United States District Court, W.D. Arkansas, Hot Springs Division
PATRICK L. SHERMAN, Plaintiff,
HOT SPRING COUNTY, ARKANSAS; OFFICER DONALD MORELAND; DETECTIVE DAN USSERY; CHIEF OF POLICE DONNIE D. TABER; SERGEANT BRIAN ORRELL; and SHERIFF HOLLINGSWORTH, Defendants.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
JAMES R. MARSCHEWSKI, Magistrate Judge.
This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis.
Plaintiff maintains he was unlawfully arrested on September 17, 2012, and subjected to unconstitutional conditions of confinement while being held in the Hot Spring County Detention Center. Currently pending before me for issuance of this report and recommendation are the following motions: (1) a motion for summary judgment filed by the Plaintiff (Doc. 33); (2) a motion for summary judgment filed by Sheriff Hollingsworth and Sergeant Brian Orrell (Doc. 45); and (3) a motion for summary judgment filed by Officer Donald Moreland, Detective Dan Ussery, Chief of Police Donnie Taber, and the City of Malvern (Doc. 48).
According to the affidavit of arrest completed by Detective Dan Ussery, the events of September 17, 2012, unfolded as follows: On September 17, 2012, at approximately 10:20 p.m, Officer Donald Moreland, of the Malvern Police Department, observed a white four door 1996 Ford Taurus go through a stop sign at the intersection of Section Line and Gloster Street. Plaintiff's Exhibit (hereinafter Plff's Ex. ) S. When Moreland activated his lights and siren to stop the vehicle, the driver increased his speed and attempted to flee. Id.
At the intersection of First Street and Cabe Street, the vehicle came to a stop and a male exited the passenger side. The male subject was wearing blue jeans, a ball cap, and a gray shirt. Plff's Ex. S. The man raised his hands. Id. The driver of the vehicle then sped off. Id.
The driver lost control and spun out near the waste water plant on North Walco Road. Plff's Ex. S. A black male, later identified as the Plaintiff, got out of the vehicle and ran into the woods. Id.
Moreland ordered the Plaintiff to stop or Moreland would let his dog Csipa loose on the Plaintiff. Plff's Ex. S. Moreland released Csipa. Id. When Csipa neared the Plaintiff, he stopped running and placed his hands in the air. Id. Csipa was put back on the leash and Sergeant Kyle and Officer Taylor arrived and placed Plaintiff into custody. Id. Plaintiff had an outstanding absconder warrant from parole and probation. Id.
A small baggie of marijuana and several torn baggies were located on the Plaintiff. Plff's Ex. S. Moreland conducted a secondary search of the area where he and Csipa had chased Plaintiff through the woods. Id. A Newport Cigarette pack contained a small baggie of methamphetamine. Id. The package was dry even though it had rained heavily that night and was misting at the time it was located. Id. Plaintiff was charged with possession of a controlled substance and fleeing.
Deputy James Tallant located a white male subject at the apartment of First Street. Plff's Ex. X. Moreland responded and identified him as the white male who had exited the vehicle. Id. He was identified as Matthew Wofford and arrested on outstanding warrants. Id.
Plaintiff's version of the events of September 17th is as follows: According to the Plaintiff, Moreland was no where near the area at 10:20 p.m. Plff's Motion at pg. 1. Plaintiff maintains this fact can be established by a review of the dash cam video from the evening in question. Id. Plaintiff asserts that Ussery knowingly falsified the affidavit of probable cause. Id. at pg. 2. Plaintiff maintains Chief of Police Donnie Tabor knew, or should have know, of the falsified affidavit because the vehicular fleeing charge was dropped to fleeing on foot. Id. Plaintiff maintains the charge was reduced to cover up the falsified affidavit. Id. Plaintiff alleges that Tabor did nothing to discourage, decrease, correct, or reprimand corrupt practices under his supervision. Id.
Plaintiff alleges that he stopped at the intersection of Gloster and Section Line and there were no police officers in the area. He indicates he was headed left on First Street when Moreland came off of Babcock Street. Moreland put on his sirens and lights and Plaintiff, who had an absconding warrant, did not stop. Plaintiff's Response (Doc. 55)(hereinafter Resp. ) at ¶ ¶ 6-8. Plaintiff states he let out his brother-in-law out at the intersection of First and Cabe Streets because his brother-in-law did not want to go to jail and knew there was a warrant out for his arrest. Plaintiff continued until he lost control of his vehicle. Resp. at ¶ 9. He fled on foot until the police dog got behind him. Id. The dog did not bite or injure Plaintiff. Id. at ¶ 11. Plaintiff was handcuffed and searched. Id. at ¶ 12. Plaintiff admits that a small bag of marijuana was found on him. Id. at ¶ 13.
