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Moore v. Ford

United States District Court, W.D. Arkansas, Hot Springs Division

July 19, 2016

RONNIE MOORE, Plaintiff,
v.
SERGEANT FORD AND OFFICER BELL, Defendants.

          Ronnie Moore, Plaintiff, Pro Se.

          Ford, Defendant, represented by Gary L. Sullivan, Arkansas Attorney General's Office.

          Officer Bell, Defendant, represented by Gary L. Sullivan, Arkansas Attorney General's Office.

          REPORT AND RECOMMENDATION

          BARRY A. BRYANT, Magistrate Judge.

         This is a civil rights action filed by Plaintiff, Ronnie Moore, 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. 14. A hearing was held on July 14, 2016, to allow the Plaintiff to give a sworn oral statement in response to the Motion.[1] After careful consideration of the briefing and sworn statement of the Plaintiff, the undersigned makes the following Report and Recommendation.

         1. BACKGROUND

         Plaintiff filed his Complaint on April 20, 2015. Plaintiff alleges excessive use of force by Defendants on February 18, 2015. ECF No. 1, p. 1. Specifically, Plaintiff alleges he was in handcuffs and being taken to the "West ISD Hole" when he was slammed on his face by both Defendants about fifteen feet from the hole. ECF No. 1, p. 1. Plaintiff alleges his face was bruised and swollen. ECF No. 7, p. 1. He alleges he now suffers from a continuous right eye twitch and very bad headaches as a result of being slammed to the floor. ECF Nos. 1, pp. 1; 7, p. 1. Plaintiff did not use a court-approved form to file this case, and does not indicate if he is suing Defendants in their official or personal capacity. Plaintiff seeks an apology, attorney's fees, and $65, 000. ECF No. 1, p. 1.

         Plaintiff appeared in person at the hearing, and gave a sworn statement in response to the Motion. The Court asked Plaintiff for a brief summary of the incident. Plaintiff testified he filed his grievance the very next morning after the February 18, 2015, incident occurred. Plaintiff could not remember the identification numbers of his grievances. The Court showed Plaintiff a copy of Grievance OR-15-00231, dated February 26, 2015. ECF No. 1, p. 2. Plaintiff identified this as the grievance he filed the day after the incident. Plaintiff testified the Sergeant signed the grievance and Plaintiff sent it to the grievance office. "When I got [the grievance] back, Officer asked if I wanted to go further with it." Plaintiff testified he was supposed to wait until the grievance officer came and spoke with him. He was still in the hole at this point. Plaintiff testified he put the grievance denial in his personal property and waited for the officer to come and talk with him. Because the officer did not come and speak with him, he did not do anything further with the grievance.

         Plaintiff was shown a copy of OR-15-00682, dated June 13, 2015. ECF No. 15-2, pp. 6-10. He identified this as his second grievance concerning the incident. When asked if he remembered what happened here, Plaintiff testified he spoke to the grievance officer several times. He testified they had not permitted him to sign the denial of the grievance. Plaintiff testified he did not get any response to this grievance. When asked if he recalled taking any action on this grievance to get something done, Plaintiff replied "No. I don't remember doing anything with it." The Court pointed out to Plaintiff that the Defendants had provided evidence of the appeal and appeal denial for this grievance to the Court. The Court asked again if the Plaintiff recalled doing anything to pursue this grievance. Plaintiff testified he did not.

         The Court asked Plaintiff if he recalled taking any other action besides submitting these two grievances. Plaintiff testified he talked to the grievance officer a couple of times.

         The Court confirmed Plaintiff signed Grievance OR-15-00231 on February 26, 2015. Plaintiff denied he signed OR-15-00682 on June 13, 2015. When asked when he signed it, he testified he did not know. When asked if he filed only one grievance, Plaintiff replied "Yes." The Court again about the two grievances, and Plaintiff testified he did file two grievances.

         The Court asked Plaintiff if anything prevented him from pursuing an appeal through the ADC. Plaintiff replied "No. I was in the hole. They kept me in the hole, writing me up for stupid petty stuff."

         Defendants' counsel was given the opportunity to respond. Counsel noted the date on OR-15-00682 was dated on June 13, 2015. This was well after the fifteen days required by the ADC policy for filing a grievance. He also noted OR-15-00231, which was filed ...


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