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Duncan v. Kelly

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

July 10, 2018

MICHAEL A. DUNCAN, ADC # 111386 PLAINTIFF
v.
WENDY KELLEY, [1] et al. DEFENDANTS

          RECOMMENDED DISPOSITION

         I. Procedures for Filing Objections:

         This Recommended Disposition (“Recommendation”) has been sent to Judge D.P. Marshall Jr. Any party to this suit may file written objections with the Clerk of Court. Objections should be specific and should include the factual or legal basis for the objection. To be considered all objections must be received in the Clerk's office within 14 days of the date of this recommendation.

         By not objecting, parties may waive the right to appeal questions of fact. And, if no objections are filed, Judge Marshall can adopt this Recommendation without independently reviewing the record.

         II. Background:

         Michael Duncan, an inmate in the Arkansas Department of Correction (“ADC”), filed this case under 42 U.S.C. §1983, claiming that the Defendants violated his eighth amendment rights. Specifically, he alleges that he was required to clean the rims of urinals, without gloves, as a condition of participating in the ADC's Substance Abuse Treatment Program (“SATP”) at the Randall L. Williams Unit. He says that he dropped out of the SATP rather than risk his health and, consequently, was denied early release. (Docket entry #2)

         Mr. Duncan has filed an unsupported motion for summary judgment on the merits. (#26) The Defendants have responded. (#27) Defendants Kelley, Jackson, Corbin, and Lay (“Defendants”) have also filed a motion for summary judgment on the merits. (#40) Mr. Duncan has responded to their motion. (#46)

         III. Standard:

         Summary judgment means that the court rules in favor of a party without the need for a trial. A party is entitled to summary judgment if the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine dispute as to any fact important to the outcome of the case. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246 (1986).

         IV. Facts Viewed in a Light Most Favorable to Mr. Duncan:

         The SATP is a therapeutic residential treatment program at the ADC that runs for six to twelve months. (#42-1) Mr. Duncan voluntarily entered the SATP in June of 2017, after the parole board informed him that he would be released 12 months early if he completed the program. (#42-1; #46-2, p.2)

         At the time of his enrollment, Mr. Duncan told Defendant Corbin that, according to a doctor, he was particularly susceptible to infections. (#42-2, p.12-14) In fact, he alleges, he had a “bloody fungus infection” on his hand at the time he enrolled. (#2, p.4) Mr. Duncan admits there is no medical documentation stating that he is particularly susceptible to infections. (#42-2, p.12)

         At enrollment, Mr. Duncan was provided an SATP handbook with program rules, and he agreed to follow those rules. (#42-1) In the SATP, inmates are assigned various daily jobs, including cleaning bathrooms and toilets, sweeping, mopping, and cleaning windows. (#42-2, p.4) SATP inmates are responsible for cleaning the barracks twice a day for 30 minutes in the morning and 30 minutes in the evening. (#42-2, p.4-6) During the 30-minute cleaning sessions, the inmates are provided cleaning supplies, including mops, buckets, spray bottles with cleaning solutions, toilet brushes, and rubber gloves. (#42-2, p.4-6) Inmates assigned to clean bathrooms are given gloves and a toilet brush. (#42-2, p.5-6)

         Mr. Duncan takes issue with the SATP “rule” requiring inmates to wipe the rim of the urinal or toilet immediately after they urinate. For this job, inmates are not provided gloves. Rather, they use squares of newspaper that are stacked within reach of the urinals and toilets. (#2; #42-1; #42-2)

         Mr. Duncan alleges that the bathrooms at the Unit are “the most nastiest bathrooms I've ever seen.” (#42-2, p.6) He complains wiping the rim of a urinal forces him to “smear the urine of 50 men around the rim of urinals” without the protection of gloves. (#2) It is not clear ...


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