United States District Court, E.D. Arkansas, Pine Bluff Division
REGINALD L. DUNAHUE ADC #106911 PLAINTIFF
JAMES PLUMMER, et al., DEFENDANTS
KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE.
the Court is the Recommended Disposition submitted by United
States Magistrate Judge J. Thomas Ray (Dkt. No. 126).
Plaintiff Reginald L. Dunahue filed objections to the
Recommended Disposition (Dkt. No. 127). After careful
consideration of the Recommended Disposition, the objections,
and a de novo review of the record, the Court adopts
the Recommended Disposition as its findings in all respects
(Dkt. No. 126). As a result, the Court grants summary
judgment in favor of defendants on Mr. Dunahue's
remaining claims and dismisses with prejudice this case. The
Court therefore denies as moot Mr. Dunahue's motion for
an evidentiary hearing and for the appointment of counsel
(Dkt. No. 128).
Dunahue filed this action pursuant to 42 U.S.C. § 1983
alleging that: (1) defendants Lieutenant John Herrington
(“Lt. Herrington”), Lieutenant James Plummer
(“Lt. Plummer”), and Sergeant Sedrick Foote
(“Sgt. Foote”) used excessive force on July 19,
2015, when they sprayed him with mace, “smoke
bombed” his isolation cell, and hog-tied him; (2)
defendant Major Lasaundra Malone (“Maj. Malone”)
authorized that use of force; (3) Lt. Herrington, Lt.
Plummer, and Sgt. Foote refused to provide him with medical
care for the injuries he sustained during the July 19, 2015,
use of force; (4) Lt. Herrington, Lt. Plummer, Sgt. Foote,
and Maj. Malone subjected him to inhumane conditions of
confinement by failing to provide him with adequate nutrition
for the seven days he was being punished for his role in the
July 19, 2015, incident; (5) Lt. Herrington, Lt. Plummer, and
Sgt. Foote refused to remove the chemical residue from his
cell; and (6) defendants Warden Randy Watson (“Warden
Watson”), Deputy Warden Jeremy Andrews (“Deputy
Warden Andrews”), and Deputy Warden Christopher Budnik
(“Deputy Warden Budnik”) knew about these
constitutional violations but failed to take corrective
action (Dkt. No. 7). On January 23, 2018, this Court allowed
Mr. Dunahue to proceed with his excessive force claim against
defendants Lt. Herrington, Lt. Plummer, Sgt. Foote, and Maj.
Malone; inadequate medical care claim against defendants Lt.
Herrington, Lt. Plummer, and Sgt. Foote; and inhumane
conditions of confinement claims against Warden Watson,
Deputy Warden Andrews, Deputy Warden Budnik, Lt. Herrington,
Lt. Plummer, Sgt. Foote, and Maj. Malone (Dkt. No. 57). On
September 17, 2018, the Court held that Mr. Dunahue failed to
exhaust his corrective inaction claims against Warden Watson,
Deputy Warden Andrews, and Deputy Warden Budnik, and the
Court dismissed those claims without prejudice (Dkt. No.
101). The Court also concluded that Mr. Dunahue failed to
exhaust his claims that Lt. Plummer violated his
constitutional rights by refusing to remove chemical residue
from Mr. Dunahue's cell and therefore dismissed those
claims without prejudice (Id.).
four remaining defendants then moved for summary judgment on
Mr. Dunahue's remaining claims (Dkt. No. 110). The
Recommended Disposition recommends granting defendants'
motion for summary judgment and the dismissal of Mr.
Dunahue's remaining claims (Dkt. No. 126). In his
objections, Mr. Dunahue argues that the Court should not
adopt the Recommended Disposition because there was
“[n]o urgent need . . . to seize [his] tooth paste
& brush, soap, clothes, shoes, mattress & food on
July 19, 2015” (Dkt. No. 127, at 3). He also argues
that “[d]efendants went against ADC policy by using
force on July 19, 2015[, ] for the purpose of seizing items
ADC sold to [Mr. Dunahue], and items by law ADC must give an
inmate” (Id.). Mr. Dunahue further argues that
defendants' actions on July 19, 2015, were “to
punish” him (Id., at 8). He also asserts that
he was deprived of meals for seven days and that this
deprivation “was malicious and not pursuant to policy .
