Case Information
*1 Before MURPHY, FAGG, and BENTON, Circuit Judges.
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PER CURIAM.
Federal inmate Gregory Alan Hill appeals the district court’s adverse grant of
summary judgment in his civil rights action. In his action he seeks damages from
Kansas City Metro Task Force (KCMTF) and six of its unknown officers based on a
claim of excessive force arising from his May 2001 arrest. KCMTF later identified
five officers–Sean Cutburth, Wesley Williamson, Dan Trznadel, Travis Forbes, and
Shawn Gibson– as the only ones involved in Hill’s arrest. Having conducted de novo
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review, we affirm in part and reverse in part. See Wertish v. Krueger,
We conclude that summary judgment was properly granted to KCMTF and to
defendant Officers Cutburth, Trznadel, and Forbes. Hill offered nothing to counter
the evidence that these officers submitted, and instead sought to dismiss them without
prejudice in case he later discovered evidence implicating them, see Moody v. St.
Charles County,
We also conclude that the district court erred in part in granting summary judgment to defendant Officers Gibson and Williamson. While Hill’s complaint and his initial unverified summary judgment responses were not entirely consistent about when he was beaten–i.e., during or after handcuffing or both–his verified complaint and sur replies made under 28 U.S.C. § 1746 were sufficient to create a dispute on facts material to his excessive force claim. See 28 U.S.C. § 1746 (when rule requires or permits matter to be supported, evidenced, established, or proved by, inter alia, affidavit, in writing of person making same, such matter may, with like force and effect, be supported, evidenced, established, or proved by unsworn declaration which *3 is subscribed as true under penalty of perjury); Roberson v. Hayti Police Dep’t, 241 F.3d 992, 994-95 (8th Cir. 2001) (plaintiff’s verified complaint is equivalent of affidavit for summary judgment purposes, and complaint signed and dated as true under penalty of perjury satisfies requirements of verified complaint under § 1746).
As Hill notes on appeal, KCMTF identified only five officers as being involved in his arrest. While Williamson and Gibson attested that they did not remove Hill from the truck he was driving and place him on the ground, but merely handcuffed him and made sure the handcuffs were not too tight, the other three officers presented evidence that they were too far removed from the scene to have been involved, and none of the five officers identified which officer removed Hill from the truck and placed him on the ground. Thus, construing the record in a light most favorable to Hill as required, a genuine issue of material fact exists as to whether Williamson and Gibson were the ones who removed Hill from the truck, placed him on the ground before handcuffing, and continued to monitor him afterwards.
According to Hill’s verified statements, he was beaten during and after
handcuffing even though, contrary to the officers’ evidence, he was not resisting; and
he required emergency treatment for open wounds on his face and body bruises.
Thus, further material disputes exist over whether Williamson and Gibson beat Hill
while they were handcuffing him as he was on the ground, whether they continued to
beat him after handcuffing, and whether Hill was resisting during and after
handcuffing, see Dennen v. City of Duluth,
Even though there is some dispute about the force used in seizing Hill before
the handcuffing, the officers are entitled to qualified immunity on these claims. A
reasonable officer would not have believed that Hill's rights were violated by the force
he says Williamson and Gibson used in an attempt to stop him from trying to drive
away with them in the truck bed. See Littrell v. Franklin,
Qualified immunity does not provide an alternative basis for affirming as to these officers’ use of force during and after handcuffing, however, since there are disputed facts concerning whether Hill resisted and, if not, whether the officers beat him anyway. Cf. Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000) (defendants were not entitled to qualified immunity where two witnesses testified that once plaintiff was arrested and handcuffed, he did not struggle or resist, yet officers kicked him in ribs, and beat his head on ground, rendering him unconscious).
Accordingly, we affirm the judgment in favor of KCMTF and Officers Cutburth, Trznadel, and Forbes. We reverse the grant of summary judgment to Officers Gibson and Williamson, but only in respect to their actions during and after handcuffing Hill, and remand for further proceedings consistent with this opinion.
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Notes
[1] Hill abandoned his other claims in the district court.
[2] The court did not strike Hill’s sur replies, and while the local rules do not specifically provide for them, neither do they prohibit them. See W.D. Mo. R. 56.1 (summary judgment motions); cf. Nw. Bank & Trust Co. v. First Ill. Nat’l Bank, 354 F.3d 721, 725 (8th Cir. 2003) (noting district courts may adopt local rules reasonably designed to streamline resolution of summary judgment).