United States District Court, W.D. Arkansas, El Dorado Division
O. Hickey Chief United States District Judge
the Court is Defendants' Motion for Summary Judgment.
(ECF No. 24). Plaintiff Craytonia Badger filed a Response and
a Supplemental Response. (ECF Nos. 26, 32). Defendants have
not filed a reply, and their time to do so has passed.
See Local Rule 7.2(b). The Court finds the matter
ripe for consideration.
a civil rights action filed by Plaintiff pursuant to 42
U.S.C. § 1983. Plaintiff proceeds pro se and
in forma pauperis (“IFP”). Plaintiff is
currently incarcerated in the East Arkansas Unit of the
Arkansas Department of Correction (“ADC”).
case concerns alleged incidents that occurred while Plaintiff
was incarcerated in the Columbia County Detention Center
(“CCDC”). Plaintiff has sued Defendants Sheriff
Mike Loe, Investigator Kelly Blair, and Sergeant Sonja
Collier in their individual capacities only. (ECF No. 1 at
4-5; ECF No. 10 at 1). Plaintiff has sued Defendant Chief
Deputy Doug Wood in both his individual and official
capacities. (ECF No. 1 at 5; ECF No. 10 at 2).
February 14, 2018, Plaintiff, an ADC inmate, was transported
to the CCDC. (ECF No. 26-2 at 1). That same day, Defendant
Blair arrested Plaintiff on a warrant for furnishing
prohibited articles; use of a communications device; engaging
in a continuous criminal gang, organization or enterprise;
financial identity fraud; and insurance fraud by use of a
procurer. (Id. at 2-3). Plaintiff was transferred
back to the ADC the following day. (Id. at 4). On
February 22, 2018, Plaintiff was transported back to the
CCDC. (ECF No. 26-2 at 5). It appears he was charged with
additional crimes at that time. (Id.).
has filed several civil rights lawsuits in the Western
District of Arkansas against Defendants, the earliest of
which are: Badger v. Loe, et al., No. 1:18-cv-1026,
filed on April 25, 2018; Badger v. Loe, et al., No.
1:18-cv-1031, filed on June 6, 2018; and Badger v. Loe,
et al, No. 1:18-cv-1032 filed on June 6, 2018.
he was incarcerated in the CCDC, Plaintiff contends that,
after he engaged in civil rights litigation against
Defendants, they retaliated against him in the following
ways: depriving him of his personal property, namely,
pictures and e-cigarettes; refusing to allow him to buy
e-cigarettes; falsifying new charges against him; denying him
access to the courts; interfering with his mail; and holding
him without probable cause and without bail. These alleged
instances occurred sporadically over a period of several
months. For ease of reference, the Court will separately
group the facts relevant to each alleged constitutional
March 12, 2018, Plaintiff attempted to order e-cigarettes
from the commissary. (ECF No. 26-2 at 10). His order was
denied with a note stating that he would not be allowed to
order e-cigarettes that day because he dissembled the last
ones he purchased. The notation also stated that he could
purchase e-cigarettes in the future but warned that he would
not be allowed to order more if he took any other
March 22, 2018, Plaintiff submitted an inmate grievance
complaining that Defendant Collier instructed CCDC officers
to require him to turn in any previously purchased
e-cigarettes whenever he purchases a new one. (ECF No. 26-3
at 2). Plaintiff stated that he should not be required to
turn in e-cigarettes he purchased and requested that three
previously returned e-cigarettes be returned to him.
(Id.). On March 29, 2018, in response, Plaintiff was
told that the e-cigarettes he purchased would be given back
to him. (Id.). The response also indicated that,
from then on, inmates would only be allowed to buy one
e-cigarette at a time. (Id.).
same day, Plaintiff submitted another grievance in which he
states that Defendant Collier was abusing her discretion
regarding his e-cigarettes. (ECF No. 26-3 at 1). He asserted
that there was no policy requiring inmates to return the
e-cigarettes they had purchased. (Id.). Plaintiff
claimed it was an unconstitutional seizure in violation of
his Fourth Amendment rights. (Id.). He argued the
e-cigarettes became his personal property, which he was
deprived of without due process and in violation of the
Fourteenth Amendment. (Id.). He also argued the
e-cigarettes were not contraband because the jail sold them
for profit. (Id.). On March 29, 2018, Plaintiff
received the following response to the grievance: “Give
him his E-cigs.” (Id.). Plaintiff followed up
with an electronic grievance on March 23, 2018, and the same
response was given. (Id.).
