United States District Court, W.D. Arkansas, El Dorado Division
MEMORANDUM OPINION
HON.
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.
This is
a civil rights action filed pro se by Plaintiff,
Torger McRae, under 42 U.S.C. § 1983. The parties have
consented to the jurisdiction of a magistrate judge to
conduct all proceedings in this case, including conducting
the trial, ordering the entry of a final judgment, and
conducting all post-judgment proceedings. (ECF No. 28).
Currently before the Court is a Motion for Summary Judgment
filed by Defendant Cameron Owens. (ECF No. 39). Plaintiff has
filed a response. (ECF No. 45). The Court finds this matter
ripe for consideration.
I.
BACKGROUND
Plaintiff
is currently being held in the Ouachita County Detention
Center (“OCDC”) awaiting trial on pending
criminal charges. (ECF No. 9, p. 3). Plaintiff filed his
Complaint on March 6, 2018, in the Eastern District of
Arkansas. (ECF No. 2). On March 8, 2018, the case was
transferred to the Western District of Arkansas, El Dorado
Division. (ECF No. 4). That same day, the Court directed
Plaintiff to submit a completed IFP application and file an
Amended Complaint to clarify his claims against the
defendants. (ECF Nos. 6, 7). On March 22, 2018, Plaintiff
filed his Amended Complaint naming Cameron Owens and others
as defendants. (ECF No. 9). Plaintiff's IFP application
was approved that same day. (ECF No. 11).
In his
Amended Complaint, Plaintiff asserts claims against Defendant
Owens for retaliation, denial of medical care, unlawful
conditions of confinement at the OCDC, and denial of access
to legal materials.[1] Specifically Plaintiff alleges:
Despite numerous complaints, request, and grievances over
living conditions in the OCDC I was put I in the hole for my
complaints and I eventually got a bacterial infection in
which it took over 14 days to get me to the hospital where I
was hospitalized the infection was so severe. The jail also
refused to pay my hospital bill or take any corrective
measures to prevent any further illnesses due to inhumane
living conditions. As of today there is still black mold
growing in my pod, wastewater covering the bathroom floor at
all times, cracked dinner trays being put on the floor during
chow, no rags & bottles to sanitize the bathroom, hot
prepared food being served cold, and disrespectful and
threatening comments by staff threatening administrative
segregation for utilizing the grievance procedure over above
living conditions….
I have a active civil case and have utilized the request
& grievance procedure here at the jail trying to visit
the law library and I have been told several times, by email
by defendant [Owens], that there is no law library or law
material here at the jail. I have incurred numerous postage
cost and possible missed deadlines in not being able to
access legal materials…
(ECF No. 9, pp. 7-8).
Plaintiff
sued Defendant Owens in his individual and official
capacities. He is seeking compensatory and punitive damages.
Plaintiff also requests “disciplinary actions/sanctions
against defendants, policy & procedure review by outside
agency, compliance check in jail to ensure ACA
standards.” (ECF No. 9, p. 10). On April 17, 2018, the
Court entered a screening order pursuant to 28 U.S.C. §
1915A dismissing the official capacity claims against
Defendant Owens.[2] (ECF No. 14, p. 9). Taken in the light
most favorable to Plaintiff, the relevant facts are as
follows.
Plaintiff
was booked into the custody of the OCDC on August 29, 2017.
At intake, Plaintiff completed an Inmate Medical Form
informing OCDC personnel of his past and present medical
conditions. (ECF No. 41-4, pp. 1-2). Plaintiff stated he was
taking Tramadol, a muscle relaxer, and ibuprofen. He also
stated his left elbow was dislocated, he had pins in his back
and hip, glass in his forehead, and was partially blind in
his right eye. Id. Prior to being booked into the
OCDC, Plaintiff's dislocated elbow was evaluated by Dawn
Hopper, APRN, on August 16, 2017. Nurse Hopper noted
Plaintiff had failed to properly utilize the therapy
recommended to him to treat his dislocated
elbow.[3] (ECF No. 41-4, pp. 4-6).
On
August 31, 2017, Plaintiff's family brought his tramadol
medication to the OCDC. (ECF No. 41-5, p. 15). That same day,
Plaintiff submitted a grievance stating, “Your jailers
threatened me slam door on me and pull taser. Request to talk
to jail administrator.” James Bolton responded stating
in part, “Mr. McRae…I am unable to find any
video evidence that anyone has mistreated you in any
way.” (ECF No. 41-3, p. 7). Plaintiff also filed a
medical request that day stating, “I need my meds my
arm swole jailer hit me with door and hip rewind
camera.” In response, Nurse Mendenhall requested to see
Plaintiff at pill call. (ECF No. 41-5, p. 15).
