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Harris v. Norwood

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

January 12, 2017

IVIE LEE HARRIS, JR. PLAINTIFF
v.
SHERIFF DAVID NORWOOD; JAMES BOLTON; DOUGLAS WOOD; ANDREW TOLLESON; ANTHONY GRUMMER; and OFFICER LINDSEY DEFENDANTS

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action filed pro se by Plaintiff, Ivie Lee Harris Jr., pursuant to 42 U.S.C. § 1983. 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 are Defendants' Motion for Summary Judgment and Supplemental Motion for Summary Judgment. ECF Nos. 38, 65. After careful consideration, I make the following Report and Recommendation.

         BACKGROUND

         Plaintiff filed his Complaint on March 7, 2013. ECF No. 1. At the time he filed his Complaint, Plaintiff was incarcerated in the Ouachita County Detention Center (“OCDC”).[1] After reviewing his Complaint, the Court determined it would benefit from additional information and proffered a questionnaire to serve as an Addendum to Plaintiff's Complaint. Plaintiff filed his Addendum on May 30, 2013. ECF No. 9. Plaintiff alleges Defendants Sheriff David Norwood, James Bolton, Doug Woods, Andrew Tolleson, Anthony Grummer, and Officer Lindsey of the OCDC violated his constitutional rights. Plaintiff claims (1) he was denied medical care; (2) he was denied an adequate diet; (3) he was denied hygiene products; (4) he was denied proper tuberculosis screenings and precautions; (5) he was served pork even though he is a “pork free person;” (6) his legal mail was opened outside of his presence; and (7) a 309 inmate served as intake officer at the OCDC which invaded his privacy.[2] In addition, Plaintiff makes an official capacity claim for denial of medical care against Ouachita County based on its policy regarding medical care of inmates that are being housed at the OCDC but are technically inmates of Dallas County, Arkansas. ECF Nos. 1, 9.

         Defendants filed their Motion for Summary Judgment (ECF No 38) on June 5, 2015. The Court held a hearing on September 16, 2015, at which time Plaintiff provided his sworn statement in response to the Motion. Plaintiff testified he was transferred from Dallas County to the OCDC where he remained from January 2, 2013 to March 21, 2013. At intake a 309 inmate took down all of Plaintiff's personal information and processed him into the OCDC. Among other things Plaintiff informed the 309 inmate he suffered from depression and was a pork free person due to his religious beliefs.

         Plaintiff also testified he was taking medication for depression when he was transferred to the OCDC from Dallas County and, at the time of book-in, he had with him medication for pain and depression. Additionally, Plaintiff testified he had a follow-up appointment from a previous brain surgery scheduled when he was transferred into the OCDC but he was not taken to this follow-up appointment nor was the appointment rescheduled. Plaintiff testified he requested to be taken to this follow-up appointment or have the appointment rescheduled multiple times in writing and those requests were ignored. Plaintiff also testified he was in severe pain while he was incarcerated at the OCDC and was denied over the counter medication. Plaintiff testified he was prescribed pain medication when he was transferred back to Dallas County and he was taking pain and antidepressant medications while incarcerated in the Arkansas Department of Correction after being transferred from the OCDC.

         Plaintiff stated the OCDC had no tuberculosis lights and he was exposed to inmates with tuberculosis. However, Plaintiff testified he has never had tuberculosis and has not been diagnosed with tuberculosis since leaving the OCDC. Plaintiff also testified his legal mail was opened three to four times outside of his presence. Plaintiff testified this stopped once he complained to the Court and the Clerk of the Court began tapping and numbering the Court's mailings to Plaintiff. Finally, Plaintiff testified he was not served pork-free meals despite his requests to receive pork-free meals due to his religious beliefs.

         During the hearing, I asked Plaintiff to articulate how each Defendant was involved in Plaintiff's claims. In response, Plaintiff testified Defendant Norwood, as Sheriff of Ouachita County, was responsible to make things available to inmates. Plaintiff sent requests and grievances through the proper channels but not directly to Defendant Norwood regarding his missed follow-up doctor appointment. Defendant Norwood allowed the 309 inmate to work the intake desk and take all of Plaintiff's personal information. Defendant Norwood failed to stop the jailers from opening Plaintiff's legal mail. Further, Defendant Norwood did not ensure Plaintiff was fed a pork free diet even though Plaintiff stated at intake he was a Muslim and did not eat pork. Plaintiff never spoke directly with Defendant Norwood concerning any of his complaints.

