United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATION
following Proposed Findings and Recommendation have been sent
to United States District Judge Billy Roy Wilson. You may
file written objections to all or part of this
Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your
objection; and (2) be received by the Clerk of this Court
within fourteen (14) days of this Recommendation. By not
objecting, you may waive the right to appeal questions of
David Vance, an inmate in the custody of the Arkansas
Department of Correction (“ADC”), filed this
pro se civil rights complaint against ADC employee
Shirley Hudson in both her individual and official
capacities. See Doc. No. 2. Vance seeks injunctive
relief and punitive damages for the defendant's alleged
violation of his Eighth Amendment right to be free from cruel
and unusual punishment. Id. at 8. Specifically,
Vance alleges that Hudson was deliberately indifferent to his
medical needs by not allowing him to go inside during yard
call and by not calling for medical help sooner after he
passed out in the yard. Id. at 5-7. Vance also
alleges that Hudson kicked him and pulled on his arm while he
was passed out. Id. at 6.
defendants were previously dismissed from this lawsuit.
See Doc. Nos. 25 & 30. Before the Court are
Hudson's motion for summary judgment, supporting brief,
and statement of undisputed material facts (Doc. Nos. 45-47);
Vance's response, supporting brief, declaration, and
response to Hudson's statement of undisputed material
facts (Doc. Nos. 54-57); and Hudson's reply (Doc. No.
58). The statements of facts, and the other pleadings and
exhibits in the record, establish that material facts are not
in dispute and Hudson is entitled to summary judgment as a
matter of law.
Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the pleadings, depositions,
answers to interrogatories and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. Fed.R.Civ.P.
56(c); Celotex v. Catrett, 477 U.S. 317, 321 (1986).
When ruling on a motion for summary judgment, the court must
view the evidence in a light most favorable to the nonmoving
party. Naucke v. City of Park Hills, 284 F.3d 923,
927 (8th Cir. 2002). The nonmoving party may not rely on
allegations or denials, but must demonstrate the existence of
specific facts that create a genuine issue for trial.
Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007).
The nonmoving party's allegations must be supported by
sufficient probative evidence that would permit a finding in
his favor on more than mere speculation, conjecture, or
fantasy. Id. (citations omitted). A dispute is
genuine if the evidence is such that it could cause a
reasonable jury to return a verdict for either party; a fact
is material if its resolution affects the outcome of the
case. Othman v. City of Country Club Hills, 671 F.3d
672, 675 (8th Cir. 2012). Disputes that are not genuine or
that are about facts that are not material will not preclude
summary judgment. Sitzes v. City of West Memphis,
Ark., 606 F.3d 461, 465 (8th Cir. 2010).
afternoon of July 21, 2015, Hudson was on post on the South
Hall Yard of the Cummins Unit where a group of inmates,
including Vance, were at yard call. Doc. No. 45-4; Doc. No.
45-2 at 2; Doc. No. 45-1 at 6; Doc. No. 57 at 1. Vance had
been outside for between one and two hours playing
horseshoes. Doc. No. 45-1 at 8; Doc. No. 57 at 1.
Around 3 p.m., shortly before yard call was scheduled to be
over, Vance approached Hudson, told her that he was going to
fall out, and asked to step inside the door to cool
Doc. No. 45-4; Doc. No. 45-1 at 6; Doc. No. 57 at 1. Vance
told Hudson he had diabetes and high blood pressure. Doc. No.
57 at 1. Hudson instructed Vance that yard call was not yet
over, and she instructed him to go drink some water and to
sit down. Doc. No. 45-4; Doc. No. 45-1 at 6; Doc. No. 45-5 at
1-2; Doc. No. 57 at 1-2. Inmates on yard call are not
permitted to come and go as they please, due to security
concerns, including minimizing the introduction of contraband
into the prison. Doc. No. 45-4. Inmates are only allowed to
enter the building during yard call to use the restroom.
walked away and passed out. Doc. No. 45-1 at 6; Doc. No. 57
at 2. Vance does not know whether he fell backward or forward
when he passed out. Doc. No. 57 at 2. Vance reported
occasional dizziness and lightheadedness for several months
before the incident at issue here. Doc. No. 45-5 at 4; Doc.
No. 45-1 at 20-21. Vance had no history of passing out prior
to this incident. Doc. No. 45-5 at 3. Hudson was not aware of
Vance's short history of occasional dizziness and
lightheadedness. Doc. No. 45-4.
Vance walked away, Hudson noticed a group of inmates gathered
around, and she ran over and saw that Vance was on the
ground. Doc. No. 45-4. Hudson claims she did not touch Vance,
and she ran off the inmates who were gathered around him,
telling them to go inside because yard call had concluded.
Doc. No. 45-4. Based on Hudson's training, it was her
responsibility to ensure that no one but medical staff
touched an inmate who is unconscious but not in need of
immediate life-saving treatment. Doc. No. 45-4. Hudson
believed that Vance was merely feigning passing out. Doc. No.
45-4. Vance testified that he “understand[s] that,
because a lot of people does [sic] just try to get over on
[the guards], you know.” Doc. No. 45-1 at 10. He
elaborated, “I mean, you see this stuff all the time. I
mean, you see how they play the guards. I mean, it's just
- there always - this place is full of it.” Doc. No.
45-1 at 10-11. Even though Hudson believed that Vance was
feigning passing out, based on her training, she called for
medical staff to respond. Doc. No. 45-4.
staff received a code green call at 2:58 p.m. to respond to
the South Hall Yard. Doc. No. 45-7; Doc. No. 45-5 at 1. At
2:59 p.m., medical staff responded with a wheelchair and
conducted a sternum rub to rouse Vance. Doc. No. 45-7;
Doc. No. 45-5 at 2; Doc. No. 45-1 at 6. Vance had no
awareness of what took place from the time that he passed out
until the time that the medical staff arrived. Doc. No. 45-1
arrived in the infirmary at 3:11 p.m. Doc. No. 45-5 at 2;
Doc. No. 45-7. Medical staff placed a cool damp towel and
cold packs on Vance's forehead, neck, and wrists, gave
him some water to drink, and administered some blood pressure
medication. Doc. No. 45-5 at 2; Doc. No. 45-1 at 7. The
medical records state as follows:
[U]pon arrival inmate lyin on back on ground, this nurse
performs sternal rub with minimal response. He is fluttering
his eye lids, resp even non labored, Nurse Snow on scene and
she gets him to respond to her. He opens eyes, he states he
does not think he is injured, he is assisted to sitting
position and he sits there for a minute, he is then assisted
up to w/c and transported to infirmary. His skin tones are
red, (he does have a natural redness on his face from his ADC
photos). His vital signs are slightly elevated, he is calm,
drinking some water, a cool damp towel is placed over his
head to help absorb the heat. He is ...