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Salam v. Delaney

United States District Court, W.D. Arkansas, El Dorado Division

September 8, 2014

AL JABBAR SALAM, Plaintiff,
v.
JANET DELANEY; SGT. COLLIER; SGT. MEEKS; SGT. RICHARDSON; JAILER PITTS; JAILER EDWARD; JAILER TURNER; JAILER MURPHY; TINA RICHARDSON; W. ROBINSON; DOUG WOODS; and SHERIFF MIKE LOE, Defendants.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

BARRY A. BRYANT, Magistrate Judge.

Plaintiff Al Jabbar Salam filed this civil rights case pursuant to 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation.

Currently before me is Plaintiff's Motion for Summary Judgment. ECF No. 37. Defendants filed a Response to the Motion for Summary Judgment. ECF No. 40. Plaintiff replied. ECF No. 42. Also, before me is Defendants' Motion for Summary Judgment. ECF No. 48. Plaintiff responded with the aide of a Court prepared questionnaire. ECF No. 75. After considering all of the briefing the undersigned issues the following Report and Recommendation.

I. BACKGROUND

Plaintiff is currently incarcerated in the Arkansas Department of Correction Varner Unit in Grady, Arkansas. During the time at issue in this case, Plaintiff was incarcerated in the Columbia County Detention Center ("CCDC"). Plaintiff originally filed his Complaint on April 26, 2012 (ECF No. 1) and then filed an Amended Complaint on July 18, 2012 (ECF No. 10).

In his Amended Complaint, Plaintiff names Sgt. Collier, Sgt. Tina Robinson, Mr. Richardson, Mr. Pitt, Mr. W. Robinson, Officer Turner, Mr. Edwards, Deputy Sheriff Doug Woods, Mr. Murphy, and Sheriff Loe, as defendants in this matter. ECF No. 10, pp. 3-5. Plaintiff makes both official and individual capacity claims against all of the Defendants.

In his Amended Complaint Plaintiff specifically claims: (1) Defendant Delaney denied him medication on March 19, 2012 (ECF No. 10, p. 8); (2) Defendants Robinson, Richardson, Murphy, Collier, Pitts, and Turner denied him grievance forms on December 15, 2011, and between December 16 and July8, 2012 between the times of 8:00 a.m. and 4:00 a.m. and on the weekends in violation of CCDC policy (ECF No. 10, p. 8, 14); (3) each Defendant denied Plaintiff freedom of speech by failing to send his letters to his wife because they contained sexual content (ECF No. 10, p. 8); (4) Defendant Delaney retaliated against Plaintiff for complaining about his letter by enacting a postcard only policy (ECF No. 10, p. 8); (5) the postcard only policy is unconstitutional (ECF No. 10, p. 8); (6) all Defendants denied Plaintiff mail (ECF No. 10, p. 8); (7) all Defendants violated CCDC correspondence policy (ECF No. 10, p. 8); (8) on June 6, 2012, he was discriminated against, based on race, when he was locked down after a fight with a white inmate and the white inmate was not punished (ECF No. 10, p. 9); (9) he was placed in "punitive lock down" on June 6, 2012 "with a court hearing per policy, " all of his property was confiscate at this same time, and he has been in "punitive isolation or segregation for 33 days" (ECF No. 10, p. 9); (10) the shift sergeant is not addressing his grievances per unit policy (ECF No. 10, p. 9); (11) on June 7, 2012, Defendant Delaney threatened Plaintiff with bodily harm (ECF No. 10, p. 10); (12) he was denied access to the law library on December 21, 2011 (ECF No. 10, p. 10); (13) Defendants Collier, Murphy, and Robinson denied Plaintiff his "Fedreal mail" between June 24, 2012 and June 30, 2012 pursuant to Defendant Delaney's orders (ECF No. 10, p. 10) (errors in original); (14) all Defendants denied Plaintiff a section 1983 form (ECF No. 10, p. 11); (15) the grievance procedure is not followed at the CCDC (ECF No. 10, p. 11); (16) on May 23, 2012, Plaintiff was informed he would not be given a pork-free meal "to uphold [his] Religious belief as a Muslim of All-Islaim pursuant to Defendant Delaney's order (ECF No. 10, p. 12); (17) his due process rights were violated when he was moved, by Defendant Delaney, on May 14, 2012 "for no reason at all" to Pod 17 (ECF No. 10, p. 11); (18) he was discriminated against, based on race, when Defendant Delaney ordered, on June 7, 2012, he could only have one book per week while the white inmates could have as many as their families mailed, and white inmates are never punished for breaking the rules (ECF No. 10, p. 12); (19) Defendants Loe and Woods "Inaction to act" against Defendant Delaney's orders caused Plaintiff mental anguish (ECF No. 10, p. 12); (20) Defendants Woods, Delaney, and Loe denied Plaintiff medication for his "mental problems" (ECF No. 10, p. 12); (21) Defendants Collier and Murphey destroyed Plaintiff's witness statements and Defendant Delaney threatened to lock one of Plaintiff's down for writing a witness statement for him (ECF No. 10, p. 14); (22) he was charged for "indigent items" given to him (ECF No. 10, p. 14); (23) he is being denied medical care for a hernia (ECF No. 10, p. 14); (24) Defendant Delaney locked Plaintiff down in Pod 5 on December 29, 2011 for telling other inmates she cannot violate their probation, and Defendant Delaney uses Pod 5 to intimidate African American inmates (ECF No. 10, p. 15); (25) he was denied mental health treatment (ECF No. 10, p. 15); (26) Defendant Delaney is violating the CCDC inmate handbook (ECF No. 10, p. 15-16); (27) he was denied due process on June 6 or 7, 2012 during a disciplinary hearing because the hearing was not recorded, Plaintiff was not given a disciplinary form or appeal form (ECF No. 10, p. 16).

