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Scott v. Kelley

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

September 17, 2018

WENDY KELLEY, Director, Arkansas Department of Correction; et al. DEFENDANTS




         The following recommended disposition has been sent to United States District Judge James M. Moody, Jr. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

         If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:

         1. Why the record made before the Magistrate Judge is inadequate.

         2. Why the evidence proffered at the hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.

         3. The details of any testimony desired to be introduced at the new hearing in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the new hearing.

         From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and “Statement of Necessity” to:

Clerk, United States District Court
Eastern District of Arkansas
600 West Capitol Avenue, Suite A149
Little Rock, AR 72201-3325



         Deverick Scott (“Plaintiff”), an inmate at the Varner Supermax Unit of the Arkansas Department of Correction (“ADC”), filed this action pro se and pursuant to 42 U.S.C. § 1983. (Doc. Nos. 1, 3.) He alleges Defendants, ADC and Varner Supermax officials, violated his First, Fifth, Eighth, and Fourteenth Amendment rights by subjecting him to excessive confinement in punitive isolation and by denying him access to media and his personal property during forty-eight-hour “relief periods” in between successive thirty day periods in punitive isolation.[1] (Doc. No. 3 at 10-16.) Plaintiff seeks compensatory and punitive damages as well as injunctive relief. (Id. at 9, 15-16.)

         The remaining Defendants are Wendy Kelley, Dexter Payne, Emsweller, [2] McHan, [3]Cashion, [4] Claudia Harris, Stephens, [5] Brown, [6] F. Washington, [7] G. Thompson, [8] Evans, [9] and Felicia Piggee. They have filed a Motion for Summary Judgment, contending they are entitled to judgment as a matter of law on Plaintiff's claims. (Doc. Nos. 67-69.) Plaintiff has responded (Doc. Nos. 72-74), and this matter is now ripe for a decision. After careful review, and for the following reasons, I find summary judgment is appropriate and Plaintiff's claims should be DISMISSED.

         II. FACTS

         It is undisputed that Plaintiff has spent a significant amount of time in punitive isolation due to repeated rule violations. (Doc. No. 67-3 at 3, 6-18.) According to Plaintiff's Amended Complaint, he was denied adequate forty-eight-hour relief in between consecutive thirty-day periods in punitive isolation. (Doc. No. 3 at 11.) Specifically, he was not moved from his punitive isolation cell during his forty-eight-hour relief periods and was not afforded access to newspapers and other media and his personal property during those times. (Id.) Plaintiff's claims have previously been limited to the time period of January 5, 2017, through May 31, 2017. (Doc. No. 9 at 1.) According to his Amended Complaint, he was denied adequate forty-eight-hour relief in February, March, and April of that year. (Doc. No. 3 at 12.) Plaintiff alleges he suffered sleep deprivation and was “subjected to inadequate staff and unsanitary conditions” during those times. (Id.) He seeks an injunction requiring Defendants to “obey the constitutional limitation of 30 days confinement in punitive isolation, ” as well as compensatory and punitive damages. (Id. at 15-16.)


         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 the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record, “including 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).

         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). 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, ...

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