United States District Court, W.D. Arkansas, Fayetteville Division
ROBERT W. AVERY PLAINTIFF
DEPUTY JOSH HILL; MAJOR RANDALL DENZER; LLOYD MUGGY; and SHERIFF TIM HELDER, Washington County, Arkansas DEFENDANTS
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
a civil rights action filed by Plaintiff Robert Avery
pursuant to 42 U.S.C. § 1983. Avery proceeds pro
se and in forma pauperis. The claims asserted
in this case arose during Avery's 2016 incarceration in
the Washington County Detention Center ("WCDC")
from May 24, 2016, until his release to the Arkansas
Department of Correction ("ADC") on December 2,
2016. Avery names as Defendants Deputy Josh
Hill, Major Randall Denzer, Lloyd Muggy,  and Sheriff Tim
Helder. Avery has sued the Defendants in both their
individual and official capacities.
contends his constitutional rights were violated when: (1) he
was wrongfully classified by Defendant Muggy as a violent
offender; (2) he was housed in S-block by Defendant Muggy in
retaliation for acting as a "jail house lawyer"
and/or in response for filing lawsuits against personnel of
the WCDC; (3) his conditions of confinement were unduly
harsh, punitive, and unsafe; (4) Deputy Hill failed to
protect him from attack by Stephen Woods ("Woods");
(5) Sheriff Helder and Major Denzer failed to properly train
and supervise Deputy Hill; and (6) an unknown deputy acted
with deliberate indifference when he seized Avery's
medically prescribed TED hose during a search of his cell.
February 7, 2019, Defendants filed a Motion for Summary
Judgment (Doc. 37). The following day, an Order (Doc. 40) was
entered directing Avery to file a response to the Motion for
Summary Judgment. Avery filed his Response (Doc. 44) on March
22, 2019. The Motion is ready for decision.
Avery's Classification and Conditions of
early morning hours of May 24, 2016, Avery was booked into
the WCDC on various charges, including aggravated assault and
a parole violation. (Doc. 39-2 at 1-2, 5-7). On May 25, 2016,
Avery was classified and housed in A-pod S-block. (Doc. 39-6
at 1). Avery believes he should have been placed in B-pod.
According to Avery, at his arraignment in June of 2016, no
charge of aggravated assault was ever filed, which meant he
had no violent charges pending. (Doc. 45 at 1).
29th, May 30th, June 1st, and June 8th, 2016, Avery
complained that being locked in a cell with known violent
offenders with no intercom or other way to notify jailers of
an emergency amounted to a state-created risk of harm as well
as a violation of his right to be free from a known risk of
harm. (Doc. 39-3 at 2-3). In response, he was advised that if
he had a problem with the Arkansas Jail Standards that the
detention center followed, he could write to the jail
standards committee or the Governor. Id. at 3.
also contends there were disparate living conditions between
A-pod and B-pod. (Doc. 39-10 at 47). According to Avery,
A-pod inmates were locked out of their cells all day, were
forced to use a single toilet when locked out, had limited
movement, had no trustee options, and were not allowed access
to televisions or haircuts. (Doc. 39-10 at 47; Doc. 44-8 at
3-4). Avery felt he should be entitled to a haircut at least
every couple of months for hygiene reasons. (Doc. 39-10 at
47-48). Avery also complained that thirty-two inmates were
required to use the same toilet from 9:00 am to 2:00 pm.
(Doc. 44-8 at 4). In contrast, B-pod inmates were in an open
barracks setting, had televisions and access to commissary,
had trustee options, and were able to obtain haircuts. (Doc.
44-8 at 3; Doc. 44 at 3-4).
2016, Avery was involved in an altercation with another
inmate but was not disciplined for it. Avery was treated for
a black eye. (Doc. 44-9 at 3).
August 28, 2016, Avery questioned why he was in S-block
despite not having any violent charges pending or filed
against him. (Doc. 44-8 at 5). He suggested the system had
been manipulated to result in him being housed with violent
offenders in retaliation for the filing of civil rights
lawsuits. Id. On August 30, 2016, Sergeant Morse
responded that Avery's classification level was
"medium 3" and that he was in the appropriate
housing block. (Doc. 44-8 at 5).