. . .” (Id.).
discussed in the Recommended Disposition, Mr. Dunahue's
operative complaint alleges claims arising out of an incident
that occurred on July 19, 2015. The record evidence contains
four video recordings of this incident, which the Court has
reviewed (Dkt. No. 113). After reviewing the record evidence,
the Court agrees with Judge Ray that no reasonable juror
could conclude that defendants violated Mr. Dunahue's
constitutional rights. Therefore, Mr. Dunahue's claims
against defendants are barred by qualified immunity. See
Pearson v. Callahan, 555 U.S 223, 232 (2009) (holding
that plaintiff must establish a violation of a constitutional
or statutory right in order to overcome qualified immunity).
Mr. Dunahue's excessive force claims, the undisputed
record evidence indicates that Mr. Dunahue flooded his cell
and then refused to be restrained in order to leave his cell.
The undisputed record evidence also shows that Mr. Dunahue
refused when Lt. Herrington asked for his compliance, and
then Lt. Herrington used a limited amount of pepper spray and
tear gas in order to force Mr. Dunahue to accept restraints.
Even viewing the record evidence in the light most favorable
to Mr. Dunahue, the Court concludes that no reasonable juror
could conclude that defendants used excessive force against
Mr. Dunahue when they removed him from his cell or at any
point afterwards during this incident.
Court also concludes that, reviewing the record evidence in
the light most favorable to Mr. Dunahue, no reasonable juror
could conclude that defendants were deliberately indifferent
to Mr. Dunahue's health and safety with regard to the
manner in which he was decontaminated in the shower. The
undisputed record evidence shows that Mr. Dunahue was
provided a shower promptly after being exposed to pepper
spray and tear gas. At no point immediately after that
shower, as shown on the video recording, did Mr. Dunahue
complain about the sufficiency of the shower. Whether Mr.
Dunahue was in handcuffs during that shower does not create a
disputed genuine issue of material fact that is outcome
determinative, as there is no record evidence that suggests
that the shower was insufficient to decontaminate him,
regardless of whether he was handcuffed. The defendants
presented sufficient record evidence to shift the burden to
Mr. Dunahue, at which point Federal Rule of Civil Procedure
56 requires him to “discard the shielding cloak of
formal allegations and meet proof with proof” as to his
deliberate indifference claim. Conseco Life Ins. Co. v.
Williams, 620 F.3d 902, 909 (8th Cir. 2010) (quoting
Flentje v. First Nat'l Bank of Wynne, 11 S.W.3d
531, 536 (Ark. 2000)). Mr. Dunahue has presented no
additional proof to rebut the video evidence presented by
defendants. Accordingly, as Mr. Dunahue has failed to meet
proof with proof, the Court grants summary judgment as a
matter of law to defendants on Mr. Dunahue's deliberate
indifference claim arising out of allegations regarding his
the Court concludes that there are no disputed genuine issues
of material fact with respect to Mr. Dunahue's claim that
he received inadequate medical care after he was exposed to
pepper spray and tear gas. In Farmer v. Brennan, 511
U.S. 825, 837 (1994), the Court held that a prison official
is “deliberately indifferent” if the official
“knows of and disregards an excessive risk of serious
harm to inmate health or safety.” In Saylor v.
Nebraska, 812 F.3d 637, 644 (8th Cir. 2016), the Court
explained that “the deliberate indifference standard
[articulated in Farmer] has both objective and
subjective prongs, ” which require a prisoner to prove
that: (1) “he suffered from an objectively serious
medical need [the objective prong]”; and (2) the
defendants “actually knew of but deliberately
disregarded [the prisoner's] serious medical need [the
omitted). Defendants have presented medical records which
indicate that Mr. Dunahue was seen immediately after the
incident by a nurse and that the nurse found that all of his
vital signs were normal (Dkt. No. 110-2, at 10). Mr. Dunahue
argues that he did not see medical professionals on July 19,
2015, and that defendants falsified the medical record (Dkt.