On
September 1, 2017, Plaintiff submitted a medical request
stating, “I'm sorry I'm just now checking it
I'm in pain I need my meds but can you call for me thank
you.” Nurse Mendenhall responded as follows:
Pill call is at 9:30 in the morning and again at 9:30 at
night. Your medication has been approved by the doctor for
you to have at those times if you need it, and it can only be
dispensed at the times that it is in the system for. You did
not come to pill call this morning so be sure you do not miss
pill call tonight.
(ECF No. 41-5, p. 15). Two days later, Plaintiff submitted
another medical request stating, “My arm and elbow
swole its numb I think its repop can't sleep or bend it
and its still broke I need help.” In response, Nurse
Mendenhall requested to see Plaintiff at pill call.
Id. On September 6, 2017, Plaintiff submitted a
medical request stating “I done told them I'm
hurting bad” to which Nurse Mendenhall responded,
“You received your medication at pill pass and can
receive another dose at evening pill pass. If that is not
working for you then you can request to see the
doctor.” (ECF No. 41-5, p. 13).
On September 13, 2017, Plaintiff was involved in an
altercation with another inmate, as documented by OCDC
Officer Zach Craig:
On September 13, 2017 at approximately 1030 hours, Captain
Cameron Owens, Jail Supervisor James Smith, and myself
(Detention Officer Zach Craig) were called by the tower
operator Cody Bright that there was two Inmates in a
altercation in B-pod.
Upon our arrival, I observed inmate Torger Mcrae and inmate
James Jones arguing with each other. I immediately instructed
all inmates to line up on the wall and separated Jones and
Mcrae. Bright then informed us that Mcrae was the agresser in
the altercation. We removed Mcrae from B-pod searched him and
his belongings and placed him in Ad-Seg in cell D-2 for being
disorderly.
Additional Notes: the incident was recorded on camera 2 and
8. Mcrae was informed that he would remain in Ad-Seg until
further instruction from Administration.
End of Report Detention Officer Zach Craig
OCDC 126
(ECF No. 41-7, p. 2). Later that same day, Nurse Mendenhall
submitted the following Inmate Incident Report involving
Plaintiff:
At 15:30 I was notified by the tower that this inmate was
asking for the nurse due to chest pains. I requested that
Correctional Officers Craig and Bright accompany me to D Pod
to assess this inmate. Upon arrival his skin was warm and dry
to touch, PERLA, respirations were 60 and unlabored, pulse
was 84 and regular, Blood pressure was 130/90. The inmate did
not appear to be in any distress at that time.
He stated he was having a hard time breathing and was force
to sit on the floor by his door flap to get any air flow. He
did not seem to have any trouble breathing and stated he did
not know why he was placed in the AD Seg unit. He requested
to see the doctor for SOB and chest pain. I told him I would
place him on the list.
(ECF No. 41-4, p. 3).
On September 14, 2017, Plaintiff submitted five requests. In
the first one Plaintiff states:
being ecuse of things I anit did every body and b pod no
charging me for a mat and blanket everybody gt 4thats messed
up put me and whole for aruing bt lertft other person ova
thur he evevn told thm I dididnt do nuttin james jones we
both tod thm they lock me up and leave him then they took all
money of books im beening pick with they denyig me medical
stteoin im been cuss out cause I askig for
help…Request im scared for my life
(ECF No. 41-3, p. 5). Defendant Owens responded stating:
According to the Officers involved you were the aggressor in
the argument also you were charged for a mat because when you
were moved to lockdown your [mat] was damaged to point that
it cannot be re-issued to anyone else. And it was not that
way when it was issued to you. No. one is denying you medical
treatment or threatening you. Use the proper channels at the
Kiosk and you can request to see a doctor.
Id. Plaintiff's second request states,
“Problem I'm scared for my life and need help. Been
threating by zack, brice, owens, bolton. Request to speak to
head person norwood im scared for my life in here.” In
response, Defendant Owens stated he would speak with Sheriff
Norwood about his concerns. (ECF No. 41-3, p. 6). In the
third request Plaintiff states:
Problem bright, zack, and owens Request they picking with me
charging me for stuff I anit did cussing me out denying meds
and attention they gt me in hole for no reason they done sent
two people to fight me I have broken elbow hip replacement
bad heart they gt 24 hour camara rewind im speaking out and
the truth we all can sit down and look at it I never gt and
trouble hur never been to hole im in hole for arguing bt they
left james jones in thur the man I was arguing with they didt
lock him up jst me ...