United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey United States District Judge
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”).
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. 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.
is asserting claims for failure to protect against Defendants
Jana Tallant, Dawanda Schwope, Sean Scott, Hector Cortez,
Brian Cook, and Shelbi Miller-Smith,  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.
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.
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.
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
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; (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
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
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
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.
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.
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.
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.
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.
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.
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 ...