April 23, 2018, Plaintiff submitted a grievance complaining
that, on March 20, 2018, Defendant Blair had taken
Plaintiff's newly purchased e-cigarette during a cell
shakedown. (ECF No. 26-3 at 11-13). This grievance requested
a full refund of the $10 that he paid for the e-cigarette.
(ECF No. 26-3 at 13).
April 26, 2018, Plaintiff submitted another grievance asking
that the e-cigarette that was taken from him on March 20,
2018 be replaced or its price refunded. (ECF No. 26-3 at 14).
Plaintiff asserted that if Defendants looked at their
cameras, they would see a Magnolia police officer with the
e-cigarette in his hands, walking down a hallway.
(Id.). Defendant Wood responded that Plaintiff
should get his facts straight because his grievance dated
April 23, 2018 complained that Defendant Blair took the
April 30, 2018, Plaintiff submitted another grievance about
the e-cigarette that had been taken on March 20, 2018. (ECF
No. 26-3 at 15). Plaintiff asserted that the facts stated in
his previous grievances were correct because Defendant Blair
took the e-cigarette from him and then Plaintiff saw a
Magnolia police officer leaving with the e-cigarette.
(Id.). Further, Plaintiff maintained the e-cigarette
was not in his cell when he returned. (Id.).
Plaintiff asked that his property be replaced immediately.
(Id.). In response, Defendant Wood said that he had
investigated the incident and determined that no one had
Plaintiff's e-cigarette. (Id.).
17, 2018, Plaintiff submitted a grievance stating that the
receipts he gets for the e-cigarettes indicates he was
purchasing the e-cigarettes and because the receipts do not
indicate he is renting or leasing the e-cigarettes, they are
his property and he should not be required to turn them in.
(ECF No. 20). Plaintiff contended he was being singled out,
discriminated against, and retaliated against based on his
civil rights litigation pertaining to his treatment at the
CCDC. (Id. at 22). He pointed out that Defendant
Wood was a defendant to the lawsuit he had already filed and
“several to come.” (Id. at 22). He said
he had never received the e-cigarettes Defendant Collier was
ordered to return to him and that he had been restricted from
purchasing e-cigarettes on May 17, 2019, although other
inmates could purchase them. (Id. at 21-22).
Plaintiff maintained that he should be afforded due process
before any privileges are taken away. (Id. at 23).
Defendant Wood responded: “Commissary is a privilege,
not a right, and it is not a violation of your 14th Amendment
Right.” (Id. at 20).
March 23, 2018, Plaintiff submitted a grievance complaining
that he had written to Defendant Wood about his mail being
held for several days after being delivered to the CCDC. (ECF
No. 26-3 at 6). Plaintiff stated he had just received books
from his family but did not receive large brown envelopes
that his family mailed with the books. (Id.). On
March 27, 2018, in response, Defendant Wood said he had no
knowledge of any large brown envelopes arriving with
Plaintiff's books. (Id.).
1, 2018, Plaintiff submitted another grievance about his
legal mail, complaining that Defendant Blair was withholding
and partially opening his legal mail. (ECF No. 26-3 at 18).
In response, Defendant Wood said the mail given to Plaintiff
that morning “was taken from the mailbox in front of
the jail this morning.” (Id.). Defendant Wood
said the mail was then taken to the control room and given to
Plaintiff. (Id.). Defendant Wood also indicated the
mailbox was checked every morning. (Id.). Defendant
Wood's response did not address whether any legal mail
had been partially opened. (Id.).
18, 2018, Plaintiff submitted a grievance complaining that
Defendant Collier refused to give Plaintiff pictures of his
children that arrived in the mail because the pictures were
inappropriate. (ECF No. 26-3 at 19). Plaintiff contested this
assertion and suggested that Defendant Collier was racist.
(Id.). In response, Defendant Wood stated,
“[y]ou now have your pictures.” (Id.).
6, 2018, Plaintiff submitted a grievance complaining that
Defendant Collier withheld his mail and a $100 money order
for sixteen days. (ECF No. 26-3 at 28-29). He said he did not
receive the money order until June 6, 2018, even though the
money order was dated and postmarked May 18, 2018.
