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Humphrey v. White

United States District Court, E.D. Arkansas, Pine Bluff Division

February 15, 2018

ROKOSI HUMPHREY ADC #154914 PLAINTIFF
v.
NATHAN DAVID WHITE, et al. DEFENDANTS

          PROPOSED FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The 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 fact.

         DISPOSITION

         I. Introduction

         Plaintiff 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.

         Defendants 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.

         II. Facts

         Humphrey 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.

         Sims, 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.

         Perry, 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.

         III. Standard of Review

         Under 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).

         IV. Analysis

         A. Exhaustion of Administrative Remedies

         Defendants 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. ...


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