Rodgers

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

EDWARD D. RODGERS, II, )

)

Plaintiff, )

)

v. )

) Case no. 1:23-cv-00077-SNLJ

KELLIS THOMPSON and DR. )

CHRISTOPHER MONTGOMERY, )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on defendant Dr. Christopher Montgomery’s

Motion for Summary Judgment [Doc. 88] and defendant Kellis Thompson’s Motion for

Summary Judgment [Doc. 95]. The motions are fully briefed and ripe for disposition.

For the reasons stated below, the motions will be GRANTED.

I. PROCEDURAL BACKGROUND

Plaintiff Edward D. Rodgers, II, filed this pro se action pursuant to 42 U.S.C. §

1983, alleging defendants violated his constitutional rights when they used unreasonable

force to arrest him and failed to treat his serious medical condition while incarcerated at

the Butler County Jail. Defendants Butler County Sheriff’s Department, Damien Smith,

and Randal Huddleson were dismissed without prejudice on August 15, 2023. [Doc. 6].

The official capacity claims against Dr. Christopher Montgomery and Kellis Thompson

were also dismissed. [Id.]. The remaining claims are against Kellis Thompson in his

individual capacity for unreasonable force in arresting plaintiff and against Dr.

Christopher Montgomery for his failure to treat plaintiff’s alleged serious medical

condition while incarcerated at the Butler County Jail. [Doc. 1].

Kellis Thompson and Dr. Christopher Montgomery have each filed a motion for

summary judgment alleging that they are entitled to judgment as a matter of law on all

claims brought against them. [Docs. 88, 95]. Plaintiff opposes both motions. [Docs.

101, 102, 107, 114].

II. FACTUAL BACKGROUND

The following facts are undisputed except where otherwise indicated:

A. Kellis Thompson

Investigator Kellis Thompson has been a law enforcement officer with the Butler

County Sheriff’s Department since 1999. [Doc. 97 at ¶¶1, 2; Doc. 97-1 at ¶¶1, 2]1. On

November 13, 2020, Investigator Thompson responded to a residence to assist in the

investigation of a report of a gunshot victim at the residence. [Id. at ¶6; Doc. 97-1 at ¶6].

During that investigation, Investigator Thompson determined that a gunshot victim had

been shot by another individual; and, the suspect in that shooting was identified as Eddie

Rodgers, the plaintiff. [Id. at ¶¶7, 8; Doc. 97-1 at ¶¶6-8]. During the investigation, it was

1 Plaintiff references in one of his memorandums that he does not understand how defendant

can submit a statement of facts using an affidavit when defendant Thompson has not been

through or answered questions at a deposition. [Doc 102]. He does not specifically seek

to have the affidavit stricken, but the Court feels obligated to elaborate on this point.

Federal Rule of Civil Procedure 56 allows for the use of affidavits or declarations. See

Fed. R. Civ. P. 56(c)(1)(A). Any such affidavit or declaration must be made on personal

knowledge, set out facts that would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated. Fed. R. Civ. P. (c)(4). This Court

finds that Investigator Thompson’s affidavit [Doc. 97-1] satisfies this standard and is

admissible in support of his motion for summary judgment.

determined that plaintiff was last seen leaving the residence driving a white Ford F150

pickup truck with Missouri license plate number 4DCG98. [Id. at ¶10, Doc. 97-2 at p.

52, Lines 12-13]. Investigator Thompson then proceeded in his marked patrol vehicle to

search for plaintiff and his white Ford F150. [Id. at ¶11, Doc. 97-1 at ¶10].

While searching for plaintiff and his white Ford F150, Investigator Thompson

located a white Ford F150 pickup truck stopped behind a building on the north side of

Highway 53 at or near its intersection with Thomas Street. [Doc. 97 at ¶12, Doc. 97-1 at

¶11]. Investigator Thompson ultimately ended up following the pickup truck as it

traveled north on Thomas Street and confirmed the license plate number that belonged to

the suspect. [Id. at ¶¶12, 13; Doc. 97-1 at ¶¶11, 12].

Investigator Thompson then initiated a traffic stop by activating the emergency

lights on his marked patrol vehicle. [Id. at ¶15; Doc. 97-1 at ¶14]. The driver of the

pickup truck, later to be confirmed as plaintiff, pulled into a nearby parking lot. [Id. at

¶16; Doc. 97-1 at ¶15]. Investigator Thompson had personal knowledge that plaintiff

was the suspect in the shooting earlier that day, so he believed there to be a high

probability that he had a firearm or weapons with him. [Id. at ¶18; Doc. 97-1 at ¶18].

Since Investigator Thompson was the only officer at the scene and was armed with the

information about the possible firearm or weapons, he exited his patrol vehicle with his

AR-15 rifle pointed towards plaintiff in the driver’s seat and ordered him to exit the

vehicle. [Id. at ¶¶19, 20; Doc. 97-1 at ¶¶17, 19].

When plaintiff exited the vehicle, Investigator Thompson instructed him to put his

hands up. [Id. at ¶¶21, 22; Doc. 97-1 at ¶¶20, 21; Doc. 97-2 at p. 54, Lines 2-6]. He then

told him to walk to the rear of the pickup truck and put his hands behind his back. [Id. at

¶¶23, 24; Doc. 97-1 at ¶21; Doc. 97-2 at p. 57, Lines 16-18]. Plaintiff complied with

Investigator Thompson; and, Investigator Thompson handcuffed plaintiff’s hands behind

his back consistent with the procedures of the Butler County Sheriff’s Department and

his training at Southeast Missouri Law Enforcement Academy. [Id. at ¶¶27, 32; Doc. 97-

1 at ¶¶24, 25; Doc. 97-2 at p. 57, Lines 16-20].

