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Tripp v. Morgan

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

August 13, 2018

MICHAEL TRIPP PLAINTIFF
v.
DEPUTY C. MORGAN; DEPUTY JOSHUA HILL; and DEPUTY MITCHELL SMOTHERS DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE

         Plaintiff Michael Tripp filed this civil rights action pursuant to 42 U.S.C. § 1983. He proceeds pro se and in forma paupehs. Plaintiff is currently incarcerated in the East Arkansas Regional Unit of the Arkansas Department of Correction.

         This case concerns an incident that occurred while Plaintiff was incarcerated at the Washington County Detention Center ("WCDC"). Specifically, Plaintiff maintains that on November 9, 2016, Deputies C. Morgan, J. Hill, and M. Smothers either used excessive force against Plaintiff or did not act to prevent the use of excessive force.

         The case is before the Court on the Motion for Summary Judgment (Doc. 15) filed by the Defendants. Plaintiff filed a Response in Opposition (Doc. 20), and the Motion is now ready for decision.

         I. BACKGROUND

         Plaintiff was arrested on September 30, 2016, and booked into the WCDC. (Doc. 17-2 at 5). Plaintiff denied he had any mental problems and indicated he was taking no medication at the time. (Doc. 17-4 at 2). On October 5, 2016, the nurse made a mental status note on Plaintiffs file because he was refusing "to communicate" and speaking "non- sensical gibberish." Id. at 52. On October 6, 2016, a nurse noted that Plaintiff was acting like he did not speak English but "readily responded to the request to read his TB test." Id. On October 12, 2016, the nurse noted that Plaintiff acted like he did not speak English, preferred "non-sensical gibberish," but had books in his possession and responded to "commands for meals and count." Id.

         On November 2, 2016, Plaintiff was added to "psych call" after it was noted he was acting strangely and being non-verbal and non-cooperative. (Doc. 17-5 at 52). The nurse called the Plaintiffs mother who indicated Plaintiff had a significant mental health history, including diagnoses of bipolar disorder and schizophrenia. Id. Plaintiffs mother reported that Plaintiff had spent thirty days at Northwest Behavioral Health in September. Id

         On November 3, 2016, Nurse Landon Harris spoke with Dr. Meakum at Northwest Behavioral Health, who indicated Plaintiff had been on Lithium and Zyprexa and had serious mental illnesses. (Doc. 17-4 at 51-52). Medications were ordered for Plaintiff that same day. Id.

         On November 4, 2016, a social worker met with Plaintiff. Id. at 50. Plaintiff refused to talk, denied he was Michael Tripp, called himself Muhammad, and told the social worker to get away from his cell door. Id. The social worker noted that Plaintiff had spread feces on the wall of his cell. Id. An officer confirmed that Plaintiffs behavior had been becoming increasingly bizarre. Id.

         On November 6, 2016, it was noted that Plaintiff had been refusing his Lithium and Seroquel medications. Id. at 48. These medications were discontinued. Id. He was prescribed Haldol to be given as an intramuscular shot every three weeks. Id. at 48-49. On November 7, 2016, Plaintiff said he would not take the shot, but a note was made in his file that, at the time, he did not know where he was or his own name. Id. at 47. The decision was made to medically treat him based on his best interests. Id. As a precaution, two officers held his arm while the intramuscular shot was administered. Id. According to Nurse Harris, Plaintiff did not act aggressively or give any indication that he was upset. Id.

         On November 9, 2016, a note was made in Plaintiff's file that he was drinking from the toilet and "protruding his tongue to drool." Id. at 47. Deputy Hill's incident report states as follows:

