                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-3647
                                    ___________

Muwakkil Khaliah Roby, also known      *
as Frank Andrew Roby,                  *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri.
James McCoy; Mike Schnepf; David       *
Smith, C.O.; Sgt. L. Hiebert; Unknown, * (UNPUBLISHED)
                                       *
            Appellees.                 *
                                  ___________

                              Submitted: February 13, 2009
                                 Filed: February 25, 2009
                                  ___________

Before MELLOY, BENTON, and SHEPHERD, Circuit Judges.
                           ___________

PER CURIAM.

       Muwakkil Khaliah Roby appeals the district court’s adverse grant of summary
judgment in his 42 U.S.C. § 1983 action. Roby’s complaint asserted that, while he
was a pre-trial detainee at the Jackson County Detention Center (JCDC), correctional
officer David Smith and sergeant L. Hiebert used excessive force against him; inmate
services administrator Mike Schnepf and case managers Mike Davis and Brenda
Williams, and “other unknowns,” filed violation reports in retaliation for the exercise
of his First Amendment rights; and JCDC manager James McCoy knowingly allowed
these constitutional violations. We grant leave to appeal in forma pauperis, affirm in
part, and reverse and remand in part.

        Upon de novo review, we find that the admissible record--including Roby’s
notarized eyewitness affidavits and excluding defendants’ unsworn statements--
viewed in a light most favorable to Roby, presents trialworthy issues as to whether the
force used by Hiebert and Smith was necessarily incident to JCDC’s administrative
interests in safety and security, and, thus, that the district court’s grant of summary
judgment was inappropriate. See Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir.
2006) (this court reviews grant of summary judgment de novo, viewing evidence and
all fair inferences from it in light most favorable to non-moving party); cf. Johnson-El
v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989) (conditions-of-confinement claims
brought by pretrial detainees are analyzed under Due Process Clause of Fifth and
Fourteenth Amendments; conditions suffered must be necessarily incident to
administrative interests in safety, security and efficiency); see also Mays v. Rhodes,
255 F.3d 644, 648 (8th Cir. 2001) (unsworn statements are hearsay, and therefore not
cognizable on summary judgment); Sokol & Assoc., Inc. v. Techsonic Indus., Inc.,
495 F.3d 605, 611 n.4 (8th Cir. 2007) (inadmissible hearsay should not be relied
upon).

       Specifically, according to the eyewitness affidavits, (1) on June 6, 2005, Smith
participated in an altercation where Smith held Roby down and other correctional
officers kicked him, and Roby had not provoked the altercation with threats or attacks
against officers; (2) on October 13, 2005, Smith and other officers lifted Roby out of
his wheelchair (Roby has an amputated leg) and carried him to his cell by his jaw after
Roby did not respond to an order to get out of the shower; and (3) on June 4, 2006,
Hiebert choked Roby while he was handcuffed to his wheelchair, after Roby
disregarded an order but otherwise did not threaten or assault prison staff. Based on
these facts, a reasonable jury could find that Hiebert and Smith used force in excess
of its need, especially in light of Roby’s physical condition and the threat he

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presented. See Andrews v. Neer, 253 F.3d 1052, 1061 & n.7 (8th Cir. 2001) (in
evaluating whether force was excessive, courts may consider, inter alia, need for
applying force, relationship between that need and amount of force utilized, threat
reasonably perceived, extent of injury inflicted, and whether reasonable officer on
scene would have used such force under similar circumstances). We therefore reverse
the grant of summary judgment to Smith and Hiebert.

       With respect to Roby’s claims against Schnepf, neither defendants’ motion nor
the district court’s order provided any reasons for granting summary judgment to
Schnepf. Accordingly, we also vacate the grant of summary judgment as to Schnepf,
and remand to allow the district court to address these claims in the first instance. See
Cavegn v. Twin City Pipe Trades Pension Plan, 223 F.3d 827, 831 (8th Cir. 2000)
(appellate court does not usually address issues that have not been considered by
district court; remanding to allow the district court “its rightful opportunity” to
consider merits of claim). Further, although an attachment to the first page of Roby’s
form complaint clearly identified Davis and Williams as defendants, they were not so
identified in the district court; on remand, the district court should add Davis and
Williams as defendants, so Roby’s claims against them may also be addressed.

       As to McCoy, however, we find that summary judgment was proper. While
supervisors may be liable under section 1983 in some circumstances, the record was
insufficient to establish McCoy knew of and was deliberately indifferent to a pattern
of unconstitutional acts by his subordinates. See Andrews v. Fowler, 98 F.3d 1069,
1078 (8th Cir. 1996) (supervisory liability under § 1983 may attach if supervisor
received notice of pattern of unconstitutional acts committed by subordinates,
demonstrated deliberate indifference to or gave tacit authorization of unconstitutional
acts, and failed to take sufficient remedial action, and also if injury resulted); Howard
v. Adkison, 887 F.2d 134, 138 (8th Cir. 1989) (“[a] single incident, or a series of
isolated incidents, usually provides an insufficient basis upon which to assign
supervisory liability”).

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      Last, we find the district court did not abuse its discretion in denying Roby’s
motion to amend, which proposed new claims, unrelated to the subject matter of his
complaint. See United States v. Fairview Health Sys., 413 F.3d 748, 749 (8th Cir.
2005) (reviewing denial of leave to amend for abuse of discretion; although leave to
amend shall be given freely, plaintiffs do not have absolute or automatic right to
amend).

      Accordingly, we reverse and remand as to Smith, Hiebert, and Schnepf; order
Davis and Williams to be added as defendants; affirm as to McCoy; and deny Roby’s
numerous motions on appeal.
                      ______________________________




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