Whitlow v. Willfong

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.

         This is a civil rights action provisionally filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, Chief United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation.

         Currently before the Court is Defendant's Motion for Summary Judgment. (ECF Nos. 24, 25, 26).

         I. BACKGROUND

         Plaintiff filed his Complaint on January 23, 2018, in the Eastern District of Arkansas. (ECF No. 2). He filed an Amended Complaint on February 16, 2018. (ECF No. 4). His case was transferred to this District on April 19, 2018. (ECF No. 9). Plaintiff was granted in forma pauperis (IFP) status on May 11, 2018, after a deficiency in his IFP application was cured. (ECF No. 15).

         Plaintiff alleges his constitutional rights were violated on April 20, 2017, while he was incarcerated in the Arkansas Department of Correction (ADC) Ouachita River Unit, RPU Section Eight. (ECF No. 4 at 4). Plaintiff alleges that on this date, Defendant Willfong gave him orange juice with his breakfast. Plaintiff alleges that drinking the juice caused him to “get sick and feel faint” immediately. (Id.). Plaintiff alleges the juice tasted like “liquor store vodka, ” and he initially thought the guards were sharing their contraband vodka with him. (Id.). Plaintiff alleges he then thought the orange juice contained poison, because he felt hungover, he “couldn't get out of bed for two days” after drinking the juice, and he could not regain his energy after bed rest. He states no other inmates became ill after drinking the orange juice that morning.

         Plaintiff alleges he was then told by “many people” that Defendant Willfong had put toilet water in his orange juice. “New people” then told him Defendant Willfong had urinated directly into his orange juice. Plaintiff alleges “people” saw Defendant Willfong urinating in Plaintiff's orange juice, and Defendant Willfong confessed to doing so. (Id.) Plaintiff “put in a few sick call[s]” but there was no response. (Id.).

         Plaintiff alleges he sent grievances and inmate request forms to Defendant Faust, but Defendant Faust did not respond. Plaintiff alleges Defendant Faust did not remove Defendant Willfong from Plaintiff's barracks and dayroom. This caused Plaintiff to stop eating his breakfast trays until Defendant Willfong left for a position in another facility. (Id.).

         Plaintiff alleges he sent a letter and a grievance to Defendant Kelley, but she did not do anything to help him. (Id.).

         Plaintiff proceeds against Defendants in their personal capacity. (Id. at 2). He seeks monetary damages and the criminal prosecution of Defendant Willfong. (Id. at 5).

         Plaintiff's claims against Defendants Kelley and Faust were dismissed pursuant to PLRA screening on August 6, 2018. (ECF No. 18). The sole remaining claim is that against Defendant Willfong for allegedly adulterating his orange juice. (Id. at 5).

         Defendant Willfong filed his Motion for Summary Judgment on September 6, 2018. (ECF No. 24). On September 7, 2018, the Court entered an Order directing Plaintiff to file his Response to the Motion by September 28, 2018. (ECF No. 28). To date, Plaintiff has not provided a Response, and has not otherwise communicated with the Court.

         In the Order directing him to Respond to the Summary Judgment Motion (ECF No. 28), Plaintiff was advised that failure to comply with the Court's Order 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 (b) shall subject this case to dismissal, without prejudice, pursuant to Local Rule 5.5(c)(2).

         The Court must consider the facts set forth in Plaintiff's verified Complaint in ruling on the Summary Judgment Motion. A verified complaint is the equivalent of an affidavit for summary judgment purposes. See, e.g., ...