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Avery v. Helder

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

September 20, 2017

ROBERT W. AVERY PLAINTIFF
v.
SHERIFF HELDER, Washington County, Arkansas; MAJOR RANDALL DENZER; SERGEANT MORSE; SERGEANT ARNOLD; ARAMARK CORRECTIONAL SERVICES, LLC; CHIEF MIKE PETERS, Springdale Police Department; PATROLMAN VENCE MOTSINGER; DEPUTY BRAD MORGAN; NURSE LANDON HARRIS; SERGEANT STANTON; KARAS MEDICAL SERVICE; SERGEANT AKE; LIEUTENANT FOSTER; REGINA WALKER; LIEUTENANT REESER; and DR. KARAS DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE

         Currently before the Court is the Report and Recommendation ("R&R") (Doc. 154) of the Honorable James R. Marschewski, United States Magistrate Judge for the Western District of Arkansas, which was filed in this case on July 21, 2017. The R&R considered four separate Motions for Summary Judgment filed by Plaintiff Robert W. Avery (Docs. 81, 84, 86, 92); a Motion for Summary Judgment filed by Defendant Deputy Brad Morgan (Doc. 94); a Motion for Summary Judgment filed by Defendant Aramark Correctional Services, LLC ("Aramark") (Doc. 112); a Motion for Summary Judgment filed collectively by Defendants Dr. Karas, Karas Medical Service, Nurse Landon Harris, and Nurse Regina Walker (Doc. 128); a Motion for Summary Judgment filed collectively by Defendants Sheriff Helder, Major Randall Denzer, Sergeant Morse, Sergeant Arnold, Deputy Morgan, Sergeant Stanton, Sergeant Ake, Lieutenant Foster, and Lieutenant Reeser (Doc. 131); and a Motion for Summary Judgment filed jointly by Defendants Chief Mike Peters and Patrolman Vence Motsinger (Doc. 132).

         The R&R is 53 pages long and discusses in great detail the factual and legal bases supporting Mr. Avery's thirteen separate claims for relief. In issuing the R&R, Judge Marschewski considered the entire summary judgment record and the testimony that Mr. Avery gave during an evidentiary hearing on March 30, 2017. On August 3, 2017, Mr. Avery filed Objections (Doc. 155) to the R&R. Then, on August 9, 2017, Aramark filed a Response (Doc. 156) to Mr. Avery's objections, arguing that the objections lacked the requisite specificity to trigger de novo review. On August 10, 2017, Chief Mike Peters and Patrolman Vence Motsinger filed a Response (Doc. 157) to Mr. Avery's objections, also arguing that the objections were insufficiently specific to trigger de novo review. Chief Peters and Patrolman Motsinger also pointed out that Mr. Avery's objections raised a new issue that was not set forth in either the complaint or Amended Complaint, nor briefed on summary judgment, namely that Patrolman Motsinger displayed deliberate indifference to Mr. Avery's preexisting serious medical condition by placing him in leg irons for transport from the Springdale Police Department ("SPD") to the Washington County Detention Center ("WCDC").

         Pursuant to 28 U.S.C. § 636(b)(1), the Court must give de novo consideration to those portions of the R&R to which objections are made. However, in order to trigger such review, the objections must address particular findings or conclusions of the magistrate judge or assert specific allegations of error. See, e.g., Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995) ("A district court must make a de novo determination of those portions of a magistrate's report and recommendation to which objections are made."). The Court finds that, on balance, Mr. Avery's objections are specific enough to trigger de novo review, and in performing that review, the Court has considered the R&R, the entire record on summary judgment, and the audio recording of the nearly three-hour evidentiary hearing on March 30.

