United States District Court, E.D. Arkansas, Pine Bluff Division
KENNETH F. DAVIS ADC #127248 PLAINTIFF
JARRED SHERRILL, et al. DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATION
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.
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. Id. at 2, 17-21. Davis'
claims against Barnes were previously dismissed for failure
to exhaust administrative remedies. See Doc. No. 94.
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.
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.
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).
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 ...