Plaintiff filed a Motion for Summary Judgment on September 30, 2013. ECF No. 37. Defendants responded on October 9, 2013. ECF No. 40. Plaintiff replied on October 16, 2013.

On November 7, 2013, Defendants filed a Motion for Summary Judgment. ECF No. 48. Plaintiff filed a Response on November 19, 2013. ECF No. 55. Plaintiff filed a second Response on April 15, 2014 using a questionnaire prepared by the Court. ECF No. 75.

II. LEGAL STANDARD

The Court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party." RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995). The moving party has the burden of showing the absence of a genuine issue of material fact and that they are entitled to judgment as a matter of law, but the nonmoving party may not rest upon mere denials or allegations in the pleadings and must set forth specific facts to raise a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The Court must view all evidence and inferences in a light most favorable to the nonmoving party. See McCleary v. ReliaStar Life Ins. Co., 682 F.3d 1116, 1119 (8th Cir. 2012). However, "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).

III. DISCUSSION

A. Plaintiff's Motion for Summary Judgment (ECF No. 37)

In Plaintiff's Motion for Summary Judgment he only moves for summary judgment on his mail claims, therefore, Plaintiff only moved for partial summary judgment. Specifically, Plaintiff states he is moving for summary judgment "against the defendants for denying Plaintiff to Receive Letters thou The United Postal Service & Family...." ECF No. 37, p. 1 (errors in original). Plaintiff explains he was wrongly denied the ability to send out mail containing "sexual content." In support of his Motion, Plaintiff cited Turner v. Safley, 482 U.S. 78 (1987) and Procunier v. Martinez, 416 U.S. 396 (1974) and attached two grievances from the CCDC dated February 20, 2012 and December 30, 2011 and a "First Motion for Admissions." The Motion for Admissions appears to be what Plaintiff submitted to Defendants during discovery but does not contain Defendants' responses.

