United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS
JEROME T. KEARNEY, Magistrate Judge.
The following recommended disposition has been sent to United States District Judge J. Leon Holmes. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
Plaintiff Jessie Hill is a state inmate incarcerated at the Maximum Security Unit of the Arkansas Department of Correction (ADC). He filed this pro se action pursuant to 42 U.S.C. § 1983, alleging excessive force, failure to protect, and an invalid disciplinary conviction, in violation of his constitutional rights. He asks for monetary and injunctive relief from Defendants.
Pending before the Court are the Defendants' Motion for Summary Judgment, Brief in Support, and Statement of Facts (Doc. Nos. 126-128), to which Plaintiff responded (Doc. No. 138).
II. Amended Complaint
On October 24, 2013, Defendants Hayes, Lawrence, Cockrell, Jackson, Griffith, and Holmes, conducted a search of Plaintiff's barracks. (Doc. No. 8, p. 9) Prior searching Plaintiff's cell, Plaintiff showed Defendants Holmes and Giles a box in which he kept a live snake, cricket, grasshopper and water bowl. ( Id., p. 11) Plaintiff then went to the shower for a strip search, and when he returned, he told Defendant Cockrell that the box with the snake belonged to him. (Id.) When Plaintiff tried to retrieve the box from Cockrell, Cockrell asked him why he was keeping it, and Plaintiff replied that he was going to set the snake free during his weekly yard call the next day. (Id.) Cockrell told Plaintiff he was going to take a photograph of the snake and box, set the snake free, and charge Plaintiff with a disciplinary violation. (Id.) Plaintiff questioned Cockrell about what rule he violated, insisting that possession of the snake did not violate any rules. ( Id., p. 12)
Cockrell became angry when Plaintiff continued to disagree with him. ( Id., p. 12) Defendant Griffith then grabbed Plaintiff's right arm and Cockrell gripped Plaintiff's left elbow. ( Id., p. 13) During this encounter, Griffith pushed Plaintiff's right shoulder forward and Cockrell gripped his left shoulder at the rotator cup using a pressure point which caused Plaintiff pain. (Id.) The two officers pushed Plaintiff toward a wall and then other officers wrapped their legs around Plaintiff's legs. ( Id., pp. 14-15) Eventually the officers took Plaintiff to the ground, face forward, during which time Plaintiff was struck in the right temple by one of the Defendants. ( Id., p. 15) Plaintiff did not struggle as the officers placed him on the floor and then applied restraints. ( Id., pp. 15-16) One of the officers crossed Plaintiff's feet at the ankles, folded them back onto Plaintiff's lower body, and stated, "he's not resisting." ( Id., p. 16)
Plaintiff then sat up and told Defendants that they had an impending court date. (Id.) He was taken to the infirmary and escorted to a disciplinary court review cell. ( Id., p. 17) When Cockrell and Griffith came to his cell to photograph his injuries, Cockrell asked Plaintiff not to file a grievance about the incident. (Id.) The next day, Griffith told Plaintiff he told his wife that he over-reacted during the incident and misinterpreted Plaintiff's actions. (Id.) Plaintiff wrote a letter to Defendant Williams on October 28, 2013, complaining about the officers' abuse, and stating that the security footage would identify the officer who stated that Plaintiff did not resist. (Id.) On October 31, 2013, Defendant Waddle refused to allow Plaintiff to present evidence of statements made by Defendant Giles and video footage of the incident. (Id.)
Defendant Naylor failed in his responsibility to train Defendant Waddle, who found Plaintiff guilty of the disciplinary violations. ( Id., p. 19) Defendants Straughn, Naylor, and Hobbs, who denied Plaintiff's appeals, failed to adequately investigate the incident. ( Id., pp. 19-20) Plaintiff claims Defendants Griffith and Cockrell used unreasonable and excessive force against him, in violation of his Eighth Amendment rights. ( Id., p. 20) He claims Defendants Lawrence, Giles, Holmes, and Hayes, failed to protect him in violation of his Eighth Amendment rights, and Defendants Williams, Straughn, Outlaw, Naylor, Evans, Hobbs, and Waddle violated his Eighth and Fourteenth Amendment rights. Finally, he claims Cockrell violated his First Amendment rights by attempting to intimidate and influence him not to file a grievance or lawsuit against him.
III. Summary Judgment
Pursuant to FED.R.CIV.P. 56(a), summary judgment is appropriate if the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997). "The moving party bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Webb v. Lawrence County, 144 F.3d 1131, 1134 (8th Cir. 1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (other citations omitted)). "Once the moving party has met this burden, the non-moving party cannot simply rest on mere denials or allegations in the pleadings; rather, the non-movant must set forth specific facts showing that there is a genuine issue for trial.'" Id. at 1135. Although the facts are viewed in a light most ...