United States District Court, E.D. Arkansas, Pine Bluff Division
SYLVESTER O. BARBEE ADC #131311, Plaintiff,
CHERI ELLIS et al, Defendants.
PROPOSED FINDINGS AND RECOMMENDATIONS
W. CAVANEAU, Magistrate Judge.
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. 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
your objections to:
Sylvester O. Barbee, an Arkansas Department of Correction
("ADC") inmate, filed a complaint on July 7, 2014,
alleging prison officials were deliberately indifferent to a
risk to his health prior to a salmonella outbreak at the
ADC's Cummins Unit in 2012. Remaining defendants are
Cheri Ellis, the Arkansas Livestock & Poultry
Commission's ("ALPC") Agricultural Commodity
Compliance Supervisor, and Aundrea Weekly, the former Cummins
Unit Deputy Warden.
salmonella outbreak at Cummins in August of 2012, the
Arkansas Department of Health conducted an investigation, and
found five serotypes of salmonella in the inmate population.
Investigators determined two of the strains were found to
have colonized eggs produced in the Cummins hen house.
Plaintiff asserts that Ellis failed to adequately inspect the
Cummins hen house, and that Weekly failed to properly
supervise the preparation of food and management of the
Cummins kitchen. Plaintiff contends Ellis's and
Weekly's indifference led to his illness. On June 3,
2015, Ellis and Weekly filed a motion for summary judgment, a
statement of facts, and a brief in support (docket entries
#100-#102). Plaintiff filed a response on May 2, 2016 (docket
entry #155). Ellis and Weekly filed a reply on May 5, 2016,
and Plaintiff filed a brief in support of his response on May
5, 2016 (docket entry #157).
Standard of review
Rule 56(c) of the Federal Rules of Civil Procedure, summary
judgment is proper "if the pleadings, depositions,
answers to interrogatories and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. FED. R. CIV. P.
56(c); Celotex v. Catrett, 477 U.S. 317, 321 (1986).
When ruling on a motion for summary judgment, the court must
view the evidence in a light most favorable to the nonmoving
party. Naucke v. City of Park Hills, 284 F.3d 923,
927 (8th Cir. 2002). The nonmoving party may not rely on
allegations or denials, but must demonstrate the existence of
specific facts that create a genuine issue for trial.
Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007).
The nonmoving party's allegations must be supported by
sufficient probative evidence that would permit a finding in
his favor on more than mere speculation, conjecture, or
fantasy. Id. (citations omitted). A dispute is
genuine if the evidence is such that it could cause a
reasonable jury to return a verdict for either party; a fact
is material if its resolution affects the outcome of the
case. Othman v. City of Country Club Hills, 671 F.3d
672, 675 (8th Cir. 2012). Disputes that are not genuine or
that are about facts that are not material will not preclude
summary judgment. Sitzes v. City of West Memphis,
Ark., 606 F.3d 461, 465 (8th Cir. 2010).
in essence is asserting a conditions of confinement claim. To
prevail on a condition of confinement claim, inmates must
show: (1) the condition was serious enough to deprive them of
the minimal civilized measure of life's necessities, or
to constitute a substantial risk of serious harm, and (2)
officials were deliberately indifferent to the inmates'
health and safety. Smith v. Copeland, 87 F.3d 265,
268 (8th Cir.1996); Frye v. Pettis County Sheriff
Dept., 41 Fed.Appx. 906 (8th Cir. 2002)(unpub. per
Plaintiff complained of illness, he did not seek medical
attention (docket entry 100-7). Medical testing did establish
the presence of salmonella in his system. However, even
assuming that Plaintiff was incarcerated under conditions
which constituted a substantial risk of serious harm, he
cannot demonstrate any deliberate indifference by either
Ellis or Weekly, and they are entitled to summary judgment.
only involvement in the events prior to the salmonella
outbreak is that she conducted one random inspection of the
Cummins hen house on June 7, 2012. Ellis's report
documented the cooler temperature, noted no problems, and
concluded followup was not necessary. No egg product was
present at the time of the inspection, and Ellis had no
involvement in food preparation (docket entry 147-4).
According to Dirk Haselow, M.D, the State Epidemiologist and
Medical Director for Communicable Diseases, salmonella is not
detectable by the human eye (docket entry #100-5).
Additionally, there is no evidence that salmonella was
present at the time of Ellis's inspection, or that she
had any reason to believe salmonella would later be present.
Contrary to Plaintiff's assertion, the ALPC does not have
a machine to test for the presence of salmonella. A prison
official is deliberately indifferent if he knows of and
disregards a substantial risk of serious harm to an inmate.
Farmer v. Brennan,511 U.S. 825, 837 (1994). Based
on Ellis's limited ...