Defendants responded to Plaintiff's Motion for Summary Judgment arguing Plaintiff's Motion for Summary Judgment should be denied because it was not properly set forth or supported pursuant to Federal Rule of Civil Procedure 56. Specifically, Defendants argue Plaintiff (1) failed to specifically set forth each claim or defense on which summary judgment is sought pursuant to Rule 56; (2) did not properly support the Motion pursuant to Local Rules 7.2(a) and 56.1(a); and (3) failed to file a statement of facts pursuant to Local Rule 56.1(a).

While Plaintiff may have failed to comply with procedural rules in filing his Motion, the same First Amendment claim argued in his Motion is at issue in Defendants' Motion for Summary Judgment currently before me. Therefore, I considered the merits of whether there are genuine issues of material fact as to Plaintiff's First Amendment mail claims below in connection with Defendants' Motion for Summary Judgment and incorporate those findings here. Accordingly, as explained in detail below, Plaintiff's First Amendment claim regarding the letter from his wife fails as a matter of law, and Plaintiff's Motion for Summary Judgment should be denied.

B. Defendants' Motion for Summary Judgment (ECF No. 48)

Plaintiff's Amended Complaint contains the following categories of official and individual capacity claims: (1) claims related to Plaintiff's mail; (2) First Amendment claims related to Plaintiff's religion; (3) a conditions of confinement claim; (4) denial of medical care claims; (5) claims related to the procedures at the CCDC; (6) retaliation and threat claims; (7) discrimination claims; (8) access claims; and (9) due process claims.

Defendants moved for summary judgment on Plaintiff's (1) due process claims relating to his segregation; (2) short-term mail delay claim; (3) First Amendment claims relating to the CCDC's postcard only policy, and the denial of personal mail from wife claim; (4) First Amendment claim relating to the denial of a pork-free diet; (5) access claims relating to denial of a law library; (6) denial of medical care claim related to the denial of pain medication; and (7) violation of the CCDC internal policies and procedures claims. Defendants also make arguments that Plaintiff failed to state any official capacity claims, failed to allege personal involvement of Defendants Loe and Woods, and failed to allege any physical injuries. Finally, Defendants argue they are entitled to qualified immunity on Plaintiff's conditions of confinement claims, due process claims relating to the administrative segregation, and the postcard only policy. ECF No. 49.[1]

As an initial matter, Defendant did not move for summary judgment on: (1) Plaintiff's condition of confinement claim that he was required to pay for indigent items; (2) Plaintiff's denial of medical care claim relating to his hernia and his mental health; (3) Plaintiff's claims that Defendants failed to follow the CCDC correspondence policy and inmate handbook; (4) Plaintiff's retaliation and threat claims; (5) Plaintiff's discrimination claims; and (6) Plaintiff's due process claims relating to his property or the June 6 or 7, 2012 diciplinary hearing.[2] I am, however, able to address Plaintiff's indigent items claim, medical care claim relating to his hernia, correspondence policy and handbook claims as matters of law or based on the current record. I am unable, based on the current record, to address Plaintiff's claims that he was denied mental health care, retaliated against and threatened, and discriminated against. Therefore, these claims will remain.

1. Official capacity and personal involvement

First, Plaintiff alleged both official and individual capacity claims against all of the Defendants. Defendants argue Plaintiff's Complaint is devoid of any alleged custom or policy of Columbia County which resulted in a violation of his constitutional rights and instead Plaintiff argues Defendants violated CCDC policy. Plaintiff contends in his Response, a custom, policy, or practice of Columbia County deprived him of his federal constitutional rights but he does not explain what custom, policy or practice violated his rights. Plaintiff gives no explanation of his official capacity claims even though specifically prompted to do so.

