United States District Court, W.D. Arkansas, Fayetteville Division
Dwayne Russell, Plaintiff, Pro Se.
Sheriff Tim Helder, Defendant, represented by JaNan Arnold
Davis, Rainwater, Holt & Sexton, P.A..
Officer Marsh, Defendant, represented by JaNan Arnold Davis,
Rainwater, Holt & Sexton, P.A..
MAGISTRATE JUDGE'S REPORT AND
E. FORD, Magistrate Judge.
a civil rights case filed by the Plaintiff, Jimmy Dwayne
Russell, pursuant to 42 U.S.C. Â§ 1983. He proceeds pro
se and in forma pauperis.
is currently incarcerated in the Varner Unit of the Arkansas
Department of Correction (ADC). The events at issue in this
case occurred while he was incarcerated in the Washington
County Detention Center (WCDC). Specifically, he contends his
constitutional rights were violated in the following ways:
(1) not being allowed to shave or get a hair cut except when
going to court; (2) no, or limited, access to the outdoors
for exercise purposes and no exercise equipment; (3) no
access to television (TV); (4) being singled out by Officer
Marsh for harassment and retaliation since he filed another
civil rights case Russell v. Sheriff Helder and Dr. Neil
Mullins., Civil No. 14-5168 (filed 6/9/2014); and, (5)
no access to legal materials including the United States
Constitution or Bill of Rights.
filed a Summary Judgment Motion. (Doc. 22) A hearing was held
on January 19, 2016, to allow the Plaintiff to testify in
response to the Motion. The Motion is ready for decision.
was booked into the WCDC on March 25, 2014. He was
transferred to the ADC on October 6, 2015.
January 17, 2015, and June 15, 2015, Plaintiff requested a
hair cut or a shave for court. Defts' Ex. A-1 at
190; Defts' Ex. A-1 at 240. His requests were
denied and he was told they only did court shaves for trials
and/or pleas in the Circuit Court. Plaintiff testified he was
otherwise able to maintain his personal hygiene with items
other than a razor. He did not suffer any injury as a result
of not getting hair cuts or shaves, but he did believe it
affected him mentally as it contributed to his feeling of
constant despair. He testified that the inmates looked more
like beasts than humans. To him, looking clean cut and
feeling good about yourself goes hand in hand.
testified he submitted requests several times complaining
about the quality or type of exercise available to the
inmates. He indicated inmates were able to walk and do
push-ups or sit-ups. He testified, however, the uniforms were
made out of a thick canvas type fabric that deters exercise
because you overheat yourself. He also indicated that inmates
were reprimanded for using anything, such as tables or the
stairs, to work out.
to Plaintiff, inmates were allowed outdoors infrequently even
though there were days when it was nice enough to go out. The
outside recreation area was about twenty feet by twelve feet
in size. He indicated you could not see the trees or the
grass from the recreation yard. Plaintiff testified that
recreation was often allowed in the early morning when it is
the coldest and few people decided to go. Plaintiff believed
he suffered a decline in his mental health as a result of not
having access to the outdoors. Additionally, he believes the
lack of the physical outlet that results from exercise served
to build aggression in the jail.
other than trustees, did not have access to television. Radio
was provided but Plaintiff testified he could only hear it
for thirty minutes in the morning. Inmates did not have
access to board games. He believed the lack of access to
television and games took a form of recreation away from
inmates and prevented them from getting their minds off their
time in jail. After he filed this lawsuit, Plaintiff
testified televisions were put in the units and inmates were
provided board games. In Plaintiff's opinion, this was an
admission of guilt. It was his belief that giving the inmates
some form of recreation would provide a way to release
aggression thereby reducing the number of fights and
respect to access to legal materials, Plaintiff testified
there was none. Instead, inmates were advised to talk to
their attorneys. Plaintiff indicated he wanted access to
legal materials including the United States Constitution and
the Bill of Rights, for both civil and criminal cases.
Plaintiff did have an attorney to represent him in his
criminal case. Plaintiff indicated, however, he did not know
if he was being treated fairly due to his lack of access to
contends Officer Marsh retaliated against him by taking his
books and his medical mattress. According to the rules,
inmates were only allowed to have three books. There were
times Plaintiff had as many as twenty-three books. On the
average, Plaintiff testified inmates had twenty books.
Plaintiff conceded that books could be used to hide
testified he was in a motorcycle accident prior to his
incarceration and his pelvis and hip were "held together
by screws." For this reason, he was authorized to have a
"medical mattress" or second mattress.
testified Marsh would take away his books and his medical
mattress. Plaintiff indicated this happened frequently.
Although he had more books than the rules authorized,
Plaintiff testified he was the only inmate whose books were
taken away. Once, when Plaintiff complained about being
singled out, Marsh took books from all the inmates.
occasion when his mattress was taken, his leg was swollen the
followed morning. He was seen by medical staff and a Doppler
ultrasound was done of his leg. A second blanket or towel was
ordered so he could elevate his leg. Plaintiff had no idea if
medical mattresses were being taken from other inmates at the
same times his were taken.
Marsh would take his medical mattress, Plaintiff testified
the next shift would return it. He did not believe he had
ever gone more than eight hours without it.
his requests were denied, he did not file separate
grievances, although he testified that he did understand
there was a grievance process.
respect to Sheriff Helder, Plaintiff testified that the
Sheriff was not personally involved in any of the alleged
constitutional deprivations. Plaintiff conceded he had no
individual capacity claim against the Sheriff. Plaintiff
believes, however, that he has an official capacity claim
against the Sheriff because the alleged constitutional
violations came about as a result of policies set in place by
Court "shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). "[A] genuine issue of material fact
exists if: (1) there is a dispute of fact; (2) the disputed
fact is material to the outcome of the case; and (3) the
dispute is genuine, that is, a reasonable jury could return a
verdict for either party." RSBI Aerospace, Inc. v.
Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir.
moving party has the burden of showing the absence of a
genuine issue of material fact and that they are entitled to
judgment as a matter of law, but the non-moving party may not
rest upon mere denials or allegations in the pleadings and
must set forth specific facts to raise a genuine issue for
trial. SeeAnderson v. Liberty Lobby, Inc.,477 U.S. 242, 256 (1986); Celotex Corp. v. Catrett,477 U.S. 317, 324 (1986). The Court must view all evidence
and inferences in a light most favorable to the non-moving
party. SeeMcCleary v. ReliaStar Life Ins.
Co.,682 F.3d 1116, 1119 (8th Cir. 2012). However,
"[w]hen opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no
reasonable jury ...