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Davis v. Sherrill

United States District Court, E.D. Arkansas, Pine Bluff Division

September 24, 2019

KENNETH F. DAVIS ADC #127248 PLAINTIFF
v.
JARRED SHERRILL, et al. DEFENDANTS

          PROPOSED FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following Recommendation has been sent to United States District Judge Billy Roy Wilson. You may file written objections to all or part of this recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         I. Introduction

         Plaintiff Kenneth Davis, an inmate confined at the Maximum Security Unit of the Arkansas Department of Correction (ADC), filed this pro se 42 U.S.C. § 1983 action alleging that he was issued a false disciplinary in retaliation for using the prison's grievance procedure. Doc. No. 2. Davis also alleges that his due process rights were violated during the disciplinary proceedings. Id. Davis sues Sergeant Jarred Sherrill, Captain Nicola Kelly, Vineshia Barnes, Warden Danny Burl, Major Carl Stout, and Disciplinary Hearing Officer Lorie Taylor (the “Defendants”). He sues Defendants in both their individual and official capacities and seeks a declaratory judgment and monetary relief.[1] Id. at 2, 17-21. Davis' claims against Barnes were previously dismissed for failure to exhaust administrative remedies. See Doc. No. 94.

         Davis filed a motion for summary judgment, along with a supporting brief and two declarations. Doc. Nos. 121-123 & 132. Defendants filed a response, along with a brief in support and statement of facts. Doc. Nos. 129-131. Davis' motion should be denied because it is unsupported. The motion simply restates the allegations of Davis' complaint and provides no proof other than a copy of the letter he received reversing his disciplinary conviction.

         Defendants filed a motion for summary judgment, a brief in support, and a statement of undisputed facts (Doc. Nos. 125-127). Davis did not file a response. The Defendants' statement of facts, and the other pleadings and exhibits in the record, establish that the material facts are not in dispute and that Defendants are entitled to judgment as a matter of law.

         II. Legal Standard

         Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if “the movant shows that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for summary judgment, the court must view the evidence in a light most favorable to the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002). The nonmoving party may not rely on allegations or denials, but must demonstrate the existence of specific facts that create a genuine issue for trial. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party's allegations must be supported by sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy. Id. (citations omitted). An assertion that a fact cannot be disputed or is genuinely disputed must be supported by materials in the record such as “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . .”. Fed.R.Civ.P. 56(c)(1)(A). A party may also show that a fact is disputed or undisputed by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case. Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes that are not genuine or that are about facts that are not material will not preclude summary judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th Cir. 2010).

         III. Facts [2]

         Davis claims that on March 12, 2017, Sergeant Jarred Sherrill exhibited strange behavior towards him. Doc. No. 2 at 6. At that time, Davis was housed in administrative segregation in 5 Barracks at the ADC's Maximum Security Unit in Tucker, Arkansas. Id.; Doc. No. 137-1, Plaintiff's Deposition, at 10 & 62. Regarding Sergeant Sherrill's behavior, Davis testified:

During rounds, [Sherrill] come through there during rounds, and I would be standing at the door. You know, he'd talk to other little guys around or whatever in the cellblock, and this particular morning he come through and just out of nowhere he asked me like, where do you sleep at? I'm like, man, what are you talking about. I'm like, I sleep in my cell, you know.
I find that kind of weird being at an all men's prison. So he would go on. Then he will come through during chow, when he did chow he'd come through, he'd let your trap down, and I don't know if somebody made him mad or whatever. You know, he'd stick the little flap in there and just lay it up and let the trap slam down. . . .
. . .
. . . People admitted to me before that [Sherrill] had bizarre behavior. . . . You know, weird. Some people are naturally just weird. It's people locked up with me that just weird, you know, might do some weird things. I categorized him as he had bizarre behavior.
Yeah, I find [questioning me where I sleep] kind of weird because I'm not going to ask nobody where you sleep at when you know I've got a solid, concrete rack right here, you know, it's all white, you know. But sometimes I do sleep on the floor. That's about it. I'm going to give you the truth.
. . .
Yeah, we had a verbal dispute because I asked him what was going on with him, you know. I don't know, he just come off in way to make you . . .
. . .
He was like - well, there was so much. I was the one doing the verbal dispute, you know. I was the verbal one, and I was like man, get your lieutenant down here, I need to talk to your lieutenant because there's really something wrong, I don't even talk to you, you know, stuff like that. That's about it. He would just get in the middle of the tier and just look back at me, and he would just go on.

Id. at 12-14. Davis testified that he believed Sergeant Sherrill violated his constitutional rights during this exchange by asking him where he slept. Id. at 28-29, 31 & 67-68. He also claimed that Sergeant Sherrill would routinely open his trap door and allow it to slam back down during his rounds. Id. at 12-13. Davis acknowledged that Sergeant Sherrill did not threaten him or physically assault him, but claimed that Sergeant Sherrill's behavior caused him emotional harm. Id. at 15, 63-64 & 68-69. Davis ...


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