United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to Chief United States District Judge Brian S. Miller. 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
Rokosi Humphrey commenced this case by filing a complaint
pursuant to 42 U.S.C. § 1983 alleging that he was denied
recreation time on several occasions while incarcerated at
the Arkansas Department of Correction's (ADC) Tucker Unit
(Doc. No. 2). The undersigned found that Humphrey had not
stated a constitutional claim under the Eighth Amendment and
recommended that Humphrey's claims be dismissed.
See Doc. No. 5. Chief Judge Brian Miller agreed that
Humphrey failed to state a claim for relief but found that
Humphrey's objections to the recommendation suggested a
claim for retaliation. See Doc. No. 8. Humphrey was
allowed to amend his complaint to add a retaliation claim.
Id. Humphrey subsequently filed an amended complaint
alleging certain instances of retaliation by certain
defendants. Doc. No. 12. To the extent Humphrey's Eighth
Amendment claims based on the denial of recreation time are
not already deemed dismissed, the undersigned recommends
those claims be dismissed for the same reasons stated in the
prior recommendation (Doc. No. 5). Humphrey's amended
complaint only concerns retaliation and adds nothing to his
Eighth Amendment claims.
filed a Motion for Summary Judgment along with a supporting
brief and statement of facts (Doc. Nos. 46-48). Humphrey
filed a response (Doc. No. 51). Having reviewed and
considered all the pleadings, and for the reasons stated
herein, the Court recommends that Defendants' Motion for
Summary Judgment be granted.
filed 23 grievances between August 27, 2015, and May 4, 2016,
concerning missed recreation time and/or retaliation for the
grievances he filed regarding missed recreation time.
See Doc. No. 46-1. Four of those grievances
specifically referenced retaliation: TU-16-00229 naming
defendant Clifford Sims; TU-16-00365 naming defendants Audrey
Wilkins and Jonathan Martin; TU-16-00383 naming defendants
Brian Cockrell and Martin; and TU-16-00408 naming Wilkins.
Id. at 17, 19- 21. Two indicate retaliation although
not specifically using the word: TU-15-00735 naming Wilkins
and TU-16-00225 naming Martin and defendant Jaevon Perry. The
other 16 grievances concerned the failure to provide
recreation time or defendant Nathan David White's failure
to correct the lack of recreation time. See Id. at
2-15, 18, 22.
Martin, and Wilkins submitted affidavits swearing that they
were responsible for recreation at times, but that recreation
was sometimes not provided due to shortage of staff and a
lack of security. Doc. Nos. 46-2, 46-3 & 46-7. They all
said that Humphrey was never singled out to miss recreation
as all inmates in Humphrey's barracks did not receive
recreation on the days in question. Id. White also
submitted an affidavit explaining that he was warden at the
Tucker Unit during the relevant time; that sometimes
recreation had to be missed for security reasons; that all
inmates were treated the same; and that Humphrey was never
singled out to miss recreation. Doc. No. 46-8. White also
stated that he took corrective action when missed recreation
was brought to his attention and emphasized to staff the
importance of pulling inmates for recreation call.
Id. at 2.
Cockrell, and Hepler explained that they were not responsible
for providing recreation, could not deny Humphrey recreation
time, and never retaliated against Humphrey. Doc. Nos. 46-5
& 46-6. Defendant Hepler also noted that when inmates did
not receive recreation, the other inmates did not receive it
either. Doc. No. 46-4.
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).
Exhaustion of Administrative Remedies
argue that Humphrey failed to exhaust his administrative
remedies as to defendants Brian Cockrell, Nathan David White,
and Woodrow Helper. In support of their claim that Humphrey
failed to exhaust his administrative remedies, the defendants
submitted copies of the appeal responses to 23 grievances
(Doc. No. 46-1); the ADC's grievance policy (Doc. No.