         The R&R recommends that the Court take the following action:

(1) dismiss all claims against Nurse Harris, Nurse Walker, Sergeant Arnold, and Lieutenant Reeser, as per Mr. Avery's request made during the evidentiary hearing;
(2) dismiss Mr. Avery's claims concerning the refusal to provide him with a vegetarian diet, the handling of his food, and the jail's grievance procedure, as per Mr. Avery's request made during the evidentiary hearing;
(3) deny all of Mr. Avery's motions for summary judgment;
(4) grant Defendants' motions for summary judgment as to all of Mr. Avery's claims, with the exception of his claim about the WCDC's denial of inmate access to newspapers and/or news media; and
(5) decline to take supplemental jurisdiction over Mr. Avery's Arkansas Deceptive Trade Practices Act ("ADTPA") claim.

         The Court has reviewed Mr. Avery's filing and discerns ten separate objections, which are summarized as follows:

(1) objection to granting summary judgment on the claim that the prisoner transport van used by the SPD created an unreasonable risk of harm;
(2) objection to granting summary judgment on the claim that Patrolman Motsinger used excessive force or displayed deliberate indifference to an established medical condition by placing Mr. Avery in leg irons during a transport from the SPD to the WCDC;
(3) objection to the Court declining to exercise supplemental jurisdiction over the ADTPA claim;
(4) objection to granting summary judgment to Aramark on Mr. Avery's claim that he was served substandard, nutritionally inadequate food at the WCDC, which resulted in his excessive weight loss;
(5) objection to granting summary judgment to Karas Medical Service for the alleged delay in testing Mr. Avery for Hepatitis C;
(6) objection to granting summary judgment to Washington County and various WCDC officers regarding Mr. Avery's claim about the lack of access to a law library, and the alleged failure to provide sufficient paper, envelopes, and access to the U.S. Postal Service;
(7) objection to granting summary judgment on the conditions-of-confinement claims, including the lack of skid plates on the stairs, the slippery "overspray" area in the showers, the lack of drain covers in the showers, the lack of intercoms in the inmates' cells, the single toilet for 32 inmates to share, and the policy of housing violent and non-violent inmates together;
(8) objection to granting summary judgment on the claim that the WCDC's visitation system creates an unreasonable risk of harm to inmates and violates visitors' and inmates' right to privacy;
(9) objection to granting summary judgment on the claim that Deputy Brad Morgan used excessive force or displayed deliberate indifference to an established medical condition by placing leg irons on Mr. Avery during a transport from the Arkansas Department of Correction ("ADC") to the WCDC; and
(10) objection to granting summary judgment on certain official-capacity claims.

         Below, the Court will consider each of Mr. Avery's objections and explain its reasoning as to which claims are sufficiently supported to survive summary judgment. In doing so, the Court will not restate all the background facts that were set forth in the R&R, but will instead mention only those facts that are pertinent to discussing each of the objections. For the reasons set forth in this Opinion and Order, the Court will ADOPT IN PART AND DECLINE TO ADOPT IN PART the R&R and preserve two of Mr. Avery's claims for trial.

         I. LEGAL STANDARD

         The standard of review on summary judgment is well established. Under Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The Court must review the facts in the light most favorable to the opposing party and give that party the benefit of any inferences that logically can be drawn from those facts. Canada v. Union Bee. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1997). The moving party bears the burden of proving the absence of a genuine dispute of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Bee. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nat'l Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602, 606 (8th Cir. 1999). Once the moving party has met its burden, the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(c)).

         In order for there to be a genuine issue of material fact, the non-moving party must produce evidence "such that a reasonable jury could return a verdict for the nonmoving party." Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8thCir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "The nonmoving party must do more than rely on allegations or denials in the pleadings, and the court should grant summary judgment if any essential element of the prima facie case is not supported by specific facts sufficient to raise a genuine issue fortrial." Registerv. Honeywell Fed. Mfg. & Techs., LLC, 397 F.3d 1130, 1136 (8th Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

         II. OBJECTIONS

         A. Safety of Prisoner Transport Van

         The van that was used to transport Mr. Avery from the SPD to the WCDC lacked seatbelts and safety bars. Even so, Mr. Avery testified in his deposition that he was never involved in an accident while he was a passenger in this transport van, and he at most suffered scratches and bruises from being jostled about in the van. In his objections, Mr. Avery asserts that the van should have been equipped with seatbelts, as he believes the lack of ...


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