Plaintiff testified that he told Investigator Thompson that he had injured his

shoulder “real bad” a few hours ago and asked to be handcuffed in front. [Doc. 97-2 at p.

55, Lines 17-20]. Investigator Thompson told plaintiff he would not handcuff him in

front since Investigator Thompson was concerned about safety since plaintiff was

suspected of shooting another individual earlier that day. [Doc. 97 at ¶¶31, 32; Doc. 97-1

at ¶¶22, 25]. Plaintiff complied when Investigator Thompson told him to place his hands

behind his back near his waistline. [Doc. 97-2 at p. 57, Lines 16-20]. Investigator

Thompson handcuffed plaintiff’s left hand in a normal manner. [Id. at p. 58, Line 5].

Plaintiff then testified that Investigator Thompson took plaintiff’s right hand and twisted

his palm outward and up as he handcuffed his right hand. [Id. at p. 59, Lines 12-20].

Plaintiff testified that he knew Investigator Thompson had handcuffed his right hand like

that in an effort to preserve gunshot residue on plaintiff’s right hand. [Id. at p. 59, Lines

16-17]. However, plaintiff testified that he believed that his alleged shoulder injury was

exacerbated while he was handcuffed and made to lean over the hood of Officer

Thompson’s patrol vehicle. [Doc. 89-1 at p. 52, Line 25-p. 62, Line 11].

Investigator Thompson was the only law enforcement officer at the scene at the

time he handcuffed plaintiff. [Doc. 97 at ¶33; Doc. 97-1 at ¶26]. During his interaction

with plaintiff at the traffic stop and arrest, Investigator Thompson never punched, hit, or

kicked plaintiff. [Id. at ¶34; Doc. 97-1 at ¶27]. Investigator Thompson also never used

any object to strike or hit plaintiff during his arrest or at any other time. [Id. at ¶35; Doc.

97-1 at ¶28]. Investigator Thompson never used a taser on plaintiff at any time. [Id. at

¶36; Doc. 97-1 at ¶29]. Another officer ultimately transported plaintiff to Butler County

Jail. [Doc. 97 at ¶37; Doc. 97-1 at ¶30].

B. Dr. Christopher Montgomery

Plaintiff testified that he first injured his shoulder in 2002 when he tore his rotator

cuff playing handball and lifting weights while at Algoa Correctional Center. [Doc. 89-1

at p. 111, Lines 8-21]. Plaintiff was incarcerated on numerous occasions after his initial

injury in 2002. [Id. at p. 105-110]. During his imprisonment in 2011, plaintiff was seen

multiple times for pain in his shoulder and feeling like “something is broke on my

shoulder.” [Docs. 89-1 at p. 105, Line 15-p. 106, Line 3; 89-6; 89-7; 89-8; 89-9; 89-10].

A right shoulder x-ray showed “changes of the distal clavicle [that] suggest prior fracture

with ununited fracture seen along the inferior aspect of the distal clavicle. Soft tissue

calcification or other etiology cannot be excluded.” [Doc. 89-11]. Later in 2011,

plaintiff saw a nurse and told her that he reinjured his shoulder a month earlier lifting

weights. [Doc. 89-18]. He was given various medications to assist with the pain, and he

was told not to lift weights. [Doc. 89-20].

In March 2012, plaintiff was given steroid injections and was, again, told to reduce

his activity to moderate lifting. [Doc. 89-23]. In June 2012, plaintiff submitted

numerous medical service requests for additional steroid injections. [Docs. 89-24, 89-

25]. After examination, plaintiff was not given additional steroid injections; but, instead,

was ordered lay-in restrictions on activities with his right arm and right hand, lower bunk,

shoulder rehab exercise, and acetaminophen. [Doc. 89-28]. In July 2012, plaintiff

submitted a medical service request asking that the lay-in restrictions be lifted so that he

could exercise his shoulder. [Doc. 89-32]. In August 2012, plaintiff submitted another

medical service request asking for steroid injections for his shoulder, back and hip. [Doc.

89-33]. He was instructed that he did not need both injections and oral steroids; and, he

was ordered to take oral steroids for 30 days. [Doc. 89-34]. By September 2012,

plaintiff reported that his shoulder felt much better and his complaints shifted more to

back pain. [Doc. 89-37].

By October 2012, plaintiff was again complaining of shoulder pain and wrote a

medical service request seeking another shot for his shoulder and back. [Doc. 89-39].

When plaintiff was seen on October 19, 2012, the doctor noted that the medical records

showed an ununited past right clavicle fracture. [Doc. 89-40]. As such, the treating

physician at that time ordered injections and an oral medication for muscle spasms. [Id.].

Plaintiff was then released from custody. [Doc. 89-1 at p. 107, Line 13-24].

Plaintiff was reincarcerated in 2014 after a probation violation. [Doc. 89-1 at p.

