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Badger v. Blair

United States District Court, W.D. Arkansas, El Dorado Division

July 24, 2019

CRAYTONIA BADGER PLAINTIFF
v.
KELLY BLAIR, Investigator Columbia County, Arkansas; KOBY SCHMITTON, Investigator Columbia County, Arkansas; and JANET DELANEY, Jail Administrator, Columbia County Jail DEFENDANTS

          REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE

         This is 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.

         I. BACKROUND

         Plaintiff 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. 3).

         A. Factual Background

         Plaintiff 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, pp. 5-10).

         On November 18, 2015, Defendant Blair filed an incident report stating:

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.

         On 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.

         On or 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 grievances.

         On 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).

         Plaintiff 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.

         On 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.[1] The defendants were granted summary judgment and the case was dismissed on February 27, 2019. Id. at (ECF No. 112).

         B. Policies of the CCDC

         It is 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.

         The 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 hearing.
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 ...

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