September 26, 2016, inmate Stephen Woods was placed in
S-block. According to Avery, Woods was a problem the whole
time he was in S-block. (Doc. 39-10 at 32). Avery testified
in his deposition that every day that Deputy Hill came into
S-block, he was told Woods was a problem and needed to be
Avery's Account of the Events of October 3, 2016
testified that on October 3, 2016, during pill call, he,
Jason Emery, Zachery Cook, and several other inmates asked
Deputy Hill to have Woods removed from S-block. (Doc. 39-10
at 22). Avery indicated Woods "was acting crazy,
psychotic, calling people out telling them he was going
to" physically attack them. Id. at 22-23.
Inmate James Wheeler stated that Deputy Hill had
"knowledge of Woods['] crazy and violent behavior
and was asked repeatedly to remove Woods for the good and
safety of S/pod." (Doc. 39-5 at 19) (case altered).
According to Avery, Woods had a history of being housed
separately because of his inability to get along when in
general population. Id. at 35.
Avery testified that five people told Deputy Hill that Woods
was acting crazy and needed to be moved out of S-block. (Doc.
39-10 at 31-32). Avery asserts that he told Deputy Hill that
there was an eminent risk of violence that day. Id.
at 32-33. According to Avery, Woods had told the other
inmates that there was going to be a fight. Id. at
Cook, and Emery had pulled Woods aside and told him that he
needed to stop jumping off the tables, climbing the rails,
and being disruptive. Id. at 33. They told Woods
that they would "kite" him out of the block if his
behavior did not change. Id. at 34. As recounted by
Avery, at this point, Woods began "throwing a fit"
and threatening to attack them. Id. Avery testified
that when he told Deputy Hill that a fight was
"eminent," Deputy Hill responded that he did not
have the time to "mess with it" or "deal with
it" and shut the door and left. (Doc. 39-10 at 23, 32;
Doc. 18 at 1); see also Doc. 39-5 at 16.
version of what occurred next follows: Shortly thereafter,
Emery, Cook, and Woods went into Avery's cell-S-14. (Doc.
39-10 at 23). The fight began when Woods threw a punch at
Cook. Id. at 24. During the ensuing altercation,
Woods was hit in the mouth and nose and began spitting saliva
and blood at the others stating that he hoped they got
Hepatitis C and HIV. Id. at 23-24, 26. The other
inmates threw Woods off Cook and pushed Woods out of the
cell. Id. at 23-24. Woods rushed back in and
attacked Avery, spitting blood in his face, eyes, and mouth.
Id. at 24. Avery believed he hit Woods in the
mouth. Id. at 25. Woods was again thrown
out of the cell. Id. at 24. Deputy Hill came back
into the block and "jumped on the back of Stephen Woods
and [Avery]." Id. at 23. Avery testified he
washed the blood off his face and everything else, trying to
make it look like nothing happened so that he would not be
sent to the "hole." Id.
Deputy Hill's Account of the Events of October 3,
to Deputy Hill's incident report, at approximately 9:15
on October 3, 2016, at pill call, he noticed that Emery and
Woods seemed to be arguing. (Doc. 39-5 at 14). However, when
Emery came to the medication cart, he denied there was any
problem. Id.; Doc. 44-13 at 1. Deputy Hill maintains
he did not talk with Avery about Woods. (Doc. 44-13 at 1).
Deputy Hill denies telling anyone to "deal with
Hill closed the door to S-block. (Doc. 39-5 at 14). Moments
later, he reopened the door because the nurse needed to see
two detainees who had failed to come to the cart.
to Deputy Hill's incident report, when he re-opened the
door to S-block, he saw Avery swing at Woods. (Doc. 39-5 at
14). Deputy Hill called for assistance and ran to cell S-14.
Id. Woods was running back into S-14. Id.
Deputy Hill "grabbed Woods and took him out of S14 and
forced him to the floor because he was .. . trying to go back
into S14." Id. Woods continued resisting,
yelling, and cursing. Id.
Tanner Weeks assisted Deputy Hill in taking Woods, who was
bleeding from his face, into the hallway. Once Woods was
secured against the wall, he began dragging his face along
the wall, resisting, and thrashing his body around while
screaming that he hoped everyone got Hepatitis C. (Doc. 39-5
at 10). The side of Woods' face began bleeding worse.
Id. at 11. Corporal Roy advised Woods that if he did
not stop resisting, he would be tased. (Doc. 39-5 at 9).