107, Line 19-p. 108, Line 3]. As soon as he was in custody again, plaintiff started

submitting medical service requests looking to be back on prednisone. [Docs. 89-41, 89-

42]. In response, in May 2014, plaintiff received a lay-in restriction for poor use of his

right arm; but, he was not given steroids. [Doc. 89-43]. He did have another x-ray of his

right shoulder that showed a healed fracture of the distal clavicle with mild degenerative

changes of the acromioclavicular articulation with no indication of an acute osseous

injury. [Doc. 89-44]. After reviewing the x-ray, plaintiff’s providers diagnosed that the

fracture had healed with some residual arthritis. [Id.].

In August 2014, plaintiff again complained of right shoulder pain and some

deformity of his clavicle visible in his previous x-rays. [Docs. 89-45, 89-46]. He was

ordered a prescription for 10 mg oral prednisone for 6 days, but he was not treated with

steroid injections. [Id.]. Plaintiff submitted several other medical service requests in

August and September 2014 complaining of right shoulder pain along with various other

medical infirmities. [Docs. 89-47, 89-50, 89-51]. Plaintiff was seen again in October

2014 and was ordered a dose-pack of prednisone followed by prednisone tablets. [Doc.

89-52]. On October 21, 2014, plaintiff self-declared a medical emergency indicating that

he needed medicine for his shoulder pain. [Doc. 89-55]. The pharmacy ordered his

prednisone, and plaintiff was otherwise ordered to fill out a medical service request.

[Id.]. On October 24, 2014, plaintiff again self-declared a medial emergency for chest

pain and his right shoulder. [Doc. 89-56]. He was prescribed heartburn medication, but

no additional steroids were ordered. [Id.]. Shortly thereafter, plaintiff was again released

from custody. [Doc. 89-1 at p. 108, Line 25-p. 109, Line 4].

The Court has been provided with no medical history for plaintiff from 2014 to

2020. [Doc. 89 at ¶65]. Plaintiff testified that he did not seek any medical treatment for

his shoulder from 2014 to 2016. [Doc. 89-1 at p. 113, Lines 19-21]. Plaintiff was then in

federal custody from 2016 until June 8, 2020. [Id. at p. 110, Lines 13-15]. He testified

that once he was in federal custody, he received hydrocortisone shots and pills to treat his

shoulder. [Id. at p. 113, Lines 22-25]. He also testified that x-rays were taken. [Id. at p.

114, Lines 4-8]. Plaintiff then went to a halfway house before he was paroled. [Id. at p.

110, Line 18-p. 111, Line 3].

On November 13, 2020, plaintiff was arrested and imprisoned at Butler County

Jail and completed a medical screening form indicating, among other things, he had a

“shoulder broke”. [Doc. 89-58]. Dr. Christopher Montgomery was a physician at the

Butler County Jail at the time plaintiff was incarcerated. [Doc. 89-57].

On December 14, 2020, plaintiff submitted a medical service regarding bumps on

his genital area. [Doc. 89-59]. Dr. Montgomery saw plaintiff on December 16, 2020,

and documented his prior medical history of hypothyroidism and that he had been off his

medication since September. [Doc. 89-57 at ¶9; Doc. 89-61]. Plaintiff’s reported

symptoms included dizziness, weakness, lack of sleep, nausea, and headache. [Id.]. Dr.

Montgomery also noted lesions on plaintiff’s genital area. [Id.]. Dr. Montgomery treated

the rash or lesions and ordered lab tests to check plaintiff’s thyroid and test for syphilis

and herpes. [Id.]. There is no indication that plaintiff mentioned his shoulder to Dr.

Montgomery during this visit. [Id.].

On December 26, 2020; January 5, 2021; February 18, 2021; and February 19,

2021, plaintiff submitted medical service requests relating to the ointment and antibiotics

for his genital area. [Docs. 89-63, 89-64, 89-65, 89-66, 89-67, 89-68, 89-69, 89-70, 89-

71, 89-72, 89-73, 89-74, 89-57 at ¶¶10-13]. Plaintiff did not mention his shoulder in any

of these requests. [Id.]. On February 24, 2021, Dr. Montgomery saw plaintiff again and

ordered lab tests for Hepatitis A, B, and C, HSV 1 and 2, RPR, and HIV to assess

plaintiff’s genital symptoms and T3, T4, and TSH to evaluate his thyroid. [Docs. 89-75,

89-76, 89-77, Doc. 89-57 at ¶14, 89-78]. Again, plaintiff did not mention his shoulder in

any of these requests. [Id.]. For the remainder of February 2021, plaintiff’s only

interactions with Dr. Montgomery were related to treatment of his genital area and

thyroid testing. [Doc. 89-57 at ¶¶15-17].

On October 8, 2021, plaintiff saw Dr. Montgomery relating to the history of his

nerve damage to his shoulder and neck, chronic arthritis, and PTSD. [Docs. 89-79, 89-

80, 89-81, 89-57 at ¶18]. Dr. Montgomery’s notes indicate that plaintiff was previously

treated with naproxen and Gabapentin. [Id.]. Dr. Montgomery further noted that plaintiff

was “having quite a bit of pain”, “has had some racing thoughts and difficulty sleeping”

and “has asymmetry of his reach as he has had some sort of nerve damage to the right

shoulder questionable brachial plexus.” [Id.]. Dr. Montgomery prescribed gabapentin

600 mg twice daily. [Id.]. He further instructed plaintiff to follow-up with prison staff to

assess the effectiveness of the treatment plan. [Id.; Doc. 89-1 at p. 167, Lines 5-12].

