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Martin v. Frakes

United States District Court, D. Nebraska

August 10, 2018

CARL A. MARTIN, Plaintiff,
SCOTT FRAKES, Official Capacity, Individual Capacity; ADAM CROP, Official Capacity, Individual Capacity; BRIAN GAGE, Official Capacity, Individual Capacity; CHELSEA GUFFRIE, Official Capacity, Individual Capacity; and PAUL TOMPKINS, Official Capacity, Individual Capacity; Defendants.


          Richard G. Kopf, Senior United States District Judge.

         This matter is before the court on Defendants' Motion for Summary Judgment (filing no. 33) and Plaintiff's Motion to Concede (filing no. 36). For the reasons that follow, Plaintiff's Motion to Concede is granted and the court will grant Defendants' Motion for Summary Judgment.

         I. BACKGROUND

         Plaintiff Carl A. Martin (“Martin”), a prisoner confined at the Tecumseh State Correctional Institution (“TSCI”), filed this 42 U.S.C. § 1983 action seeking monetary damages against five employees of the Nebraska Department of Correctional Services (“NDCS”): Scott Frakes, Brian Gage, Adam Cropp, Chelsea Guiffre, and Paul Tompkins in their official and individual capacities.[1] Martin alleges the Defendants failed to protect him during the May 10, 2015 riot at TSCI and “allow[ed] the [g]eneral population inmates to prey upon my persons and commi[t] fires, threats, and unit damage to property - resulting [in] heavy toxic smoke for 7 hours without correcting the error when they had reasonable time to correct the breach of safety.” (Filing No. 1 at CM/ECF pp. 4-5.) Martin asserts that he suffered assault, exposure to toxic smoke, smoke inhalation, emotional distress and mental anguish, and exacerbated psychological harm because of the incident. (Id. at CM/ECF p. 5.) After initial review of the Complaint, the court allowed Martin's Eighth Amendment failure-to-protect claims for monetary relief to proceed against the Defendants in their individual capacities only.

         Defendants have filed a Motion for Summary Judgment asserting that they are entitled to qualified immunity and judgment as a matter of law on all remaining claims against them. (Filing No. 33.) Along with their Motion, Defendants filed an Index of Evidence and Brief in Support. (Filing Nos. 34, 35.) In response to Defendants' Motion, Martin filed a Motion to Concede in which he asks the court to grant his motion and allow the Defendants['] Motion For Summary Judgment to proceed for the following reasons:

1. Plaintiff has no solid evidence suggesting that the Defendants were deliberately responsible for the Plaintiff not being able to exit his cell during the May 10th 2015 Riot.
2. The Plaintiff realizes that the staff reacted normally and understandably given the circumstances and cannot in all good consciousness hold staff accountable for what anyone including Plaintiff would have done.
3. Plaintiff also realizes that many people suffered and went through serious and traumatic experiences during the May 10th 2015 Riot and does not wish to further pursue this matter out of respect for the victims and their families as well as those involved.

(Filing No. 36 at CM/ECF pp. 1-3.)


         Summary judgment should be granted only “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). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue. Schilf v. Eli Lilly & Co., 687 F.3d 947, 949 (8th Cir. 2012). In passing upon a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion. Dancy v. Hyster Co., 127 F.3d 649, 652-53 (8th Cir. 1997).

         In order to withstand a motion for summary judgment, the nonmoving party must substantiate allegations with “‘sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy.'” Moody v. St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). “A mere scintilla of evidence is insufficient to avoid summary judgment.” Id. Essentially, the test is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

         A party opposing summary judgment “may not rest upon the mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial, and must present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Ingrassia v. Schafer, 825 F.3d 891, 896 (8th Cir. 2016) (quoting Anderson, 477 U.S. at 256-57 (quotations omitted); see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-60 (1970).

         III. ...

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