United States District Court, E.D. Arkansas, Northern Division
TONY M. RUIZ, ADC #157474 PLAINTIFF
v.
ZACHERY HARMON, et al. DEFENDANTS
ORDER
Kristine G. Baker United States District Judge
Before
the Court are two Proposed Findings and Recommendations
submitted by United States Magistrate Judge Jerome T. Kearney
(Dkt. Nos. 51, 141). Plaintiff Tony Ruiz filed objections to
both (Dkt. Nos. 85, 143). Separate defendants Corporal
Zachery Harmon and Sergeant Richard Fry filed objections to
the second Proposed Findings and Recommendations (Dkt. No.
144). After careful review of the two Proposed Findings and
Recommendations, Mr. Ruiz's objections, Corporal Harmon
and Sergeant Fry's objections, as well as a de
novo review of the record, the Court adopts both
Proposed Findings and Recommendations as its findings in all
respects (Dkt. Nos. 51, 141). The Court writes separately to
address Mr. Ruiz's objections to both Proposed Findings
and Recommendations and Corporal Harmon and Sergeant
Fry's objections to the second Proposed Findings and
Recommendations.
I.
Background
Mr.
Ruiz brings this action pro se under 42 U.S.C.
§ 1983 alleging claims of excessive force, assault and
battery, and intentional infliction of emotional distress
against defendants Corporal Harmon, Sergeant Fry, and
Lieutenant Robert Robins (Dkt. No. 2). Mr. Ruiz later
supplemented his complaint to add a failure to protect
allegation against Corporal Harmon and Lieutenant Robins
(Dkt. No. 56). Warden Toni Bradley, Director Wendy Kelley,
Grievance Coordinator Peggy Durham, and the Arkansas
Department of Correction (“ADC”) were also
defendants, but the Court dismissed them from the action on
June 25, 2018 (Dkt. No. 15). Mr. Ruiz alleges that an
incident occurred on June 21, 2017, during which Sergeant Fry
and Corporal Harmon sprayed him with mace without warning or
provocation, and that Sergeant Fry struck Mr. Ruiz with a
closed fist on more than one occasion (Dkt. No. 2, at 7-9).
Mr. Ruiz further alleges that Lieutenant Robins held him to
the ground during that time (Id., at 8).
II.
First Proposed Findings And Recommendations
Mr.
Ruiz filed a motion for summary judgment on November 5, 2018
(Dkt. No. 29). Defendants responded in opposition (Dkt. No.
40). On November 20, 2018, Judge Kearney submitted Proposed
Findings and Recommendations recommending that Mr. Ruiz's
first motion for summary judgment be denied (Dkt. No. 51).
Mr. Ruiz's objections to these Proposed Findings and
Recommendations were untimely, but the Court will consider
them (Dkt. No. 85).
Judge
Kearney concluded that Mr. Ruiz's motion for summary
judgment should be denied because the parties dispute the
material facts concerning whether defendants' actions
were applied in a good faith effort or maliciously and
sadistically to cause harm (Dkt. No. 51, at 4). Mr. Ruiz
objects based on disagreements in the record about what
occurred during the incident (Dkt. No. 85). Mr. Ruiz also
repeats some of the allegations from his complaint
(Id., at 4-8). Mr. Ruiz requests a hearing with the
Court to “show with proof of why [his] summary judgment
should not be denied.” (Id., at 8). Attached
to the objections are two grievances filed by Mr. Ruiz and
another copy of Mr. Ruiz's objections (Id., at
9-13; Dkt. No. 85-1).
After
careful review of the Proposed Findings and Recommendations,
Mr. Ruiz's objections, and a de novo review of
the record, the Court agrees with Judge Kearney that Mr.
Ruiz's first motion for summary judgment should be denied
because there are genuine issues of material fact in dispute
that preclude granting summary judgment.
III.
Second Proposed Findings And Recommendations
On
April 8, 2019, defendants filed a motion for summary judgment
(Dkt. No. 103). Mr. Ruiz responded in opposition (Dkt. No.
116). On May 15, 2019, Mr. Ruiz filed another motion for
summary judgment (Dkt. No. 129), and defendants responded in
opposition (Dkt. No. 132). On June 24, 2019, Judge Kearney
submitted a second Proposed Findings and Recommendations
recommending that defendants' motion for summary judgment
be granted in part and denied in part and that Mr. Ruiz's
second motion for summary judgment be denied (Dkt. No. 141).
Mr. Ruiz filed objections, and Corporal Harmon and Sergeant
Fry filed partial objections (Dkt. Nos. 143, 144).