On November 9, 2016 at approximately 3:08 pm I was in A Pod R Block putting a detainee back into his cell. The detainee out on his hour out said that R14 said he needed to see a nurse. I went to see what he needed; Detainee Michael Tripp . . . was leaning over the toilet with an empty milk carton dipping toilet water out and drinking it. I asked him what was wrong and then he went back to the toilet took his towel and dipped [it] in the toilet wiped the inside of the toilet and put the rag in his mouth and started sucking on it. He then walked to the door and said as if his tongue was swollen, his neck hurt because of the shot he got Monday. I went to pod control [and] called the nurse. Detainee Tripp walked to the door and then acted like he was going to fall. Deputy M. Smothers #489 and I caught Detainee Tripp and put him on the chair and the dinner table. The [nurse] came and evaluated Detainee Tripp. The nurse stated all vital signs were normal and he was ok to put him back into the cell.
Smothers and I had to lift him and carry him to his cell. We laid him [on] the floor of his cell and shut the door. Smothers and the nurse left the block and I stayed in the block. I waited a minute and then went back to R14 cell and when I looked in Detainee Tripp had gotten up off the floor and was walking around his cell. When he noticed me he immediately started acting like he was hurt and then could not talk. I asked him if he was ok now since he had gotten up and he did not say anything. I continued my daily duties.

(Doc. 17-5 at 1).

         This all occurred prior to the alleged use of excessive force.

         1. Plaintiffs Version of the Incident

         Later that same day, November 9, 2016, at approximately 4:30 pm, Plaintiff was involved in an altercation with Deputy Morgan. According to Plaintiff, he was having side effects from his medicine. (Doc. 17-9 at 16). Specifically, Plaintiff testified in his deposition that his neck and different parts of his body had been "locking up" at the time. Id. at 16, 18. Plaintiff believed his "nerves were just locking up and aching and hurting." Id. at 21. Plaintiff further testified that he was "high off the medicine"; he had a headache; and he could not stop his "arm from moving or [his] neck from turning." Id. at 18, 24-25. Plaintiff admitted that he flooded his cell because "they acted like they couldn't get no nurse at all to come see about the situation." Id. at 18.

         While Plaintiff was talking to Morgan about his medical emergency and his request to see the nurse, he reached out and touched the silver part of Morgan's badge. (Doc. 17-9 at 16, 23, 31). According to Plaintiff, after Morgan touched him, he "touched him back because [Morgan] got to tussling me." Id. at 16; see also Id. at 28 ("I grabbed him back."). Plaintiff stated that he was taken to the ground, and Morgan "hit [him] three times in the face while [he] was down." Id. at 18, 23. Plaintiff recalled that Hill was one of the officers holding him down. Id. at 33. Plaintiff believes Hill and another deputy who was present violated his rights by allowing Morgan to strike him while he was on the floor. Id. at 49. However, Plaintiff conceded during his deposition that the other, third officer who appears in the video recording of the incident was not Smothers. Id. at 49-50.

         Following the altercation, Plaintiff testified that he was bleeding from his right eye, and he was not even given a bandage. Id. at 18, 37. However, Plaintiff indicated that a deputy did bring him some ice. Id. at 39. Plaintiff also claims that it took a couple of hours for the bleeding to stop, he could not see from his eye for a couple of days, and his eye was swollen. Id. at 37. Plaintiff contends that he continues to suffer from headaches that he believes are related to the incident because of the location of the headaches. Id. at 41.

         Plaintiff also testified that he frequently touched officers' badges if he needed something. Id. at 29. However, this was the first time he had done that with Morgan. Id. Plaintiff explained that he does not touch officers' badges at the Arkansas Department of Correction, where he is currently imprisoned, because he believes the officers there would perceive it as an assault. Id. at 29-30. But, according to Plaintiff, it was a different situation at the WCDC because his inmate "class" was not at issue there, so he did not worry about reaching for an officer's badge. Id.

         When asked to describe what County policy or custom caused the alleged violation of his constitutional rights, Plaintiff explained that there is a County policy that once an inmate is in restraints, the deputies are not "supposed to swing on you." Id. at 50. Plaintiff indicated that all the proof he needs to establish his claim is on the video of the incident, and therefore, he does not intend to call any witnesses or present any documents to support his claim. Id. at 54.

         2. Defendants' Version of the Incident

         Deputy Morgan describes the incident as follows:

On November 9, 2016 at approximately 4:30 P.M., I was in R-block letting Detainee Michael Tripp out for his hour. When I opened Cell 14, I noticed water and wet books on the floor and water running into the day room. I approached the R-block slider and pushed the book cart into the hallway when I heard Detainee Tripp walking up behind me. I turned around and told Detainee Tripp to go take a shower. Detainee Tripp continued to approach me as he reached up with his right hand to grab something on my shirt. I knocked Detainee Tripp's hand away and told him to back up ...

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