Clark v. Robertson

          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 Seyoum Ali Clark filed a complaint pursuant to 42 U.S.C. § 1983 on July 11, 2016, against multiple defendants. Clark's claims against the Arkansas Department of Correction (ADC), Correct Care Solution, and Sheila Armstrong were previously dismissed for failure to state a claim. See Doc. Nos. 16, 34, 41 & 50. Clark's claims against medical defendants Mitchell Jones and Dr. Robert Reichard were previously dismissed due to Clark's failure to exhaust his available administrative remedies. See Doc. Nos. 68 & 70. The remaining defendants are Bradley Howard Robertson, Clinton Baker, Thomas Finney, and Johnny M. Morris (the “Defendants”).

         Clark filed this lawsuit after an incident in December 2015 in which defendant Robertson ordered him to move to a top tier cell, and he fell while carrying his personal property up the stairs. Doc. Nos. 2 & 9. Clark claims Robertson was aware of medical restrictions preventing him from climbing stairs. Doc. No. 9 at 14. Clark also alleges that Robertson knew Clark had a medical restriction preventing him from carrying more than 35 pounds, and that he was forced to carry his personal property weighing 47 pounds up the stairs. Id. at 15. Clark further alleges that after his fall, defendants Robertson and Baker delayed calling medical and accused him of faking the fall. Id. at 7. Clark also sues because he was issued two disciplinaries - one for refusing an earlier move ordered by defendant Morris and one issued after he refused to submit to a urine test after his fall. Id. 12-13 & 14-15. Clark sues defendant Finnie for not calling witnesses in the disciplinary hearings. Id. at 11.

         Clark filed a motion for summary judgment and a supporting brief (Doc. Nos. 87 & 88), and the Defendants filed a response (Doc. No. 91).^[1] The Defendants subsequently filed a motion for summary judgment, a brief in support, and a statement of facts asserting that they are entitled to summary judgment with respect to Clark's claims. Doc. Nos. 95- 97. Clark filed a response (Doc. No. 99); Defendants filed a reply (Doc. No. 100); and Clark filed an addendum to his response (Doc. No. 101). For the reasons described herein, the undersigned recommends that Clark's motions for summary judgment be denied, and that the Defendants' motion for summary judgment be granted.

         II. Legal Standard

         Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if “the movant shows that there is no genuine dispute 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(a); 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). An assertion that a fact cannot be disputed or is genuinely disputed must be supported by materials in the record such as “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . .”. Fed.R.Civ.P. 56(c)(1)(A). A party may also show that a fact is disputed or undisputed by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). 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).

         III. Facts

         The facts listed below are taken from those submitted by Defendants that are supported by documents attached to their motion for summary judgment. Because Clark failed to specifically controvert the facts set forth in Defendants' statement of undisputed facts, Doc. No. 96, those facts supported by documentary evidence are deemed admitted. See Local Rule 56.1(c). However, the Court notes those facts disputed by Clark in his motions for summary judgment.^[2]

         Clark was transferred to the ADC's Grimes Unit from the Pulaski County Jail in the Fall of 2015. Id. at 21-22. Clark is a 40-year-old inmate with a reported history of back problems dating back to 2008. Doc. No. 100-1, Deposition of Seyoum Clark, at 15. Clark's lawsuit concerns two disciplinaries he received in December 2015 and a fall he suffered after being ordered to move to an upper level cell. Doc. No. 2. Prior to the incidents at issue in this lawsuit, Clark did not know defendants Robertson, Baker, Finnie or Morris. Id. at 21-22.

         December 8, 2015 Disciplinary

         At all times relevant to this action, defendant Morris was a correctional officer at the ADC. Doc. No. 95-6, Declaration of Johnny Morris. On December 8, 2015, Morris was directed to move Clark to another cell. Id. Morris arrived at Clark's cell and gave him a direct order to pack his things because he was being moved from barracks 3, cell 107B to barracks 4, cell 213B. Doc. No. 95-6; Doc. No. 95-2. Clark claimed that he had a medical restriction preventing him from going upstairs or having a top bunk. Doc. No. 95-6; Doc. No. 100-1 at 50. Morris checked the prison's electronic offender management information system (eOMIS) which contains information about each prisoner including any medical restrictions that they have been given by the prison's medical providers. Id. When Morris checked eOMIS, he found that Clark did not have any medical restrictions that prevented him from being assigned to a top bunk. Id. Morris moved Clark to another cell that was downstairs with a bottom bunk. Doc. No. 100-1 at 49-51, 53; Doc. No. 95-2; Doc. No. 95-6. Morris had never met Clark before December 8, 2015. Doc. No. 100-1 at 48-49; Doc. No. 95-6. He had no further contact with Clark after he moved him on December 8, 2015. Doc. No. 100-1 at 51 & 56; Doc. No. 95-6.

         Morris wrote Clark a disciplinary violation for refusing to move from Barracks 3 to Barracks 4 and for lying to a staff member the same day. Id. at p. 50; Doc. No. 95-2, Disciplinary Violation dated 12/08/15; Doc. No. 95-6. Clark was found guilty of both rule violations by a neutral disciplinary hearing officer and he was given 15 days in punitive isolation and a reduction in class status. Doc. No. 100-1 at 52; Doc. No. 95-3, Disciplinary Hearing Action Form. Clark's disciplinary conviction was upheld on appeal by the warden, the disciplinary hearing administrator, and ADC Director Wendy Kelley. Doc. No. 100-1 at 54; Doc. No. 95-3 at 3; Doc. No. 95-4, Disciplinary Appeal; Doc. No. 95-5, Director Wendy Kelley's Response to Clark's Appeal. Clark testified that his claim of “cruel and unusual punishment” against Morris was based on the disciplinary Morris issued. Doc. No. 100-1 at 51.

         December 14, ...