United States District Court, E.D. Arkansas, Pine Bluff Division
FINDINGS AND RECOMMENDATION
following proposed Recommendation has been sent to United
States District Judge D.P. Marshall Jr. You may file written
objections to all or part of this Recommendation. If you do
so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection, and (2) be
received by the Clerk of this Court within fourteen (14) days
of this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
Deverick Scott (“Scott”), an inmate at the
Arkansas Department of Correction's (“ADC”)
Varner Supermax Unit, filed a complaint on April 4, 2017,
asserting claims under 42 U.S.C. § 1983, state tort law,
and the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”). See Doc. No. 1 at 1. Scott
sues Danny Burl, former Warden of the Maximum Security Unit
(“MSU”); former MSU Deputy Warden Aundrea
Fitzgerald (identified as Warden Weekly in Scott's
Complaint and now known as Audrea Culclager); Major Carl Stout;
Lieutenant Richard Clark; Sergeant and Property Officer
Angelah Kennedy; Lieutenant Cochoran; Sergeant Cornelius
Christopher; Sergeant Eddie Thompson; Hunter Neal; Crystal
Neese; Business Operations Specialist Reena Harrison; and ADC
Director Wendy Kelley, in their official and individual
capacities. Id. Scott sues for compensatory and
punitive damages. Id. at 7-8.
lawsuit pertains to his housing in punitive isolation at the
MSU between March 3, 2015 and February 5, 2016. Doc. No. 1.
Scott's complaint describes four claims. See
Doc. No. 38 at 4. First, Scott alleges that Kennedy
wrongfully confiscated and destroyed certain personal
property belonging to Scott on December 15, 2015, in
retaliation for his use of the grievance procedure. Doc. No.
1 at 4, ¶ 46. Scott further alleges that Kelley, Stout,
Clark, Burl, and Christopher failed to take corrective action
with respect to Kennedy's alleged retaliation.
Id. Second, Scott alleges that Kelley, Burl, Weekly
(Fitzgerald/Culclager), Stout, and Harrison created a policy
that would not allow him to have personal hygiene items while
in punitive segregation. Id. at 4-5, ¶ 47.
Scott also alleges that Stout retaliated against him for
writing grievances by not signing his indigent hygiene slips.
Third, Scott alleges that Cochoran, Clark, and Stout refused
to allow Scott to be escorted to the infirmary until he took
his hair down and that his hair was up because of his
religious beliefs. Id. at 5-6, ¶ 48. Scott
claims he was denied adequate medical care as a result.
Id. Finally, Scott alleges that he was given a false
disciplinary for possessing a shank in retaliation for
writing grievances against Kennedy. Id. at 6,
¶49. Specifically, Scott alleges that Kennedy conspired
with Thompson to write a false disciplinary stating that
Kennedy found a shank in a holding cell occupied by Scott.
Id. Scott further claims that Neal and Neese
conspired to cover up Kennedy and Thompson's conspiracy.
claims against Cochoran were dismissed because Scott did not
provide an address for service for Cochoran. See
Doc. Nos. 21 & 22. Scott's corrective inaction claim
against Burl, Kelley, and Christopher was dismissed for
failure to exhaust administrative remedies, and Scott's
false disciplinary claims against Neal and Neese were
similarly dismissed. See Doc. Nos. 38 & 39.
Scott's other claims remain pending.
the Court is a motion for summary judgment and related
pleadings filed by the remaining defendants (Doc. Nos.
44-46). Scott filed a response, brief in support, and
statement of disputed factual issues (Doc. Nos. 50-52).
Defendants filed a reply (Doc. No. 54). For the reasons
described herein, the undersigned recommends that
defendants' motion for summary judgment be granted.
Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is proper if “the movant shows that there is
no genuine dispute as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(a); Celotex v. Catrett,
477 U.S. 317, 321 (1986). When ruling on a motion for summary
judgment, the court must view the evidence in a light most
favorable to the nonmoving party. Naucke v. City of Park
Hills, 284 F.3d 923, 927 (8th Cir. 2002). The nonmoving
party may not rely on allegations or denials, but must
demonstrate the existence of specific facts that create a
genuine issue for trial. Mann v. Yarnell, 497 F.3d
822, 825 (8th Cir. 2007). The nonmoving party's
allegations must be supported by sufficient probative
evidence that would permit a finding in his favor on more
than mere speculation, conjecture, or fantasy. Id.
(citations omitted). An assertion that a fact cannot be
disputed or is genuinely disputed must be supported by
materials in the record such as “depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials . . .”. Fed.R.Civ.P. 56(c)(1)(A). A
party may also show that a fact is disputed or undisputed by
“showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1)(B). A dispute is genuine
if the evidence is such that it could cause a reasonable jury
to return a verdict for either party; a fact is material if
its resolution affects the outcome of the case. Othman v.
