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Baker v. Tallant

United States District Court, W.D. Arkansas, Texarkana Division

March 23, 2017

LEE BAKER PLAINTIFF
v.
JANA TALLANT, et al DEFENDANTS

          MEMORANDUM OPINION

          Susan O. Hickey United States District Judge

         This is a civil rights action filed by Plaintiff, Lee Baker, pursuant to the provisions of 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. Plaintiff is currently incarcerated in the Arkansas Department of Correction, Cummins Unit, in Grady, Arkansas. The events at issue occurred while Plaintiff was incarcerated in the Howard County Detention Center (“HCDC”).

         Plaintiff was arrested on November 14, 2013, for sexual indecency with a minor and placed in the HCDC. During his incarceration Plaintiff claims he was verbally harassed and sexually assaulted by other inmates because of his sexual orientation and the charges against him.[1] Plaintiff alleges that he informed Defendants about the incidents and requested to be moved to a different location and Defendants did not respond to his requests.

         Plaintiff is asserting claims for failure to protect against Defendants Jana Tallant, Dawanda Schwope, Sean Scott, Hector Cortez, Brian Cook, and Shelbi Miller-Smith, [2] in both their official and individual capacities. Plaintiff requests Defendants pay for his pain, suffering, and mental anguish and that Defendants make HCDC a safe environment for everyone despite their sexual orientation or charges.

         Defendants argue that their conduct does not rise to the level of a constitutional violation and, to the extent they have been sued in their individual capacities, they are entitled to qualified immunity. Defendants also assert that at no time has a policy, practice or custom of the HCDC resulted in the violation of Plaintiff's constitutional rights. Therefore, Plaintiff's claims against Defendants in their official capacity must fail.

         Defendants admit there is a grievance procedure in place at the HCDC and that Plaintiff did file several grievances. However, Defendants assert that Plaintiff never filed any grievances concerning the allegations contained in the Complaint. Consequently, they claim Plaintiff failed to exhaust his administrative remedies as required by 42 U.S.C. § 1983.

         This matter was tried to the Court on August 22, 2016. The testimony of the following witnesses was heard: (1) Louis Richards; (2) Brandon Null; (3) Tiffany Cowart; (4) Plaintiff Lee Baker; (5) Defendant Jana Tallant; (6) Defendant Hector Cortez; (7) Defendant Shelbi Miller-Smith; (8) Defendant Brian Cook; (9) Defendant Dawanda Schwope; and (10) Defendant Sean Scott.

         Plaintiff offered Exhibits A - G, including: (A) Inmate Request Form dated June 24, 2014; (B) Inmate Request Form dated April 6, 2014; (C) Inmate Request Form dated June 19, 2014;[3] (D) Section 05 Grievance Procedure from the HCDC; (E) List of Property Returned dated May 21, 2014; (F) List of Property Returned dated November 15, 2013; and (G) Receipt for Evidence dated April 15, 2014. Plaintiff's Exhibits A - G were admitted without objection.

         Defendants offered Exhibits 1 - 8, including: (1) Plaintiff's Booking Sheet and Classification Report; (2) Howard County Inmate Rules and Regulations; (3) Inmate Release Reports; (4) HCDC General Population Inmate rules and Regulations Amended August 14, 2013, acknowledged by Plaintiff on November 15, 2013 and March 19, 2014; (5) ADC Inmate Search - Inmate Details; (6) Jana Tallant's Jail Administrator's Notes dated July 24, 2015; (7) Inmate Grievance/Request forms from January 8, 2014, through June 18, 2014, and (8) Statements of Defendants Hector Cortez, Brian Cook, Shelbi Miller-Smith, Dawanda Schwope and Sean Scott each dated July 24, 2015. Defendants' Exhibits 1 - 8 were admitted without objection.

         The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391. The Court now renders its findings of fact and conclusion of law pursuant to Rule 52 (a) of the Federal Rules of Civil Procedure.