(Id.). Plaintiff indicated that he informed
Defendant Wood about Defendant Collier holding his mail, but
Defendant Wood never investigated. (Id.). Plaintiff
requested that something be done about it. (Id.).
Plaintiff said he went without commissary and stamps for a
time because Defendant Collier was retaliating against him by
withholding his mail. (Id.). Defendant Wood
responded that Plaintiff's mail was not being held.
7, 2018, Plaintiff appealed the grievance filed the day
before, complaining there was no way Defendant Wood could
have concluded that his mail was not being withheld because
the evidence clearly showed that his mail was held for
sixteen days. (ECF No. 26-3 at 29). The $100 money order was
posted to his account on June 6, 2018. (Id.). He
asked that something be done about Defendant Collier holding
his mail. (Id.). He also stated that this was not
the first time she had withheld his mail. (Id.).
Defendant Wood responded that he had talked to the Plaintiff
and told “him again that no one here is messing with
his mail.” (Id.).
IFP Application Account Certificate Forms and Grievance
March 27, 2018, Plaintiff submitted a grievance addressing,
among other things, the following issues: Defendant Wood
denying him access to the courts by refusing to complete the
account certificate portion of two of his IFP applications;
Plaintiff filing ten paper grievances without receiving a
single response; and the CCDC's new electronic grievance
system allowing inmates to submit only one grievance at a
time until the grievance is responded to, causing him to be
unable to exhaust his administrative remedies. (ECF No. 26-3
at 7-10). In response, Defendant Wood stated that the two
certificates had been filled out by the business office and
returned to Plaintiff on March 28, 2018, and the grievances
had been answered. (ECF No. 26-3 at 7-8).
15, 2018, Plaintiff submitted a grievance about three account
certificate forms that must be submitted with each IFP
application. (ECF No. 26-3 at 16). He stated he submitted the
forms to Mrs. Atkinson for her to complete on May 4 and 9, 2018.
(Id.). He said two of the forms were returned to him
incomplete on May 14, 2018. (Id.). Plaintiff claimed
that he was being denied access to the courts and could not
file a civil rights complaint or writ of habeas corpus.
(Id.). Plaintiff stated that he understood there
were three individuals who worked in the business account
office and he felt someone should be able to fulfill his
request. (Id.). Defendant Wood responded, “She
will answer them when she returns to work. She has already
filled them out multiple times already.”
Investigation of Contraband Smuggling
April 6, 2018, Investigator Koby Schmittou began listening
to the phone calls Plaintiff made while incarcerated. (ECF
No. 26-4 at 31). Investigator Schmittou had previous
experience with other cases involving Plaintiff and his use
of the City Tele Coin System to commit crimes and to smuggle
contraband into the jail. (Id. at 1-28).
explained by Defendant Blair in his 2018 incident report,
“Citi Tele Coin is designed for inmates to use their
social security number as their pin number. When inmates make
calls or send messages through City Tele Coin, they are
advised that the calls and items are being recorded, and that
they may also be monitored.” (ECF No. 26-4 at 31).
Defendant Blair indicated that officers knew from previous
experience that Plaintiff did not always use his own pin
number. (Id.). Officers also knew that
Plaintiff sometimes called a source who connected him with
another person by use of three-way call. (Id.).
According to Defendant Blair, Plaintiff conducted business
this way and talked to people about sending contraband into
the jail. (Id.).
April 12, 2018 and April 20, 2018, Defendant Blair made notes
that Plaintiff was using the City Tele Coin system to
coordinate smuggling with Carneshia Badger, referred to as
“Nibbles.” (ECF No. 26-4 at 28-30). According to
Defendant Blair, Plaintiff's plan was set forth in detail
and included him sending out a package with precut holes for
cell phones and tobacco products, advising Nibbles how to
package the contraband, and to put earphones and chargers in
the package. (Id.). On April 12, 2018, officers were
given a package that was being mailed out and marked
“legal mail.” (Id. at 32). The package
had a “stuck-on” label addressed to Darren Hayes,
Attorney at Law, in Monroe, Louisiana. (Id.). Under
the first label was a label for Plaintiff's attorney at
that time. (Id.). Once the contraband was placed in
the package, the first label was to be taken off, revealing
the address for Plaintiff's attorney.
