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Cook v. Moore

United States District Court, E.D. Arkansas, Pine Bluff Division

March 17, 2016

DON COOK, ADC # 135485, Plaintiff,
v.
MOORE, Correctional Officer, Varner Unit; et al., Defendants.

PROPOSED FINDINGS AND RECOMMENDATIONS

JOE J. VOLPE, Magistrate Judge.

INSTRUCTIONS

The following recommended disposition has been sent to Chief United States District Judge Brian S. Miller. 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 either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.

2. Why the evidence to be proffered at the new hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.

3. The details of any testimony desired to be introduced at the new hearing 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 new hearing.

From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and "Statement of Necessity" to:

I. INTRODUCTION

Don Cook ("Plaintiff") filed this action alleging the named Defendants[1] failed to protect him from a violent assault by other inmates. (Doc. No. 30.) Now, Defendants have filed a Motion for Summary Judgment (Doc. No. 96) and Plaintiff has responded (Doc. No. 102). Included with Plaintiff's Response is the affidavit of William Guillon (Doc. No. 102-9) which Defendants move to strike (Doc. No. 106) because it was not provided to them prior to the discovery deadline. Both Motions are ready for a decision.

II. BACKGROUND

The parties agree that on October 16, 2013, Plaintiff was physically assaulted by six inmates while he slept in the 21 barracks of the Arkansas Department of Correction ("ADC") Varner Unit. (Doc. No. 104 ¶ 15.) These inmates were not assigned to Plaintiff's barracks and had come from elsewhere in the unit. (Doc. No. 96-1 at 6.) Plaintiff alleges Defendants Jones, Madden, Moore, and Whaley violated his constitutional rights by failing to protect him from this attack. (Doc. No. 30.) Of the four named Defendants, only Travis Moore was in the vicinity of 21 barracks at the time of the assault, though he was not in the barracks itself. It is undisputed that Defendants Cheryl Jones and Jamesha Madden were not working the shift during which the attack occurred. (Doc. No. 104 ¶¶ 29-34.) Tarence Whaley was assigned to the sallyport and, though Plaintiff asserts this assignment is included within the same security area as 21 barracks, both parties acknowledge he was some distance away at the time of the attack. ( Id. ¶ 36.)

The parties dispute what happened in the attack's aftermath. Plaintiff says Defendant Moore, the first responding officer, waited a significant amount of time before calling for assistance and extracting him. ( Id. ¶ 47.) Plaintiff also says Moore allowed all inmates not assigned to 21 barracks to leave. ( Id. ) By contrast, Defendants argue Moore realized the assault had occurred at roughly 11:57 a.m., ...


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