United States District Court, W.D. Arkansas, Fayetteville 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 Grimes Unit of the Arkansas Department of Correction located in Newport, Arkansas. The events that are the subject of this lawsuit occurred while Plaintiff was incarcerated in the Washington County Detention Center (WCDC) in Fayetteville, Arkansas. Plaintiff maintains the Defendant violated his federal constitutional rights by using excessive force against him and by being racist.
Defendant has filed a motion for summary judgment (Doc. 19). Plaintiff has responded to the motion (Doc. 30). The motion is now ready for decision.
Plaintiff was incarcerated in the WCDC from February 9, 2013, until November 23, >2013. Plaintiff's Response (Doc. 30) at ¶ 1(hereinafter Resp. ). He was serving a sentence of incarceration. Id. at ¶ 2.
Plaintiff maintains that the Defendant, Officer Cuzik, used excessive force against him on May 11, 2013. Resp. at ¶ 3. Cuzik entered the pod to bring in cleaning supplies and brooms and mops. Id. at ¶ 4(A). Plaintiff came down from the upper tier to get a mop. Id. at ¶ 4(B). Cuzik made a remark about it being about time for Plaintiff to get up. Id. at ¶ 4(C). Plaintiff got a mop and returned to the top tier and began mopping. Id. at ¶ 4(D).
Cuzik came up to the top tier to push the "jail check button." Resp. at ¶ 4(E). He then watched the Plaintiff mopping for a short period of time and Plaintiff quit mopping. Id. at ¶ 4(F). Once Cuzik left, Plaintiff finished mopping and returned the mop to the bottom tier. Id. at 4(G).
Cuzik asked Plaintiff if he had a problem with being told to get up. Resp. at ¶ 4(H). Plaintiff replied that he was not the only one hesitant to get off the bed. Id. at ¶ 4(I).
Cuzik then directed Plaintiff to go out to the hall. Resp. at ¶ 4(J). Plaintiff went out into the hallway first followed by Cuzik. Id. at ¶ 5(A). The two spoke for several minutes. Id. at ¶ 5(B). Both were gesturing with their hands and arms. Id. at ¶ 5(C). Cuzik reached out with both hands and pushed him against the wall. Id. at ¶ 5(D). Plaintiff states he almost fell but caught himself on the wall. Id.
For several seconds, Cuzik had his right index finger against Plaintiff's chest. Resp. at ¶ 5(E). Cuzik used no other force against the Plaintiff. Id. at ¶ 5(F). The two of them finished their conversation and Plaintiff returned to the pod. Id. at ¶ 5(G). Plaintiff was not placed in handcuffs or in any other way physically restrained. Id. at ¶ 5(H). Plaintiff was not given a disciplinary for failing to obey orders. Id. at pg. 14.
Plaintiff was asked to describe any injury he sustained. He stated:
My right shoulder blade still hurts at times. After hoe squad at the ADC thats when it hurts even more that it wont let me sleep when I lay on my right side. I still have not recovered from my injur[ies]. I [saw] the nurse at WCDC. She put me on Aleve for pain. I have not [seen] the nurse here at ADC because I don't wanna owe money.
Resp. at ¶ 6. No photos were taken of Plaintiff's injuries. Id. at pg. 14. Plaintiff indicates he was seen by a nurse two days later. Id. The ...