Holloway v. Phillips

          PROPOSED FINDINGS AND RECOMMENDATION INSTRUCTIONS

         The following Recommendation has been sent to United States District Judge James M. Moody Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         I. Introduction

         Plaintiff Winston Holloway, an inmate at the Varner Unit of the Arkansas Department of Correction (ADC), filed a pro se complaint pursuant to 42 U.S.C. § 1983 on August 21, 2017, alleging that his constitutional rights were violated during a strip search at the Varner Unit on May 31, 2017. Doc. No. 2 at 6-14. Holloway's unreasonable search claim against defendants Captain Jimmy Phillips, Lieutenant Brandon James, and Assistant Warden Antwon Emsweller was allowed to proceed, while his other claims were dismissed without prejudice for failure to state a claim upon which relief may be granted. See Doc. Nos. 5 & 8. All defendants other than Phillips were later dismissed after the Court determined that Holloway had not exhausted available administrative remedies with respect to those defendants. See Doc. Nos. 48 & 50. Holloway seeks monetary and injunctive relief from Phillips in both his official and personal capacities. Doc. No. 2 at 5, 10 & 13.

         Before the Court is a motion for summary judgment and related pleadings filed by Phillips (Doc. Nos. 61-63). Holloway filed responsive pleadings (Doc. Nos. 65-67), and the motion is ripe for disposition. For the reasons described below, the undersigned recommends that Phillips' motion for summary judgment be granted.

         II. Legal Standard

         Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if “the movant shows that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for summary judgment, the court must view the evidence in a light most favorable to the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002). The nonmoving party may not rely on allegations or denials, but must demonstrate the existence of specific facts that create a genuine issue for trial. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party's allegations must be supported by sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy. Id. (citations omitted). An assertion that a fact cannot be disputed or is genuinely disputed must be supported by materials in the record such as “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . .”. Fed.R.Civ.P. 56(c)(1)(A). A party may also show that a fact is disputed or undisputed by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case. Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes that are not genuine or that are about facts that are not material will not preclude summary judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th Cir. 2010).

         III. Facts^[1]

         In late May 2017, Varner Unit officials received information that there was a gun in 21 barracks where Holloway was housed. Doc. No. 69, March 22, 2019 Deposition Testimony of Winston Holloway, at 9; Doc. No. 61-2, Declaration of Jimmy Phillips, at ¶ 5. Based on this information, searches of 21 barracks were conducted on May 30 and May 31, 2017. Doc. No. 69 at 9.^[2] The inmates housed in 21 barracks, including Holloway, were also strip searched on May 31, 2017. Doc. No. 61-2 at ¶ 5; Doc. No. 61-3, Declaration of Antwon Emsweller, at ¶ 8; Doc. No. 61-6, Declaration of James Gibson, at ¶ 6.

         Holloway alleges that a couple of days before May 30, 2017, an inmate in the barracks who owed drug debts saw another inmate get beaten because the inmate had not paid his debts. Doc. No. 69 at 9; Doc. No. 2 at 8. After witnessing this beating, the inmate became scared, called his grandmother, and told her that the inmates in the barracks had a gun and were going to shoot him. Id. Holloway states that the inmate's grandmother called ADC officials and reported that there was a gun in 21 barracks. Doc. No. 69 at 9; Doc. No. 2 at 8.

         Holloway testified that Captain Jimmy Phillips entered 21 barracks with his officers on May 31, 2017 and ordered the inmates to line up.^[3] Doc. No. 69 at 10. After the inmates lined up, Phillips ordered the inmates to go one at a time into the hallway between 21 and 22 barracks. Doc. No. 69 at 10; Doc. No. 2 at 6. In the hallway, each of the inmates was stripped and searched. Doc. No. 69 at 10-11; Doc. No. 2 at 6. Phillips did not search Holloway or any of the inmates. Doc. No. 69 at 18; Doc. No. 61-2 at ¶ 7. He ordered the searches and supervised the field staff while they performed the searches. Id.

         During his deposition, Holloway testified that at least 25 inmates were in the hallway naked and strip searched at the same time. Doc. No. 69 at 13 & 16. According to Holloway's complaint, 50 inmates in 22 barracks watched through the barracks window as each of the inmates from 21 barracks stripped and underwent visual body cavity inspections. Doc. No. 2 at 6. He testified in his deposition, however, that 150 inmates in 19, 20, and 22 barracks observed the searches through the windows of their respective barracks. Doc. No. 69 at 19. Holloway also claims that the searches were in sight of the female correctional officers assigned to work in 17, 18, 19, 20, 21, and 22 barracks who were standing in the hallway during the search. Doc. No. 2 at 6; Doc. No. 69 at 18. Holloway described the females who could see the search in his deposition testimony:

The female guard on our barracks that day was standing in the hallway because she said something to me after we were dressed again. . . .

[The same guard] was over the barracks at that time. They have a guard station on each side of the hallway for two different barracks, but they only have one guard down there assigned to do it. But there's a sergeant that roams, and that would be a female too. Then the lady at the store that runs the commissary, which is right up the hall. The next set of barracks ...