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Avery v. Hill

United States District Court, W.D. Arkansas, Fayetteville Division

August 27, 2019

ROBERT W. AVERY PLAINTIFF
v.
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.

         This is 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.[1] Avery names as Defendants Deputy Josh Hill, Major Randall Denzer, Lloyd Muggy, [2] and Sheriff Tim Helder. Avery has sued the Defendants in both their individual and official capacities.[3]

         Avery 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[4] hose during a search of his cell.

         On 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.

         I. BACKGROUND

         A. Avery's Classification and Conditions of Confinement

         In the 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).[5] 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).

         On May 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.

         Avery 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).

         In July 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).

         On 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).

         On 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 moved. Id.

         B. Avery's Account of the Events of October 3, 2016

         Avery 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.

         In all, 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 33.

         Avery, 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.

         Avery's 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.[6] 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.[7] 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."[8] Id.

         C. Deputy Hill's Account of the Events of October 3, 2016

         According to Deputy Hill's incident report, at approximately 9:15 a.m.[9] 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 it." Id.

         Deputy 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. Id.

         According 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.

         Deputy 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.

         Deputy 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 S-block. Id.

         According 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. Id.

         D. Disciplinary Charges

         All 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.

         Avery 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[10] 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.

         Avery 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.

         E. Video of the Events of October 3, 2016

         Two video files[11] 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;[12]
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.

(Doc. 39-8).

         The 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.

         The B camera file shows the following:

45:20 Woods approaches Emery and Cook who turn and enter S-14;
45:30 Woods removes his shirt and enters cell S-14;
45:42 Avery approaches and stands at the entrance to cell S-14;
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 cell door;
46:23 Woods is struck in the head/face area and continues striking someone;
46:24 Avery strikes Woods on the side of the head; Woods goes to the floor; another inmate[13] 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 resists;
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 ...

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