Robinson v. Johnson et al

Filing 89

ORDER ADOPTING 77 REPORT AND RECOMMENDATIONS as modified and supplemented. The 49 Motion for Summary Judgment on Robinson's excessive-force claim is granted. Signed by Judge D. P. Marshall Jr. on 2/18/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ANDREW DOMINIC ROBINSON
ADC# 652013

v.

PLAINTIFF

No. 5:10-cv-322-DPM-JJV

RODERICK JOHNSON, Lt.,Varner Super Max, ADC;
ANTWON EMSWELLER, Lt., Varner Super Max, ADC;
CHRISTOPHER SHERRILL, Sgt.,Varner Super Max, ADC;
BRIAN PERKINS, Sgt.,Varner Super Max, ADC;
TONDA SPENCER, Sgt.,Varner Super Max, ADC;
MICHELLE RUCKER, Sgt.,Varner Super Max, ADC;
and MERTHA JASPER, Sgt.,Varner Super Max, ADC
DEFENDANTS

ORDER
The Court overrules Robinson's objections, including those made after
he had the opportunity to watch the DVD of the cell-removal incident and
take notes, NQ 79 & 87, and adopts Judge Volpe's recommendation as
modified and supplemented. Memories fade and vary, but the recording of
the incident shows what happened. To the extent the officers' affidavits and
Robinson's deposition testimony differ from the recording, the DVD
establishes the undisputed facts. Scott v. Harris, 550 U.S. 372, 378-81 (2007).
No party challenges the authenticity, completeness, or reliability of the DVD.
The recording is not movie quality; it is troubling to watch in places- the

harsh reality of a maximum security prison is manifest; and the audio is
sometimes hard to follow because of the amount of other noise and the
difficulty of discerning who is speaking. But the recording makes some
things clear beyond reasonable dispute:
•

Robinson refused to take the cuffs and relocate, and instead
holed-up in the corner of his darkened cell;

•

As increasing force was deployed to get him to submit, Robinson
was repeatedly directed to take the cuffs and did not do so;

•

The escalation of force was methodical and done over an
extended period- approximately one hour;

•

The recording does not confirm that the officers warned Robinson
each time that a particular kind of extra force was about to be
used. Taking the record in the light most favorable to Robinson,
no such particularized warnings were given. This violated ADC
policy. NQ 49-10 at 1. The violation is evidence of a constitutional
problem. Treats v. Morgan, 308 F.3d 868, 875 (8th Cir. 2002);
Johnson v. Blaukat, 453 F.3d 1108,1114 (8th Cir. 2006);

•

Considering all the undisputed circumstances, including the
policy violation, no jury question is created. Robinson was clearly
ordered to take the cuffs over and over during the approximately
one-hour stand-off. He never obeyed. His admitted and
continued disobedience of these reasonable orders, which
implicated the safety of all concerned, was adamant. This is not
a case like Treats, where pepper spray was used out of the blue
when an inmate refused to take his copy of a form in nonthreatening circumstances. 308 F.3d at 872. Robinson knew he
was supposed to relocate and simply decided he was not going to
go until forced. The amount of force used was a product of
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Robinson's recalcitrance;
•

Robinson could have stopped all this at any time by submitting,
but did not do so, he says because he feared two particular
officers (Johnson and Em sweller). Ng 70-1 at 22-28. His concerns,
though, cannot be a blank check for sustained disobedience of
routine orders from several prison staff to be handcuffed for
relocation. Many officers beyond these two were involved.
Robinson has not offered sufficient evidence that would support
a fact-finder in concluding that his continuing disobedience was
justified in the circumstances;

•

How Sergeant Sherrill decided to hold the cuffs in his hand before
he entered the cell to extract Robinson does not give rise to a
reasonable inference that Sherrill was going to use them like brass
knuckles. He was clearly trying to find the best way to have the
cuffs handy. And as best the Court can see, the video does not
show Sherrill throwing blows;

•

The officer's statement along the lines- there's no way he can
take that powder" -was a hopeful commentary, as Judge Volpe
noted, not a statement of malice or sadism;

•

The officers do not appear angry or vengeful; and

•

At the end of the stand-off, Robinson was lucid, ambulatory,
taunting the officers about how many people were needed to
subdue him, and bragging that he had not been hurt by the whole
thing.

II

Add to all this Robinson's undisputed history of violence against prison
personnel. Viewed in the light most favorable to Robinson but placing
particular weight on the recording, the evidence as a whole would not

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support a reliable inference of wanton infliction of pain. Johnson v. Bi-State
Justice Ctr.jArkansas Dep't ofCorr., 12 F.3d 133, 136 (8th Cir. 1993).

The motion for summary judgment on Robinson's excessive-force claim,
NQ 49, is granted.

So Ordered.
D.P. Marshall Jr.
United States District Judge

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