the Eighth

Amendment. Reckert now moves for summary judgment on that claim.

II. LEGAL STANDARD

Summary judgment shall be granted “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). Accord, e.g., Smith v. Lisenbe, 73 F.4th 596, 600 (8th Cir. 2023). The movant “bears the

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initial responsibility of informing the court of the basis for the motion, and must identify those

portions of the record which the movant believes demonstrate the absence of a genuine issue of

material fact.” Henderson v. State Farm Fire & Cas. Co., 113 F.4th 1042, 1050 (8th Cir. 2024)

(quoting Gannon Int’l, Ltd. v. Blocker, 684 F.3d 785, 792 (8th Cir. 2012)). If the movant does so,

“the nonmovant must then ‘respond by submitting evidentiary materials that set out specific facts

showing that there is a genuine issue for trial.’” Id. (quoting Gannon Int’l, Ltd., 684 F.3d at 792).

The nonmovant “must provide more than conjecture and speculation.” Rusness v. Becker Cnty.,

31 F.4th 606, 614 (8th Cir. 2022).

A dispute about a material fact is genuine, making summary judgment inappropriate, when

“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “In ruling on a summary judgment

motion, a court must view the facts in the light most favorable to the non-moving party.” Leonetti’s

Frozen Foods, Inc. v. Rew Mktg., Inc., 887 F.3d 438, 442 (8th Cir. 2018). “In reaching its decision,

a court should not weigh the evidence, make credibility determinations, or attempt to determine

the truth of the matter.” Id. (internal quotation marks omitted).

III. DISCUSSION

A. Failure to Exhaust Administrative Remedies

The Court first considers Reckert’s argument that he is entitled to summary judgment

because Marsh has failed to exhaust administrative remedies. Under the Prison Litigation Reform

Act (“PLRA”), “No action shall be brought with respect to prison conditions under section 1983

of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

See also Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015) (“An inmate must exhaust all available

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administrative remedies before bringing a § 1983 suit.”). “Nonexhaustion is an affirmative

defense, and defendants have the burden of raising and proving the absence of exhaustion.” Id.

(citing Jones v. Bock, 549 U.S. 199, 211-12 (2007)).

To properly exhaust available administrative remedies, an inmate must “complete the

administrative review process in accordance with the applicable procedural rules.” Jones, 549 U.S.

at 218 (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)). Those rules “are defined not by the

PLRA, but by the prison grievance process itself.” Id. The PLRA’s exhaustion requirement “hinges

on the ‘availab[ility]’ of administrative remedies,” and an inmate “must exhaust available

remedies, but need not exhaust unavailable ones.” Ross v. Blake, 578 U.S. 632, 642 (2016). “[A]

remedy that prison officials prevent a prisoner from utilizing is not an ‘available’ remedy under

§ 1997e(a).” Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001).

As discussed above, the grievance process at ERDCC consists of an informal resolution

request (“IRR”), a grievance, and an appeal of the denial of the grievance. It is undisputed that

Marsh did not complete this process with respect to his allegations of excessive force on February

7, 2022. Marsh testified that on February 22, 2022, he submitted an IRR to Timothy McFarland, a

corrections case manager, describing the events of February 7, 2022, but then he never saw the

forms again. Consistent with this testimony, Marsh subsequently submitted a grievance, then an

appeal, complaining about the missing IRR and McFarland’s failure to process it. Reckert has

produced no evidence to suggest that Mr. McFarland was not an appropriate person for Marsh to

submit the IRR to under the prison’s grievance procedures, nor has Reckert offered any argument

or evidence to suggest that there was any procedure Marsh should have followed, but did not

follow, once he realized that his IRR had gone missing. It is unclear what more Marsh could have

or should have done to attempt to exhaust his administrative remedies.

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Under similar circumstances, courts have found that defendants have not established a

failure to exhaust available administrative remedies. Foulk v. Charrier, 262 F.3d 687 (8th Cir.

