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Hubbard v. Walton

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

April 23, 2018

PATRICK LEWIS HUBBARD PLAINTIFF
v.
SGT. WALTON; DEPUTY JAMES STOUT; CORPORAL KEVIN BAUGHMAN; DETECTIVE BRET HAGAN; and SERGEANT MICHAEL FREEMAN DEFENDANTS

          OPINION AND ORDER

          P. K. HOLMES, III CHIEF U.S. DISTRICT JUDGE.

         Plaintiff, Patrick Lewis Hubbard, filed this action pursuant to 42 U.S.C. §1983. He proceeds pro se and in forma pauperis. Plaintiff is currently incarcerated in the Grimes Unit of the Arkansas Department of Correction. The events at issue in this case occurred while Plaintiff was detained in the Washington County Detention Center (WCDC).

         The case is before the Court on the Motion for Summary Judgment (ECF No. 45) filed by the Defendants. Plaintiff has responded (ECF No. 51) to the Motion.

         Plaintiff maintains that while he was incarcerated at the WCDC that his constitutional rights were violated in the following ways: Deputy Stout and Corporal Baughman used excessive force against him on August 18, 2015; he was subjected to cruel and unusual punishment when Sergeant Freeman ordered that he be waist chained and shackled whenever he left the cell including in the shower which resulted in Plaintiff slipping and falling; Sergeant Walton exhibited deliberate indifference to Plaintiff's safety when she watched the August 18, 2015, use of excessive force against him and did not intercede on his behalf; and Detective Hagan deprived him of substantive due process and invaded Plaintiff's privacy when he forced the Plaintiff to undergo testing for Hepatitis C and human immunodeficiency virus (HIV). Plaintiff has sued each Defendant in his/her personal capacity only. (ECF No. 31).

         I. BACKGROUND

         Plaintiff was arrested on August 17, 2015, by the Fayetteville Police Department for 1st degree terroristic threatening and 2nd degree stalking. (ECF No. 48-2 at 1). The allegations behind the criminal charges were that he had been threatening Brandi Copeland, an employee of the WCDC. (ECF No. 48-11 at 6). Plaintiff indicated in his deposition that he had been dating her on and off for about two weeks. (ECF No. 48-11 at 6). However, when he was interviewed by Detective Hagan, Plaintiff indicated he had been seeing Copeland on and off for two months. See also (ECF No. 48-2 at 12) (statement of Brandi Copeland that they had been seeing each other on and off for about four months).

         Plaintiff is Black. (ECF No. 48-2 at 3). When booked on August 18, 2015, it was noted that he was 6'3" tall and weighed 280 pounds. Id. at 2.

         Following his arrest, Plaintiff was taken to the WCDC just prior to midnight. (ECF No. 48-2 at 1). In the early morning hours of August 18, 2015, during the booking process, Plaintiff was taken to the Automated Fingerprint Identification System (AFIS) room for fingerprinting, to have booking pictures taken, and to document his tattoos. Id.

         Defendants' Version of the Events In the AFIS Room

         Defendants state that Plaintiff was verbally aggressive and “very slow and resistive turning to face the appropriate directions.” (ECF No. 48-5 at 3). When told to face the grey wall so a picture could be taken of a tattoo on his neck, Plaintiff struck the wall hard enough to break the grey photograph backdrop and causing two of his knuckles to “bust open” and “splatter[] blood on the wall.” Id.

         Deputies Stout and Harris attempted to restrain the Plaintiff but were struggling due to Plaintiff's “size” and “aggressiveness.” (ECF No. 48-5 at 3). Corporal Baughman attempted to “assist by gaining control of Hubbard's head and guiding him to the floor.” Id. When this did not work, Corporal Baughman drew his taser and deployed it striking Plaintiff in the right side just below his breast. Id. When this elicited only a mild reaction, Corporal Baughman concluded that “the probes had not made a good connection.” Id. For this reason, Corporal Baughman “drive stunned [Plaintiff] in the right lower thigh area completing the arc.” Id. The deputies were then able to force Plaintiff to the floor. Id.

         When the five second drive stun cycle was over, Corporal Baughman reported that he instructed the Plaintiff to “stop resisting and place his hands behind his back or he would be tased again.” (ECF No. 48-5 at 3). When Plaintiff continued to resist and refused to comply with instructions, Corporal Baughman again “deployed a five second drive stun.” Id. When Plaintiff's behavior continued, Corporal Baughman warned him that he would be tased again. Id. When Plaintiff did not comply, Corporal Baughman “delivered another five second drive stun to [Plaintiff's] left lower back.” Id. This time when Plaintiff was instructed to place his hands behind his back, he complied and handcuffs were placed on him. Id.; see also (ECF No. 48-5 at 11-12)(Corporal Baughman's incident report).

         The nurse was called and came and removed the probes. (ECF No. 48-5 at 3). Plaintiff was placed in a restraint chair and put into a holding cell. Id. According to Corporal Baughman, Plaintiff then began saying he had AIDS. Id. Plaintiff also told Corporal Baughman and several other deputies that when they got home they had better make love to their wives and kiss their kids goodbye because they were going to die due to their behavior. Id. Plaintiff made multiple statements to the affect that harm would come to the deputies and their families. Id.

