United States District Court, W.D. Arkansas, El Dorado Division
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE
a civil rights action filed pro se by Plaintiff,
Terrell Sinclair Hilliard, under 42 U.S.C. § 1983.
Before me is Defendants' Motion for Summary Judgment. ECF
No. 20. The parties have consented to the jurisdiction of a
magistrate judge to conduct any and all proceedings in this
case, including conducting the trial, ordering the entry of a
final judgment, and conducting all post-judgment proceedings.
ECF No. 14. Pursuant to this authority, I find this Motion is
ready for decision and issue this Memorandum Opinion.
filed his Complaint on March 30, 2016, alleging he was
subjected to excessive force and denied medical care during
his incarceration in the Union County Detention Center
(“UCDC”). ECF No. 1. Plaintiff is no longer
incarcerated and currently resides in El Dorado, Arkansas. He
is suing Defendants Sergeant Justin Myers, Lieutenant Steve
Green, Lieutenant Kevin Pendleton, and Sergeant John Temple
in both their official and individual capacities.
Plaintiff's Complaint does not specify what relief he is
seeking. ECF No. 1.
filed a summary judgment motion and a brief in support
thereof on February 17, 2017, alleging they are entitled to
judgment as a matter of law because: 1) Plaintiff cannot show
that a policy or custom of Union County was the moving force
behind any alleged constitutional violations; 2)
Defendants' use of force against Plaintiff was
reasonable; and 3) Defendants were not deliberately
indifferent to Plaintiff's medical needs. ECF Nos. 20,
21. Defendants submitted the following exhibits in support of
their motion: Exhibit 1 - Affidavit of Defendant Justin Myers
(ECF No. 21-1); Exhibit 2 - Plaintiff's Intake Sheet
dated October 3, 2015 (ECF No. 21-2); Exhibit 3 -
Plaintiff's Intake Sheet dated October 6, 2015 (ECF No.
21-3); Exhibit 4 - Affidavit of Christopher A. Smith; Exhibit
5 - Witness Statement signed by Plaintiff dated October 19,
2015; Exhibit 6 - Grievance dated October 21, 2015 (ECF No.
21-6); Exhibit 7 - Grievance dated October 6, 2015 (ECF No.
21-7); Exhibit 8 - October 25, 2015 Inmate Chart Notes List;
and Exhibit 9 - Consent for Medical Treatment and Liability
Waiver Form dated October 25, 2015 (ECF No. 21-9).
assist Plaintiff in responding to the motion, I sent a
questionnaire asking him to agree or disagree with various
statements set forth by Defendants as undisputed facts.
Plaintiff filed the questionnaire as his Response to the
summary judgment motion on March 3, 2017. ECF No. 24.
Plaintiff states he was arrested and charged with residential
burglary on October 6, 2015 and he was booked into the UCDC
at 7:30 p.m.. ECF No. 24. Plaintiff alleges Defendant Myers
“tased me over the amount of times required, busted my
nose, slammed me. I was high on P.C.P so Im not fully aware
of it all.” ECF No. 1. Plaintiff goes on to state
“They did not use the restraint chair neither time,
they tased and gased me over the required amount of times
repeatedly for several day while in a cell alone. They took
me straight out the cell knowing I was high they skipped over
the restraint chair.” ECF No. 1. With respect to
Defendant Pendleton, Plaintiff alleges he used
“excessive force, left deep cuts on my wrist from
handcuffs and admitted it!” “He tased me twice
are more within a 10min frame.” ECF No. 1. Plaintiff
claims Defendant Green used excessive force and denied him
adequate medical care. As to Defendant Temple, Plaintiff
claims he “restrained me and admitted to going
overboard. He stated that to me.” ECF No. 1. Plaintiff
also alleges his nose was bleeding as a result of Defendant
Myers “slamming my head into the floor busting my nose.