2011), is instructive. In Foulk, the prisoner plaintiff testified that he filed an IRR, that he never

received a response to the IRR, and that he could not file a grievance because he never received a

response to the IRR. Id. at 698. The Eighth Circuit found that this testimony “suggests that he had

exhausted his administrative remedies because, once MDOC failed to respond to his IRR, no

further administrative proceedings were ‘available’ to him.” Id. The court found that under these

circumstances, “the district court lacked a sufficient factual basis on which to find that [the

plaintiff] did, in fact, fail to exhaust his administrative remedies” and properly declined to dismiss

the prisoner’s claims for failure to exhaust administrative remedies. Id. See also Conner v. Doe,

285 F. App’x 304 (8th Cir. 2008) (holding the district court erred in dismissing a prisoner’s

complaint for failure to exhaust administrative remedies based on jail personnel’s declaration that

there was no record of the plaintiff’s having filed any grievance; stating, “[t]his evidence was

insufficient to establish failure to exhaust in the face of [the plaintiff]’s assertion in his verified

complaint that he had filed at least two relevant grievances but did not receive copies of them or

responses to them”); Nixon v. Sanders, 243 F. App’x 197, 199 (8th Cir. 2007) (holding the district

court erred in granting summary judgment based on failure to exhaust administrative remedies;

finding prisoner plaintiff had raised a factual dispute about whether he was denied the necessary

forms after requesting them from prison officials); Miller v. Norris, 247 F.3d 736, 738-740 (8th

Cir. 2001) (finding prisoner’s allegations that prison did not respond to his written requests for

grievance forms were “sufficient to raise an inference that he had exhausted his ‘available’

remedies”).

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Here, as in the above cases, Marsh has provided evidence sufficient to show that he

exhausted the administrative remedies that were “available” to him. If his testimony is credited, as

it must be for purposes of summary judgment, he completed the first step of the grievance process

by submitting an IRR, but prison officials prevented him from completing the process by not

processing the IRR. He attempted to address the missing IRR through a separate grievance, to no

avail. Reckert has not shown that there is anything more Marsh could have done to exhaust his

administrative remedies.

For all of the above reasons, the Court finds Reckert is not entitled to summary judgment

based on failure to exhaust administrative remedies.

B. Marsh’s Excessive Force Claim

1. Excessive Force Claims Under the Eighth Amendment

Once a prisoner is incarcerated, “only the unnecessary and wanton infliction of pain . . .

constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers,

475 U.S. 312, 319 (1986)) (internal quotation marks omitted). “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.” Peterson v. Heinen, 89

F.4th 628, 635 (8th Cir. 2023) (quoting Whitley, 475 U.S. at 319). In assessing an Eighth

Amendment excessive force claim, the “‘core judicial inquiry’ is whether the accused officers

applied force ‘in a good-faith effort to maintain or restore discipline, or maliciously and sadistically

to cause harm.’” Id. (quoting Hudson v. McMillan, 503 U.S. 1,7, (1992)). In conducting this

inquiry, the Court considers “the need for application of force, the relationship between that need

and the amount of force used, the threat ‘reasonably perceived by the responsible officials,’ and

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‘any efforts made to temper the severity of a forceful response.’” Id. (quoting Hudson, 503 U.S. at

7). “[F]orce applied with ‘a complete absence of a penological purpose’ may raise ‘the reasonable

inference that the officers acted maliciously in an effort to cause harm.’” Hageman v. Minnesota

Dep’t of Corr., No. 22-2098, 2023 WL 4760732, at *2 (8th Cir. July 26, 2023) (quoting Williams

v. Jackson, 600 F.3d 1007, 1014 (8th Cir. 2010)).

Eighth Amendment claims involve “a different and less protective test” than the Fourth

Amendment test of “whether an officers’ actions are objectively reasonable in light of the facts

and circumstances confronting them, without regard to their underlying intent or motivation.”

Burns v. Eaton, 752 F.3d 1136, 1139 (8th Cir. 2014) (internal quotation marks omitted). For

purposes of the Eighth Amendment, “the subjective motivations of the individual officers are of

central importance in deciding whether force was used maliciously and sadistically to cause harm

in violation of the Eighth Amendment.” Id. (internal quotation marks omitted).

2. Qualified Immunity

“‘Qualified immunity shields government officials from liability in a § 1983 action unless

the official’s conduct violates a clearly established constitutional or statutory right of which a

reasonable person would have known.’” De Boise v. Taser Int’l, Inc., 760 F.3d 892, 896 (8th Cir.

