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Salam v. Delaney

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

September 30, 2014

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

ORDER

SUSAN O. HICKEY, District Judge.

Before the Court is the Report and Recommendation filed September 8, 2014, by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 76). Judge Bryant recommends that Plaintiff's Motion for Summary Judgment (ECF No. 37) be denied and Defendants' Motion for Summary Judgment (ECF No. 48) be granted in part and denied in part. Defendants have responded with timely objections. (ECF No. 79). The Plaintiff has not filed objections to the Report and Recommendation, and the time to object has passed. See 28 U.S.C. § 636(b)(1). The Court finds this matter ripe for its consideration.

I. Plaintiff's Motion for Summary Judgment

Judge Bryant found that the Plaintiff's claim that his First Amendment rights were violated when he did not receive certain letters from his wife failed as a matter of law. The Plaintiff filed no objections. Upon review, the Court should adopt the Report and Recommendation with respect to the denial of Plaintiff's Motion for Summary Judgment.

II. Defendants' Motion for Summary Judgment

A. Due Process and Retaliation Raised in Reply

Defendants first argue that Judge Bryant did not consider arguments made in its Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment. Specifically, in Reply, Defendants, for the first time, argue they should be granted summary judgment on (1) Plaintiff's claims that he was denied personal property and due process regarding his administrative move on June 6, 2012, and (2) Plaintiff's retaliation claim. Defendants raise neither of these arguments in their opening Summary Judgment Motion or accompanying brief to the Court.

Judge Bryant did not address the due process claims relating to property or retaliation claims in the Report and Recommendation but rather made clear that neither claim was before the Court because Defendants did not move for summary judgment on these claims. As a general rule, courts do not address arguments received for the first time in a reply brief. Akeyo v. O'Hanlon, 75 F.3d 370, 374 n.2 (8th Cir. 1996); Cunningham v. City of Benton, No. 4:05CV 1130 JLH, 2007 WL 707343, at *4 (E.D.Ark. March 5, 2007); see also Adams v. City of Manchester, No. 4:11CV1309 TCM, 2012 WL 3242078, at *4 (E.D.Mo. Aug. 7, 2012) ("It is well settled that [the Court] do[es] not consider[ ] arguments raised for the first time in a reply brief.'" (quoting K.C.1987 Ltd. P'ship v. Reede Mfg., 472 F.3d 1009, 1018 n.2 (8th Cir. 2007))). Because the Defendant did not make these arguments in its opening brief to the Court, the Defendants did not move for summary judgment on these claims and their objections to Judge Bryant's recommendation that these claims proceed should be overruled.

B. Racial Discrimination Claim

The Defendants argue that Plaintiff was not segregated due to his race and that his claims are merely unsupported speculation and hearsay. They also argue that his arguments relating to discrimination arising from the incidents that occurred June 6, 2012 should be decided as a matter of law based on the ruling in Heck v. Humphrey, 114 U.S. 129 (1994).

Judge Bryant did not address the Plaintiff's claims that he was discriminated against because the Defendants did not move for summary judgment on that claim. Defendant admits in their objections to Judge Bryant's Report and Recommendation that this argument was "loosely addressed in Defendants' Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment." As discussed supra, reply briefs may not be used to raise arguments omitted from the party's original motion for summary judgment.

The Defendants' arguments regarding Heck were made in their opening summary judgment brief to the court. Specifically, their argument is that if the Court were to find that Plaintiff's constitutional rights were violated, the Plaintiff's sentence arising from that incident would be potentially invalid and that cannot support a § 1983 claim. Judge Bryant construed Plaintiff's challenge to be one to the process of a disciplinary hearing rather than to his conviction on criminal charges related to the altercation. Upon review, the Court agrees with Judge Bryant and, thus, the Defendants' objection on this point should be overruled.

C. Mental Health Claim

Defendants object to the Report and Recommendation arguing that Judge Brant conflated the mental health arguments as alleged in their Motion for Summary Judgment. Specifically, they argue that, in drafting their Motion, the Defendants did not delineate Plaintiff's mental health complaint from the medical care or medication complaint because all healthcare claims relate to a finding of deliberate indifference. Judge Bryant recommends dismissal of Plaintiffs claims related to medication and ...


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