United States District Court, W.D. Arkansas, Harrison Division
MEMORANDUM OPINION AND ORDER
TIMONTHY L. BROOKS UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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).
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).
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.
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).
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.
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.
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.
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 ...