Roberts v. Hobbs et al

Filing 137

ORDER directing the parties to provide information, as set forth in this Order, prior to the hearing set for 1:30 p.m., on Thursday, February 21, 2013. Signed by Judge D. P. Marshall Jr. on 2/20/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

BRUNSON ROBERTS
ADC #127841
v.

PLAINTIFF
No. 5:10-cv-174-DPM

RODERICK JOHNSON; RICKY WEBB;
and DAVID TUCKER

DEFENDANTS

ORDER
Puzzling through the new summary-judgment papers and issues,
especially qualified immunity, has been more difficult than the Court
anticipated. The Court concludes that the best course is to clarify the record
some, if possible, and have oral argument on the motion before making any
ruling. Hearing set for 1:30 p.m. on Thursday, 21 February 2013.
On the facts, the Court would benefit from these things:
•

a diagram of Roberts's cell;

•

photographs of his cell;

•

some information about exactly where the food elevator is in
relation to his cell; and

•

any medical records (beyond Exhibit G to Document No. 121)
about treatment of Roberts's eyes, or complaints of problems,
post-exposure.

The Court believes that these are undisputed matters, which may be lurking
in the record already, and which would come in at trial anyway. If the parties
cannot agree to this supplementation, please advise the Court.
On the law, the Court is puzzled by Defendants' exhaustion arguments.
This issue seemed settled. Document Nos. 83, at 3, note 2; 92, at 2; 115-6; 115-7
& 115-8. How is exhaustion (or not) a new matter, only revealed recently in

the depositions? This was the guiding principle for the new motion. And
what direct precedent is there for Defendants' arguments that, two years into
the case, Roberts cannot present and argue any facts of record in support of
his unconstitutional-conditions claim beyond those in his grievances? Does
all the procedural history show waiver? Consider Foulk v. Charrier, 262 F.3d
687,697 (8th Cir. 2001). The Court looks forward to Defendants' answers to
these questions.
It now appears undisputed that Johnson, Webb, and Tucker were not

on the job on September 3rd, and that they came back to work on September
4th in the early evening, working off and on during the next several weeks.
E.g., Document Nos. 115-2 & 115-3. Does Roberts agree that there are the

undisputed facts about Defendants' presence?
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This is how the Court sees the record, in the light most favorable to
Roberts, about the later exposures. Does Roberts agree? From September 4th
through 9th, Roberts was unable to clean the raw sewage from under the
four-foot wide door to his cell; he was exposed to another sewage flood for a
few hours on the 9th; afterward, he was denied bleach to clean his cell but he
did so with his own soap; and for a couple of weeks thereafter, he lived with
feces stuck under his door and the smell from the overflow in the bottom of
the uncleaned food elevator.
What injury did these exposures (not the September 3rd overflow and
cleanup) cause Roberts? From September 4th forward, is this a de minimus
injury situation, as Defendants 1 argue? In the totality of the circumstances,
how critical is any physical injury to make a jury issue? Consider Whitnack v.
Douglas County, 16 F.3d 954, 957-58 (8th Cir. 1994) and similar precedents.

The Court looks forward to Roberts 1s answers at the hearing in terms of the
conditions-of-confinement/ sewage exposure precedents.
The Court recognizes that this is a quick-turnaround assignment and
appreciates counsels 1 efforts to help the Court on short notice.

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So Ordered.

D.P. Marshall Jr.
United States District Judge
20 February 2013

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