Woods continued to resist and threatened to fight the
deputies. Id. During the struggle, Woods' blood
came into contact with several of the deputies. Id.
at 11. In order to secure Woods, he was placed in a restraint
chair with a spit mask on. Id. at 9. Woods was
reassigned to Q-block.
Joseph Jennings handcuffed and escorted Avery out of the
block. (Doc. 39-5 at 13). Deputy Jennings took pictures of
Avery and asked if he was hurt. Id. When Avery
denied he was hurt, Deputy Jennings placed Avery back in
to Deputy Hill's incident report, when he asked Woods
what had caused him to fight, Woods responded that "he
was called out and he had to defend himself. Woods stated
that he was attacked." (Doc. 39-5 at 14). Deputy Hill
reports that Avery admitted that he did hit Woods one time
and knocked him to the floor. Id. Avery also threw
another punch at Woods, but the punch did not connect.
four inmates declined to press charges against one another
other. (Doc. 39-5 at 9) Woods, however, was charged with
disciplinary violations of battery and failure to obey
orders. Id. at 24. He was found guilty of both
charges. Id. Emery was charged with battery and
found not guilty. Id. at 22. Cook was charged with
battery and found guilty. Id. at 23.
was also charged with battery. (Doc. 39-5 at 25). Avery pled
that he acted in "self-defense." (Doc. 39-3 at 6).
He indicated that Woods was in a violent rage and was
spitting saliva and blood on him, Emery, and Cook and stating
he hoped they contracted Hepatitis C and AIDS as a result.
Id. Avery explained that he had broken up the fight
several times. Id. Avery's hands were examined
and there was no swelling or cuts suggesting he used his
hands in a violent manner. Id.
was found not guilty based on video evidence. (Doc. 39-5 at
25). Avery has not tested positive for Hepatitis C or HIV.
(Doc. 39-10 at 30). However, he testified that being in
contact with Hepatitis C positive blood was a
"life-changing event." Id. at 31. Avery
maintains he suffered mental damages as a result of being
spit on in the face and mouth by a Hepatitis C positive
inmate. Id. at 37. When asked whether he received
treatment as a result of the psychological impact of this
exposure to Hepatitis C, Avery asserted he believed this
incident was connected with him being diagnosed with mental
health issues approximately two years after the event.
Video of the Events of October 3, 2016
video files have been submitted to the Court. The
first video clip is taken from the back of the block looking
toward the door to the block ("A camera"). The cell
doors are open, and the inmates are in the dayroom lined up
to receive their medication. Once medication distribution is
complete, the A camera file shows the following:
14:55 Deputy Hill slides the door shut;
16:07 Deputy Hill slides the door open again;
16:28 Deputy Hill radios for assistance;
16:36 Deputy Hill runs toward the back of the pod; and
16:43 nine other deputies begin arriving.
second video clip is taken from the front of the pod looking
back towards the cells ("B camera"). Cell S-14 is
to the far right of the screen. The cell doors are open.
Avery and Emery are wearing red uniforms. (Doc. 39-5 at 22).
Cook is in orange pants and a white t-shirt. Id.
Woods is in a green stripe uniform. Id.
camera file shows the following:
45:20 Woods approaches Emery and Cook who turn and enter
45:30 Woods removes his shirt and enters cell S-14;
45:42 Avery approaches and stands at the entrance to cell
45:53 Avery is blocking much of the view into the cell;
however, it is clear Woods is fighting with another inmate;
45:56 Avery enters the cell and all inmates are out of view
of the camera;
46:07 Woods can be seen getting up off the floor twice and
continuing to fight;
46:17 Avery walks out of the cell;
46:22 the altercation continues, and Avery returns to the
46:23 Woods is struck in the head/face area and continues
46:24 Avery strikes Woods on the side of the head; Woods goes
to the floor; another inmate appears to be attempting to
kick Woods, as he is pushed/dragged out the cell door;
46:32 Woods stands against the wall outside the cell;
46:36 Woods starts back into the cell and Deputy Hill rushes
to the cell and grabs him;
46:40 Deputy Hill removes Woods from the cell while Woods
46:41 Deputy Hill takes Woods to the floor;
46:46 by the time other deputies begin arriving, Woods is on
the floor and Deputy Hill ...