United States District Court, W.D. Arkansas, El Dorado Division
REPORT AND RECOMMENDATION
BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE
a civil rights action filed pro se by Plaintiff,
Craytonia Badger, under 42 U.S.C. § 1983. Before the
Court is a Motion for Summary Judgment filed by Defendants
Kelly Blair, Koby Schmitton and Janet Delaney. (ECF No. 21).
Plaintiff has filed a Response. (ECF No. 27). 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.
is currently incarcerated in the Arkansas Department of
Correction (“ADC”) - East Arkansas Regional Unit.
His claims in this action arise from alleged incidents that
occurred between November 18, 2015 and December 7, 2015 while
he was incarcerated in the Columbia County Detention Center
(“CCDC”) as a pre-trial detainee. (ECF No. 1, p.
was booked into the custody of the CCDC on August 19, 2015.
(ECF No. 27, p. 4). On September 4, 2015, Plaintiff was
charged with committing two counts of A.C.A. § 5-54-119,
Furnishing Prohibited Articles in the CCDC. (ECF No. 23-3,
November 18, 2015, Defendant Blair filed an incident report
On Wednesday November 18, 2015, Investigator Kelly Blair was
listening to inmate phone calls as part of an ongoing
investigation. Blair was listening to a call from Lakisha
Wells. She called 662-444-4071. She talked to the lady and
told her to call a number. At this point a man's voice
comes on and Blair recognized the voice of Craytonia Badger.
Blair has listened to many hours of conversations of this
inmate. He then checked City Tele Coin records and found that
no one had made a phone call from Pod 1, the pod that Badger
was being held [in]. Blair looked at all City Tele Coin calls
and that is the only approved phone in the pod.
While Mr. Badger was talking to Lakisha Wells he said that he
had just got off the phone with “Charles.” Blair
looked and there was no record of such a call. Blair then
notified Chief Deputy Doug Wood. Blair told Wood that he
suspected that Mr. Badger had another cell phone in the pod.
Chief Deputy Wood, Captain Mike McWilliams, Deputy Greg
Hawley, Investigator Kelly Blair, Investigator Koby
Schmittou, and bailiff Ryland Dare made a plan and went to
Pod One for a search. Janet Delaney also was present.
Schmittou found a broken phone hidden in the wall of the
bathroom of the pod. Blair later reached in a hole in the
shower and found a sock, tied to a pipe with a piece of
string. He pulled the sock out and found a plastic bag in the
sock. Inside the bag was a Samsung flip phone and a charger.
Deputies also found assorted e-cig batteries that were
connected to make a charger. They also found strips of wire
that had been stripped from a wall monitor.
Blair looked in Badger's legal papers and saw photographs
of medications in a pharmacy. Blair then took all of the
paper work in Mr. Badger's area and boxed it. The papers
were not looked at, just sealed.
Investigators then took the phone and charged it. Deputies
were concerned that an escape might be being planned. They
saw that no messages could be traced to that and the phone
was sealed. It appeared that over 100 calls had been made or
received by this phone. Investigators knew that many of the
numbers on it were ones that Mr. Badger calls on a regular
basis, on the City Tele Coin System.
(ECF No. 23-3, p. 51). During the search of Pod 1
Plaintiff's “legal papers were taken because it was
determined that they were being rolled up and used to make
devices to help reach and otherwise smuggle contraband within
the facility.” (ECF No. 23-8, p. 2). Plaintiff disputes
this claim. He also denies he was the inmate speaking to Ms.
Wells and denies he had possession of or used a cell phone
while he was housed in Pod 1. (ECF No. 27, p. 6). Later that
day, Columbia County District Court Judge Michael Epley
ordered a search warrant for the Black Samsung Verizon flip
phone found during the seizure that took place in Pod 1 in
the CCDC. Id. at pp. 52-53. Defendant Schmittou then
submitted an evidence submission form and turned in the
Samsung Verizon flip phone to the Arkansas State Crime
Laboratory. Id. pp. 54-55.
November 18, 2015, Plaintiff was moved from Pod 1 to Pod 5 in
the CCDC. He remained in Pod 5 until December 7, 2015. (ECF
No. 27, p. 7). According to the CCDC's log report, during
this time Plaintiff made purchases from the commissary,
regularly accepted meals, was allowed recreation time,
watched television, received and sent mail, showered daily,
wrote letters and was provided cleaning supplies for his
cell. (ECF 23-3, pp. 53-64). Plaintiff disputes he had access
to a television during this time and claims he was not
allowed to go outside for recreation. (ECF No. 27, p. 28).