On November 12, 2021, plaintiff submitted a medical services request requesting

an increase in his gabapentin. [Docs. 89-82, 89-83, 89-84, 89-57 at ¶19]. Dr.

Montgomery agreed to increase the gabapentin dose to 800 mg three times daily. [Id.].

On December 11, 2021, plaintiff submitted another medical services request for

antibiotics from an alleged staph infection from another inmate. [Docs. 89-85, 89-86, 89-

87, 89-57 at ¶20]. There was no mention in this medical services request about his

shoulder. [Id.]. On December 17, 2021, plaintiff wrote another medical service request

asking that his bipolar disorder and depression medication be increased. [Docs. 89-90,

89-91, 89-92, 89-57 at ¶22]. Again, plaintiff did not mention his right shoulder in this

request. [Id.]. On January 17, 2022, plaintiff wrote another medical service request

relating to a hemorrhoid and a request for triple antibiotic cream. [Docs. 89-93, 89-94,

89-95, 89-57 at ¶24]. There was no mention in this request regarding his right shoulder.

[Id.]. On January 23, 2022, plaintiff reported a wound on his buttock. [Doc. 89-57 at

¶25, Docs. 89-88, 89-89]. There was no indication of pain in his right shoulder. [Id.].

Then, on January 27, 2022, plaintiff submitted another medical service request about his

staph infection and “excruciating pain.” [Docs. 89-96, 89-97, 89-98, 89-57 at ¶26, 89-1

at p. 172, Line 19-p. 174, Line 1]. Again, there was no indication about pain in his right

shoulder. [Id.].

The records do not show any additional medical service requests in plaintiff’s file

again until June 19, 2022, when plaintiff submitted a medical service request for “hep c

treatment.” [Docs. 89-102, 89-103, 89-57 at ¶27]. There was no mention in this medical

services request about his shoulder. [Id.]. Then, on August 17, 2022, plaintiff told Shane

Slone that he was interested in monthly steroid injections for his shoulder pain. [Doc. 89-

104, 89-105, 89-106, 89-57 at ¶28, 89-1 at p. 174, Line 2-p. 175, Line 23]. Plaintiff was

informed that “they normally do not give those here at the jail just oral medications.”

[Id.]. When plaintiff became upset, he was told that Dr. Montgomery would be

consulted. [Id.]. Dr. Montgomery responded to plaintiff’s request for steroid injections

that “they do not prescribe monthly steroid injections and is not considered a medical

emergency that when he gets out he can see ortho.” [Id.]. Dr. Montgomery no longer

provided services to plaintiff at Butler County Jail after November 10, 2022. [Doc. 89-57

at ¶6].

Following Dr. Montgomery’s departure, plaintiff wrote medical services requests

complaining of chronic pain and arthritis from broken bones and nerve pain, requesting

gabapentin, requesting a doctor visit, and indicating that he believed he needed an x-ray

because he was in pain all the time and believed his shoulder was broken. [Docs. 89-107,

89-108]. Plaintiff had a shoulder x-ray in December 2022, that revealed that there were

no fractures, that the coracoclavicular joint was normal, and the glenohumeral joint was

unremarkable. [Doc. 89-110]. The x-ray did show degenerative spurring off the distal

clavicle with narrowing of the AC joint. [Id.]. Then, in February 2023, plaintiff had an

x-ray of his scapula, which did not show any fractures either. [Doc. 89-111].

On March 13, 2023, plaintiff saw Dr. Christine A. Herrington and reported chronic

shoulder pain and told her that he had fallen off a fence in 2020 before he was in prison.

[Doc. 89-112]. Plaintiff denied having received treatment while in Butler County Jail

and requested steroid injections in both shoulders. [Id.]. Dr. Herrington ordered oral

prednisone and scheduled plaintiff for bilateral intra-articular injections. [Id.]. She

educated plaintiff on the fact that he could do no more than 4 injections in his lifetime for

each joint and that they could be done no sooner than 4 months apart. [Id.]. Plaintiff

acknowledged the risks and benefits of the injections before Dr. Herrington administered

them on March 29, 2023. [Doc. 89-113]. He was instructed to avoid heavy lifting that

would continue his chronic pain. [Id.].

In May 2023, plaintiff reported again that he had constant pain in his right

shoulder and requested to be seen by a doctor. [Doc. 89-114]. On June 12, 2023,

plaintiff saw nurse practitioner Dana Jost. [Doc. 89-115]. Nurse practitioner Jost found

scapular winging on the plaintiff’s right shoulder that was “not very severe.” [Id.]. She

prescribed Pyridoxine HCl and Ibuprofen for his pain, and requested a referral for

physical therapy to assist with his scapular winging symptoms. [Id.; Doc. 89-116]. The

reviewing doctor denied the request. [Id.].

In July 2023, plaintiff complained again of right shoulder pain and stated that

Gabapentin helped the pain go from 10/10 to a 5/10. [Doc. 89-117]. He again requested

physical therapy and pain medication. [Id.]. On July 25, 2023, nurse practitioner Jost

prescribed a scheduled series of oral Prednisone. [Id.].

On October 23, 2023, plaintiff again complained to nurse practitioner Jost about

his right shoulder and requested an x-ray. [Docs. 89-118, 89-119]. Nurse practitioner

reminded plaintiff that he had just had x-rays [Id.]. When plaintiff insisted he needed

surgery, nurse practitioner Jost told him there was no surgery to fix his scapular winging.