2014) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009)). It “gives

government officials breathing room to make reasonable but mistaken judgments about open legal

questions” and protects “all but the plainly incompetent or those who knowingly violate the law.”

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (internal quotation marks omitted). A government

official is “entitled to qualified immunity unless (1) the facts, viewed in the light most favorable

to the plaintiff[], demonstrate the deprivation of a constitutional or statutory right; and (2) the right

was clearly established at the time of the deprivation.” Aldridge v. City of St. Louis, 75 F. 4th 895,

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898 (8th Cir. 2023) (quoting Bell v. Neukirch, 979 F.3d 594, 602 (8th Cir. 2020)). “A right is

clearly established when the contours of the right are sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” Winslow v. Smith, 696 F.3d 716, 738

(8th Cir. 2012) (internal quotation marks omitted). In order for a right to be clearly established,

there need not be “a case directly on point”; however, “existing precedent must have placed the

statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.

3. Whether Reckert Is Entitled to Summary Judgment on Marsh’s Excessive Force

Claim

a. Whether the facts, viewed in the light most favorable to Marsh, show a

violation of Marsh’s Eighth Amendment Rights

Reckert’s principal argument is that there was no Eighth Amendment violation in this case

because the officers’ version of events, as set forth in their reports, is undisputed. According to the

officers’ reports, Marsh repeatedly tried to pull away from officers during the escort, Marsh failed

to comply with multiple directives to stop pulling away, and Reckert and other officers placed him

on the ground in order to regain control over him. To support this argument, Reckert relies on

deposition testimony in which, after the officers’ reports were read, Marsh testified that he

“agreed” with those reports. Def. SUMF, ¶ 21.2

The Court agrees that if it were undisputed that Marsh was pulling away or attempting to

pull away from officers despite multiple verbal directives to stop, the evidence would not

demonstrate a violation of the Eighth Amendment, and Reckert would be entitled to summary

judgment. Under that set of facts, Reckert would have reasonably perceived that Marsh was trying

2 Reckert also relies on his requests for admissions addressing these matters, which were initially

deemed admitted when Marsh filed to timely respond to them. However, in a separate order, the

Court granted Marsh’s request to withdraw the deemed admissions. See ECF No. 86.

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to escape from the escort and/or might pose a threat to the safety of officers or other inmates. Even

if it was not strictly necessary for Reckert to slam Marsh to the ground, doing so would have been

a good faith attempt to address the reasonably perceived threat and to restore order and discipline.

See Nettles v. Lombardi, No. 1:13-CV-146 JAR, 2016 WL 4502501, at *5-*6 (E.D. Mo. Aug. 29,

2016) (granting summary judgment in favor of officer who took prisoner to the ground during an

escort after the plaintiff had punched an officer and later disobeyed an officer’s directive to stop

walking so fast in front of an officer; reasoning that “Plaintiff himself makes critical admissions

regarding the disorder he caused by punching an officer in the chest and disobeying directives”;

also noting that an inmate escape from an escort poses a security risk for officers and inmates and

finding that the officer used force only as necessary to address a reasonably perceived threat and

restore discipline). See also Hickey v. Reeder, 12 F.3d 754, 759 (8th Cir. 1993) (“[S]ummary

applications of force are constitutionally permissible when prison security and order, or the safety

of other inmates or officers, has been placed in jeopardy.”).

However, after review of Marsh’s entire deposition, the Court finds that the key facts

asserted in the officers’ accounts are not undisputed. When Marsh was first read Wells’ report,

Marsh testified that he did not agree with Wells’ description of events. Marsh Dep. 40:22-24.

When asked what about the report was not accurate, he testified, “It says I pulled away from staff.

They say I was noncompliant and I was—they say I attempted to pull away from staff, I never

pulled away from staff.” Marsh Dep. 41:15-19. He further testified that he never tried to pull away

during the escort; that he was not non-compliant with orders at any time during the escort, and that

he was entirely compliant during the entire escort. Marsh Dep. 41:22-42:6. He testified that he

believed Wells was lying in the report. Marsh Dep. 42:7-9. Later, when asked to read a Use of

Force Summary Report, Thompson’s report, and (again) Wells’ report, all of which were

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substantially the same and all of which described his attempts to pull away and lack of compliance,

Marsh testified that he agreed with each of the reports. Marsh 83:9-90:21. However, when

specifically asked to confirm that he agreed with Thompson’s and Wells’ reports that he was non-

compliant, he did not agree—he stated that he “was compliant.” Marsh Dep. 91:8-22.

