United States District Court, S.D. Mississippi, Western Division
REPORT AND RECOMMENDATION
Michael T. Parker United States Magistrate Judge.
MATTER is before the Court on Defendant Patten's Motion
 for Summary Judgment and Defendant Mackel's Motion
 for Summary Judgment. Having carefully considered the
parties' submissions and the applicable law, the
undersigned recommends that the Motions  and  be
Anthony Duane Mills, proceeding pro se and in
forma pauperis, was incarcerated at the Adams County
Jail but has since been released and lives in Natchez,
Mississippi. Plaintiff filed this lawsuit on August 25, 2017
alleging a myriad of constitutional violations against
several defendants stemming from several incidents that
occurred over March 2-3, 2016 at Plaintiff's home in
Natchez, Mississippi. A Spears hearing was held
in this matter on July 26, 2018 and Plaintiff's claims
were clarified and screened. Order .
pending motions for summary judgment relate to Defendants
Walter Mackel and Travis Patten. Plaintiff alleges that on
the night of March 2, 2016 he was sleeping on his sofa
because he and his wife were having marital problems.
According to Plaintiff, Defendant Mackel, at the time a
deputy with the Adams County Sherriff's Department,
entered Plaintiff's home, put a gun to his head, raped
him, and then inserted an object into his anus. Plaintiff
claims that Defendant Mackel threatened Plaintiff's
children and told Plaintiff not to say anything. When the
alleged sexual assault was over, Defendant Mackel left the
this threat, Plaintiff attempted to tell his wife about the
sexual assault after it happened, but she would not listen to
him. Plaintiff then went into the bathroom and began to cry
and cut himself with a straight razor. Plaintiff sues
Defendant Mackel under 42 U.S.C. § 1983 for allegedly
violating his constitutional rights under color of state law.
also claims that the next morning, March 3, 2016, between
7:00 a.m. and 8:00 a.m., he emerged from the bathroom and his
wife noticed his self-inflicted wounds. Plaintiff's wife
then called the police. Defendant Patten responded and once
Defendant Patten arrived, Plaintiff was again in the bathroom
cutting himself. Defendant Patten broke down the door to the
bathroom and tased Plaintiff. After Plaintiff was subdued, he
was taken to the hospital for treatment. Plaintiff sues
Defendant Patten for an alleged use of excessive force.
November 1, 2018, Defendant Mackel filed a Motion  for
Summary Judgment and Defendant Patten filed a Motion  for
Summary Judgment. Plaintiff has not responded and the time
for doing so has long since passed.
judgment is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show 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.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (internal quotations
omitted). The Court must view the evidence in the light most
favorable to the non-moving party. Causey v. Sewell
Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.
2004). If the moving party meets its burden, the
“nonmovant must go beyond the pleadings and designate
specific facts showing there is a genuine issue for
trial.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994).
judgment is proper “where a party fails to establish
the existence of an element essential to his case and on
which he bears the burden of proof.” Washington v.
Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th
Cir. 1988). In the absence of proof, the Court does not
“assume that the nonmoving party could or would prove
the necessary facts.” Little, 37 F.3d at 1075
(emphasis omitted). “It is improper for the district
court to ‘resolve factual disputes by weighing
conflicting evidence, … since it is the province of
the jury to assess the probative value of the
evidence.'” McDonald v. Entergy Operations,
Inc., 2005 WL 2474701, at *3 (S.D.Miss. Apr. 29, 2005)
(quoting Kennett-Murray Corp. v. Bone, 622 F.2d 887,
892 (5th Cir. 1980)).
Patten's Motion for Summary Judgment 
sues Defendant Patten for an alleged use of excessive force
in violation of the Fourth Amendment to the United States
Constitution. Defendant Patten does not dispute that he tased
Plaintiff while Plaintiff was harming himself with a straight
razor. Rather, Defendant Pattern asserts that he is entitled
to summary judgment because he is protected by the ...