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Scott v. Burl

United States District Court, E.D. Arkansas, Pine Bluff Division

May 9, 2019

DEVERICK SCOTT PLAINTIFF
v.
DANNY BURL, et al. DEFENDANTS

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The 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.

         DISPOSITION

         I. Introduction

         Plaintiff 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);[1] 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.

         Scott's 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. Id.

         Scott's 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.

         Before 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.

         II. Legal Standard

         Under 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).

         III. Discussion

         A. Sovereign Immunity

         Defendants correctly assert that Scott's monetary claims against them in their official capacities are barred by sovereign immunity.[2] 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 capacity claims.

         B. Qualified Immunity

         Defendants 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).

         1. Personal Hygiene Items: Defendants Kelley, Burl, Culclager, Stout, & Harrison

         Scott 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.

         a. Undisputed Facts[3]

         i. Relevant ADC Policies

         Punitive segregation at the MSU is governed by Administrative Directive (AD) 12-24 “Punitive Segregation/Restriction”[4] and MS 10.02.0. The ADC also has a dental policy that provides inmates with dental supplies.

         AD 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.[5] 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.[6] 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.

         ADC 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.

         ii. Stays in Punitive Isolation/Purchase of Hygiene Supplies

         On 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.

         Scott 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.

         Scott 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.

         Between 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.[7] 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.

         b. Analysis

         i. Eighth & Fourteenth Amendment Claims

         To 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).

         Scott's 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.

         A 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. ...


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