United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey, Chief United States District Judge
the Court are cross-motions for summary
judgment. (ECF Nos. 28, 30). The parties have each
filed responses in opposition. (ECF Nos. 34, 36). Defendants
filed a reply. (ECF No. 40). The Court finds this matter
fully briefed and ripe for consideration.
a civil rights action filed pro se by Plaintiff,
Michael Phillips, pursuant to 42 U.S.C. § 1983.
Plaintiff is currently incarcerated in the Arkansas
Department of Correction (“ADC”), Ouachita River
Unit. The incidents giving rise to Plaintiff's claims
occurred between February and April 2018 while he was
incarcerated in the Hempstead County Detention Center
(“HCDC”). (ECF No. 2).
was arrested and booked into the HCDC on February 17, 2018.
(ECF No. 32-2, pp. 2-3). On March 8, 2018, Plaintiff filed a
grievance stating that “something need to be done about
the mold that's in the shower its makes me have chest
pain and headaces.” (ECF No. 32-3, p. 2). Defendant
Godbolt responded, stating that Plaintiff needed to speak
with Lt. Powell regarding mold.
from the Arkansas Criminal Detention Facilities Review
Committee annually inspect the HCDC to ensure that the
facility complies with state-mandated minimum standards.
Black mold has not been found in the HCDC during any
inspection by the Committee.(ECF No. 32, p. 1). Plaintiff
contends that the Arkansas Criminal Detention Facilities
Review Committee does not find mold during inspections
because “they don't walk inside the pods they just
walk the halls without even seen how the inmates are
doing.” (ECF No. 35, p. 2).
April 12, 2018, ATOKA, Inc., Professional Environmental
Consulting Services, performed a visual assessment, sampling
for airborne mold and checking for the presence of moisture
at the HCDC. (ECF No. 32-4). Based upon ATOKA's visual
surveillance, dry environmental conditions, and air sample
results in the HCDC's structure, ATOKA, Inc.'s opined
that there is no mold issue in the HCDC. Id.
However, Plaintiff asserts that, “they never came to
the back of the Jail where all the inmates is housed at they
only did the mold assessment test in front of the jail where
the sheriff office is located at.” (ECF No. 35, p.
April 19, 2018, Plaintiff was released to the ADC. (ECF No.
32-2 p. 3). Plaintiff's medical records from the ADC show
that he has a family history of heart disease and high blood
pressure and that he has been treated for hypertension since
2011. (ECF No. 42-1, pp. 13, 25). The records also confirm
that Plaintiff suffers from a skin condition on his scalp
known as tinea (i.e. ringworm of the scalp) which developed
sometime in 2017. Id. at pp. 38, 40. As of October
17, 2018, Plaintiff was still being treated with various
medical creams and shampoo for the tinea, or as Plaintiff
describes it, the “fungus and sores” on his head.
(ECF No. 29, p. 9).
provided the affidavit of Lieutenant James Wise, the acting
jail administrator at the HCDC. who states that the 309
inmates in the HCDC spray and clean the showers on
Wednesdays and Saturday and that inmates are given mop
buckets, mops, brooms, and cleaning solution that can be used
every day. (ECF No. 32, p. 1). Plaintiff attempts to dispute
this fact, stating:
Defendants can't show any record of the 309 inmates
cleaning the showers from March 8 2018 [u]ntil April 19
2018…for one the inmates cannot leave there pods it
should have a record of when and what time the inmates use
the cleaning supple because they have to keep a log on every
inspection that they say that they do.
(ECF No. 35, pp. 1-2). Lieutenant Wise also states that he
has not located any “black mold” or rust during
his inspections of the HCDC. In response Plaintiff states,
“Why [black mold] wasn't discovered is because they
paint over the mold and bleach the mold when they knew they
got a inspection.” (ECF No. 35, p. 2).
filed his Complaint on June 12, 2018. (ECF No. 2). Plaintiff
alleges Defendants James Singleton, Johnny Godbolt,
Hempstead County subjected him to unlawful conditions of
confinement for two months while he was incarcerated in the
HCDC. Specifically, Plaintiff claims:
While being housed in F-Pod, plaintiff began to experience
headaches, high blood pressure, coughing up blood and
developed fungus and sores on the top of his head. On or
about April 19, 2018, plaintiff was transported to the
Arkansas Department of Correction and at that time was
treated for the sores and fungus in the top of his head.
Plaintiff was exposed to black mold while being housed in the
Hempstead County Jail which was the contributing factor of
the sores and fungus on the top of his head. Plaintiff is
still being treated by a physician for his actual injury.
Id. at p. 5. Plaintiff goes on to allege that,
“Jail officials were aware of the black mold and the
condition at the Hempstead County Detention Facility and did
nothing more than paint over the problem, only for it to grow
back through the paint.” Id. Plaintiff sues
Defendants in their individual and official capacities. He
seeks compensatory and punitive damages. Id. at p.
April 11, 2019, Plaintiff filed a Motion for Summary
Judgment, stating, “he still suffers from fungus and
sores injuries and is under a doctor care . . . these factual
disputes cannot be resolved without a trial.” (ECF No.
28). Plaintiff also submitted a brief in support of his
motion, including four affidavits. In addition, for the first
time, Plaintiff claims in his brief that “[he] ask to
be move to another pod do to Plaintiff blood pressure been
high every time Plaintiff get out of the shower do to the
mold that's in the showers[.]” (ECF No. 29, pp.
3-4). Plaintiff alleges that Sergeant Mills refused to move
him. Id. ...