City of Country Club Hills, 671 F.3d 672, 675 (8th Cir.
2012). Disputes that are not genuine or that are about facts
that are not material will not preclude summary judgment.
Sitzes v. City of West Memphis, Ark., 606 F.3d 461,
465 (8th Cir. 2010).
correctly assert that Scott's monetary claims against
them in their official capacities are barred by sovereign
immunity. A suit against a defendant in his or her
official capacity is in essence a suit against the State of
Arkansas, and any official capacity claim for monetary
damages against that defendant is barred by the doctrine of
sovereign immunity. Will v. Michigan Department of State
Police, et al., 491 U.S. 58, 71 (1989); Nix v.
Norman, 879 F.2d 429, 431-432 (8th Cir. 1989).
Accordingly, the undersigned recommends that defendants be
awarded summary judgment with respect to Scott's official
assert they are entitled to qualified immunity with respect
to Scott's individual capacity claims. Qualified immunity
protects government officials from liability for damages
“insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person [in their positions] would have
known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Qualified immunity is a question of law and is
appropriately resolved on summary judgment. McClendon v.
Story County Sheriff's Office, 403 F.3d 510, 515
(8th Cir. 2005); Mitchell v. Forsyth, 472 U.S. 511,
526 (1985). To determine whether a defendant is entitled to
qualified immunity, the Court must consider two questions:
(1) do the facts alleged by plaintiff establish a violation
of a constitutional or statutory right; and (2) if so, was
that right clearly established at the time of the
defendant's alleged misconduct. Wright v. United
States, 813 F.3d 689, 695 (8th Cir. 2015). Courts may
exercise “their sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances of the
particular case at hand.” Pearson v. Callahan,
555 U.S. 223, 236 (2009).
Personal Hygiene Items: Defendants Kelley, Burl,
Culclager, Stout, & Harrison
alleges that his First, Eighth, and Fourteenth Amendment
rights were violated because Kelley, Burl, Culclager, Stout,
and Harrison failed to train and supervise staff. He also
claims they were deliberately indifferent to his health and
safety by creating a punitive segregation policy that forced
Scott to go over 30 days without buying hygiene necessities.
Doc. No. 1 at 4-5, ¶ 47. Additionally, Scott alleges
that Stout retaliated against him for writing a grievance by
refusing to sign off on indigent hygiene slips. Id.
Defendants argue they are entitled to summary judgment
because: (1) the named defendants were not responsible for
creating MSU's punitive segregation policy; (2) the
policy does allow inmates to possess and purchase personal
hygiene supplies while in punitive isolation; and (3) Scott
in fact purchased hygiene supplies while in punitive
isolation. See Doc. No. 45.
Relevant ADC Policies
segregation at the MSU is governed by Administrative
Directive (AD) 12-24 “Punitive
Segregation/Restriction” and MS 10.02.0. The ADC also has
a dental policy that provides inmates with dental supplies.
12-24 explains the purpose for punitive segregation, and
defines and explains the procedures regarding punitive
segregation. Doc. No. 44-11. These procedures encompass
commissary, showers, personal property, and
cleanliness/grooming, among other things. Id.
Specifically, the policy reads, in part, as follows:
Inmates may be confined to punitive segregation for a period
of up to 30 days.
Inmates serving consecutive punitive isolation sentences will
receive 48hour relief at the end of each 30-day sentence.
Inmate privileges as previously outlined in this policy will
be restored during the 48-hour relief period and will be
restricted again at the beginning of the next punitive
sentence. An inmate's telephone privilege will not be
restored during 48hour relief if the privilege was suspended
due to a conviction of disciplinary rule violation 02-5,
09-13 or 17-3. Commissary purchases may be made by an inmate
only if the inmate's 48-hour relief falls on their
regularly scheduled commissary day, and will be limited to a
quantity that can reasonably be consumed in 48 hours. Inmate
personal property privileges as previously outlined in
paragraph A (9) of this policy will remain in effect.
Id. at 7. The MSU's punitive segregation policy,
MS 10.02.0, was created by the unit warden. Doc. No. 44-12.
It is the unit policy that tracks both AD 12-24 and AR 839.
Id. Pursuant to MS 10.02.0, inmates in punitive
segregation are allowed to possess (among other things):
soap, toothbrush, toothpaste, toilet paper, a comb, and
deodorant. Id. at 4-5. The policy further provides that
inmates may not purchase commissary items while in punitive
isolation unless they are on their 48-hour relief period and
the commissary is open. Id. at 4. Inmates in
punitive segregation are afforded the opportunity to shave
and shower three times per week, after which each inmate will
be given a fresh change of clothing. Id. No
substantive changes were made to MS 10.02.0 during Warden
Burl's tenure. See Declaration of Danny Burl,
Doc. No. 44-13.
