United States District Court, E.D. Arkansas, Pine Bluff Division
recommended disposition submitted by United States Magistrate
Judge Jerome T. Kearney and plaintiff's objections
thereto have been reviewed. Additionally, parties were
permitted to submit additional evidence. See Doc.
No. 76; Fed.R.Civ.P. 72(b)(3). Defendant William Straughn
submitted an addendum to his motion for summary judgment
[Doc. No. 77], and Plaintiff Winston Holloway submitted a
response [Doc. No. 78]. Holloway's sister also submitted
a document [Doc. No. 79], and Holloway's motion to
introduce this document [Doc. No. 80] is denied as moot
because this document was received. After careful
consideration of all of these documents and a de
novo review of the record, the recommended disposition
is hereby adopted, with the following analysis based on the
remaining claim in this lawsuit is a retaliation claim
against the Warden of the Arkansas Department of Correction
Cummins Unit, William Straughn. Holloway asserts that
Straughn retaliated against him by transferring him to a more
dangerous prison because he filed a grievance. In his
recommended disposition, Judge Kearney denied Straughn's
motion for summary judgment based on a genuine dispute of
material fact. Straughn then filed an addendum in which he
provided affidavits from employees at the Arkansas Department
of Correction's Cummins Unit. See Doc. No. 77,
Exs. 1-3. First, Deputy Warden Jared Byers states that he
arranged Holloway's transfer, that it was a routine
transfer, and that Straughn did not instruct him to arrange
the transfer. Byers Aff. ¶¶ 6, 9-10. Second,
Classification Officer Crystal Wood states that “Deputy
Warden Byers most likely instructed me to set up the Holloway
transfer but I cannot precisely recall” and
additionally states, “To my memory, Warden Straughn did
not instruct me to arrange this transfer. I do not know if he
was involved in this transfer at all.” Wood Aff.
¶¶ 3, 6. Third, Assistant Classification Officer
Tammy Shambley states that Crystal Wood instructed her to set
up Holloway's transfer and that “Warden Straughn
did not instruct me to arrange this transfer. I do not know
if he was involved in this transfer at all.” Shambley
Aff. ¶¶ 3, 5.
disputes these three affidavits and continues to assert that
Straughn retaliated against him. Holloway's sister, Patsy
Rios, submitted a document in which she recounts a telephone
conversation she had with Straughn. See Doc. No. 79.
According to Rios, Straughn made the following two
statements. First, Straughn said, “Sometime [sic] when
an inmate complains too much, we assume that he is unhappy
here so we send him to another unit where he can be
happy.” Second, Rios states that, in a joking manner,
Straughn said, “Why? Is Winston ready to come
makes two arguments for summary judgment. First, Straughn
argues that Holloway's claim for retaliation must fail
because Holloway cannot show that he would not have been
transferred “but for” the retaliatory reason.
See Hazen v. Reagen, 16 F.3d 921, 926 (8th Cir.
1994). Second, Straughn now asserts that he is entitled to
material disputes of fact remain, qualified immunity is
denied to Straughn. When considering qualified immunity,
there are “two questions: (1) whether the plaintiff has
shown the violation of a statutory or constitutional right,
and (2) whether that right was clearly established at the
time of the alleged misconduct.” Heartland Acad.
Cmty. Church v. Waddle, 595 F.3d 798, 805 (8th Cir.
2010). “Qualified immunity is ‘an immunity
from suit rather than a mere defense to liability'
and ‘is effectively lost if a case is erroneously
permitted to go to trial.'” Mathers v.
Wright, 636 F.3d 396, 399 (8th Cir. 2011) (quoting
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
Courts may address these two prongs in any order. Pearson
v. Callahan, 555 U.S. 223, 236 (2009).
it is clearly established that actions taken in retaliation
for an inmate's filing of a grievance form in prison are
actionable under 42 U.S.C. § 1983. Nelson v.
Shuffman, 603 F.3d 439, 449-50 (8th Cir. 2010) (citing
Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.
1989)). Thus, Straughn's entitlement to qualified
immunity is based on whether “the facts, viewed in the
light most favorable to the plaintiff, demonstrate” a
violation of this clearly established right. Jones v.
McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012).
immunity is denied because questions of fact remain, and
these factual disputes, viewed in the light most favorable to
Holloway, make out a violation of a clearly established
right. Disputed facts cannot serve as the only basis for
denying qualified immunity, but the court must resolve
disputed facts in favor of the non-moving party. See
O'Neil v. City of Iowa City, 496 F.3d 915, 917
(8th Cir. 2007). Although Straughn has submitted three
affidavits from employees at the Cummins Unit who say that
Straughn was not involved in the transfer, Straughn's
comments to Holloway's sister potentially tell a
different story. A jury could hear those statements and
believe that Straughn actually was involved in the transfer.
Thus, viewing these disputed facts in the light most
favorable to Holloway, the facts he has presented make out a
violation of his right to be free from retaliation for filing
a grievance. This evidence suggests that Straughn knew of
Holloway's clearly established right to file a grievance
without being retaliated against, yet violated that right.
Accordingly, he is not entitled to qualified immunity.
a factual dispute remains, the recommended disposition is
adopted, and summary judgment is denied. While the three
affidavits provide one side of the story, they do not
completely cure the genuine issues of material fact when they
are considered alongside the phone call between Straughn and
Holloway's sister. These factual issues should proceed to
a jury. Therefore, Straughn's motion for ...