On September 21st, a bench warrant was issued for Plaintiff for the crimes of fleeing on foot, possession of a controlled substance (methamphetamine), and being a habitual offender. Plff's Ex. T.
On September 24th, Plaintiff states he was served with a bench warrant obtained through the use of Ussery's falsified probable cause affidavit. Resp. at ¶¶ 15-16. Plaintiff maintains this warrant was never filed and entered into the criminal docket sheet and is therefore illegal.
On September 27, 2012, an information was filed in the Circuit Court of Hot Spring County, Arkansas, charging the Plaintiff with residential burglary, robbery, and being a habitual criminal. Hot Springs Defedants' Exhibit (hereinafter H.S. Defts' Ex. ) B.
On November 7th, Plaintiff states he was served with another warrant for burglary and robbery. Plaintiff stated he had been out drinking and lost his coat. However, his coat was located one-tenth of a mile from the alleged crime scene. Plaintiff states DNA later established it was Plaintiff's coat. Plaintiff maintains this warrant was never filed and entered into the criminal docket sheet and is therefore illegal.
As a result of the defective warrants, Plaintiff states he was incarcerated in the Hot Spring County Detention Center (HSCDC) from September 17, 2012, until September 26, 2012. From September 26th until November 27th, Plaintiff was incarcerated in the Technical Violator's Program. He was booked into the HSCDC again on November 27, 2012, until February 26, 2013, on charges of robbery and residential burglary. H.S. Defts' Ex. A; Resp. at ¶ 24. He was transferred to the Arkansas Department of Correction (ADC) on February 26, 2013. Resp. at ¶ 24.
With respect to his conditions of confinement at the HSCDC, Plaintiff maintains the diet met no dietary guidelines, there was no kitchen supervisor over the 309 inmates, no dietician was employed, not enough food was served, no vegetables were served, there was an inadequate amount of meat, he was not given sausage and cheese for breakfast like other inmates, and there was no record of the food being served. Plff's Exs. B-E, J, P-Q; Resp. at ¶¶ 29-30, Plaintiff described the daily diet as: oatmeal and a slice of bread for breakfast; two slices of bread, two thin slices of bologna, two or three cookies, and a bag of chips for lunch; and mashed potatoes for supper. Plff's Ex. B; Resp. at ¶¶ 31-32. In his response, Plaintiff states that "[d]inner was half way decent and much more tolerable." Resp. at ¶ 31.
Plaintiff received three meals each day. Resp. at ¶ 31. Plaintiff also states his tray always came from the bottom of the food cart and he was served "special trays" that contained different and less food than other prisoners and on at least one occasion contained pubic hair. Plff's Motion at 3; Plff's Ex. P. Finally, Plaintiff complained that the inmates only got to eat hamburger patties while the officers got chicken patties, Salisbury steak, chicken fried stead, chicken strips, pizza sticks, sausage, bacon and eggs, fish patties, and other foods that Plaintiff said was provided for the inmates. H.S. Defts' Ex. F.
On January 10, 2013, Plaintiff refused to take most of his morning medication as he had done on multiple occasions. H.S. Defts' Ex. K. He complained that he believed someone was lacing the medication. Id. Plaintiff was taken to the front of the jail and assured no one was tampering with his medication and reminded of the importance of taking it on a daily basis. Id. The doctor had also advised the Plaintiff to take his medication when it was given to him. Id.
On January 16, 2013, Plaintiff states he was involved in a "tussle" with eleven detention center officials and in the process his right middle finger was permanently injured. Plff's Motion at 3; Amended Complaint at 13; Resp. at ¶ 41. Plaintiff admits that he "flinched his head and shoulder at Officer Sealy as if [he] were about to throw a punch." Resp. at ¶ 42. Plaintiff claimed he was just playing. Id. Plaintiff states that when Officer Sealy pushed him that he put his hand out to keep from crashing into the wall but only his middle finger came into contact with the wall and it was bent almost completely back. Id. at ¶ 43. Plaintiff resisted because "Officer Sealy had a look like he was about to use excessive force." Id. at ¶ 44.
An incident report prepared by Deputy Michael Sealy contains the following account of this incident:
On 01/16/2013, at approximately 1840 hours, I Deputy Michael Sealy was entering c-pod with two 309's, to check the sink located in the bathroom. As I opened c-pod's door, 2 inmates were standing by the door. I told them both to step back from the door. One of the inmates followed my instructions, but the other inmate identified as Patrick Sherman, B/M... failed to comply with my instructions.
