Mero v. Independence County Jail
ORDER granting in part and denying in part 40 Motion for Summary Judgment. Mr. Mero's relatiation claim and his claim for compensatory damages are dismissed with prejudice. Signed by Magistrate Judge Beth Deere on 3/21/2014. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
RUSTY ROY MERO
CASE NO. 1:13CV0040 BD
INDEPENDENCE COUNTY JAIL, et al.
Rusty Roy Mero, an Arkansas Department of Correction inmate formerly housed
at the Independence County Jail (“Jail”), filed this lawsuit pro se under 42 U.S.C. § 1983,
alleging that Jail officials failed to protect him from other inmates. Specifically, he
claims that, over the course of several days, Jail inmates threw urine either in his cell or
on his person on four occasions. He further alleges that Jail officials knew that he was
being threatened, but failed to protect him. He names five Jail officers as Defendants.
Defendants have now moved for summary judgment on Mr. Mero’s claims against
them. (#40) Mr. Mero has not responded to the Defendants’ motion, and the time for
doing so has passed.
Based on the evidence presented, questions of fact remain precluding judgment as
a matter of law in the Defendants’ favor on Mr. Mero’s failure-to-protect claim.
Therefore, Defendants’ motion for summary judgment (#40) is GRANTED in part, and
DENIED in part. Mr. Mero’s retaliation claim and his claims for compensatory damages
Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the nonmoving party, presents no genuine dispute as to any material fact.
Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246, 106 S.Ct. 2505 (1986). The moving
party bears the initial responsibility of demonstrating the absence of a genuine dispute of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986).
If the moving party meets this burden, the nonmoving party must respond by coming
forward with specific facts establishing a genuine dispute for trial. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). When the nonmoving party
cannot come forward with enough evidence to establish a necessary element of the case,
the moving party is entitled to judgment as a matter of law. Celotex Corp., 447 U .S. at
322–23, 106 S.Ct. at 2552.
Failure to Protect - Defendants Garcia, Branscom, Webb, and Stone
Jail officials have a duty to protect prisoners from violence at the hands of other
prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994). Mr. Mero was a pretrial
detainee at the time the incidents giving rise to this lawsuit occurred. Pretrial detainees’
§ 1983 claims are analyzed under the fourteenth amendment’s Due Process Clause, rather
than under the eighth amendment, which prohibits cruel and unusual punishment. Kahle
v. Leonard, 477 F.3d 544, 550 (8th Cir. 2007) But this distinction, “ makes little
difference as a practical matter, though: Pretrial detainees are entitled to the same
protection under the Fourteenth Amendment as imprisoned convicts receive under the
Eighth Amendment.” Id.
The Court of Appeals for the Eighth Circuit has not “establish[ed] a clear standard
for pretrial detainees,” and “repeatedly [has] applied the deliberate indifference standard
as is applied to Eighth Amendment claims made by convicted inmates.” Morris v.
Zefferi, 601 F.3d 805, 809 (8th Cir. 2010) (quoting Vaughn v. Greene Cnty., Ark., 438
F.3d 845, 850 (8th Cir. 2006) (internal quotation marks omitted)).
In order to establish a constitutional violation, Mr. Mero must show that his
continued incarceration in the male housing unit at the Jail posed a substantial risk of
serious harm (objective component), and that County Jail officials actually knew of, but
disregarded or were deliberately indifferent to, Mr. Mero’s health or safety (subjective
component). Pagels v. Morrison, 335 F.3d 736, 740 (8th Cir. 2003); Jackson v. Everett,
140 F.3d 1149, 1151 (8th Cir. 1998).
In his complaint and deposition testimony, Mr. Mero alleges that while he was
housed in the male housing unit at the County Jail, he confiscated a cellular phone and
turned the telephone in to Defendant Garcia as contraband. (#42-1 at p.4) As a result, he
claims, other inmates threatened to “jump him” and specifically to pour urine and feces
into his cell. (#2 at p.4, #42-1 at p.4) The day after Mr. Mero turned in the cellular
phone, an unidentified inmate poured urine under his cell door and onto Mr. Mero’s cell
floor during the night. After cleaning his cell, Mr. Mero informed the guard on duty that
he “feared for [his] safety, and wrote a grievance concerning the incident.”1 (#4 at p.2)
Mr. Mero testified in his deposition that he told Defendants Branscom, Garcia, and Stone
that he was consistently being threatened, and requested to be transferred out of the male
housing unit. He also testified that the guards could hear the verbal threats that were
repeatedly being made against him. (#42-1 at p.45)
According to Mr. Mero’s deposition testimony, Jail officials asked him if he would
like to be moved to a single-man cell in the male housing unit, but also said they could
not promise him that urine would not be poured into a single-man cell. (#42-1 at pp.3839) Mr. Mero testified that he neither declined nor accepted the offer. (#42-1 at pp.12,
Mr. Mero further testified that a few days after the first incident, an unidentified
inmate poured urine into his cell through the “bean hole.”2 (#42-1 at p.5) Mr. Mero
wrote another grievance, again requesting that he be transferred out of the male housing
unit. He alleges that, although he was removed from the male housing unit for several
The Court notes that, in his original complaint, Mr. Mero alleges that he wrote a
grievance concerning the alleged threats prior to the urine being poured into his cell.
