Ruiz v. Harmon

          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 ...