I wanted medical attention and they refused.” ECF No.
state there were two separate incidents that occurred soon
after Plaintiff was booked into the UCDC On October 6, 2015.
First, Defendants claim upon being placed in the holding cell
in the booking area, Plaintiff became loud and disruptive,
kicking his cell door and screaming threats at detention
officers. ECF No. 20. Plaintiff was ordered to stop kicking
the door and screaming and was warned if he did not stop he
would be pepper sprayed. ECF No. 21-1. Despite the warning,
Plaintiff continued to scream threats and kick his cell door
disrupting the booking process. ECF No. 21-1. Defendant Myers
then deployed pepper spray on Plaintiff. ECF No. 21-1. The
detention officers then placed Plaintiff in a shower in the
nurse's station for decontamination. According to
Defendants, while in the shower Plaintiff pulled the shower
curtain down, took the shower curtain rods and backed into
the corner of the shower in a combative stance. ECF No. 21-1.
Defendant Myers was able to get Plaintiff to give him the
shower rods without further incident. After Plaintiff's
cell was decontaminated, he was placed back in the cell.
a.m. on October 7, 2015, Plaintiff again became loud and
disruptive in the holding cell. ECF No. 21-1. Upon opening
his cell door, Defendant Green advised Plaintiff he was being
moved to F-Pod due to his disruptive behavior. Plaintiff was
ordered to gather his belongings at which time Plaintiff
refused the order and became verbally aggressive. He was then
told to place his hands behind his back in order to be
handcuffed. Plaintiff then began swinging his arms violently.
Plaintiff physically fought with Defendant Green and Officer
Christopher Smith (a non-party to this lawsuit). As Plaintiff
began to pull away from both officers, he was given multiple
commands to stop fighting or he would be tased. ECF No. 21-1.
Plaintiff was tased but one of the barbs struck a towel and
did not make contact with Plaintiff. ECF 21-4. Plaintiff
continued to struggle and Defendant Green then deployed his
taser which had little effect. Defendant Temple then arrived
on the scene. Defendant Green, Temple and Officer Smith were
eventually able to gain control of Plaintiff. Plaintiff was
then handcuffed, leg shackled and taken to his cell in F-Pod.
ECF No. 21-4.
Response Plaintiff admits he does not have knowledge to agree
or disagree with the following allegations made by
Defendants: 1) Plaintiff took the shower curtain rods and
backed into the corner of the shower in a combative stance;
2) As a result of the incident in the booking area and the
shower, Defendant Myers made a report of the incident and
noted Plaintiff violated several USCO policies; 3) Defendant
Green opened Plaintiff's cell door and advised him he was
being moved to F-Pod due to his disruptive behavior -
Plaintiff was ordered to gather his belongings and Plaintiff
refused the order and became verbally aggressive; 4)
Plaintiff was told to place his hands behind his back in
order to be handcuffed and instead began swinging his arms
violently; 5) Plaintiff physically fought with Defendant
Green and Officer Christopher Smith; 6) When Plaintiff began
to pull away from Defendant Green and Officer Smith, he was
given multiple commands to stop fighting or he would be
tased; 7) Plaintiff refused to stop fighting and was then
tased; 8) Despite being tased, Plaintiff continued to
struggle and Defendant Green then deployed his taser which
had little effect on Plaintiff; 8) Defendant Temple then
arrived on the scene and three officers - Temple, Green and
Smith - were able to gain control of Plaintiff even though
Plaintiff continued to physically resist them; 9) Plaintiff
was then handcuffed and leg shackled and taken to his cell in
F-Pod. ECF No. 24. Despite the fact Plaintiff has no memory
of these events, he claims he remembers “being slammed,
dragged, tased & gased at the same time while
handcuffed.” ECF No. 24.
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
Official Capacity Claim
1983 provides a federal cause of action for the deprivation,
under color of state 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, a plaintiff must allege a
defendant acted under color of state law and they violated a
right secured by the ...