United States District Court, W.D. Arkansas, Fayetteville Division
TRAVIS M. CARLISLE PLAINTIFF
DEPUTY CHARLEY A. LONG, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
M. Carlisle proceeds in this matter pro se and
in forma pauperis pursuant to 42 U.S.C. § 1983.
In his Amended Complaint, Plaintiff alleges claims of
excessive force, denial of medical care, and retaliation.
(Doc. 16). Plaintiff is incarcerated in the Benton County
are two motions for summary judgment pending: Separate
Defendant Heather Trimmer filed for summary judgment on
December 3, 2018 (Doc. 27); and Benton County Defendants
Sheriff Shawn Holloway, Deputy Charley A. Long, and Deputy
Alex Tucker filed for summary judgment on December 5, 2018
(Doc. 31). The Court entered two Orders directing the
Plaintiff to respond to the Motions. Plaintiff's
responses were due by December 26, 2018 and December 31,
2018, respectively. (Docs. 30, 34).
did not file a response to either of the motions for summary
judgment. He also failed to request any extension of time to
file his response, and no mail has been returned as
undeliverable. Accordingly, Plaintiff has failed to comply
with the Court's Orders. Plaintiff was advised that
failure to comply with the Court's Orders to respond to
the motions 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). (Docs. 30, 34).
in the course of ruling on summary judgment, the Court must
consider the facts set forth in Plaintiff's verified
Amended Complaint. 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 must
therefore “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, at *1 (D.S.D. Feb. 5, 2016).
Plaintiff was booked into the Benton County Detention Center
(“BCDC”) on or about December 26, 2018. At
intake, Plaintiff informed BCDC personnel of a recent injury
he sustained to his shoulder/rotator cuff. (Doc. 33, Ex. A3
at 3). On January 8, 2018, Plaintiff's probation was
revoked, and he received a six-month sentence. (Doc. 16 at
January 10, 2018, Deputy Benjamin Vinson, Jr. submitted a
Jail Incident Report involving Plaintiff which read:
On January 9, 2018, I, Deputy Vinson, was assigned to D-pod.
At approximately 2030 hours, Inmate Carlisle, Travis pushed
the emergency intercom button and stated that his cellie
(sic) needed an extra blanket due to him being in a corner
cell. I then got informed that corner cells no longer got an
extra blanket due to the heat being turned up. When I told
Inmate Carlisle that information he began to yell and curse
over the intercom. I made the decision to talk to Inmate
Carlisle about his behavior. I went to his door and told him
to come out to pod control. While going to the pod door,
Inmate Carlisle began to yell and be disruptive. While at pod
control, I told Inmate Carlisle to face the wall and place
his hands behind his back to which he did not fully comply. I
then grabbed the back of his shirt and placed him on the wall
for being non-compliant. I tried several times to be rational
and speak to him about his actions, but he wouldn't stop
When he calmed down and stopped yelling, I informed him that
his behavior would not be tolerated. After we spoke about his
behavior, I told him that he was to go to his cell and that
if he didn't stop being disruptive, I would lock him
down. Inmate Carlisle returned to cell and I returned to my
normal duties with no further incidents.
(Doc. 33, Ex. A4 at 1).
On February 7, 2018, Plaintiff submitted an Inmate Grievance,
There is mail that I'm not getting on kiosk. The last
letter that I got was postmarked the 1st of this
month and I just got it today and theres 2 before that one
that I still haven't got. I need this figured out and I
need to figure out what to do and a number to call so I can
give it to my mom so she can figure this stuff out.
(Doc. 33, Ex. A2 at 5). Lt. Greg Stevenson responded to
Plaintiff's grievance, stating: “When the letters
are received at the mail guard facility, it is scanned in. We
are not informed when letters are scanned in.”
February 23, 2018, Deputy Alex Tucker submitted a Jail
Incident Report, which read:
On February 23, 2018 at approximately 0820 hours, I, Deputy
Tucker was assigned to Dpod. I was passing blankets and
sheets back to pod D-149 when I observed in cell 143 a pillow
that had been ripped open and tied closed. Upon further
inspection the pillow was stuffed with two blankets, I then
confiscated the pillow and moved on to the next cell when
Inmate Carlisle, Travis began yelling at me and becoming
aggravated that I took his pillow. I calmly informed him that
I was taking his pillow because of the alterations that were
made to it (in the inmate handbook it states that any
commissary that has been altered becomes contraband). As well
as the blankets hid inside of it. As I was leaving the pod
Inmate Carlisle then shouted ‘I better get my pillow
back or we are going to have problems' and that he
wasn't going to stop until he gets a lieutenant down
here. I then informed pod control of the situation and that
we need to inform our chain of command so that we are all on
the same page. While waiting on Corporal Smith Inmate
Carlisle began shouting at the door yelling ‘I'm
not the mother f***er y'all want to mess with' and
once we were at the pod door explaining the situation to
Corporal Smith Inmate Carlisle began making the ‘finger
gun' sign and pretended to shoot us through the glass.