The ambiguity in Marsh’s deposition was addressed in Marsh’s post-deposition

Declaration, in which he clarified that, consistent with much of his deposition testimony, at no

point during the escort did he pull away from staff, attempt to pull away from staff, resist the

officers, or disobey any direct orders, and that the officers falsely accused him of being non-

compliant. Marsh Declaration, ECF No. 69-1, at ¶¶ 31-32, 34.3 A jury certainly could, after hearing

and weighing testimony from the officers and Marsh on these points, find the officers’ version

more credible; however, they could also find Marsh’s version more credible. However, it is not

the Court’s role to make these credibility assessments at the summary judgment stage. Coker v.

Arkansas State Police, 734 F.3d 838, 843 (8th Cir. 2013) (“[I]t is not [the court’s] function to

remove the credibility assessment from the jury.”).

In the alternative, Reckert argues that even there are disputes about whether Marsh was

attempting to pull away from officers and disobeying their verbal directives during the escort, it is

undisputed that Reckert reasonably believed that Marsh was “resisting” the escort when he used

force, and thus that the use of force was in a good-faith effort to maintain or restore discipline. To

support this argument, Reckert argues that (1) Marsh admitted he was hostile and visibly upset,

3 Reckert moved to exclude several relevant portions of Marsh’s Declaration, arguing that they

violated the sham affidavit rule. The Court addressed that motion in a separate order and denied

Reckert’s requests as to most of the portions of the Declaration at issue. See ECF No. 87. However,

even without the benefit of the Declaration, the Court would find Marsh’s ambiguous and

confusing deposition testimony insufficient to show that he does not dispute the officers’ account

of events.

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and (2) Marsh admitted in his deposition that his attempt to talk to Captain Howe early in the escort

“could have reasonably been mistaken as [Marsh] resisting.” Marsh Dep. 77:4-78:3.

Although Marsh admitted in his deposition that officers could have reasonably thought he

was “resisting” (whatever that meant to Marsh) when he tried to talk to Captain Howe shortly

before the first use of force, that admission is not dispositive of whether force was permissible

under the Eighth Amendment. Under Eighth Circuit law, “[n]ot every instance of inmate resistance

justifies the use of force . . . .” Treats v. Morgan, 308 F.3d 868, 872 (8th Cir. 2002). It is “clearly

established that force may be justified to make an inmate comply with a lawful prison regulation

or order, but only if the inmate’s noncompliance also poses a threat to other persons or to prison

security.” Id. at 872, 875 (emphasis added) (holding inmate’s repeated refusal to take his copy of

a form when a prison official demanded he do so did not justify one officer’s decision to use pepper

spray or a second officer’s decision to throw him to the ground; noting that the law “recognizes

that order and discipline are important in running a correctional institution” but finding that does

not “justify punitive use of force on difficult inmates not posing a real threat to other persons or

raising security concerns”). See also Hickey, 12 F.3d at 759 (noting that “summary applications of

force are constitutionally permissible when prison security and order, or the safety of other inmates

or officers, has been placed in jeopardy” but finding use of stun gun against a noncompliant inmate,

absent any perceived threat to safety or security, violated the Eighth Amendment).

Thus, even assuming that Reckert could have mistakenly believed Marsh was upset and

was “resisting” in some sense, the use of force was only permissible if the evidence shows that

this “resistance” might have been perceived as posing a threat to prison security or order or a risk

to the safety of inmates or officers. The record contains no such evidence. The record contains no

evidence of what Marsh said or tried to say to Captain Howe; no evidence that Marsh

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communicated to Captain Howe any intent not to fully comply with the escort (as he was doing

and had been doing); no evidence that Marsh ever stopped walking forward, slowed his walking

speed, moved his body, or even turned his body when he tried to talk to Captain Howe; no evidence

that officers ever told Marsh to stop talking to Captain Howe; no evidence that Marsh continued

to attempt to talk to Captain Howe after being told not to do so or after being told to keep walking;

and no evidence that Marsh’s attempt to talk to Captain Howe played any role in any officer’s

decision to use force.4

The Court emphasizes that for purposes of summary judgment, it must view the facts in

the light most favorable to Marsh and must avoid drawing inferences in favor of Reckert. See