         Plaintiff testified he directly interacted with Defendant Wood. Plaintiff informed Defendant Wood he needed his pain and depression medication, his follow-up appointment, and a pork free diet. Defendant Wood disregarded all of Plaintiff's requests and served Plaintiff meals with pork on the tray. Defendant Wood passed out medication to the inmates but did not provide Plaintiff with his depression or pain medication. Defendant Wood told Plaintiff his family would have to bring the medication to the OCDC for Plaintiff to receive it. Defendant Wood also passed out the mail. Plaintiff's mail from the Court was opened when he received it from Defendant Wood.

         According to Plaintiff, Defendant Bolton is the first person who received inmate grievances and requests at the OCDC. Defendant Bolton refused to answer any of Plaintiff's grievances or requests regarding his medication, follow-up appointment, or pork free meals. However, Plaintiff never had any direct contact or communication with Defendant Bolton.

         Plaintiff stated he told Defendants Grummer, Lindsey and Tollefson directly he was not receiving his pork free meals, psychiatric medications, or follow-up appointment after his brain surgery. Plaintiff also testified these Defendants ignored his verbal and written requests for assistance on multiple occasions.

         On November 18, 2015, I entered a Report and Recommendation (ECF No. 50) recommending dismissal finding Plaintiff's claims were moot because he had requested only injunctive relief from the Defendants at the OCDC and he was no longer incarcerated at the facility. On December 21, 2015, the District Court adopted the Report and Recommendation in toto. ECF No. 51. On July 25, 2016, the Eighth Circuit Court of Appeals reversed this decision concluding Plaintiff's claims were not moot because his Complaint also sought damages. ECF No. 61-1.

         In light of the Eighth Circuit's reversal, on October 6, 2016, I entered an Order directing Defendants to file a supplement to their Motion for Summary Judgment. ECF No. 62. Defendants filed their Supplemental Motion for Summary Judgment on December 20, 2016. ECF No. 65. Defendants adopted the original Motion for Summary Judgment (ECF No. 38) by reference and argued: 1) Defendants were not deliberately indifferent to Plaintiff's medical needs; 2) Plaintiff was not served an inadequate diet or pork; 3) Plaintiff's legal mail was not opened outside of his presence; 4) Plaintiff was not housed in unconstitutional conditions of confinement; 5) Defendants are entitled to qualified immunity; and 6) there is no official capacity liability. ECF No. 65.

         To assist Plaintiff in responding to the supplemental motion, I sent Plaintiff a questionnaire. ECF No. 68. Plaintiff filed his Response on January 4, 2017. ECF No. 69. In his Response Plaintiff admits it is the policy of the OCDC to provide all inmates a nutritionally and calorically adequate diet in accordance with all state and federal laws and regulations. However, he asserts he was served “pork on my meals constantly even though I informed them, the OCDC officers I am pork free”. ECF No. 69. Plaintiff agrees he never contracted tuberculosis during his incarceration in the OCDC yet he states “they didn't have T.B. lights, nor was a test ever done on me…” ECF No. 69. In addition, Plaintiff states it “may or may not be the policy” of the OCDC to pass out soap and toilet tissue to the inmates once a week, “however I never received a constant supply of those items….and I had to buy all or most of my hygiene products”. ECF No. 69. With respect to the 309 inmate, Plaintiff states he was booked into the OCDC by a 309 inmate who took down his personal information and entered it into the computer. ECF No. 69.

         LEGAL STANDARD

         The Court “shall grant summary judgment if the movant shows 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. 1995). The moving party has the burden of showing the absence of a genuine issue of material fact and they are entitled to judgment as a matter of law, but the nonmoving 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. See Anderson 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 nonmoving party. See McCleary 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 could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

         DISCUSSION

         1. Official Capacity Claims

         Section 1983 provides a federal cause of action for the deprivation, under color of law, of a citizen's “rights, privileges, or immunities secured by the Constitution and laws” of the United States. In order to state a claim under 42 U.S.C. § 1983, plaintiff must allege the defendants acted under color of state law and that they violated a right secured by the ...


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