Dental Policy 1000.00 “Dental Services” states
that each inmate will be provided with one toothbrush upon
admission, and quarterly thereafter. Doc. No. 44-8. The
policy further provides that each inmate will be provided
with a 1.5 ounce tube of toothpaste on a monthly basis. In
addition, if items are lost or damaged, the inmate is to
inform the health care services staff, which will issue a
replacement. Doc. No. 44-8 at 2.
Stays in Punitive Isolation/Purchase of Hygiene Supplies
March 3, 2015, Scott was transferred from the Varner Unit to
the MSU. See Scott's status assignment sheet
from May 26, 2004, to April 24, 2017. Doc. No. 44-1 at 5. He
was housed in isolation between March 3 and March 10, 2015.
Id. Scott made a large purchase from the MSU
commissary on March 16, 2015, which included three bars of
soap, a toothbrush, and shower shoes. Doc. No. 44-2 at 3.
was next housed in isolation between March 24 and April 22,
2015, after being found guilty of a Major Disciplinary. Doc.
No. 44-1 at 4. Two days after being released from isolation,
on April 24, 2015, Scott purchased toothpaste, deodorant, and
two bars of soap from the MSU commissary. Id.
was next housed in isolation between May 19 and June 18,
2015, after being found guilty of another Major Disciplinary.
Doc. No. 44-1 at 4. On June 29, 2015, Scott visited the MSU
commissary, where he purchased fingernail clippers but no
other hygiene products. Doc. No. 44-2 at 4.
July 30, 2015, and February 5, 2016, Scott was housed in
punitive isolation because of numerous disciplinaries he
received which resulted in consecutive sentences of 30 days
in isolation. Doc. No. 44-1 at 3. During that time, he
received 48-hour relief on August 29, September 29, October
30, November 30, and December 31, 2015, and on January 31,
2016. Doc. No. 44-1 at 2-3. Also during that
time, commissary records reflect that Scott was allowed to
purchase hygiene items on September 17, 2015 (toothpaste,
hair food, deodorant, six lotions, and two soap bars);
November 3, 2015 (hair cream, deodorant, toothpaste, hair
food, lotion, and curl activator); December 21, 2015 (hair
cream, toothpaste, hair food, a toothbrush, six lotions, baby
powder, three shampoos and conditioners, three bars of
moisturizing soap, and deodorant); and February 1, 2016 (hair
gel, two toothpastes, and two soap bars). Doc. No. 44-2 at 5,
6. Scott was transferred from the MSU to the Varner Supermax
Unit on February 5, 2016. Doc. No. 44-1 at 1.
Eighth & Fourteenth Amendment Claims
prevail on an Eighth Amendment conditions of confinement
claim, a prisoner must show (1) the alleged deprivation was,
“objectively, sufficiently serious, ” and
resulted “in the denial of the minimal civilized
measure of life's necessities, ” and (2) prison
officials were deliberately indifferent to “an
excessive risk to inmate health or safety.” Farmer
v. Brennan, 511 U.S. 825, 834 (1970). The length of time
a prisoner is exposed to unsanitary conditions is relevant to
the Court's analysis as is the extent of the unclean
conditions. See Owens v. Scott County Jail, 328 F.3d
1026, 1027 (8th Cir. 2003). To prevail on a Fourteenth
Amendment Due Process claim, Scott must show that the
conditions he endured in punitive isolation resulted in an
“atypical and significant hardship.” Sandin
v. Conner, 515 U.S. 472, 484 (1995).
Eighth and Fourteenth Amendment claims fail because he does
not establish that he was denied the minimal civilized
measure of life's necessities, and fails to establish
that the conditions he endured resulted in an atypical and
significant hardship. The uncontroverted facts establish that
Scott was able to purchase adequate hygiene supplies on a
regular basis, even while in punitive isolation. Scott has
also failed to provide evidence that he was refused hygiene
supplies at any time or that he did not possess any hygiene
supplies from previous purchases while in isolation.
review of grievances cited by Scott indicates that his main
complaint is that his 48-hour relief periods occurred on
weekends or holidays when the commissary was not open, and he
could therefore not purchase hygiene items he wanted.
See Doc. No. 51 at 36 & 39. Scott filed the
grievances at issue on January 20 and 25, 2016. Id.
In MX-16-342, submitted on January 25, he claimed he had not
been to the commissary in over six and one-half weeks.
Id. at 39. The record, however, shows that it had
been just over one month since Scott purchased hygiene
products on December 21, 2015. Doc. No. 44-2 at 6. ...