United States District Court, E.D. Arkansas, Pine Bluff Division
DON MERCELEANY R. MAXWELL/G-DOFFEE ADC #108778 PLAINTIFF
v.
DEANNE JACKSON, Classification Officer, MSU, et al. DEFENDANTS
ORDER
Kristine G. Baker United States District Judge
Before
the Court are the Proposed Findings and Recommendations, as
well as the Amended and Substituted Proposed Findings and
Recommendations, submitted by United States Magistrate Judge
Joe Volpe (Dkt. Nos. 51, 55). Plaintiff Don Merceleany R.
Maxwell/G-Doffee filed timely objections to both the Proposed
Findings and Recommendations and the Amended and Substituted
Proposed Findings and Recommendations (Dkt. No. 56). After a
review of the Proposed Findings and Recommendations, the
Amended and Substituted Proposed Findings and
Recommendations, and Mr. Maxwell’s objections, as well
as a de novo review of the record, the Court denies
the Proposed Findings and Recommendations as moot (Dkt. No.
51) and adopts the Amended and Substituted Proposed Findings
and Recommendations as its findings in all respects (Dkt. No.
55).
Mr.
Maxwell filed this action pursuant to 42 U.S.C. § 1983,
alleging that: (1) defendants Corporal James Duke and Unit
Trainer Kathleen Lowery failed to protect him from being
attacked on November 15, 2016, by another prisoner; and (2)
defendants Warden Danny Burl, Major Carl Stout, Assistant
Grievance Officer Vineshia Barnes, and Program Specialist
Felicia Bentley violated his due process rights by failing to
preserve a surveillance video of the attack (Dkt. No. 2). He
brings these claims against defendants in their official and
individual capacities (Id.). On May 1, 2018, this
Court allowed Mr. Maxwell to proceed on his failure to
protect claims against defendants Corporal Duke and Officer
Lowery and his due process claims against Warden Burl, Major
Stout, Officer Barnes, and Ms. Bentley (Dkt. No. 34). At that
time, the Court dismissed without prejudice all of Mr.
Maxwell’s other claims from this action (Id.).
The
remaining defendants then moved for summary judgment on Mr.
Maxwell’s remaining claims (Dkt. No. 45). In the
Amended and Substituted Proposed Findings and
Recommendations, Judge Volpe recommends granting
defendants’ motion for summary judgment as to: (1) Mr.
Maxwell’s due process claim against Warden Burl, Major
Stout, Officer Barnes, and Ms. Bentley; (2) failure to
protect claim against Officer Lowery; and (3) official
capacity claim against Corporal Duke (Dkt. No. 55). In the
Amended and Substituted Proposed Findings and
Recommendations, Judge Volpe also recommends that summary
judgment be denied as to Mr. Maxwell’s failure to
protect claim against Corporal Duke in his individual
capacity (Id.).
In his
objections, Mr. Maxwell argues that the Court should not
adopt the Amended and Substituted Proposed Findings and
Recommendations. As to any arguments made regarding his
response to defendants’ motion for summary judgment,
Judge Volpe and this Court considered Mr. Maxwell’s
response in reaching their conclusions. Mr. Maxwell next
asserts that his right to procedural due process was violated
because he was deprived of both a property interest in the
surveillance footage of the attack as well as a liberty
interest (Dkt. No. 56, at 4). Mr. Maxwell claims that his
procedural due process rights were violated with respect to
the video surveillance footage because he was given no notice
that it would be destroyed, and no hearing was held
concerning why he wanted the footage preserved (Id.,
at 7). Regarding his liberty interest, Mr. Maxwell claims
that defendants deprived him of this due to the serious
nature of the attack (Id., at 9). For these reasons,
Mr. Maxwell argues that the Court should reject the
recommendation and should deny summary judgment as to the due
process claim against defendants Warden Burl, Major Stout,
Ms. Bentley, and Officer Barnes (Id., at 9).
Mr.
Maxwell also argues that the Court should reject the
recommendation and not grant summary judgment as to his
failure to protect claim against Officer Lowery for several
reasons. First, because there was a witness present who heard
the threat, Mr. Maxwell claims that the Court will be making
an impermissible credibility determination on this disputed
issue of fact by granting summary judgment before hearing the
witness’s testimony. Second, Mr. Maxwell argues that
the Court should reject the recommendation and deny Officer
Lowery summary judgment because Mr. Maxwell claims that the
general rule that threats between inmates are common and do
not always serve to impute actual knowledge of a substantial
risk of harm should not apply here. Mr. Maxwell distinguishes
his case from other cases where this rule was applied by
pointing out that Officer Lowery received the information of
the threat first hand rather than hearing about it from
another inmate and by claiming that the threat made to him
was much more immediate than other cases since he was
attacked less than 10 minutes after the threat was made
(Id., at 11). Finally, Mr. Maxwell disputes that
Officer Lowery is entitled to qualified immunity because he
claims that this attack was not a surprise attack
(Id., at 12).
The
Court has reviewed Mr. Maxwell’s objections and will
discuss each one in turn. First, the Court agrees with Judge
Volpe that Mr. Maxwell does not have a constitutional or
state-created liberty interest in requiring prison officials
to comply with their internal rules and policies. The Court
also agrees with Judge Volpe that Mr. Maxwell has no liberty
interest implicated in avoiding punitive isolation for 30
days or in maintaining his classification level. For these
reasons, Mr. Maxwell is not entitled as a matter of law to
relief under § 1983 on the basis of these claims. The
Court agrees that defendants Warden Burl, Major Stout,
Officer Barnes, and Ms. Bentley are entitled to summary
judgment on these claims.
Next,
the Court agrees with Judge Volpe that Officer Lowery’s
failure to take action in response to a single verbal threat
is insufficient to sustain a constitutional violation. Mr.
Maxwell has failed to provide any further evidence that more
occurred before the attack that would indicate that Officer
Lowery had actual knowledge of a substantial risk of harm to
Mr. Maxwell. Therefore, the Court agrees that Officer Lowery
is entitled to qualified immunity on Mr. Maxwell’s
failure to protect claim against her.
It is
therefore ordered that:
1. The
Court adopts the Amended and Substituted Proposed Findings
and Recommendations in its entirety as the Court’s
findings in all respects (Dkt. No. 55);
2. The
Court grants in part Warden Burl, Major Stout, Officer
Barnes, Ms. Bentley, Officer Lowery, and Corporal
Duke’s motion for summary judgment and dismisses with
prejudice Mr. Maxwell’s due process claims against
Warden Burl, Major Stout, Officer Barnes, and Ms. Bentley;
dismisses with prejudice Mr. Maxwell’s failure to
protect claim against Officer Lowery; and dismisses with
prejudice Mr. Maxwell’s official capacity claim against
Corporal Duke (Dkt. No. 45);
3. The
Court denies the motion for summary judgment as to Mr.
Maxwell’s failure to protect claim against Corporal
Duke in his individual capacity (Dkt. No. 45).
4. The
Court certifies that, pursuant to 28 U.S.C. §
1915(a)(3), an in forma pauperis appeal of this
...