United States District Court, W.D. Arkansas, Hot Springs Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.
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
before the Court is Defendant's Motion for Summary
Judgment. (ECF Nos. 24, 25, 26).
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).
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
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.
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.
alleges he sent a letter and a grievance to Defendant Kelley,
but she did not do anything to help him. (Id.).
proceeds against Defendants in their personal capacity.
(Id. at 2). He seeks monetary damages and the
criminal prosecution of Defendant Willfong. (Id. at
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
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.
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).
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., ...