United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE.
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).
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.
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).
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).
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.
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.
Version of the Events In the AFIS Room
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
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.
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).
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.
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.
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.
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.
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.
Version of What Occurred in the AFIS Room
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
Video of What Occurred in the AFIS Room
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.
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
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
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.
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).
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.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, ...