Mr. Mero explained that the “bean hole” is the opening in the cell door where
food trays are usually served.
hours, Defendant Branscom told him that he could not be transferred.3 (#42-1 at pp.4647) Mr. Mero alleges that he continued to inform County Jail officials about threats
against him, but those officials took no action to remedy his situation.4
Several days later, after inmates had been out of their cells for recreation time, an
inmate located on the top tier, poured urine onto Mr. Mero and Defendant Webb. (#42-1
at p.6) After Mr. Mero was allowed to shower, he was dashed with urine a second time.
Following that incident, Mr. Mero was moved to a one-man observation cell in the
misdemeanor pod. (#42-1 at p.48) He remained there until he was transferred out of the
Jail. (#42-1 at p.48)
In his deposition testimony, Mr. Mero stated that Defendants Garcia and Webb
tried to have him removed from the male housing unit. (#42-1 at p.15) In addition, he
believed that Defendant Branscom tried to get him moved to the other side of the County
Jail based on the threats that Mr. Mero was receiving. (#42-1 at p.54) Mr. Mero
explained that these Defendants could not have him removed from the male housing unit
In his complaint, Mr. Mero alleges that Defendants Garcia and Webb also told
him that he could not be transferred out of the male housing unit.
It is undisputed that Mr. Mero was unable to clean his cell for six hours after the
second incident. (#42-1 at p.55)
because their Lieutenant, Defendant Furgason,5 had ordered that he not be transferred.
(#42-1 at pp.15, 46)
Based on the status of the record at this time, the Court cannot grant judgment as a
matter of law in the Defendants’ favor. Defendants argue that there was no substantial
risk of serious harm because Mr. Mero did not specifically identify the inmate (or
inmates) who threatened to harm him. They also contend that, because the incidents were
not carried out by the same person and none resulted in physical harm to Mr. Mero, he
cannot establish the objective element of this claim. Not so.
Mr. Mero testified that he specifically informed Defendants Garcia, Webb, Stone,
and Branscom that inmates were threatening him. In addition, Mr. Mero testified that
these Defendants could hear the threats as they were being made. These Defendants,
however, did not have Mr. Mero transferred out of the male housing unit even after
inmates had carried out several of their threats. Fortunately, Mr. Mero was not harmed
more seriously, but being doused repeatedly with urine over the course of several days is
Defendants also argue that Mr. Mero cannot prove that any of the Defendants
disregarded an excessive risk to his safety because Mr. Mero “could not identify the
specific risk.” (#41 at p.6) The Supreme Court has held that a jail official cannot
Although Defendant Furgason is identified as identified Ferguson on the docket
sheet, the Defendants identify this Defendant as Lieutenant John Furgason. Accordingly,
he will be identified as Defendant Furgason in this Order.
“escape liability for deliberate indifference by showing that, while he was aware of an
obvious, substantial risk to inmate safety, he did not know that the complainant was
especially likely to be assaulted by the specific prisoner who eventually committed the
assault.” Farmer, 511 U.S. at 843, 114 S.Ct. 1970. Again, Mr. Mero testified that he
repeatedly notified the Defendants that he was being threatened and that he feared for his
safety. Even if Mr. Mero could not identify the particular inmate (or inmates) who were
making threats, it is undisputed that urine was poured into Mr. Mero’s cell on more than
one occasion over a period of at least several days. Based on the record, there is evidence
that the Defendants should have been aware that Mr. Mero’s continued incarceration in
the male housing unit posed a risk to his safety.6
Defendants argue Defendant Furgason is entitled to summary judgment because
Mr. Mero bases his claims against him on his position as a supervisor. They further
contend that Mr. Mero has not alleged sufficient facts to support a constitutional claim
against Defendant Furgason and that claims against this Defendant are based on
“speculation and unattested hearsay.” (#41 at p.10)
The Defendants also argue that verbal threats do not rise to the level of a
constitutional violation. While it is true that a prison or jail guard may not be
constitutionally liable for threatening an inmate, that is not the situation here. See Martin
v. Sargent, 780 F.2d 1334 (8th Cir. 1985) and McDowell v. Jones, 990 F.2d 433 (8th Cir.
In his deposition, Mr. Mero testified that after Defendant Webb informed
Defendant Furgason about the threats, Defendant Furgason told Defendant Webb to,
“leave him back there.” (#42-1 at p.46) Although Defendants are correct that this
statement is hearsay and may not be considered when ruling on the pending summary
judgment motion, Mr. Mero also explains that when he was temporarily removed from
the male housing unit, he had a conversation with Defendant Furgason. According to Mr.