Johnson v. Blaukat, 453 F.3d 1108, 1113 (8th Cir. 2006) (reversing district court’s grant of

summary judgment on Eighth Amendment excessive force claim where the district court

improperly drew inferences in the defendants’ favor to find their actions were done in “good faith”;

4 Reckert attempts to supply some of these missing facts in his Reply brief, but Reckert’s assertions

do not appear to be supported by the record. Reckert states, “Plaintiff’s admission that he did not

simply continue walking toward his new housing unit during the escorted transfer—but instead

attempted to turn toward one of the officers and debate whether he should be going to

administrative segregation—dooms his case.” Reply, ECF No. 77, at 2. Reckert cites no facts in

the record to indicate that Marsh turned toward any officer or tried to debate anything with any

officer, and the Court’s review of the record reveals none. Reckert’s implication that Marsh did

not continue walking during this attempt is also unsupported by the record.

Reckert later states that Marsh “was attempting to talk to Captain Howe during his escort

despite repeated verbal directives to keep walking,” and that “[a] reasonable correctional officer

in Defendant’s position would understand Plaintiff was not complying with the directive that he

keep walking. And even Plaintiff conceded that he cannot contradict Defendant’s testimony that

this is what he believed.” Reply, ECF No. 77, at 6. Again, the Court does not find support in the

record for these statements. Even assuming that Marsh’s attempt to talk to Captain Howe could be

perceived as noncompliance with a verbal directive to keep walking, there is no evidence that

Marsh continued to attempt talk to Captain Howe after a verbal directive to keep walking, as

Reckert implies. Finally, although Reckert mentions his “testimony that this is what he believed,”

the record contains no “testimony” from Reckert, and Reckert’s report does not mention any

attempt to talk to Captain Howe or any beliefs Reckert formed based on Marsh’s attempt to talk to

Captain Howe. See Reckert Incident Report, Pl.’s Ex. B, ECF No. 70-2 at 1-2.

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stating, “Particularly when considering such fact specific issues, it is important that a court adhere

to the summary judgment standard, which requires that the court ‘view the facts and the inferences

to be drawn from them in the light most favorable to the nonmoving party”) (internal citations and

quotation marks omitted). Applying that standard here, Marsh was tense, angry, and visibly upset,

but he never acted angrily toward officers, was fully compliant with the escort, was not trying to

pull away from officers, and was not disobeying any direct orders from officers. He was in

handcuffs, with his hands behind his back, and was wearing only his underwear and shower shoes

outside in freezing weather. While passing by an officer, he tried to speak to the officer, at which

point Reckert told him to “stop resisting” and—apparently without giving him a chance to

comply—slammed him to the ground hard enough to cause extreme pain. Officers then brought

Marsh to a standing position, walked a bit more, falsely accused him of not complying and/or not

walking, and falsely accused him of grabbing Thompson’s hand, at which point Reckert and other

officers suddenly slammed him to the ground again, leaving him bleeding, with scarring and pain

that persist nearly three years later.

In assessing whether Reckert’s actions violated the Eighth Amendment, the Court finds

Treats v. Morgan, 308 F.3d 868, 875 (8th Cir. 2002), instructive. In Treats, prison officials

summoned the plaintiff to an office to sign a form acknowledging a radio had been confiscated

from his cell. 308 F.3d at 870. The plaintiff signed the form, stated he did not want a copy, and

left. Id. An officer twice demanded the plaintiff take a copy of the form, but the plaintiff continued

to state that he did not want a copy. Id. The plaintiff turned to go back to the office to talk to a

second officer about the issue. Id. Without warning, the first officer sprayed him in the face with

pepper spray, and the second officer ran out of the office and slammed the plaintiff to the floor,

where he was handcuffed. Id. The officers cited evidence that plaintiff had used abusive language

