Carlisle v. Long

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.

         Travis 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 Detention Center.

         There 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).

         Plaintiff 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).

         However, 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).

         I. BACKGROUND

         The 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 4).

         On 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 yelling.

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, stating:

There is mail that I'm not getting on kiosk. The last letter that I got was postmarked the 1^st 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.” Id.

         On 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 for us.

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).

         Deputy 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.

         The 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 restrain Plaintiff.

• 8:32:24 - 8:32:27: Deputies Tucker and Long gain control of Plaintiff, placing his arms and hands behind his back.

• 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 area.

(Doc. 33, Ex. A7, Video File Pod D-149).

On February 23, 2018, Plaintiff submitted an Inmate Grievance, stating,

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 lawsuit.

In response, Lt. Robin Holt informed Plaintiff the matter “will be looked into.” (Doc. 33, Ex. A2 at 8).

         Plaintiff 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.

         Plaintiff 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 40-45.

         Plaintiff 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. at 10.

         On 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. at 2.

         According 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 Friday. Id.

         On 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.”^[1] 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^[2] 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).

         Plaintiff 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).

         On 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).

         On February 24, 2018, Deputy Charley Long submitted a Supplemental Jail Incident Report ...