Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gardner v. Zavadil

United States District Court, W.D. Arkansas, Hot Springs Division

August 14, 2017

AVERY GARDNER PLAINTIFF
v.
TERRY L. ZAVADIL; JACOB K. KING; TERRIE L. BANISTER; MAJOR P. ARNOLD; J. HOSMAN; and STEVEN MCGHEE DEFENDANTS

          ORDER

          Susan O. Hickey United States District Judge

         Before the Court is the Report and Recommendation filed July 17, 2017, by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 30). Judge Bryant recommends that Defendants' Motion for Summary Judgment (ECF No. 13) should be granted in part and denied in part. Specifically, Judge Bryant recommends that Plaintiff Avery Gardner's claims against Defendants Terry L. Zavadil, Jacob K. King, Major P. Arnold, J. Hosman, and Steven McGhee should be dismissed without prejudice. Judge Bryant recommends further that Plaintiff's claim against Defendant Terrie L. Banister should remain in this case, and that Defendant Banister should be directed to submit a second summary judgment motion on the issue of Plaintiff's disciplinary-charge claim. Plaintiff has filed objections to the Report and Recommendation. (ECF No. 31). The Court finds the matter ripe for consideration.

         I. BACKGROUND

         Plaintiff filed this action under 42 U.S.C. § 1983 in connection with time spent incarcerated in the Arkansas Department of Correction (“ADC”) - Malvern Unit. Plaintiff alleges that on June 9, 2016, Defendants Zavadil, Arnold, and Hosman violated his Eighth Amendment rights by failing to protect him from an attack by another inmate (“Inmate Evans”), in which Inmate Evans entered Plaintiff's cell and a scuffle occurred between the two.[1] Plaintiff also alleges that Defendant McGhee wrote a major disciplinary charge against him under false pretenses, and that Defendant King delivered the disciplinary charge to Plaintiff's cell. Plaintiff alleges further that he underwent a disciplinary hearing concerning his role in the fight, and that Defendant Banister, the disciplinary-charge hearing officer, found against him and did not afford him sufficient due process during the hearing. On December 27, 2016, Defendants filed a motion for summary judgment, arguing for dismissal of all of Plaintiff's claims against Defendants due to Plaintiff's failure to exhaust his administrative remedies.

         Pursuant to 28 U.S.C. § 636(b)(1) & (3), the Court referred this case to Judge Bryant for the purpose of making a Report and Recommendation. On July 17, 2017, Judge Bryant issued the instant Report and Recommendation. Judge Bryant recommended that Defendants' motion for summary judgment should be granted in part and denied in part. Judge Bryant found that Plaintiff did not name Defendants King, Banister, Arnold, Hosman, or McGhee[2] in any grievance, exhausted or otherwise. Judge Bryant concluded that Plaintiff therefore did not exhaust his administrative remedies as to his claims against those Defendants and recommended that, with exception of Defendant Banister, those claims should be dismissed without prejudice. Judge Bryant recommended that Plaintiff's denial-of-due-process claim against Defendant Banister should remain because Plaintiff sufficiently alleged that he was prevented from filing and pursuing his disciplinary-charge appeal. Judge Bryant also found that Plaintiff named Defendant Zavadil in an unexhausted grievance, and noted that it was possible that the Malvern Unit officers prevented Plaintiff from exhausting the grievance. However, Judge Bryant stated that this need not be addressed, concluding that Plaintiff's claim against Defendant Zavadil fails because Plaintiff did not identify any compensable injuries that he suffered in the attack by Inmate Evans. Thus, Judge Bryant recommended that Plaintiff's claim against Defendant Zavadil should be dismissed without prejudice.

         On August 4, 2017, Plaintiff filed objections to the instant Report and Recommendation. According to 28 U.S.C. § 646(b)(1), the Court will conduct a de novo review of all issues related to Plaintiff's specific objections.

         II. DISCUSSION

         As a preliminary matter, the Court must address Plaintiff's request for appointment of counsel. Plaintiff's objections begin by stating that he is not trained in the law and request that the Court appoint him counsel. The Court will construe this as a motion for appointment of counsel. A civil litigant does not have a constitutional or statutory right to appointed counsel, but the Court may appoint counsel at its discretion. 28 U.S.C. § 1915(e)(1). The Court has considered the need for an attorney, the likelihood that Plaintiff will benefit from assistance of counsel, the factual and legal complexity of the case, and whether Plaintiff has the ability to present his case. Plaintiff has not shown that the factual and legal issues presented here are so complex that he cannot represent himself in this matter. The Court finds that Plaintiff is capable of prosecuting his claims without appointed counsel. Plaintiff may again request counsel at a later stage in this litigation if the need arises. Accordingly, Plaintiff's motion for appointment of counsel is hereby denied.

