United States District Court, W.D. Arkansas, Hot Springs Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
JAMES R. MARSCHEWSKI, Chief Magistrate Judge.
This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis.
Plaintiff is currently incarcerated in the East Arkansas Regional Unit of the Arkansas Department of Correction in Brickeys, Arkansas. The events that are the subject of this case occurred while Plaintiff was incarcerated in the Pike County Detention Center (PCDC). During his incarceration there, Plaintiff maintains his constitutional rights were violated: when excessive force was used against him; when he was placed in lock-down without an opportunity to be heard; when he was deprived of his property; and when he was transferred to another jail. Defendants have filed a motion for summary judgment (Docs. 33-35). Plaintiff filed a combined response and cross-motion for summary judgment (Docs. 40-42). Defendants filed a response to the cross-motion for summary judgment (Doc. 46). Two other responses and/or replies have been filed (Docs. 43-44). The motions are now ready for decision.
Plaintiff was booked into the PCDC on December 27, 2009. Defendants' Exhibit (hereinafter Defts' Ex. ) A at pg. 1. Holds were placed on him by Garland County, Polk County, the Hope Police Department, and the Texarkana, Texas, Police Department. Id. at pg. 2; Defts' Exs. B-E.
The list of Plaintiff's personal property at admission was: one pair camo pants; white shorts; purple pants; wedding ring (silver in color); gray shirt; striped hoodie; and a nail puller. Defts' Ex. K.
Plaintiff had his first judicial appearance on December 28th. He was appointed counsel, LaJeana Jones, and bond was set. Defts' Ex. F. He was arraigned on January 11, 2010. Defts' Ex. G. He remained at the PCDC until January 29th when he was transferred to the Garland County Detention Center (GCDC) and served with warrants there. Defts' Ex. H. Plaintiff's time of arrest is listed as 12:45. Id.
The PCDC release of property form contained a wedding ring (yellow colored) and one bag of white clothes. Defts' Ex. L. The time of release is 1:05 p.m. Id. Plaintiff denies that he signed the form. He contends his name was forged. He also points out that the release was allegedly signed after he was already at the GCDC.
On January 28th, according to Deputy Travis Hill, he arrived at the detention center after having lasik eye surgery. Defts' Ex. N at ¶ 3. His vision was still blurry. Id. at ¶ 4. When Hill was in the booking area, he observed Plaintiff trying to drag items into his cell with a rope. Id. at ¶ 5. Hill ran to Plaintiff's cell and grabbed the rope while yelling at the Plaintiff to let go of it. Id. at ¶ 6. Plaintiff began struggling with Hill over the rope and began yelling at him. Id. at ¶ 7. Hill indicates he was pulled into the doorway of the cell and continued to struggle. Id. at ¶ 8. Deputy Jack Naron ran up beside Hill and sprayed a burst of pepper spray through the bean hole of Plaintiff's cell. Id. at ¶ 9. Hill maintains that he was also struck in the face with pepper spray. Id. at ¶ 10. As soon as he was hit the pepper spray, Hill states the Plaintiff became complaint. Id. at ¶ 11.
According to Hill, both he and the Plaintiff went outside to decontaminate. Defts' Ex. N at ¶ 12. Hill asserts that the decision to decontaminate outside was made with Plaintiff's approval. Id. at ¶ 13.
Hill states that "[t]he reason why we went outside to decontaminate is because the shower in the booking area only had hot water. Since the pepper spray was on our faces, we both wanted to go outside and decontaminate in cold water." Defts' Ex. N at ¶ 14. According to Hill, it was "fairly cool outside" at the time -"probably around forty (40) or fifty (50) degrees." Id. at ¶ 15.
Hill asserts that a regular garden hose was used to decontaminate. Defts' Ex. N at ¶ 16. Hill maintains that the hose had less water pressure than a regular hose because it had a valve in the hose to lower the water pressure. Id. Hill indicated that they were outside for approximately five minutes. Id. at ¶ 17. After that, Hill states Plaintiff was allowed to dry off with a towel. Id. at ¶ 18. In fact, Hill believes Plaintiff took a warm shower and received clean clothes once they were back in the detention center. Id.
Deputy Naron indicates he was with Hill in the booking area and saw Plaintiff trying to drag something off the counter with a rope. Defts. Ex. O at ¶¶ 3-4. Naron indicates he remained in dispatch long enough to secure his weapon. Id. at ¶ 6. As he approached the holding cell, Naron states that he heard a lot of commotion and yelling. Id. He heard Hill yelling at the Plaintiff to let go of the rope. Id. at ¶¶ 7-8. Naron indicates the Plaintiff had made numerous threats towards jail officers. Id. at ¶ 9. "Given the commotion, Mr. Onstad's history of threats, and Mr. Hill's screams, [Noran says he] was afraid that Mr. Hill was tied up in the rope and was in danger of serious physical harm." Id. at ¶ 10. Noran says he sprayed a burst of pepper spray through the bean hole of Plaintiff's cell. Id. at ¶ 11.
According to Noran, he was also hit by the pepper spray. Defts' Ex. O at ¶ 12. They went outside to decontaminate because the shower in the holding cell only had warm water. Id. at ¶ 13. From his training, Naron states he knew that decontaminating with warm water causes intense burning." Id. at ¶ 14. Naron did not recall it being "particularly cold outside." Id. at ¶ 15.
Noran indicates they decontaminated Plaintiff by "holding the water [hose] between his eyes while he held his eyes open so the water could flush out the pepper spray." Defts' Ex. O at ¶ 16. Noran states the hose did not have any type of spray nozzle. Id. at ¶ 17. In fact, he asserts that the water was not even turned on all the way. Id.
Noran states that he does not know why the Plaintiff was "shipped out" to Garland County the following day. Defts' Ex. O at ¶ 18. He did know the Plaintiff had pending charges in Garland County. Id. Noran also states that "we wanted to get him transferred out of the jail as soon as possible because he was constantly destroying the jail." Id.
According to Plaintiff, he never had a rope. Instead, he states he tied his shower shoe onto a thin strip of his sheet (approx. 1/4 inch in width) and made a fishing type apparatus. Doc. 42 at pg. 1. Regardless, of whether it is termed a fishing type apparatus or a rope, it is ...