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to staff, had failed to obey a verbal order, and had resisted being handcuffed after being sprayed,

arguing that this showed he was recalcitrant. Id. at 874. The plaintiff, however, testified that he did

not intentionally disobey an officer, use profanity or abusive language, or threaten any correctional

officer, and that he was sprayed without warning. Id. at 872. Viewing the evidence in the light

most favorable to the plaintiff, the Eighth Circuit found that there was no objective need for the

degree of force used or the pain inflicted, that the defendants could not reasonably have perceived

the plaintiff as a threat to themselves or institutional security at the time, and that the defendants

failed to temper their forceful response. Id. at 874. Although there was no lasting injury, the court

found no lasting injury was necessary for an Eighth Amendment claim. Id. The court found

“sufficient evidence for a reasonable jury to conclude that appellants acted maliciously with the

intent to cause injury when [the first officer] sprayed him with capstun pepper spray without

warning and [the second officer] threw him down.” Id. The Eighth Circuit also found the right was

clearly established at the time, stating, that it is “clearly established that force may be justified to

make an inmate comply with a lawful prison regulation or order, but only if the inmate’s

noncompliance also poses a threat to other persons or to prison security” and that “the law was

clearly established that correctional officers do not have a blank check to use force whenever a

prisoner is being difficult.” Id. at 875.

Here, like the inmate in Treats, Marsh was attempting to talk to an officer, and was doing

so under circumstances that might reasonably have been perceived as Marsh being resistant and

difficult.5 As in Treats, however, the evidence (viewed in the light most favorable to Marsh) does

not suggest that Marsh—who was handcuffed and complying with officer orders at the time—

5 Indeed, the instant case involves even less evidence of resistance than Treats, in which the

plaintiff acknowledged he did not do what an officer repeatedly demanded that he do.

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posed any threat to institutional security or order or to officer or inmate safety simply based on his

attempt to talk to Captain Howe. The type of force used here—slamming Marsh to the ground—

was the same as the type of force used by one of the officers in Treats. Also as in Treats, Reckert

did not temper his forceful response, for example by telling Marsh to stop talking to Captain Howe

and giving him a chance to comply before using force. Finally, Plaintiff’s bleeding and long-lasting

pain and scarring shows that his injuries were more severe than those in Treats.

In sum, as in Treats, a reasonable juror could find that Reckert twice slammed Marsh to

the ground, without warning, hard enough to cause bleeding and lasting pain and scarring, merely

because Marsh was angry and attempted to speak to an officer who was not part of the escort,

while Marsh was still complying with the escort, and absent any reason to think Marsh posed a

threat to prison security or order or to inmate or officer safety. This is sufficient to support an

inference that the uses of force were not attempts to restore discipline, but rather were malicious

and sadistic, and that Reckert violated Marsh’s Eighth Amendment rights. See Treats, 308 F.3d at

875. See also Hickey, 12 F.3d at 759 (8th Cir. 1993) (noting that “summary applications of force

are constitutionally permissible when prison security and order, or the safety of other inmates or

officers, has been placed in jeopardy” but finding use of stun gun against an inmate who refused

to obey a housekeeping order, absent any threat to safety or security, violated the Eighth

Amendment); Hageman, 2023 WL 4760732, at *2 (“[F]orce applied with ‘a complete absence of

a penological purpose’ may raise ‘the reasonable inference that the officers acted maliciously in

an effort to cause harm.’”) (quoting Williams, 600 F.3d at 1014 (8th Cir. 2010)).

In his reply brief, Reckert offers a new argument to justify the use of force, stating, “the

undisputed evidence further shows that, immediately prior to Plaintiff being placed on the ground,

other officers commented that Plaintiff was ‘resisting’ and told Plaintiff he needed to stop grabbing

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their hands”; that “there is no evidence that Defendant had any reason to believe otherwise”; and

that “Defendant has testified that he did, in fact, believe Plaintiff was resisting under these

circumstances.” Def. Reply, ECF No. 77, at 4. It is unclear whether the Court should consider this

argument, which was raised for the first time in Reckert’s reply brief. See Green v. Missouri, 734

F. Supp. 2d 814, 848 (E.D. Mo. 2010), aff’d sub nom. Green v. Nocciero, 676 F.3d 748 (8th Cir.

2012) (“As a general rule, courts will not consider arguments raised for the first time in a reply.”)

(citing Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir. 2006)).