Mero, Defendant Furgason wanted Mr. Mero to be shackled and chained while he was
temporarily removed from the male housing unit. In addition, Defendant Furgason shut
Mr. Mero’s bean hole and told him that if he did not like it, he could go back to the male
housing unit. (#42-1 at p.46) Finally, Defendant Furgason told Mr. Mero that he did not
care if Mr. Mero sued him. (#42-1 at p.46) The Court finds it disingenuous for the
Defendants to argue that Defendant Ferguson was unaware of Mr. Mero’s situation when
he apparently was involved in Mr. Mero’s temporary transfer out of the male housing unit
and was responsible for the conditions of his housing during that time.
In addition, Mr. Mero specifically alleged and testified that he wrote multiple
grievances regarding the alleged threats that were being made. Based on the current
status of the record, it is unclear who received and responded to those grievances.
Defendants did not present those grievances or any of the Defendants’ affidavits to the
Court in support of their motion. As a result, based on the current record, the Court
cannot conclude as a matter of law that Defendant Furgason is not liable.
The Defendants also argue that because Mr. Mero did not suffer a physical injury,
he is not entitled to compensatory damages. The Defendants are correct. There are three
categories of monetary damages that a prevailing party can recover in cases filed under 42
U.S.C. § 1983: nominal, actual (compensatory), and punitive. Nominal damages are
appropriate when it is not possible to place a monetary value on a plaintiff's damages.
Cowans v. Wyrick, 862 F.2d 697 (8th Cir. 1988). Actual (compensatory) damages
compensate a person for injuries caused by the deprivation of constitutional rights.
Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986). Punitive damages
are awarded for the sole purpose of punishing a defendant and deterring future
Here, even if the Defendants violated Mr. Mero’s federally protected rights, he did
not suffer any physical injury as a result of their conduct. The law is settled that an
inmate cannot recover compensatory damages for emotional injury alone. See 42 U.S.C.
§ 1997e(e). Accordingly, Mr. Mero’s claims for compensatory damages are dismissed. It
is possible, however, that he will be able to recover nominal and punitive damages,
depending on the evidence.
In determining whether an official claiming qualified immunity acted with
deliberate indifference, the Court must determine whether it was objectively reasonable
for the official to believe that his conduct would not violate an inmate’s clearly
established eighth amendment right. Curry v. Crist, 226 F.3d 974, 977 (8th Cir. 2000)
(quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Although “threats between
inmates are common and do not, under all circumstances, serve to impute actual
knowledge of a substantial risk of harm,” Jackson v. Everett, 140 F.3d 1149, 1152 (8th
Cir. 1998) (internal quotation omitted), based on Mr. Mero’s testimony, it appears that
Defendants Garcia, Webb, Branscom, and Stone appreciated the risk to Mr. Mero, as
could a reasonable juror. According to Mr. Mero’s testimony, Defendants Webb and
Branscom told Mr. Mero that they would talk to their Lieutenant (Defendant Furgason)
about having him transferred. Based on the evidence presented so far, it is unclear
whether these conversations ever occurred or what was actually stated during any such
conversation. If a jury could conclude that these Defendants were aware of a substantial
risk of harm to Mr. Mero, then it could conclude that their failure to notify their
Lieutenant could support a deliberate-indifference claim. Such deliberate indifference
would violate clearly established law that establishes a jail official’s duty to protect
inmates from substantial risks of serious harm in certain situations. Farmer, 511 U.S. at
Further, with regard to Defendant Furgason, it is apparently disputed whether he
knew of threats to Mr. Mero’s safety. If he did not know of any threat, he is not liable.
Because the facts remain in dispute, though, the Court cannot determine that Defendant
Furgason’s conduct complied with clearly established law.
To prove a retaliation claim, a prisoner must present evidence that: he engaged in
constitutionally protected activity; defendants took adverse action against him that would
chill a person of ordinary firmness from engaging in that activity; and retaliation was the
actual motivating factor for the adverse action. Lewis v. Jacks, 486 F.3d 1025, 1028 (8th
Cir. 2007); Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004). The test for determining
whether there was a threat of retaliation is whether a defendant’s acts or statements,
“would chill a person of ordinary firmness from continuing in the protected activity.”
Santiago v. Blair, 707 F.3d 984, 991 (8th Cir. 2013) (citing Revels v. Vincenz, 382 F.3d
870, 876 (2004)).
Here, Mr. Mero has failed to allege or provide any evidence that the Defendants
took any adverse action against him for engaging in any constitutionally protected
activity. As a result, Defendants are entitled to judgment as a matter of law on Mr.
Mero’s retaliation claim.
The Defendants’ motion for summary judgment (#40) is GRANTED in part, and
DENIED in part. Mr. Mero’s retaliation claim and his claim for compensatory damages
are DISMISSED, with prejudice.
IT IS SO ORDERED this 21st day of March, 2014.
UNITED STATES MAGISTRATE JUDGE
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