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Marshall v. Richerson

United States District Court, W.D. Arkansas, El Dorado Division

June 28, 2016

KENNETH MARSHALL, Plaintiff,
v.
OFFICER HAYNES SERGEANT RICHERSON, and LIEUTENANT DELANEY, Defendants.

          Kenneth Marshall, Plaintiff, Pro Se.

          Officer Haynes, Defendant, represented by Kaylen Suzanne Lewis, Rainwater Holt Sexton PA & Thomas J. Diaz, Rainwater, Holt & Sexton, P.A..

          Sgt. Richerson, Defendant, represented by Kaylen Suzanne Lewis, Rainwater Holt Sexton PA & Thomas J. Diaz, Rainwater, Holt & Sexton, P.A..

          Lt. Delaney, Defendant, represented by Kaylen Suzanne Lewis, Rainwater Holt Sexton PA & Thomas J. Diaz, Rainwater, Holt & Sexton, P.A..

          REPORT AND RECOMMENDATION

          BARRY A. BRYANT, Magistrate Judge.

         This is a civil rights action filed by Plaintiff, Kenneth Marshall, pursuant to the provisions of 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation.

         Currently before the Court is Defendants' Motion for Summary Judgment. ECF No. 15. A hearing was held on May 26, 2016, to allow the Plaintiff to give a sworn oral statement in response to the Motion. ECF No. 35. Plaintiff also submitted exhibits at the hearing. ECF No. 34. After careful consideration of the briefing, exhibits and sworn statement of the Plaintiff, the undersigned makes the following Report and Recommendation.

         1. BACKGROUND

         Plaintiff filed his Complaint on January 13, 2015. ECF No. 1. He alleges Defendant Haynes placed an incorrect identification wristband his right wrist at the Columbia County Detention Facility on December 3, 2014. Plaintiff alleges Defendant Haynes then used his pocket knife to remove the wristband, cutting him on the right hand "between the thumb and the wrist area." Plaintiff characterizes this as an assault and battery. Plaintiff further alleges he was denied medical care for the cut, as he was offered only a band-aid to cover his injury. ECF No. 1, p. 3. Based on this incident, Plaintiff alleges Defendant Haynes used excessive force against him. ECF No. 1, pp. 4-5. He claims Defendants Richerson and Delaney negligently failed to protect him from Defendant Haynes. ECF No. 1, pp. 4. He alleges unconstitutional conditions of confinement in that a failure to discipline Defendant Haynes resulted in unsafe conditions leading to the assault. ECF No. 1, p. 5. He alleges a denial of medical care on the part of all Defendants. ECF No. 1, p. 4. Finally, Plaintiff claims entitlement to recovery based on Arkansas state law claims of assault, battery and negligence. ECF No. 1, p. 5. Plaintiff seeks compensatory damages for physical and emotional injuries, and punitive damages. ECF No. 1, p. 5.

         Defendants filed their Motion for Summary Judgment on September 16, 2015. ECF No. 15. A Summary Judgment Hearing was held on May 26, 2016. Plaintiff submitted proposed exhibits on May 25, 2016. ECF No. 34. These exhibits included a color photograph of his right hand showing the alleged cut, the severed wristband, x-ray reports for body parts other than his right hand, a patient health summary, facility policies, and annotated copies of documents previously filed by Defendants. He appeared by video.

         Plaintiff testified the photograph of his hand was taken the day after the incident occurred. He testified the small mark on his hand was the cut. He testified the photograph was taken when he requested medical care. He further testified Defendants Richerson and Delaney told Defendant Haynes to stop using the knife and use scissors instead, but Defendant Haynes continued using the knife and they "just watched him." He testified he requested a video of the incident but did not receive it. He testified he did not develop any infections as a result of the cut. He was tested three or four weeks later for infectious diseases. He testified he was booked into the Columbia County Detention facility on December 3, 2014, and then left on December 5, 2014.

         At the conclusion of the hearing, Plaintiff requested leave to submit a supplemental brief after he had the opportunity to review the videotape of the incident. Defendants' counsel submitted they did not believe the videotape existed. The Court ordered Defendants to submit any video of the incident or file a notice if none existed. In response to Plaintiff's sworn statement, Defendant's counsel indicated a list of health conditions submitted by Plaintiff which were active before the wristband incident occurred.

         Defendants filed a notice on June 1, 2016, stating no videotape of the ...


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