         Sergeant Walton reported that her first contact with the Plaintiff occurred when she was called to the booking area due to the fact that he was “yelling and acting strange.” (ECF No. 48-5 at 5). When she arrived, Plaintiff had already been placed in a holding cell by Corporal Baughman. Id.

         Sergeant Walton instructed Deputy Stout and Corporal Baughman to take Plaintiff to the AFIS room for prints. (ECF No. 48-5 at 5). Sergeant Walton indicated she could hear the Plaintiff “ranting and screaming about being a gangster and what he could do to all of us.” Id. Subsequently, Sergeant Walton heard a loud bang and looked into the room and saw the deputies trying to restrain the Plaintiff. Id. Sergeant Walton called for assistance and then entered the room. Id. Deputies responded and once she saw that the Plaintiff was secured, she called the deputies off one at a time. Id. Sergeant Walton indicates she then noticed the Plaintiff had been tased and she called the nurse. Id.

         Plaintiff was strapped down in a restraint chair. While in the chair, Sergeant Walton reported that Plaintiff made threats against Deputy Stout and Corporal Baughman and their families. (ECF No. 48-5 at 5). Sergeant Walton indicated that Plaintiff stated that he had gang members and family who could take care of them all. Id. She also noted that Plaintiff stated he “went way back” with Deputy Stout and the next time he saw Deputy Stout that he would die. Id. According to Sergeant Walton, Plaintiff repeated this threat. Id. Sergeant Walton instructed Deputy Stout to have no further contact with the Plaintiff. Id.

         Deputy Vickery, Deputy Stout, Deputy Tripodi, Deputy Hudgens, Deputy Sena, Corporal Rose, Deputy Ridenoure, Sergeant Muggy, Deputy Garcia, and Deputy Gardner, who all responded to the request for assistance, also submitted incident reports about Plaintiff's conduct and the threats that he made. (ECF No. 48-5 at 6-19, 21). Deputy Harris was also present during the incident. Id. at 20. Plaintiff was placed in administrative segregation for fifteen days “due to his mental state and making threatening comments towards officers.” Id. at 7. Instructions were issued providing that there had to be two deputies present any time they were dealing with the Plaintiff. Id.

         Plaintiff's Version of What Occurred in the AFIS Room

         According to the Plaintiff, he punched the wall as they told him to turn around because he was upset about being arrested. (ECF No. 48-11 at 11). Plaintiff testified that Deputy Stout was “acting kind of tough” and was “saying some smart stuff out of the mouth.” Id. at 33. In Plaintiff's opinion, Deputy Stout had a “foul attitude towards” him. Id.

         Plaintiff indicated that when they all rushed him that he just stood there and made no attempt to hit anyone and was not struggling or resisting in anyway. (ECF No. 18-11 at 11 & 19). Plaintiff testified that the first time he was tased he just stood there. Id. The second time he was tased he started going to the ground. Id. Plaintiff testified that when he was on the floor, he was tased another time when he was face down on the ground, three people had his arms, and one deputy had a foot on his head. Id. Plaintiff indicated that right before Corporal Baughman tased him the fourth time, Corporal Baughman told him to stop resisting. Id. at 20. Plaintiff testified he screamed that they were trying to kill him. Id. He also told them that his arm had been broken and would not bend back like they wanted it to. Id. at 25.

         Plaintiff testified it was Corporal Baughman who tased him “and continued to tase [him], even though [he] wasn't struggling or - anything.” (ECF No. 48-11 at 19). Plaintiff denied that Corporal Baughman warned Plaintiff that he was going to be tased unless he complied with orders. Id.

         Plaintiff testified that he was tased a total of four times. (ECF No. 48-11 at 11). Plaintiff was then handcuffed and restrained and Plaintiff testified Deputy Stout still had his knee on the left side of Plaintiff' head. (ECF No. 48-11 at 11). Plaintiff testified Deputy Stout “stood up and dropped back down on my head with his knee.” Id. at 11-12 & 14. Plaintiff indicated that this action caused blood to come from his left ear. Id. at 14. Plaintiff was then stood up and placed in the restraint chair. Id. at 12. Plaintiff testified the entire incident happened in a matter of seconds. Id. at 22.

         Plaintiff stated that the taser caused extreme pain but the pain only lasted seconds. (ECF No. 48-11 at 26). He suffered no other physical injuries other than where the prongs had been in his skin on his left side. Id. Plaintiff testified the taser peeled the skin away and “burn[ed] it in that area.” Id. The only treatment he received from the nurse was that she removed the prongs. Id. Plaintiff did not ask for any medical treatment. Id. at 27. He did not receive any treatment for the injuries to his hand from where he struck the wall. Id. Plaintiff testified his hand was not bleeding very much. Id.