[Id.]. Then, on January 11, 2024, plaintiff requested that nurse practitioner Jost put him

on Naproxen for his shoulder pain. [Doc. 89-120].

1. Plaintiff’s Admissions

Plaintiff has made several admissions related to his claim that Dr. Montgomery

failed to treat his serious medical condition. First, plaintiff admits that he sustained a

shoulder injury before he saw Dr. Montgomery the first time. [Docs. 89-125 at ¶8(d), 89-

126 at ¶8]. Plaintiff has, himself, admitted that his shoulder injury is chronic. [Id. at

¶8(h) and ¶¶8(j) and 9(c), Doc. 89-127 at ¶2(c)].

2. Plaintiff’s Experts

Plaintiff disclosed nurse practitioner Dana Jost and Dr. Christine Herrington as

experts pursuant to Federal Rule of Civil Procedure 26(a)(2). [Docs. 89-121, 89-122].

However, no expert reports or opinions have been solicited from either.

In reviewing the records, Dana Jost does not endorse the use of monthly steroid

injections; and, in fact, had denied plaintiff’s requests for specific medical treatments

numerous times. [Docs. 89-34, 89-37, 89-49, 89-118]. Further, Dr. Herrington does not

endorse the use of monthly steroid injections as she specifically told plaintiff he could

only have 4 in his lifetime, and they had to be at least 4 months apart. [Doc. 89-112].

Dr. Herrington’s records or notes do not indicate that plaintiff will need surgery

specifically because his shoulder was allegedly untreated for a long time. [Doc. 89-126

at ¶8(m); Docs. 89-112, 89-113]. Both Dana Jost and Dr. Herrington have stated that

plaintiff’s shoulder injury is a chronic injury. [Doc. 89-126 at ¶8(j)].2

3. Dr. Montgomery’s Declarations

Dr. Montgomery declared that steroid injections are not done monthly because

they carry many serious risks and side effects like infection, nerve damage, reflex

sympathetic dystrophy, bleeding, pain, and vascular compromise. [Doc. 89-57 at ¶¶29,

2 Plaintiff has disclosed two medical literature articles relating to scapular winging. [Docs.

89-123, 89-124]. However, plaintiff has not disclosed any medical expert that has relied

on or cited this medical literature. Accordingly, both medical literature articles are

inadmissible as hearsay and will not be considered by the Court in ruling on the pending

motions for summary judgment. See Brown v. U.S., 419 F.2d 337, 341 (8th Cir. 1969)

(finding that the Court will not consider medical treatises for purposes of proving the

probative facts of opinions in the articles since they are hearsay).

35]. Dr. Montgomery also declared that oral steroids have risks including development

of diabetes, congestive heart failure, adrenal suppression, and weight gain. [Id. at ¶30].

He also declared that Gabapentin treatment has risks like dizziness, ataxia, abnormal gait,

tremor, seizures, dysarthria, absent reflexes, movement disorders, and loss of

consciousness. [Id. at ¶31].

Dr. Montgomery chose to treat plaintiff with Gabapentin and NSAID’s for his

shoulder pain because of plaintiff’s history of nerve damage and trauma to his shoulder.

[Id. at ¶33]. With plaintiff’s history of nerve damage and trauma to his shoulder, Dr.

Montgomery was concerned about treating him with steroids. [Id.]. Dr. Montgomery

opined that treatment with Gabapentin and NSAID’s was appropriate since plaintiff had

no known serious side effects to that treatment before. [Id.]. Dr. Montgomery prescribed

Gabapentin. [Id.]. Dr. Montgomery then increased plaintiff’s Gabapentin prescription

when plaintiff continued to complain about pain because plaintiff had reported no

concerning side effects. [Id. at ¶34].

III. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant a

motion for summary judgment if all of the information before the court demonstrates that

“there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464,

467 (1962); Fed. R. Civ. P. 56(a). The Court will view “all facts in the light most favorable

to the non-moving party and mak[e] all reasonable inference in [that party’s] favor.”

Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 819 (8th Cir. 2011). “[W]here the

nonmoving party will bear the burden of proof at trial on a dispositive issue…Rule 56(e)

permits a proper summary judgment motion to be opposed by any of the kinds of

evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party need not negate the

nonmoving party’s claims by showing “the absence of a genuine issue of material fact.”

Id. at 325. Instead, “the burden on the moving party may be discharged by ‘showing’…that

there is an absence of evidence to support the nonmoving party’s case.” Id.

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

specific facts demonstrating “’a genuine issue of material fact’ such that [its] claim should

proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir. 2009)

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

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.’” Torgerson v. City of Rochester, 643 F.3d 1031, 1042

(8th Cir. 2011) (quoting Matsushita, 475 U.S. at 586-87)). “’[T]he mere existence of some

alleged factual dispute between the parties’” will not defeat an otherwise properly

supported motion for summary judgment. Quinn v. St. Louis Cnty., 653 F.3d 745, 751 (8th

Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).

