United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATION
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.
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.
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.
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).
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. 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.
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.
testified that Captain Jimmy Phillips entered 21 barracks
with his officers on May 31, 2017 and ordered the inmates to
line up. 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.
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 ...