(Id.). The package was then to be marked
return to sender, who was designated as Inmate Stephano
Carpenter. (Id.). Plaintiff
believed the package would not be checked when it was
returned to the jail because it was marked legal mail.
(Id.). According to Defendant Blair's incident
report, Inmate Carpenter reported that, under threat from
Plaintiff, he signed for the package to be sent out.
(Id. at 33).
the package was mailed from the CCDC, Investigator Schmittou
opened the package and took photos. (ECF No. 26-4 at 32 &
36-41). Inside were instructions on “how to put and
where to put each item.” (Id. at 32 & 36).
The reverse side of the envelope had Plaintiff's name on
it from a previous mailing. (Id. at 32). The package
was reassembled and mailed out. (Id.).
package was returned to the jail on April 20, 2018. (ECF No.
26-4 at 32). It contained two cell phones, batteries with the
connecters taped over, and tobacco rolled up in plastic.
(Id.). The package matched the instructions given by
Plaintiff. (Id.). Investigator Schmittou took photos
of the items. (Id. at 42-50). The package was then
sealed back up and delivered to Inmate Carpenter in pod 5.
(Id. at 32-33). Inmate Carpenter reported that
Plaintiff took the package from his hands when it was
delivered at his door. (Id. at 33).
approximately noon, Defendant Blair, Captain Todd Dew,
Sergeant Dustin, and Corporal Scott searched pod
(ECF No. 26-4 at 33). On the top bunk of Plaintiff's
cell, they found the cut-out part of the cardboard and torn
up parts of the outer package. (Id.). Spit cups with
tobacco in them were found in another cell. (Id.).
No. phones were located. (Id.).
April 23, 2018, Plaintiff submitted a grievance complaining
that on April 20, 2018, several officers, including Defendant
Blair, harassed him during a cell shakedown. (ECF No. 26-3 at
11). Plaintiff stated that Defendant Blair accused him of
receiving a cellphone through the mail. (Id.).
Plaintiff asserted that he did not receive any mail that day
and had only gotten one piece of mail from the court that
entire week, which could be verified by the mail logs.
(Id.). According to Plaintiff, during the shakedown,
Defendant Blair made the statement that “he was going
to find one on [Plaintiff] regardless even if he has to plant
one.” (Id.). Because he asked them not to
destroy his legal mail, Plaintiff alleged that Defendant
Blair aggressively shoved him and placed him in handcuffs so
tightly that they were cutting off his blood circulation.
(Id. at 12). As Plaintiff was being removed from the
pod, he maintains that Defendant Blair struck him in the back
of the head with a closed fist. (Id.). Plaintiff
stated that the shakedown lasted over three hours, during
which time he was not allowed to use the restroom.
(Id.). Once he was allowed to use the restroom, his
waste was searched. (Id. at 13). Plaintiff also
stated that the officers performed a rectal cavity search on
him. (Id.). Defendant Wood responded to the
grievance by saying he had investigated it and
“determined that everything you stated is a lie.”
(ECF No. 26-3 at 11). On May 20, 2018, Plaintiff submitted a
grievance stating that he had never received a response to
his April 23, 2018 grievance. Plaintiff was told that the
response to the April 23, 2018 grievance was that everything
he stated was a lie.
21, 2018, Plaintiff submitted a grievance contending that he
was being retaliated against for filing lawsuits against
Defendants. (ECF No. 26-3 at 24-26). Plaintiff stated that
Defendants fabricated a charge for possessing prohibited
articles and at his initial appearance on May 17, 2018 for
that charge, Judge David Talley would not read him the
probable cause affidavit, thereby violating his Sixth
Amendment rights. (ECF No. 26-3 at 24-26). Plaintiff asserted
that there was, in fact, no probable cause affidavit and that
Judge Talley and prosecutor Ryan Phillips conspired with
Defendants to retaliate against him by charging him without
20, 2018, deputies performed a search of the cell occupied by
Plaintiff and two other inmates. (ECF No. 26-4 at 53). They
found a container with 15 Diclofenac pills and a “blue
Vape Pen.” The deputies continued searching other cells
and found: a functioning smart phone with an extra battery
inside a large document envelope; a metal pipe securely
wrapped up in a ...