As an
initial matter, Judge Kearney concluded that Mr. Ruiz asserts
the same arguments in his second motion for summary judgment
as he did in his first motion for summary judgment, and
therefore, his second motion for summary judgment should also
be denied (Dkt. No. 141, at 16). As to defendants' motion
for summary judgment, Judge Kearney concluded that Mr.
Ruiz's claims for damages against defendants should be
dismissed based on sovereign immunity because defendants'
employer, the ADC, is an agency of the State of Arkansas
(Dkt. No. 141, at 4). Based on Mr. Ruiz's admission that
he did not exhaust his remedies with respect to his failure
to protect claim, Judge Kearney determined that Mr.
Ruiz's failure to protect claim against Corporal Harmon
and Lieutenant Robins should be dismissed without prejudice
(Id., at 6).
While
Judge Kearney found that Lieutenant Robins was entitled to
qualified immunity on Mr. Ruiz's excessive force claim,
Judge Kearney concluded that Corporal Harmon and Sergeant Fry
were not entitled to qualified immunity on the claim because
a reasonable fact finder could find that the facts alleged or
shown, construed in the light most favorable to Mr. Ruiz,
established a violation of his constitutional rights
(Id., at 15). In other words, there are genuine
issues of material fact in dispute that preclude granting
qualified immunity at this stage to Corporal Harmon and
Sergeant Fry. Judge Kearney further determined that Mr.
Ruiz's claim for money damages and injunctive relief
based on his loss of parole eligibility should be dismissed
(Id., at 16). Finally, Judge Kearney recommended
that, because he concluded that Mr. Ruiz's constitutional
excessive force claims against Corporal Harmon and Sergeant
Fry should remain viable, the Court should continue to
exercise supplemental jurisdiction over Mr. Fry's state
law claims, absent proof that they are covered by liability
insurance “for damages for acts or omissions, other
than malicious acts or omissions, occurring within the course
and scope of their employment.” (Id. (quoting
Ark. Code Ann. § 19-10-305)).
Mr.
Ruiz objects to Judge Kearney's finding that the failure
to protect claim should be dismissed for failure to exhaust
(Dkt. No. 143, at 1). Mr. Ruiz admits that he did not specify
in his grievances the legal terms for his claims, but he
argues that he did grieve that “there were multiple
officers around” when the incident with Corporal Harmon
and Sergeant Fry occurred, and no one intervened, which he
argues would make it seem as though Corporal Harmon and
Sergeant Fry's actions were permitted and or encouraged
(Id., at 2). Mr. Ruiz argues that “it should
be ‘liberally construed' that officers and staff
have failed to provide safety from excessive use of force and
condoned all actions by these defendants”
(Id., at 2-3). According to Mr. Ruiz, Lieutenant
Robins and Corporal Harmon are both liable for failing to
protect Mr. Ruiz from excessive force and battery, and they
had a duty to report the misuse of force to proper personnel
and did not (Id., at 7). Mr. Ruiz requests that the
Court reconsider whether the failure to protect claim should
be dismissed “since [the Prison Litigation Reform Act]
doesn't demand a detail of every claim that would wind up
in federal courts” (Id., at 8).
In his
deposition, Mr. Ruiz explains that, after the incident on
June 21, 2017, he filed three grievances: “one on the
excessive force, one on the mace, and one on the
punching” (Dkt. No. 126, at 69). When asked if he filed
any grievances about his failure to protect claim, Mr. Ruiz
responded, “No, I didn't. No, I didn't.”
(Id., at 89). Mr. Ruiz does not contest
defendants' exhaustion argument in his response to
defendants' motion for summary judgment (Dkt. Nos. 116,
117, 118, 120). Mr. Ruiz responded to defendants' reply
and argued that, because he is a pro se litigant, he
is allowed to have the Court draw reasonable inferences from
his writings (Dkt. No. 128, at 1). Mr. Ruiz argues that the
Court should draw from his grievances that he grieved the
failure to protect claim and, thus, that he administratively
exhausted such claim (Id.). Mr. Ruiz asserts that,
“Did I specifically grieve the failure to protect or
equal protection claim that was placed as a claim in this
lawsuit, no, but I did supply the Courts with a number of
grievances to which (if I had) a lawyer would've inserted
the equal protection in the claims as well.”
(Id., at 1-2). Mr. Ruiz points the Court to Docket
No. 26, pages 1 to 2, where he alleges that he states
“there were multiple officers around” at the time
of the incident (Id., at 1). Mr. Ruiz also points
the Court to Dkt. No. 16, pages 3 to 4 and 6 to 8
(Id., at 2). According to Mr. Ruiz, these grievances
show that he did exhaust administrative remedies in his
complaint because it can be inferred from his grievances that
officers failed ...