That's when we decided this has gone far enough and
stacked up at the door to pull him put of the pod. Deputy
Long stacked up first in line followed by myself, Deputy
Massey, and Deputy Allen with Corporal Smith opening the door
Deputy Long made first contact and grabbed Inmate
Carlisle's left arm to restrain him, as I entered Inmate
Carlisle pulled back to swing at Deputy Long I was able to
restrain his right arm before he made contact. Once we gained
control we took Inmate Carlisle and placed him on the floor,
Inmate Carlisle began resisting and trying to tuck his arms
under himself. I then used my forearm and applied targeted
pressure to the right side of his head against the floor as a
distraction technique so myself and Deputy Long could gain
easier access to his arms in order to control the situation.
We then gained control of his arms and placed his arms behind
his back. Corporal Smith then knelt on Inmate Carlisle's
torso behind us and assisted in placing hand cuffs on Inmate
Carlisle. We then turned Inmate Carlisle on his side and
helped him to his feet I then assisted Corporal Smith in
escorting him down the E-pod sliding door. I then went
through the rest of my shift duties without incident.
(Doc. 33, Ex. A4 at 2).
Robert Massey also submitted a Jail Incident Report involving
Plaintiff on February 23, 2018, which read:
On February 23, 2018, I, Deputy Massey, was assigned to
Rover. At approximately 0820 hours, I was checking to see if
the deputies in Delta Pod needed help with anything. I was
informed that Inmate Carlisle, Travis was standing near the
door yelling obscenities through the pod door at the deputies
in Pod Control. The decision was made to stack on the door.
When the door was opened Deputy Long and Tucker gained
control of Inmate Carlisle and placed him on the floor.
During this time, I began to yell ‘everyone get on the
ground and face the ground.' The inmates in the pod
complied with the order given. Once Inmate Carlisle was
escorted out of the pod I asked Pod Control to group release
D149. Onceasey is the head football coach at GF group was
released all of the inmates in the pod were placed into their
cell. I returned to my duties with no further incidents.
Id. at 3.
Benton County Defendants submitted a video that depicts the
event that took place in the jail from 8:13:20 a.m. to
8:42:18 a.m. on the day of the incident. (Doc. 33, Ex. A7).
The video includes six (6) different views: Pod D Hallway,
Pod E Hallway, Pod E Control - A, Pod D Control, Pod D-149,
and Pod E-102. The incident occurred inside Pod D-149. The
Pod D-149 camera shows the following:
• 8:13:20 - 8:15:27: Deputy Alex Tucker stands outside a
jail cell, assisting in the distribution of sheets and
blankets to BCDC inmates.
• 8:15:28 - 8:15:31: Deputy Tucker enters
Plaintiff's jail cell and confiscates a pillow from
Plaintiff's jail cell.
• 8:15:32 - 8:16:07: Deputy Tucker exits Plaintiff's
jail cell with the confiscated pillow and proceeds towards
the Pod D-149 Control Room door.
• 8:16:08 - 8:18:16: As Deputy Tucker nears the Pod
D-149 Control Room door, Plaintiff confronts Deputy Tucker.
Plaintiff continues to confront Deputy Tucker, even after
Deputy Tucker places the confiscated pillow in the Pod D-149
control room. Deputy Tucker then climbs the stairs to the
second floor of the Pod, and Plaintiff engages him from the
ground floor, gesturing up at Deputy Tucker and waving his
arms and pointing.
• 8:18:17 - 8:18:28: Plaintiff climbs the stairs to the
second floor of Pod D-149 while Deputy Tucker continues to
assist in the distribution of sheets and blankets. Plaintiff
approaches Deputy Tucker and appears to engage him dialogue.
• 8:18:29 - 8:21:00: Deputy Tucker finishes distributing
sheets and blankets and then exits Pod D-149 via the Control
Room door, with Plaintiff following closely behind. Plaintiff
continues to swing his arms and gesture toward Deputy Tucker,
even though the officer has exited the room.
• 8:21:00 - 8:25:45: Plaintiff stands behind the red
line for several minutes, apparently attempting to confront
Deputy Tucker and/or other BCDC personnel who are behind the
glass door and windows.
• 8:25:46 - 8:25:49: Plaintiff makes a gesture with his
hand, using his index finger in a flat, pointed position and
his other fingers folded beneath it, apparently towards BCDC
personnel who are behind the glass.
• 8:25:50 - 8:30:19: Plaintiff continues to wait at the
red line, attempting to confront BCDC personnel.
• 8:30:20 - 8:30:22: Plaintiff makes the same or similar
pointing gesture towards BCDC personnel.
• 8:30:23 - 8:31:08: Plaintiff continues to remain
positioned in front of the Pod D-149 Control Room door. At
times Plaintiff crosses over the red line on the Pod floor.
• 8:31:09 - 8:31:48: Plaintiff a pointing gesture again
towards BCDC personnel and engages in dialogue with various
inmates. Plaintiff hits one of his fists against his open
palm and appears to be laughing to the other inmates.
• 8:31:49 - 8:32:23: BCDC personnel enter the Pod D-149
common area. Deputies Tucker and Long attempt to physically
• 8:32:24 - 8:32:27: Deputies Tucker and Long gain
control of Plaintiff, placing his arms and hands behind his
• 8:32:28 - 8:32:49: Deputies Tucker and Long place hand
restraints on Plaintiff.