In other words, in deciding “a motion for summary judgment, ‘facts must be viewed

in the light most favorable to the nonmoving party only if there is a “genuine” dispute as

to those facts.’” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris,

550 U.S. 372, 380 (2007)). Otherwise, where the Court finds that “the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party” – where this

is no “’genuine issue for trial’” – summary judgment is appropriate. Matsushita, 475 U.S.

at 587 (quoting First Nat’l Bank of Ariz. V. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

IV. DISCUSSION

As previously stated, the complaint is based upon plaintiff’s claims against

defendants alleging that defendants violated his constitutional rights when they used

unreasonable force to arrest him and failed to treat his serious medical condition while he

was incarcerated at Butler County Jail. Defendant Kellis Thompson’s motion for

summary judgment alleges (1) that he did not use unreasonable force; and, (2) that he is

entitled to qualified immunity. Defendant Dr. Christopher Montgomery’s motion for

summary judgment alleges (1) that plaintiff cannot show a serious medical need; and, (2)

that plaintiff cannot show that Dr. Montgomery had the required state of mind to prevail

on his claim of deliberate indifference to his serious medical needs. The Court will

address each argument in more detail infra.

A. Plaintiff cannot prevail on a claim for unreasonable force against Kellis

Thompson.

1. Kellis Thompson did not use unreasonable force.

Where an “excessive force claim arises in the context of an arrest or investigatory

stop of a free citizen, it is most properly characterized as one invoking the protections of

the Fourth Amendment…” Chambers v. Pennycook, 641 F.3d 898, 905 (8th Cir. 2011)

(quoting Graham v. Connor, 490 U.S. 386, 394 (1989)). Thus, an objective

“reasonableness” standard must be applied in evaluating claims that law enforcement

officers used excessive force in violation of the Fourth Amendment. Id. (citing Graham,

490 U.S. at 396). However, it is well-established that law enforcement officers may use

some degree of physical coercion or threat thereof to effect an arrest or investigatory

stop. Id.

A law enforcement officer’s use of force violates the Fourth Amendment only

when it is objectively unreasonable based upon the facts and circumstances of a particular

case. Graham, 490 U.S. at 397. The facts and circumstances of a particular case are

“judged from the perspective of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Id. at 396-97. Even if there were other alternatives or actions

the officer could have chosen to engage in, an officer need not “pursue the most prudent

course of conduct as judged by 20/20 hindsight vision.” Church v. Anderson, 898 F.3d

830, 833 (8th Cir. 2018) (quoting Retz v. Seaton, 741 F.3d 913, 918 (8th Cir. 2014)).

“The calculus of reasonableness must embody allowance for the fact that police

officers are often forced to make split-second judgments – in circumstances that are

tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a

particular situation.” Graham, 490 U.S. at 396-97. “Not every push or shove, even if it

may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth

Amendment.” Id. at 396. Thus, the reasonableness of a particular use of force can

depend on circumstances like the severity of the crime at issue, whether the suspect poses

an immediate threat to the safety of the officer or others, whether he is actively resisting

arrest or attempting to evade arrest by flight, the duration of the officer’s actions, whether

the actions take place in the context of effecting an arrest, the possibility that the suspect

may be armed, the number of persons with whom the officer must contend at one time,

and whether the officers actions were performed pursuant to standard police procedure.

Littrell v. Franklin, 388 F.3d 578, 583 (8th Cir. 2004) (quoting Graham, 490 U.S. at 396);

Clark v. Ware, 873 F. Supp.2d 1117, 1119-20 (E.D. Mo. 2012) (quoting Sharrar v.

Felsing, 128 F.3d 810, 822 (3d Cir. 1997)); Ludwig v. Anderson, 54 F.3d 465, 472 (8th

Cir. 1995) (finding that police department guidelines are relevant in analyzing whether

the force was unreasonable). “[W]hat would ordinarily be considered reasonable force

does not become excessive force when the force aggravates (however severely) a pre-

existing condition the extent of which was unknown to the officer at the time.”

Rodriguez v. Farell, 280 F.3d 1341, 1353 (11th Cir. 2002). Generally, courts in Missouri

have found no excessive force where a pre-existing condition was not objectively

manifested or known to the officer. See Copeland v. Locke, 613 F.3d 875, 882 (8th Cir.

2010) (“when an officer exerts objectively reasonable force which results in the

aggravation of a pre-existing injury unknown to the officer, such an injury is not

sufficient to indicate excessive force”) (citing Cavataio v. City of Bella Villa, 570 F.3d

1015, 1020 (8th Cir. 2009)).

When making an arrest or investigatory stop, an officer must be permitted to not

only grab the arrestee but also put him/her in handcuffs when effectuating that arrest.

Kasiah v. Crowd Sys., 915 F.3d 1179, 1184 (8th Cir. 2019) (citing Graham, 490 U.S. at

396). The handcuffing of an arrestee’s hands behind his back is a routine police

procedure. Royster v. Nichols, 698 F.3d 681, 691 (8th Cir. 2012) (citing Dunn v. Denk, 79

F.3d 401, 403 (5th Cir. 1996)). An officer’s decision not to deviate from this standard

practice is a judgment call, pure and simple. Id. (citing Calvi v. Knox Cnty., 470 F.3d

422,428 (1st Cir. 2006).

Here, based upon a review of the entire record, plaintiff has not presented any

evidence that at the time of the investigatory stop and his arrest that his shoulder injury

was visible to Investigator Thompson. Instead, viewing the facts in the light most

favorable to plaintiff, he only informed Investigator Thompson that he had a pre-existing

injury. As a result, Investigator Thompson followed routine police procedure when he

handcuffed plaintiff. Those actions alone do not amount to excessive force.