Additionally, with respect to this argument, Reckert does not “identify those portions of the

record” that he believes demonstrate the absence of a genuine issue of material fact, which is his

responsibility in moving for summary judgment. See Henderson v. State Farm Fire & Cas. Co.,

113 F.4th at 1050. Although Reckert’s statement of facts indicates that Marsh heard Thompson

tell Marsh to stop grabbing his hand immediately before the second use of force, it is not apparent

from either party’s statement of facts that officers (other than Reckert) commented that Marsh was

“resisting” immediately before either use of force. Additionally, although Reckert suggests that he

“testified that he did, in fact, believe Plaintiff was resisting under these circumstances.” the record

contains no testimony from Reckert, and no statements from Reckert indicating that he formed any

beliefs based on other officers’ statements.

Even if the Court considers this argument, made for the first time in a reply brief with very

questionable factual support, Reckert has not established an absence of genuine issues of material

fact concerning whether Reckert could reasonably have believed Marsh posed a threat to prison

order or safety prior to either use of force. Viewing the facts in the light most favorable to Marsh,

both Reckert and the other officers were falsely accusing Marsh of noncompliance throughout the

escort, despite the fact that he was fully compliant. Additionally, because Reckert was personally

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escorting Marsh, it could reasonably be inferred that Reckert was in a position to see that Marsh

was—contrary to other officers’ comments—not resisting the escort and not grabbing anyone’s

hand. Thus, even if Reckert heard the other officer comments he describes (which is unclear), a

reasonable juror could find that Reckert could not reasonably have believed that Marsh was

resisting or grabbing anyone’s hand based on the other officers’ comments, but rather knew that

the officers were falsely accusing Marsh of noncompliance as a pretext for the use of force

throughout the escort. If those factual issues are resolved in Marsh’s favor, a reasonable juror could

conclude that Reckert had no reason to believe Marsh was doing anything that might threaten

prison security or order or inmate or officer safety, and that his decision to slam Marsh to the

ground hard enough to cause pain, pleading, and scarring was done maliciously and sadistically

with intent to harm, not in a good-faith effort to restore order or discipline.

For all of the above reasons, the Court finds that the facts, viewed in the light most

favorable to Marsh, show that Reckert violated Marsh’s Eighth Amendment rights. It is certainly

possible that a jury may weigh the credibility of the various accounts and resolve the disputed

issues of fact in the officers’ favor, but that is not the role of the Court at this stage.

b. Whether the right was clearly established at the time of the violation

Turning to the second prong of the qualified immunity analysis, the Court considers

whether the right at issue was clearly established as of February 7, 2022, such that a reasonable

officer would have understood that his actions were unlawful. As discussed above, a finding that

a right is clearly established does not require a case directly on point if “existing precedent . . .

placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741. The

Eighth Circuit stated in 2002 that it was “clearly established that force may be justified to make an

inmate comply with a lawful prison regulation or order, but only if the inmate’s noncompliance

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also poses a threat to other persons or to prison security.” Treats, 308 F.3d at 875. In the same

case, the Eighth Circuit also found that that it was “clearly established that correctional officers do

not have a blank check to use force whenever a prisoner is being difficult.” Jd. As discussed at

length above, the factual context in which the Eighth Circuit made the statements in Treats was

analogous to the factual scenario in this case, at least when the facts are viewed in the light most

favorable to Marsh. The Court concludes the contours of the right at issue are sufficiently

established that any reasonable official would have known that Reckert’s decision to slam a fully

compliant inmate to the ground without warning, hard enough to cause bleeding and permanent

pain and scarring, after he attempted to talk to another officer but absent any facts to suggest that

the inmate posed a risk to prison security or order or to officer or inmate safety, violated his Eighth

Amendment rights. Thus, Reckert is not entitled to summary judgment on the second prong of the

qualified immunity analysis.

IV. CONCLUSION

For the above reasons, the Court finds that there are genuine issues of material fact that

preclude summary judgment on Marsh’s excessive force claim. Accordingly,

IT IS HEREBY ORDERED that Defendant Robert A. Reckert’s Motion for Summary

Judgment (ECF No. 38) is DENIED.

ej 0

SHIRLEY PADMORE MENSAH

UNITED STATES MAGISTRATE JUDGE

Dated this 24th day of March, 2025.

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