No. 110-10, at 54). Mr. Dunahue did, however, testify that
“when medical personnel came down, they were not able
to analyze [him] or examine [him] because by [him] being
placed in a shower like that, they couldn't enter the
shower.” (Id.). He clarified that he
“visually saw medical professionals, but [he] was not
able to be tended to by medical professionals.”
(Id., at 55). Mr. Dunahue has presented no record
evidence to dispute the medical records documenting
additional treatment he received in the weeks following this
event; those records include no complaints of medical
problems related to his alleged exposure to pepper spray and
tear gas on July 19, 2015 (Dkt. No. 110-3, at 5-7). There is
no dispute that a medical professional was present
immediately following Mr. Dunahue's extraction from his
cell. Further, there is no record evidence that defendants
actually knew that Mr. Dunahue suffered from a serious
medical need after this event and were deliberately
indifferent to it. Therefore, the Court concludes that
defendants are entitled to summary judgment on Mr.
Dunahue's claim that defendants were deliberately
indifferent to his need for medical care following his
removal from his cell.
Court also agrees with Judge Ray that defendants are entitled
to summary judgment on Mr. Dunahue's claim that they were
deliberately indifferent to the decontamination of his cell.
The video evidence shows that, when Mr. Dunahue was removed
from his cell, the floor was flooded with water. The video
evidence also shows that, when he was returned to his cell,
there was no longer water in his cell. The video evidence
shows a cleaning cart outside of the cell, as well as a mop
and mop bucket. Furthermore, the orange substance on the cell
bars-presumably pepper spray-is no longer visible in the
video that shows Mr. Dunahue returned to his cell.
Additionally, when Mr. Dunahue is returned to his cell, no
one inside of the cell coughs, sneezes, or otherwise reacts
in a way that suggests that chemical residue remains in the
cell. Further, the audio from the video indicates that, after
Mr. Dunahue is returned to his cell and the cuffs are
removed, the sink in Mr. Dunahue's cell was working,
providing Mr. Dunahue with another method to remove any
remaining chemical residue. Viewing all of this record
evidence in the light most favorable to Mr. Dunahue, the
Court concludes that no reasonable juror could conclude that
defendants acted with deliberate indifference by returning
Mr. Dunahue to his cell and by refusing him a second
Court also agrees with Judge Ray that defendants are entitled
to summary judgment on Mr. Dunahue's conditions of
confinement claim based upon inadequate nutrition. The
undisputed record evidence shows that Mr. Dunahue has
suffered no physical injury due to receiving
“nutritional loaves” while incarcerated. The
Eighth Circuit has held that food which causes cramps,
nausea, and constipation does not raise constitutional
issues. Brown-El v. Delo, 969 F.2d 644, 646, 648
(8th Cir. 1992). Thus, taking this evidence in the light most
favorable to Mr. Dunahue, the Court concludes that no
reasonable juror could conclude that his constitutional
rights were violated by being provided nutritional loaves
the Court denies as moot Mr. Dunahue's motion for an
evidentiary hearing and for the appointment of counsel (Dkt.
No. 128). Mr. Dunahue's motion comes in response to Judge
Ray's Recommended Disposition (Id.). Given the
Court's adoption of the Recommended Disposition in its
entirety as the Court's findings in all respects, the
Court's grant of Lt. Herrington, Lt. Plummer, Sgt. Foote,
and Maj. Malone's motion for summary judgment, and the
Court's dismissal with prejudice of Mr. Dunahue's
remaining claims against these defendants, Mr. Dunahue's
motion for an evidentiary hearing and for the appointment of
counsel is mooted. As a result, the Court denies this motion.
therefore ordered that:
1. The Court adopts the Recommended Disposition in its
entirety as the Court's findings in all ...