Further, his actions in handcuffing plaintiff were objectively reasonable

considering that Investigator Thompson was the only officer on scene and knew that

plaintiff was the lead suspect in shooting another individual. Investigator Thompson did

not know whether plaintiff was still armed or posed an immediate threat to Investigator

Thompson or other citizens in proximity to the traffic stop. Investigator Thompson

followed procedures and policies to secure plaintiff in an objectively reasonable fashion.

The fact that plaintiff did not like how Investigator Thompson may have twisted his arms

when putting him in handcuffs is not enough to amount to excessive force. See Blazek v.

City of Iowa City, 761 F.3d 920, 925 (8th Cir. 2014) (quoting Rodriguez v. Farrell, 280

F.3d 1341, 1351 (11th Cir. 2002) (holding that the officer did not use unreasonable force

as a matter of law when the officer grabbed the plaintiff’s arm, twisted it around the

plaintiff’s back, jerked it up high to the plaintiff’s shoulder, and then handcuffed the

plaintiff as he fell to his knees screaming that the officer was hurting him, which resulted

in a severe aggravation of a prior injury)); see also Thompson v. City of Lawrence, 58

F.3d 1511, 1516 (10th Cir. 1995) (holding that police officers did not use unreasonable

force when they ordered suspected felon with injured shoulder and a reputation for

possessing firearms to lie on the floor, handcuffed the suspect’s hands behind his back,

and then lifted him off the floor by the wrist).

Based upon the foregoing, the Court finds that no genuine issue of material fact

exists regarding whether Investigator Thompson used unreasonable force in his

investigatory stop and arrest of the plaintiff. Accordingly, the Court will grant summary

judgment in favor of defendant Kellis Thompson.

2. Kellis Thompson is entitled to qualified immunity.

Aside from granting summary judgment on the traditional standards discussed

supra, Investigator Thompson also asserts in his summary judgment motion that he is

entitled to qualified immunity. “Qualified immunity shields public officials from liability

for civil damages if their conduct did not violate clearly established statutory or

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

St. Louis, Missouri, 102 F.4th 947, 951 (8th Cir. 2024). Since Investigator Thompson

asserted his right to qualified immunity, plaintiff then bore the “burden to prove (1) the

defendant violated his constitutional rights; and (2) the law was clearly established at the

time of the alleged violation.” Saucier v. Katz, 533 U.S. 194, 201 (2001) overruled on

other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009). This Court has discretion

to decide the order in which these two prongs should be addressed, and, when appropriate,

does not need to address both. Pearson, 555 U.S. at 236-37.

Here, plaintiff has failed to meet his burden in demonstrating that Investigator

Thompson violated his constitutional rights. The Court has found that no constitutional

violations have occurred at the hands of Investigator Thompson. See supra. Without a

constitutional violation having occurred, plaintiff cannot overcome the defendant’s claim

to qualified immunity. Therefore, the Court finds that Investigator Thompson is also

entitled to summary judgment because plaintiff’s unreasonable force claim is barred by

qualified immunity.

B. Plaintiff cannot establish an Eighth Amendment claim for deliberate

indifference to a serious medical need against Dr. Christopher Montgomery.

The Eighth Amendment requires that officials provide inmates with needed

medical care. Cullor v. Baldwin, 830 F.3d 830, 836 (8th Cir. 2016). “[D]eliberate

indifference to serious medical needs of prisoners constitutes the unnecessary and wanton

infliction of pain proscribed by the Eighth Amendment.” Redmond v. Kosinski, 999 F.3d

1116, 1120 (8th Cir. 2021) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

Deliberate indifference has two components: objective and subjective. Cheeks v. Belmar,

80 F.4th 872, 876 (8th Cir. 2003). To prevail, plaintiff must prove two elements: (1) an

objectively serious medical need; and, (2) that defendant actually knew of, and

deliberately disregarded, that serious medical need. Corwin v. City of Independence, 829

F.3d 695, 698 (8th Cir. 2016).

From an objective standpoint, a medical need is serious “if the medical need in

question is supported by medical evidence, such as a physician’s diagnosis, or is so

obvious that even a layperson would easily recognize the necessity for a doctor’s

attention.” Ryan v. Armstrong, 850 F.3d 419, 425 (8th Cir. 2017).

From a subjective standpoint, deliberately disregarding a serious medical need is

“more than negligence, more even than gross negligence. It may be found where medical

care is so inappropriate as to evidence intentional maltreatment.” Presson v. Reed, 65

F.4th 357, 366 (8th Cir. 2023); see also Redmond, 999 F.3d at 1120 (stating that the

plaintiff “must show grossly incompetent or inadequate care so inappropriate as to

evidence intentional maltreatment or a refusal to provide essential care”). “The level of

culpability required to demonstrate deliberate indifference on the part of prison officials

is equal to criminal recklessness.” Holden v. Hirner, 663 F.3d 336, 343 (8th Cir. 2011).

When the allegation is one of lack of treatment, “the failure to treat a medical condition

does not constitute punishment within the meaning of the Eighth Amendment unless

prison officials knew that the condition created an excessive risk to the inmate’s health

and then failed to act on that knowledge.” Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir.

