United States District Court, E.D. Arkansas, Eastern Division
FINDINGS AND RECOMMENDATION
following proposed Recommendation has been sent to Chief
United States District Judge Brian S. Miller. 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.
Anthony Dewayne Walker, an inmate at the East Arkansas
Regional Unit of the Arkansas Department of Correction (ADC),
filed a pro se complaint pursuant to 42 U.S.C.
§ 1983 on August 10, 2017, alleging that defendants
violated his constitutional rights by filing disciplinaries
against him and placing him in administrative segregation.
See Doc. No. 2. The defendants are Wendy Kelley,
Jeremy Andrews, Kenyon Randle, and Leroy Golatt. Id.
Defendants are sued in both their individual and official
capacities. Id. at 2.
Court screened Walker's amended complaint (Doc. No. 7)
and concluded that Walker's equal protection claim should
proceed while his due process,  conditions-of-confinement, and
injunctive relief claims should be dismissed. Doc. No. 8. The
Court's recommendation was subsequently adopted. Doc. No.
the Court is a motion for summary judgment and related
pleadings filed by the defendants (Doc. Nos. 45-47). Walker
filed a response, brief in support, and statement of
undisputed material facts (Doc. Nos. 54-56). 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).
16, 2017 Disciplinary
February 16, 2017, Captain Randle wrote a disciplinary
charging Walker with violating the following rules: 12-3,
failure to obey verbal and/or written order of staff; 09- 3,
possession/introduction/manufacture of any drug, narcotic
intoxicant, tobacco, chemical or drug paraphernalia not
prescribed by medical staff; and 02-2, under the influence of
and/or any use of illegal drugs, alcohol, intoxicating
chemical or any medication in an unauthorized manner. Doc.
No. 45-5, February 16, 2017 Disciplinary, at 1; Doc.
No. 45-10, Declaration of Terrie Banister, at
¶¶ 5-6. Captain Randle wrote the disciplinary after
observing that Walker was exhibiting signs he believed to be
consistent with a person being under the influence of an
illicit substance such as K-2 or synthetic marijuana. Doc.
No. 45-5 at 1. Walker did not receive a drug test. Doc. No.
45-1, Excerpts from the September 10, 2018 Deposition of
Anthony Walker, at 8.
disciplinary hearing was held on February 23, 2017. Doc. No.
45-2, Declaration of Raymond Naylor, ¶ 33; Doc.
No. 45-5 at 2; Doc. No. 45-10, ¶ 4). Terrie Banister was
the disciplinary hearing officer. Id. At the
hearing, Walker entered pleas of not guilty to all the
disciplinary charges. Doc. No. 45-2 at ¶ 35; Doc. No.
45-5 at 2; Doc. No. 45-10 at ¶ 6. Banister testified
that Walker provided the following statement:
I woke up at 8 that morning. I was on my rack praying. The
captain was in [my] face after I finished praying. My feet
swollen. He asked me to walk. My feet were swollen. I walked
a straight line. He does not state how I was acting. I went
to the infirmary. They did not give me no urine test. I was
not under the influence of no K-2. This stuff killed by
No. 45-10 at ¶ 7; see also Doc. No. 45-5 at 2.
Banister also testified that in addition to Walker's
statement, she also considered Randle's F-1 Report and
the Infirmary Report. Doc. No. 45-10 at ¶¶ 8 &
9; see also Doc. No. 45-11, February 2017
Disciplinary Hearing Documents, at 2. She
stated that Randle noted the following in his F-1 Report:
On February 16, 2017, at approximately 8:37 a.m., [I] was
advised by security that Inmate Walker, Anthony ADC# 107683
was in 10 barracks on his rack behaving erratically. Upon
arrival, [I] asked Inmate Walker his name and if he was okay.
He didn't respond. [I] then asked Inmate Walker if he
could walk, he stated “yes.” Inmate Walker stood
up and attempted to walk, Inmate Walker staggered back and
forth. [I] then placed Inmate Walker in restraints because
his actions were consistent with a person under the influence
of an illicit substance such as K-2 or synthetic marijuana.
[I] and additional security escorted Inmate Walker to the
main infirmary for a medical assessment. After the medical
assessment, a pre-lock up was completed and Inmate Walker was
escorted to EARU-Max for housing.
Id. The Infirmary Report from that day states,
“per security appears to be under the influence.”
Doc. No. 45-11 at 3. The report also notes that Walker
stated, “I don't know what I'm getting locked
up for, I was sleeping.” Id.
testified that, after a fair and impartial consideration of
the evidence, including Walker's statement, she found
Walker not guilty of violating rules 12-3 and 09-3. Doc. No.
45-10 at ¶¶ 11 & 12; see also Doc. No.
45-5 at 2. Banister stated that she found Walker guilty of
violating rule 02-2, under the influence of and/or any use of
illegal drugs, alcohol, intoxicating chemical or any
medication in an unauthorized manner. Id. She
sentenced Walker to fifteen days in punitive isolation and
reduced his class status. Id.
Naylor, the ADC's Internal Affairs/Disciplinary Hearing
Administrator and custodian of the ADC's disciplinary
hearing documents, reviewed Walker's disciplinary appeal
file. Doc. No. 45-2 at ¶¶ 2 & 31. According to
Walker's disciplinary file, Walker appealed
Banister's decision to Warden Andrews, Naylor, and ADC
Director Wendy Kelley. Doc. No. 45-2 at ¶¶ ...