I told Sherman once again to step back from the door. Sherman made a fist and reared back in an aggressive manner as [if] to strike me. As he began a forward movement in my direction I put my hands up to block the strike. Sherman began to laugh and stated he was just playing with me. I told Sherman that I didn't think it was funny and to come with me. Sherman once again failed to follow my instructions. I grabbed Sherman by his right arm, to escort hm out of the pod, to place him in a holding cell for his actions.
As I was escorting Sherman out of the pod, he began to pull away and resist. Officer Clay Coke with the Malvern Police Department ran into the pod to assist me. Sherman continued to resist. Other officers that were also in the jail responded to c-pod to assist. After a short struggle we were able to gain control of Sherman and place him into handcuffs. Deputy Dustin Burnett escorted Sherman to booking where he was placed in holding cell #2. End of report.
H.S. Defts' Ex. L.
Plaintiff states he received no medical care for the injury. Plff's Motion at 3. Plaintiff submitted multiple requests for medical treatment. Plff's Exs. F-I; Resp. at ¶¶ 45-48. In response to one request, he was told that is what he got when he beat his fist against the wall. Plff's Ex. G; Resp. at ¶ 47. In response to two other requests, he was told not to swing on an officer. Plff's Exs. H & I; Resp. at ¶ 48. Plaintiff never received medical treatment for his injured finger. Resp. at ¶ 49. With eighteen years of experience in prison, he states he has learned that he has to take care of himself because "absolutely no one else does." Id. He indicates he kept his finger wrapped and finally did some martial arts exercise to strengthen it." Id.
Plaintiff also states there was no law library. Plff's Motion at 4; Resp. at ¶ 25. Plaintiff states he also did not have the adequate assistance of an attorney. Resp. at ¶ 26. He alleges that the public defenders are so busy that they do not have time to see their own clients or to respond to letters. However, neither Sheriff Hollingsworth or Orrell denied him access to communicate, in any manner, with his court appointed attorney. Resp. at ¶¶ 27-28.
On January 29, 2013, Plaintiff appeared before the Honorable Chris Williams in Hot Spring County Circuit Court, and plead guilty to felony possession of a controlled substance and felony fleeing in connection with the with the September 17, 2012, arrest. Malvern Defts' Ex. B; Resp. at ¶ 17. Plaintiff did not challenge the legality of his arrest during his criminal case. Resp. at ¶ 18.
On January 30, 2013, Plaintiff was sentenced on the charges of fleeing, residential burglary, and robbery. H.S. Defts' Ex. N. Plaintiff indicates he was convicted of failure to yield to an emergency vehicle and reckless driving in municipal court and then convicted of battery, assault, and fleeing in Circuit Court based on the same act. Resp. at ¶ 14. Plaintiff maintains the failure to yield and reckless driving were lesser-included offenses of battery and fleeing but he could not get the Arkansas Supreme Court to rule on this. Id.
He maintains detention center officials refused to complete the account certificate portion of the IFP application and also threw his § 1983 complaint out on February 25th. Id. at 5. Plaintiff states he was transferred to the ADC the following day. Plaintiff also indicates a $20 money order was sent to him at the detention facility and it was kept and not forwarded to the Plaintiff. Id. With respect to the grievance procedure, Plaintiff states there was no appeal process. Plff's Motion at 5.
On June 7, 2013, the Circuit Court of Hot Spring County Arkansas Criminal Division addressed his complaint that the officer had incorrectly inspected the crime scene concerning the September 17, 2012, arrest. Resp. at ¶ 19. The Court ruled that his attempt to appeal that matter was without merit since he plead guilty. Id. at ¶ 20.
II. Applicable Standard
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), the record "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). "Once a party moving for summary judgment has made a sufficient showing, the burden rests with the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists." National Bank of Commerce v. Dow Chemical Co., 165 F.3d 602, 607 (8th Cir. 1999).
The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient evidence to support a jury verdict in their favor." National Bank, 165 F.3d at 607 ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). "A case founded on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. ( citing, Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985)).
(A). Plaintiff's Motion for Summary Judgment against Sheriff Hollingsworth and Brian Orwell (Doc. 33) and Cross Summary Judgment Motion filed by Sheriff Hollingsworth and Brian Orrell (Doc. 45)
Plaintiff has asserted the following claims against Sheriff Hollingsworth and Brian Orwell: (1) denial of access to a law library and/or legal materials; (2) inadequate and unsanitary diet; (3) an unnamed official throwing away his § 1983 complaint; (4) he was assaulted by eleven officers; (5) he was not provided with medical care for a finger injured during the incident; (6) his blood pressure medication being "laced" with something in order to make him have a heart attack; and (7) the grievance ...