United States District Court, W.D. Arkansas, Harrison Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
Wayne Dillon proceeds In this matter pro se and
in forma pauperis pursuant to 42 U.S.C. § 1983.
(Docs. 1, 2, 7). In his Complaint, Plaintiff alleges a
violation of his right to confidential conversations with
counsel. (Doc. 2). Plaintiff is incarcerated in the Boone
County Detention Center.
November 15, 2018, Defendant Jason Day filed a Motion for
Summary Judgment. (Doc. 23). On November 19, 2018, an Order
(Doc. 26) was entered directing Plaintiff to file a response
to the Motion for Summary Judgment by December 10, 2018.
Plaintiffs time to respond to the motion was then extended to
December 17, 2018. (Doc. 28).
has not filed a response to the Motion for Summary Judgment.
He has not requested an extension of time to file his
response. No mail has been returned as undeliverable.
Plaintiff has failed to comply with the Court's Order
requiring him to file his summary judgment response by
December 17, 2018.
was advised that failure to comply with the Court's Order
to respond to the Motion would result in: (a) all of the
facts set forth by the Defendants in the summary judgment
papers being deemed admitted by Plaintiff, pursuant to Local
Rule 56.1(c); and/or, (b) this case being subject to
dismissal, without prejudice, pursuant to Local Rule
5.5(c)(2). (Doc. 26).
Court must consider the facts set forth in Plaintiff's
verified Complaint in ruling on the Motion for Summary
Judgment. A verified complaint is the equivalent of an
affidavit for summary judgment purposes. See, e.g.,
Roberson v. Hayti Police Dep't, 241 F.3d 992, 994-95
(8th Cir. 2001). As the Court in Roberson points
out, "[a]lthough a party may not generally rest on his
pleadings to create a fact issue sufficient to survive
summary judgment, the facts alleged in a verified complaint
need not be repeated in a responsive affidavit to survive the
summary judgment motion." Id. The Court will
"piece together [Plaintiff's] version of the facts
from the verified complaint. Those portions of the
Defendant['s] statement of material facts that do not
conflict with [Plaintiff's verified complaint] are deemed
admitted." McClanahan v. Young, 2016 WL 520983
(D.S.D. Feb. 5, 2016).
Plaintiff was booked into the Boone County Detention Center
("BCDC") on or about February 6, 2018, on three
counts of Rape, one count of Criminal Attempt to Rape, one
count of Sexual Assault in the Second Degree, one count of
Sexual Indecency with a Child, and one count of Sexually
Grooming a Child. (Doc. 25, Ex. A-1 at 5-6). The Plaintiff
was arraigned on February 16, 2018, and the Circuit
Court's Docket reflects that Plaintiff indicated he would
apply for the services of the public defender. (Doc. 25, Ex.
C). The Plaintiffs criminal trial was scheduled for the week
beginning July 23, 2018. Id. BCDC records indicate
that the Plaintiff was visited by attorney Ben Burnett on or
about February 22, 2018. (Doc. 25, Ex. A-1 at 19).
February 23, 2018, Plaintiff appeared before the Boone County
Circuit Court and indicated that he had hired attorney Justin
Downum. (Doc. 25, Ex. C). BCDC records indicate that
Plaintiff was visited by attorney Downum on March 7, 2018.
(Doc. 25, Ex. A-1 at 19). On March 13, 2018, Downum entered
his appearance in Plaintiff's criminal case. (Doc. 25,
to Plaintiffs verified Complaint, Downum came to the BCDC on
April 5, 2018, to see the Plaintiff. "Someone under Mr.
Jason Day" informed him that he would have to wait until
there was a space available for him to talk to the Plaintiff.
(Doc. 2 at 4). Downum waited for an hour and then left.
Id. Plaintiffs verified Complaint also states that
on April 11, 2018, Downum again visited the BCDC to meet with
the Plaintiff. The two actually met that day, but they were
not able to talk in private, and an officer was present
during the meeting.
to Plaintiffs deposition testimony, Downum came to the BCDC
on April 5, 2018, to meet with him. Downum waited about an
hour before leaving because the BCDC did not have a place for
him to meet with the Plaintiff. (Doc. 25, Ex. B at 29-30). On
April 10 or 11, 2018, Downum came to the BCDC and met with
Plaintiff, but they were not able to have a private meeting.
The Plaintiff met with Downum for about 30 minutes with an
officer present. Plaintiff testified that Downum was fine
meeting with Plaintiff with an officer present, but Plaintiff
preferred to meet in private. Id. at 30-32.
On April 14, 2018, Plaintiff filed a grievance that stated:
Another question why didn't you let me see my attorney
last friday? He said he came up here and set for an hour
waiting to see me. That's my right to see my attorney at
any time he comes to talk to me that's my constitutional
right that you all refused to give me thats a Lawsuit if I
decide on pursing it. I did talk to my attorney about it
Wednesday when he came again to see me. Just wanted you