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Badger v. Loe

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

July 31, 2019



          Susan O. Hickey Chief United States District Judge

         Before 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.

         I. BACKGROUND

         This is 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”).

         This 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).

         On 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.).

         Plaintiff 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.

         While 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.[1] 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 violation.

         A. E-cigarettes

         On 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 e-cigarettes apart.

         On 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.).

         That 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.).

         On 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).

         On 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 e-cigarette. (Id.).

         On 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.).

         On May 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).

         B. Plaintiff's Mail

         On 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.).

         On May 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.).

         On May 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.).

         On June 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. (Id.).

         On June 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.).

         C. IFP Application Account Certificate Forms and Grievance Responses

         On 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).

         On May 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[2] 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.” (Id.).

         D. Investigation of Contraband Smuggling

         On April 6, 2018, Investigator Koby Schmittou[3] 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.[4] (Id. at 1-28).

         As explained by Defendant Blair in his 2018 incident report, [5] the “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.[6] (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.).

         Between 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.[7] (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).

         Before 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.).

         The 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).

         At approximately noon, Defendant Blair, Captain Todd Dew, Sergeant Dustin, and Corporal Scott searched pod 5.[8] (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.).

         On 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.

         On May 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 cause.[9] (Id.).

         On July 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 ...

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