Under section 1983, a defendant may be sued in either his individual capacity, or his official capacity, or in both. In Gorman v. Bartch, the Eighth Circuit Court of Appeals ("Eighth Circuit") discussed the distinction between individual and official capacity suits. As explained by the Gorman case:

Claims against government actors in their individual capacities differ from those in their official capacities as to the type of conduct that is actionable and as to the type of defense that is available. See Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). Claims against individuals in their official capacities are equivalent to claims against the entity for which they work; they require proof that a policy or custom of the entity violated the plaintiff's rights, and the only type of immunity available is one belonging to the entity itself. Id. 502 U.S. at 24-27 , 112 S.Ct. at 361-62 (1991). Personal capacity claims, on the other hand, are those which allege personal liability for individual actions by officials in the course of their duties; these claims do not require proof of any policy and qualified immunity may be raised as a defense. Id. 502 U.S. at 25-27 , 112 S.Ct. at 362.

Gorman, 152 F.3d 907, 914 (8th Cir.1998). An official capacity claim against Defendants is essentially a claim against Columbia County. "[R]igorous standards of culpability and causation must be applied to ensure that the [county] is not held liable solely for the actions of its employee" in cases where a plaintiff claims a county has caused an employee to violate the plaintiff's constitutional rights. Board of County Commissioners, Oklahoma v. Brown, 520 U.S. 397, 405 (1997).

The Court asked Plaintiff to explain his official capacity claims and he did not respond. ECF No. 75, p. 52. Further, Plaintiff claims in his Amended Complaint that Defendants violated policies of CCDC. These claims contradict his claim that it was a CCDC policy that violated Plaintiff's constitutional rights.

Additionally, a claim of deprivation of a constitutional right cannot be based on a respondeat superior theory of liability. See Monell v. Department of Social Services, 436 U.S. 654, 694 (1978). In other words, Columbia County cannot be held liable based merely on the fact it employs Defendants. Therefore, there are no genuine issues of material fact regarding Plaintiff's official capacity claims and these claims fail as a matter of law.

Further, Plaintiff claims Defendants Wood and Loe violated his constitutional rights by thier "[i]naction to act against Lt. Delaney & all named defendants." (ECF No. 10, p. 12).

As stated above, a claim of deprivation of a constitutional right cannot be based on a respondeat superior theory of liability. See Monell v. Department of Social Services, 436 U.S. 654, 694 (1978). "[A] supervisor is not vicariously liable under 42 U.S.C. § 1983 for an employee's unconstitutional activity." White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994); see also Whitson v. Stone County Jail, 602 F.3d 920, 928 (8th Cir. 2010) ("In a § 1983 case, an official is only liable for his own misconduct and is not accountable for the misdeeds of his agents under a theory such as respondeat superior or supervisor liability") (internal quotations omitted); Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) ("general responsibility for supervising the operations of a prison is insufficient to establish the personal involvement required to support liability"). "Liability under section 1983 requires a causal link to, and direct responsibility for, the deprivation of rights. To establish personal liability of the supervisory defendants, [Plaintiff] must allege specific facts of personal involvement in, or direct responsibility for, a deprivation of his constitutional rights." Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007) (quoting Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006)). In other words, Defendants Loe and Wood cannot be held liable merely because they hold supervisory roles over those officers personally involved in the incidents complained of by Plaintiff.

A supervisor may, however, "incur liability... for their personal involvement in a constitutional violation, or when their corrective inaction amounts to deliberate indifference to or tacit authorization of the violative practices." Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (quoting Choate v. Lockhart, 7 F.3d 1370, 1376 (8th Cir. 1993)).

Plaintiff made no allegation in his Amended Complaint indicating Defendants Loe or Wood had knowledge of the complained of actions but failed to act. Further, Plaintiff failed to allege facts indicating the alleged inaction rose to the level of deliberate indifference. When asked specifically in his Response how Defendant Loe violated his constitutional rights Plaintiff responded "1st, 4th, 5th, 8th, 14th amendments" and when asked how Defendant Woods violated his constitutional rights Plaintiff responded "1st, 4th, 5th, 8th, 14th amendments." ECF No. 71, p. 55.

Accordingly, there are no genuine issues of material fact regarding Plaintiff's inaction claims against Defendants Loe and Wood and ...


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