         FINDINGS OF FACT

         Plaintiff was arrested on November 14, 2013, for indecency with a minor and booked into the HCDC. He was placed in H pod with other inmates. The following day he was moved to general population - D pod. Plaintiff was concerned that he would be harassed because of the charge against him and his sexual orientation. From the time he was booked into the HCDC until he bonded out in February, 2014, he was verbally harassed by other inmates. Plaintiff did not file any grievances with the HCDC relating to the verbal harassment nor did he communicate verbally about the harassment to any defendant.

         Plaintiff was arrested again on March 19, 2014, and incarcerated in the HCDC. On April 2, 2014, Plaintiff was sentenced to the Arkansas Department of Correction (“ADC”) and moved to A Pod - the holding pod for inmates waiting to be transferred to the ADC. Although there are cameras in some of the pods in the HCDC, there are no security cameras in A Pod.

         On April 3, 2014, Plaintiff woke up with another inmate on top of him “dry humping” up against him. On April 12, 2014, three inmates pulled Plaintiff's pants down and held him down while another inmate pretended to have sexual intercourse with him in front of other inmates. In addition, sometime during the month of April, Plaintiff was slapped on his buttocks by another inmate. Plaintiff did not sustain any physical injury from the assaults but he did suffer humiliation and mental anguish. There was no testimony from Plaintiff or other evidence identifying the inmates who committed the assaults. Plaintiff did not file any criminal charges against the inmates nor did he file any police reports relating to the incidents. Plaintiff remained in A Pod until June 27, 2014, when he was transported to the ADC.

         Defendant Tallant is the Jail Administrator for the HCDC. She testified that there is a formal written grievance procedure at the HCDC. In addition to this procedure, inmates are free to approach her and/or other HCDC employees at any time with concerns relating to the inmate's safety. According to Defendant Tallant, when an inmate expresses concern for his safety the inmate will be moved to a different location.

         Plaintiff testified that he submitted three separate grievances while in the HCDC relating to the physical assaults. One grievance was submitted to Defendant Schwope relating to Plaintiff being held down and assaulted, another was submitted to Defendant Cook relating to the incident where Plaintiff was slapped on the buttocks, and another was submitted to either Defendant Cortez or Defendant Miller-Smith relating to the inmate who “dry humped” up against him. However, there is no record of these grievances being sent by Plaintiff or being received by any defendant. There is also no evidence Plaintiff ever attempted to follow up on these grievances, either in writing or verbally.

         In Plaintiff's jail file, there is written documentation that Plaintiff submitted one grievance and four inmate request forms during his incarceration at HCDC. On January 8, 2014, Plaintiff submitted a grievance concerning his anxiety and sleep medication. On February 6, 2014, Defendant Tallant spoke with Plaintiff about his medication and responded to the grievance in writing asking if he had any medication at home that could be brought to him. On February 5, 2014, Plaintiff submitted an inmate request form seeking assistance in finding his car and the cost of retrieving it. On February 6, 2014, Defendant Tallant responded to Plaintiff in person providing him with the requested information. On April 23, 2014, Plaintiff submitted an inmate request form requesting information regarding his phone and other property being held by Nashville Police. Defendant Tallant responded to the request form in writing informing Plaintiff that she had given him a copy of the evidence receipt from Nashville Police. On May 6, 2014, Plaintiff submitted another inmate request form requesting assistance with a 2008 or 2009 warrant for his arrest. Defendant Tallant responded to the request form in writing informing him that she had checked with both the City of Malvern and Hot Springs County and that neither had an outstanding warrant for his arrest. Finally, on June 18, 2014, Plaintiff submitted an inmate request form asking for assistance in connection with an arrest warrant for a hot check violation. In response, Defendant Tallant met with Plaintiff and informed him what fees were owed and how to pay them.

         In each of these instances, Defendant Tallant responded, either in writing or verbally, to Plaintiff's grievance or request form. At no time during these exchanges did Plaintiff ...


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