         The Court now turns to Plaintiff's specific objections. Plaintiff asserts two primary objections to the Report and Recommendation. First, Plaintiff objects to Judge Bryant's recommendation that the Court should dismiss his claims against Defendant Zavadil without reaching the failure-to-exhaust issue because Plaintiff failed to identify any injuries suffered from the attack by Inmate Evans. Plaintiff also objects to Judge Bryant's finding that Plaintiff failed to exhaust his remedies as to Defendants King, Arnold, Hosman, and McGhee. The Court will first address Plaintiff's objections regarding Defendant Zavadil, and then the Court will address Defendant's objections regarding Defendants King, Arnold, Hosman, and McGhee.

         A. Defendant Zavadil

         Judge Bryant noted that Plaintiff named Defendant Zavadil in an unexhausted grievance, but opined that it is possible that ADC officials prevented Plaintiff from exhausting the grievance. However, Judge Bryant did not address that issue, instead finding that Plaintiff failed to identify any injury that he suffered during the attack by Inmate Evans. Thus, Judge Bryant concluded that Plaintiff failed to state a claim against Defendant Zavadil, and recommended that Plaintiff's claim against Defendant Zavadil should be dismissed without prejudice. Plaintiff objects, making several arguments that he did identify injuries suffered during the attack. The Court will first address whether Plaintiff identified a compensable injury, and if so, the Court will then address whether Plaintiff exhausted his administrative remedies as to his claim against Defendant Zavadil.

         1. Failure to Identify a Compensable Injury

         Judge Bryant found that Plaintiff failed to identify a specific injury suffered during the attack by Inmate Evans, and thus recommended that the Court dismiss Plaintiff's claim against Defendant Zavadil.

         “Because a [section] 1983 action is a type of tort claim, general principles of tort law require that a plaintiff suffer some actual injury before he can receive compensation.” Irving v. Dormire, 519 F.3d 441, 448 (8th Cir. 2008) (citing Carey v. Piphus, 435 U.S. 247, 253-55 (1978)). Eighth-Amendment claims, such as Plaintiff's failure-to-protect claim against Defendant Zavadil, require a compensable injury that is more than de minimis. Cummings v. Malone, 995 F.2d 817, 822-23 (8th Cir. 1993). However, “no clear line divides de minimis injuries from others, ” and the determination of “whether an injury is sufficiently serious is ‘claim dependent.'” Irving, 519 F.3d at 447-48. One common-sense approach offered by the Northern District of Texas is to ask “would the injury require . . . a free world person to visit an emergency room, or have a doctor attend to . . . or . . . [provide] medical treatment for the injury?” Luong v. Hatt, 979 F.Supp. 481, 486 (N.D. Tex. 1997). In Luong, the court held that scratches, minor abrasions, and contusions constituted a de minimis injury, stating, “[a] physical injury is an observable or diagnosable medical condition requiring treatment by a medical care professional. It is not a sore muscle, an aching back, a scratch, an abrasion, a bruise, etc., which lasts even up to two or three weeks.” Id. Several federal appeals courts have utilized the Luong test. See Perez v. United States, 330 Fed.Appx. 388, 389 (3d Cir. 2009); Jarriett v. Wilson, 162 Fed.Appx. 394, 401 (6th Cir. 2005). But see Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (finding that “[Luong] requires too much, ” but an any-injury standard is “too little”).

         Judge Bryant correctly noted that Plaintiff's complaint did not identify any specific injuries suffered during the attack. Plaintiff's complaint states that Inmate Evans entered his cell and placed him in a headlock. The complaint does not allege that Plaintiff suffered any injuries from this incident. However, Plaintiff makes three arguments that he has identified injuries suffered in the attack.

         Plaintiff argues first that his complaint identified injuries in the “relief sought” section, where Plaintiff stated that he sought punitive damages related to “emotional damages, mental damages, medical damages, pain and suffering.” (ECF No. 2). The Court finds that stating broad categories of damages is not sufficient to identify specific, compensable injuries. Thus, the Court finds that Plaintiff did not identify any specific injuries in his complaint's relief section.

         Plaintiff also argues that he testified about his injuries when Defendants took his deposition. However, Plaintiff has not attached relevant excerpts from the deposition to his objections and the deposition transcript is not otherwise found within the record. Thus, the Court finds that this ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.