United States District Court, W.D. Arkansas, Fort Smith Division
HOLMES, III, U.S. DISTRICT JUDGE.
Jose Alonso Garcia proceeds in this matter pro se
and in forma pauperis pursuant to 42 U.S.C. §
1983. (ECF No. 1, 2, 3). In his Amended Complaint, Garcia
alleges claims of failure to protect with respect to his
transfer to the “green group” pod which consists
of sexual offenders. (ECF No. 37).
pending is Defendants' Motion for Summary Judgment. (ECF
No. 40). On June 17, 2019, the Court entered an Order
directing Garcia to respond to the Motion by July 8, 2019.
(ECF No. 43).
filed a Response to the Motion on July 8, 2019. (ECF Nos. 46,
47). The Defendants filed a Reply to Plaintiff's Response
on July 22, 2019. (ECF No. 48).
addition, the Court must consider the facts set forth in
Garcia's verified Amended Complaint in ruling on the
Motion for Summary Judgment. (ECF No. 37). A verified
complaint is the equivalent of an affidavit for summary
judgment purposes. See e.g., Roberson v. Hayti Police
Dep't., 241 F.3d 992, 994-95 (8th Cir. 2001).
Court in Roberson points out, “[a]lthough a
party may not generally rest on his pleadings to create a
fact issue sufficient to survive summary judgment, the facts
alleged in a verified complaint need not be repeated in a
responsive affidavit to survive the summary judgment
motion.” Id. The Court will “piece
together [Plaintiff's] version of the facts from the
verified complaint. Those portions of the Defendant[s']
statement of material facts that do not conflict with
[Plaintiff's verified complaint] are deemed
admitted.” McClanahan v. Young, No.
4:13-cv-04140, 2016 WL 520983 (D.S.D. Feb. 5, 2016).
with their Motion for Summary Judgment, Defendants filed a
Statement of Indisputable Material Facts in Support of Motion
for Summary Judgment. (ECF No. 42). Defendants' Statement
of Indisputable Material Facts is supported by the Affidavit
of Captain Williams Dumas. (ECF No. 42, Ex. 1, Dumas
Affidavit). In addition, attached to Dumas' Affidavit are
records of the jail, including relevant arrest and booking
records for Garcia, Garcia's Inmate Housing History
Report, and relevant Incident Reports related to Garcia's
claims in this case. Id. According to his Affidavit,
Dumas, as custodian of the records of the jail, verifies
these documents as true and correct copies of records
regularly kept in the ordinary course of business at the
Garcia has filed a Response to Defendants' Statement of
Indisputable Material Facts, Garcia has not supported any of
his allegations that are contrary to Defendants'
Statement of Indisputable Material Facts with affidavits,
prison records or other evidence as required by Rule 56 of
the Federal Rules of Civil Procedure. See Fed. R.
Civ. P. 56(e). The Court has previously noted this
requirement in its Order directing a response to the Motion
for Summary Judgment and in its Order giving Garcia
additional time to supplement his response to the
Defendants' Motion for Summary Judgment with affidavits
from his witnesses. (ECF No. 43, 53). The Court will
therefore discuss below only the statements of Garcia's
verified Amended Complaint which contradict Defendants'
Statement of Material Indisputable Facts.
to Defendants' Statement of Material Indisputable Facts:
December 28, 2017, Plaintiff Jose Garcia was booked into the
Sebastian County jail on a hold for federal authorities
related to federal charges of selling methamphetamine. Garcia
had previously been incarcerated in the Sebastian County jail
from November 8 to December 3, 2017, before being briefly
sent to the Scott County jail before a return to Sebastian
County. (ECF No. 42, Ex. 1, Dumas Affidavit, Booking
was initially housed in GG pod, where he stayed until April
18, 2018. Garcia's housing assignment was decided by
Sebastian County's use of the Northpoint classification
system, a computer-aided inmate security classification
protocol that resulted in the Garcia's initial placement
in GG pod, a medium security unit. (ECF No. 42, Ex. 1, Dumas
Affidavit, Booking Records).
was transferred to FF pod on the evening of April 18, 2018.
FF pod is another medium security pod. Garcia was transferred
from GG to FF because, during a shift change briefing, Sgt.
Tonna Moore found out about a notation from the U.S.
Marshal's Service that Garcia and an inmate named Jose
Escalante were to be kept separate (because they were
co-defendants in their criminal case, not for any protection
reason). Before Garcia's move to FF pod, he was being
housed with Jose Escalante. (ECF No. 42, Ex. 1, Dumas
Affidavit, Moore Report).
afternoon of July 22, 2018, Garcia came to the front of FF
pod to assist the officers with the evening meal (Garcia was
a 509 inmate at the time, essentially, an in-pod trustee).
Officer Chase Harris noticed that Garcia was acting
differently and appeared to be upset about something. Garcia