During this time CCDC staff performed regular well-being
checks on Plaintiff. (ECF No. 23-3, pp. 53-64). The
CCDC's log record for the time Plaintiff was held in Pod
5 does not contain any notations of any complaints from
Plaintiff regarding the conditions in his cell. Id.
about November 18, 2015, Plaintiff filed a grievance
requesting his legal papers be returned. “Mr. Doug
Woods replied back stating your papers was collected as
evidence.” (ECF No. 1, p. 8). Plaintiff also claims he
filed grievances concerning his toilet not flushing and the
roof leaking. Id. at p. 10. However, he has not
identified the dates of these grievances. Neither Plaintiff
nor Defendants have provided the Court with copies of these
December 7, 2015, Plaintiff escaped from the CCDC. Plaintiff
claims he escaped “because he couldn't get medical
care for the serious knot on the back of his head, being rain
on due to the linking roof, and toilet not flushable.”
(ECF No. 27, p. 7). The following day Plaintiff was arrested
and charged with Escape - III, Criminal Mischief I, Breaking
or Entering, and Burglary - Commercial. (ECF No. 23-6, pp.
5-20). After Plaintiff's escape, a search warrant was
issued to look through Plaintiff's legal papers that had
been seized back on November 15, 2015. According to Defendant
Blair, the legal papers are currently being held in evidence
at the Columbia County Sheriff's Office, pursuant to
orders of the State Court and Prosecuting Attorney. (ECF No.
23-8, p. 2).
returned to the CCDC on December 8, 2015 where he was housed
in Detox until December 11, 2015. (ECF No. 27, p. 8).
Plaintiff was then moved to Holding Cell 2 where he remained
until January 8, 2016 when he was transferred to the ADC.
During this time, Plaintiff made approximately 21 purchases
from the commissary. (ECF No. 27, p. 8). He also accepted
meals, wrote letters, read Arkansas law books, and met with
his attorney. Id.
November 16, 2016, Plaintiff filed a lawsuit pursuant to 42
U.S.C. § 1983 in the United States District Court for
the Southern District of Mississippi unrelated to the facts
in the instant case. See Badger v. Fisher et al.,
No. 5:16-cv-107 (ECF No. 1). During this litigation,
Plaintiff testified in a Spears hearing that the
defendants placed him and two other inmates in a two-man cell
for approximately one month. The defendants were granted
summary judgment and the case was dismissed on February 27,
2019. Id. at (ECF No. 112).
Policies of the CCDC
the policy of the CCDC that a detainee may be
administratively segregated from the general population of
the Detention Facility only, and to the extent necessary, to
maintain order and ensure security. Absent a separate
privilege deprivation decision, an administratively
segregated detainee is entitled to the same privileges as
detainees within the general population of the Detention
Facility. Privilege deprivation must be rationally related to
the objectives of maintaining order and ensuring security.
(ECF No. 23-5, p. 1). Administrative Segregation is defined
as the physical separation of a detainee from the general
population of the Detention Facility based on: 1) need for
protective custody; 2) communicable disease; 3) severe mental
defect; or 4) behavior which threatens the order of security
of the Detention Center. Id.
CCDC also has a written policy outlining “due
process” that is provided to detainees when they are
administratively segregated from the general population of
the facility. This policy provides in part:
a. Due Process (1) Pre-Segregation Hearing [-] Except for
emergencies, the detainees “side of the story” is
heard before deciding to segregate the detainee or as early
as possible. (2) Post-Segregation Hearing [-] If
administrative segregation is an emergency, the
detainee's “side of the story” is heard after
deciding to segregate the detainee. (3) Factual Basis (a) Any
decision to administratively segregate a detainee must be
rationally related to the objectives of maintain order or
ensuring security. (b) The detainee is informed of the
factual basis for administrative segregation following the
b. Review (4) An Administrative segregation decision is
reviewed each day. (5) Segregation is continued during the
next shift only if there continues to be a factual basis for
administrative segregation. Administrative segregation may be
renewed from ...