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Dillon v. Moore

United States District Court, W.D. Arkansas, Harrison Division

April 11, 2019

LUTHER WAYNE DILLON PLAINTIFF
v.
SHERIFF MIKE MOORE, Boone County Sheriff's Office; and JASON DAY, Jail Administrator, Boone County Sheriff's Office DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          TIMONTHY L. BROOKS UNITED STATES DISTRICT JUDGE

         This is a civil rights action filed by the Plaintiff Luther Wayne Dillon ("Dillon") pursuant to 42 U.S.C. § 1983. Dillon proceeds pro se and in forma pauperis.

         Dillon is incarcerated in the Boone County Detention Center ("BCDC"). Dillon contends his constitutional rights were violated when: (1) his access to the law library was cut off and (2) he was no longer allowed to call his sister. Dillon has sued Defendants in their official capacities only.

         On December 11, 2018, Defendants filed a Motion for Summary Judgment (Doc. 18). The following day, an Order (Doc. 21) was entered directing Dillon to file a response to the Motion for Summary Judgment by January 2, 2019. Dillon was advised that failure to comply with the Court's Order (Doc. 21) would result in: (a) all of the facts set forth by the Defendant in the summary judgment papers being deemed admitted by Dillon, pursuant to Rule 56.1(c) of the Local Rules for the Eastern and Western Districts of Arkansas; and/or (b) his case being subject this case to dismissal without prejudice, pursuant to Local Rule 5.5(c)(2). Dillon has not filed a response, and the time for doing so has passed.

         Although the local rules allow the Court to deem a defendant's facts as admitted when a plaintiff does not file a response to summary judgment specifically disputing those facts, the Eighth Circuit has stated:

A plaintiff s verified complaint is the equivalent of an affidavit for purposes of summary judgment, and a complaint signed and dated as true under penalty of perjury satisfies the requirement of a verified complaint, 28 U.S.C. § 1746. Although 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 in order to survive summary judgment motion.

Roberson v. Hayti Police Dep'L, 241 F.3d 992, 994-995 (8th Cir. 2001). Therefore, the Court will "piece[] together [Dillon's] version of the facts from the verified complaint." McClanahanv. Young, No. 2016 WL 520983, at *1 (D.S.D. Feb. 5, 2016). Those portions of the Defendants' statement of material facts that do not conflict with Dillon's verified complaint will be deemed admitted. Id.

         I. BACKGROUND

         On December 4, 2017, Dillon was charged by information with three counts of rape, criminal attempt to commit rape, three counts of sexual assault in the second degree, three counts of sexual indecency with a child, and three counts of sexually grooming a child in connection with his activities with his three step-children (Doc. 20-6 at 5). On February 6, 2018, Dillon was booked into the BCDC. (Doc. 20-2 at 5). On February 23, 2018, Dillon appeared in the Boone County Circuit Court and indicated he had hired attorney Justin Downum to represent him. (Doc. 20-6 at 7). On March 13, 2018, Downum entered his appearance in Dillon's criminal case. Id. at 8. Downum visited Dillon in jail on several occasions. (Doc. 20-2 at 19-20).

         On March 19, 2018, Corporal Michael Eddings was informed that Dillon had received mail from his alleged victims. (Doc. 20-2 at 7, 12). Eddings contacted the prosecutor's office and was advised that Dillon should not be allowed to have any contact with his alleged victims. Id. at 12. Eddings informed Silva that Dillon was to have no contact with the victims in his case. (Doc. 20-2 at 8).

         According to the allegations of the Complaint, on April 26, 2018, Sheriff Moore had Dillon's access to the kiosk blocked, including his law library and commissary, for having broken a protective order. (Doc. 20-5 at 6-7). Dillon testified that from February 6, 2018, until the jail blocked his access, he had used the kiosk to contact the mother of the alleged victims. (Doc. 20-5 at 7). Dillon believes someone realized that he had been contacting the mother, so Jail Administrator Jason Day had his e-mail turned off. (Doc. 20-1 at 2; Doc. 20-5 at 8). Dillon testified that for approximately a month, "they blocked the whole kiosk" and he "wasn't able to even get into [his] account." (Doc. 20-5 at 8). Therefore, he filed paper grievances instead of electronic ones. Id. at 9.

         On May 6, 2018, Dillon submitted a written grievance asking the Sheriff to reinstate his assess to the law library and to the commissary. (Doc. 20-3 at 20). Dillon stated no one had informed him about the protective order. Id. Dillon wanted to be able to conduct research on his criminal charges. (Doc. 20-5 at 11).

         According to Day, when he was informed that Dillon was having problems with access to the electronic law library and commissary, he directed a deputy to check the kiosk and asked Deputy Jason Silva to follow up with the vendor, Smart Jail Mail, to resolve the problem. (Doc. 20-1 at 3). Day asserts that officers did not block Dillon's access to the law library or commissary. Id. Day maintains the error was purely a technical one. Id.

         On May 9, 2018, Dillon spoke to his sister on the phone. (Doc. 22 (audio recording)). Dillon and his sister talked about "her" and discussed how she was not going to let the boys, the alleged victims, get on the stand or talk to the prosecutor. Id. Dillon asked his sister to contact "you know who" and have her write a letter on his behalf and to put money in his commissary account. Id.

         On May 11, 2018, Eddings discovered that during Dillon's phone call with his sister, he had asked her to contact the victims' mother on his behalf. (Doc. 20-2 at 12). Eddings contacted the prosecutor's office and confirmed that Dillon was to have no contact with the victims or their mother. Id. Eddings emailed jail staff and directed them to block Dillon from calling the sister's phone number again. (Doc. 20-2 at 10, 12). Silva responded: "Consider it done." Id. at 10.

         Defendants have submitted the phone logs of the individual assigned pin # 32541. (Doc. 20-4 at 2-12). However, there is nothing in the logs that identifies ...


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