Kenneth Howard v. Unknown McKee ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1005
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Kenneth Ray Howard, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Unknown McKee, Sergeant; Unknown *
Barton, CO; Unknown Servers, CO, * [UNPUBLISHED]
*
Appellees. *
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Submitted: March 5, 1999
Filed: April 15, 1999
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Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
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PER CURIAM.
Kenneth Ray Howard appeals the district court&s1 grant of summary judgment
dismissing his 42 U.S.C. § 1983 claims that prison officials used excessive force and
were deliberately indifferent to his resulting medical needs. Defendants supported
their motion for summary judgment with affidavits and the pertinent medical records.
The court granted the motion after Howard failed to respond. Howard then filed an
untimely motion to reconsider, arguing he did not know there was a time limit for
1
The HONORABLE CATHERINE D. PERRY, United States District Judge for
the Eastern District of Missouri.
responding, the court had denied his requests for appointment of counsel, defendants
had in fact used excessive force, and he had scars to prove the wounds they inflicted
were more serious than defendants claimed. The district court summarily denied the
motion to reconsider. On appeal, Howard raises these same issues. We affirm.
We review the grant of summary judgment de novo, viewing the evidence in
the light most favorable to the nonmoving party. See Mayard v. Hopwood, 105 F.3d
1226, 1227-28 (8th Cir. 1997). Procedurally, Howard as a pro se litigant was
required to file a timely response to defendants’ motion for summary judgment. See
Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996).
Howard’s motion to reconsider was untimely. See Fed. R. Civ. P. 59(e). Even if we
give full consideration to the facts asserted in Howard’s untimely motion, the grant
of summary judgment was still appropriate. Howard has not created a genuine issue
of material fact as to whether force was applied “maliciously and sadistically for the
very purpose of causing harm,” rather than “in a good faith effort to maintain or
restore discipline,” because he does not challenge defendants’ averrals that he broke
free from his escorts while outside his cell and force was required to regain control
over him. See Johnson v. Bi-State Justice Center, 12 F.3d 133, 136-37 (8th Cir.
1993). Likewise, Howard’s claim that defendants were deliberately indifferent to his
serious medical needs fails, because it is undisputed he was medically examined and
treated, and he did not present medical evidence establishing a detrimental delay in
treatment. See Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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