         Plaintiff testified he did not complain about his ear bleeding. (ECF No. 48-11 at 14). In fact, Plaintiff testified he actually did not realize his ear was bleeding until after he was taken to isolation. Id. at 15. He stated that his ear was hurting so he rubbed it and felt the blood. Id. It was not a lot of blood and he did not ask for any treatment and did not report it on the kiosk. Id. at 16. His ear continued to ache from the knee drop for approximately four days. Id.

         Plaintiff testified that with respect to Sergeant Walton, she just basically “sat” and “watched” without doing anything to intervene or “correct or discipline the officers for doing it.” (ECF No. 48-11 at 29-30). Plaintiff also indicated that Sergeant Walton could not have heard him ranting and raving in the AFIS room about a Gangster Disciple because he never said a word until after he was being tased. Id.

         When Plaintiff was placed in the restraint chair, he stated that he and Deputy Stout knew each other. (ECF No. 48-11 at 17). Specifically, Plaintiff testified he said that “Deputy Stout and I go way back, and he's going to die when I see him.” Id. Plaintiff, however, did not have any prior relationship with Deputy Stout. Id. at 16-17. Plaintiff testified he only said that to aggravate Deputy Stout. Id. at 17. Id.

         Plaintiff admitted that he threatened to kill Deputy Stout's family and have sex with his wife while Deputy Stout watched. Id. at 19. Plaintiff also asked the deputies if they were scared of contracting HIV since his hand was bleeding. Id. at 17-18. Plaintiff testified he told the deputies that he was a member of the Gangster Disciples. Id. at 30.

         At this point, Sergeant Walton started completing the medical questionnaire part of the booking process. (ECF No. 48-11 at 12). Plaintiff testified that he noticed “someone had blood on them, so when she asked me was I HIV-positive, I told [her] yes.” Id. He also indicated he had been diagnosed with Hepatitis C. (ECF No. 48-4 at 1). When Sergeant Walton asked him if he had answered the questions truthfully, Plaintiff testified he stated “no, I wasn't HIV-positive; I just said that.” (ECF No. 48-11 at 12).

         The Video of What Occurred in the AFIS Room

         Plaintiff is seen entering the AFIS room. He is not wearing a shirt and has a pair of jeans on. Plaintiff walks to a gray backdrop or screen on a cement block wall and stands in front of it. His back is to the screen. One deputy is standing at what appears to be a camera station. Another deputy is sitting at a computer with his back to the Plaintiff. Another deputy is standing at the door with a man who was dressed in street clothes. There is no audio.

         Plaintiff then turns to his left side. The deputy at the camera station and the Plaintiff appear to be talking and the deputy is gesturing to the Plaintiff. Plaintiff turns so he again has his back to the screen. After a period of time, Plaintiff turns to his right side. Plaintiff then turns to face the screen. Plaintiff strikes the screen with his right fist. The screen breaks.

         The deputy, who is at the camera station, grabs ahold of the Plaintiff's right arm and then pushes him against the wall. The two other uniformed deputies rush to the wall to assist. The man in street clothes also rushes over to assist. Plaintiff is wrestled to the ground (time stamp approximately 2:50) with one deputy pulling him around the face and neck area. There is no view of Corporal Baughman's use of the taser. Plaintiff is placed on the floor face down. One deputy is at Plaintiff's head with one hand on Plaintiff's head holding it to the floor and the other hand appears to be on his back or arm. The two uniformed deputies are each on one side of the Plaintiff. The man in street clothes is to the Plaintiff's right side. A uniformed female enters the room and is standing at Plaintiff's feet. Another two deputies enter the room and assist with holding the Plaintiff on the floor. Several more deputies enter the room but just observe.

         Plaintiff remains on the floor for several minutes (from time stamp 2:50 to approximately time stamp 6:15) with deputies holding him down. A woman wearing scrubs, presumably the nurse, enters the room (approximately time stamp 6:00). Plaintiff is handcuffed with his arms behind his back and then raised to a sitting position (at approximately time stamp 6:15). The nurse bends down and appears to be examining the Plaintiff. She then leaves the room. Plaintiff is stood up (time stamp 6:49) and led from the room. There is a round spot on the floor that may be blood. The spot was not there are the beginning of the video.

         The HIV Investigation

         Information regarding the incident was presented to the prosecuting attorney in support of an arrest warrant for terroristic threatening, aggravated assault on a corrections officer, and destruction of vital public property. (ECF No. 48-2 at 5 & 24). Judge Lindsay found probable cause and set bond. (ECF No. 48-2 at 6). An order of protection was issued by Judge Martin covering Brandi Copeland. (ECF No. 48-2 at 7-9).

         Detective Hagan began an investigation regarding Plaintiff's HIV status. (ECF No. 48-6 at 1). He discovered that Plaintiff had advised the Granada County Sheriff's Office in Mississippi that he was HIV positive.[1]Id. at 2. On August 20, 2015, Plaintiff advised Detective Hagan that he had made up the HIV statement. Id. at 3. Plaintiff testified that Detective Hagan told him if he did not consent to the blood draw that “he would have a subpoena done and forcefully draw the blood.” (ECF No. 48-11 at 13). Plaintiff consented to a blood draw. Id. Southern Health Partners (SHP) drew his blood on August 20, ...


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