• 8:32:50 - 8:33:12: Plaintiff is rolled onto his side,
helped to his feet, and escorted out of the Pod D-149 common
(Doc. 33, Ex. A7, Video File Pod D-149).
On February 23, 2018, Plaintiff submitted an Inmate
The deputies used excessive force and slammed me in the
ground when I never made a threatening gesture or move
towards them. I told them I'm not going to stop yelling
to talk to a “LT” until I talk to one. And Deputy
Long laughed in my face after he slammed me saying I
threatened them when I never made a violent or death threat
towards them. You can ask D-149 if I made any violent remark
to the police prior to them slamming me. I was waiting at Pod
door when they came in and slammed me. It was Deputies Long
and Tucker. They wouldn't tell me when I asked for their
full names for my lawsuit which is interfering in a legal
In response, Lt. Robin Holt informed Plaintiff the matter
“will be looked into.” (Doc. 33, Ex. A2 at 8).
testified that prior to the altercation, he was standing
inside the red line that was painted on the floor and was
“at the door telling them I need to speak to a
lieutenant or captain or sergeant.” (Doc. 33, Ex. B at
28). Plaintiff testified that he did not use an aggressive
tone towards the officers but was yelling due to it being
loud in the jail. Id. at 35. Plaintiff testified
that prior to the guards entering the pod, he had stopped
yelling and was standing on the correct side of the red line.
Id. at 29-30. Plaintiff testified that he informed
the BCDC deputies that he was someone they did not want to
mess with, but he did not use derogatory language towards
them. Id. at 30-31. Plaintiff further testified that
he was using his index finger to count the guards gathered at
the pod door, rather than making a gun gesture at the guards.
Id. at 24-27.
testified that he put his hands in the air when deputies
entered the pod. Id. at 40. Nevertheless, according
to Plaintiff, the deputies attempted to force his arms behind
his back, and he informed them that he had issues with his
shoulder. Id. at 40-41. Plaintiff testified that
Deputy Long entered the pod first and took him to the ground
and twisted his arm. Plaintiff further testified that Long
slammed him to the ground, placing his knee on
Plaintiff's head. Id. at 44-45. Plaintiff
testified that he did not attempt to resist the deputies'
attempts to place his arms behind his back. Id. at
alleges that on the morning of February 23, 2018, he pressed
the call button to seek medical assistance. Plaintiff further
alleges that Heather Trimmer informed him that he would be
seen by the jail doctor at doctor call that afternoon. (Doc.
16 at 6). Plaintiff states that he had to wait for doctor
call for several hours and that he wanted to be seen for a
possible concussion and for his shoulder. Id.
Plaintiff further states that he told the deputies that he
was “seeing double, feeling nauseous, getting
migraines” and that his eye was twitching. Id.
February 23, 2018, and at all times relevant, Trimmer was a
nurse employed by Southern Health Partners, which provides
medical services to inmates housed at BCDC through a contract
with Benton County, Arkansas. (Doc. 29, Ex. 1 at 1). As a
nurse, Trimmer could not prescribe medications. Id.
to Trimmer's affidavit testimony, it was the routine
practice of the jail doctor to visit the BCDC every Friday at
12:30 p.m. to see inmates. Id. at 2. Trimmer
testified that she is familiar with this routine practice of
the jail doctor and also noted that February 23, 2018 was a
February 23, 2018, Plaintiff was medically evaluated by the
BCDC medical staff. (Doc. 33, Ex. A3 at 31-32). Trimmer
testified that the Plaintiff was seen by the jail doctor the
afternoon of February 23, 2018, for his alleged injuries and
for evaluation of an old scar on his right foot, which he
alleged was “scabbing over” and breaking out into
sores. (Doc. 29, Ex. 1 at 1-2). During the doctor call, the
jail doctor noted no soft tissue swelling, pupils equal and
reactive to light, and mild redness to the allegedly injured
areas. The jail doctor also noted “nausea status post
head contusion.” Id. at 2. Plaintiff was
prescribed one dose of Zofran, a medication administered for
nausea. With regard to his right foot scar, Plaintiff was
prescribed Bactroban ointment for ten days or until healed.
(Doc. 29, Ex. 1 at 2; Doc. 33, Ex. A3 at 31-32). According to
Trimmer's affidavit, the findings of the jail doctor
indicated that there was no evidence of a concussion or
closed head injury. (Doc. 29, Ex. 1 at 2).
testified that he was evaluated by the BCDC physician
approximately eight (8) hours after the incident. According
to Plaintiff, the BCDC physician told him he was okay at that
time. (Doc. 33, Ex. B at 43, 56-57).
February 23, 2018, Plaintiff submitted an Inmate Request,
stating: “It won't let me check my emails or let me
look at my pictures, but it will let me look at my postal
mail.” In response, Sgt. McLain informed Plaintiff he
would rehouse him in an attempt to remedy the matter. (Doc.
33, Ex. A2 at 9).
February 24, 2018, Deputy Charley Long submitted a
Supplemental Jail Incident Report ...