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Barbee v. Ellis

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

May 16, 2016

SYLVESTER O. BARBEE ADC #131311, Plaintiff,
v.
CHERI ELLIS et al, Defendants.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          JERRY W. CAVANEAU, Magistrate Judge.

         INSTRUCTIONS

         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. 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.

         Mail your objections to:

         DISPOSITION

         Plaintiff 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.[1]

         After a 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).

         I. Standard of review

         Under 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).

         II. Analysis

         Plaintiff 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 curiam).

         Although 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.

         Defendant Ellis

         Ellis's 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 ...


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