2009). If the allegation relates more to a delay in treatment, it only arises to the level of

an Eighth Amendment violation when the objective seriousness of the deprivation is

measured by reference to the effect of delay in treatment. Laughlin v. Schriro, 430 F.3d

927, 929 (8th Cir. 2005). “To establish this effect, the inmate must place verifying

medical evidence in the record to establish the detrimental effect of delay in medical

treatment.” Id. An inmate’s self-reporting assertions of pain are insufficient to constitute

verifying medical evidence in the absence of corroborating evidence of symptoms.

Hancock v. Arnott, 39 F.4th 482, 487 (8th Cir. 2022). An inmate may satisfy the verifying

medical evidence requirement by supplying medical records in support of self-reporting

assertions of pain. Dantzler v. Baldwin, 133 F.4th 833, 844 (8th Cir. 2025) citing Williams

v. Liefer, 491 F.3d 710, 715 (7th Cir. 2007).

In the present case, plaintiff had a long history of shoulder pain before he ever

came under Dr. Montgomery’s care at Butler County Jail. Plaintiff indicated on his

medical screening form in November 2020 that he had a “shoulder broke”, but he never

complained again about his shoulder until his October 8, 2021, visit with Dr.

Montgomery. [Docs. 89-58, 89-79, 89-80, 89-81, 89-57 at ¶18]. It is clear from the

record that when confronted by plaintiff about his shoulder pain, Dr. Montgomery did not

ignore or give short shrift to plaintiff’s complaints. [Id.]. Rather, he conducted a detailed

physical examination and reviewed plaintiff’s prior treatment history. [Id.]. As a result,

Dr. Montgomery prescribed Gabapentin. [Id.]. About a month later, in November 2021,

plaintiff requested that his Gabapentin be increased. [Docs. 89-82, 89-83, 89-84, 89-57 at

¶19]. Dr. Montgomery agreed to plaintiff’s request and increased the dosage. [Id.].

Plaintiff then went until August 17, 2022, before he next complained about his

right shoulder pain when he requested steroid injections. [Docs. 89-104, 89-105, 89-106,

89-57 at ¶28, 89-1 at p. 174, Line 2-p. 175, Line 23]. Dr. Montgomery responded that

“they do not prescribe monthly steroid injections and is not considered a medical

emergency that when he gets out he can see ortho.” [Id.]. Plaintiff made no further

complaints about right shoulder pain to Dr. Montgomery before Dr. Montgomery ceased

providing services at Butler County Jail in November 2022. [Doc. 89-57 at ¶6].

Plaintiff’s allegations that Dr. Montgomery was deliberately indifferent to his

serious shoulder pain and that Dr. Montgomery’s lack of treatment or delayed treatment

has now caused him scapular winging or other shoulder issues are all unsupported by the

facts. Most of plaintiff’s medical complaints to Dr. Montgomery focused on medical

infirmities unrelated to his shoulder. When plaintiff did make his sporadic and

inconsistent complaints about shoulder pain, his complaints were never ignored by Dr.

Montgomery. Rather, plaintiff was always assessed or provided with a response. Any

treatment recommendations by Dr. Montgomery were provided based upon physical

assessments and plaintiff’s prior treatment history.

In reviewing the totality of the evidence presented, it is clear to this Court that Dr.

Montgomery concluded that the appropriate approach to plaintiff’s shoulder pain was

prescription pain relievers in different dosages to address what he considered to be

chronic nerve pain. There is no evidence or indication that plaintiff had any other serious

medical need, like a break or fracture, that would have necessitated additional treatment.

Dr. Montgomery’s denial of plaintiff’s specific request for steroid injections was not

unreasonable – and certainly does not arise to a level of criminal recklessness, or for that

matter, even negligence. Instead, it was merely plaintiff’s personal disagreement with

Dr. Montgomery for failing to provide the specific treatment that plaintiff requested. See

Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting plaintiff’s “mere

disagreement with treatment decisions does not rise to the level of constitutional

violation.”). There also is no evidence or indication, presented by any expert or in the

record itself, that Dr. Montgomery’s selected course of treatment caused plaintiff’s

development of scapular winging, the incorrect healing of a prior injury, or more pain.

Based on the foregoing, plaintiff has failed to meet his burden. In reviewing the

record as a whole, this Court finds that no rational trier of fact could find in favor of

plaintiff. Therefore, Dr. Montgomery is entitled to summary judgment on plaintiff's

Eighth Amendment claim for deliberate indifference.

Vv. CONCLUSION

In conclusion, this Court finds that no genuine issue of material fact exists regarding

whether Investigator Thompson used unreasonable force in his investigatory stop and arrest

of the plaintiff. Further, this Court finds that Investigator Thompson is entitled to summary

judgment because plaintiff's unreasonable force claim is barred by qualified immunity.

Finally, this Court finds that Dr. Montgomery is also entitled to summary judgment because

no genuine issue of material fact exists to show that Dr. Montgomery was deliberately

indifferent to a serious medical need that plaintiff alleges existed.

Accordingly,

IT IS HEREBY ORDERED defendant Dr. Christopher Montgomery’s Motion

for Summary Judgment [Doc. 88] is GRANTED. A separate judgment will be entered.

IT IS FURTHER ORDERED that defendant Kellis Thompson’s Motion for

Summary Judgment [Doc. 95] is GRANTED. A separate judgment will be entered.

IT IS FINALLY ORDERED that the Clerk of Court is DIRECTED to CLOSE

the case.

SO ORDERED this 12“ day of February, 2026.

STEPHEN N. LIMBAUGH, □□□

SENIOR UNITED STATES DISTRICT JUDGE

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