Racy et al v. Lewis et al

Filing 64

MEMORANDUM AND ORDER granting 58 Motion for Summary Judgment and dismissing plaintiff's complaint against defendants with prejudice. Signed by Magistrate Judge Jerome T. Kearney on 9/10/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CINDY RENEE GUY,
ADC #711235

PLAINTIFF

VS.

5:11-cv-00155-JTK

DEPUTY LEWIS, et al.

DEFENDANTS
MEMORANDUM AND ORDER

I.

Introduction
This matter is before the Court on the Defendants’ Motion for Summary Judgment (Doc. No.

58). Plaintiff filed a Response in opposition to the Motion, and Defendants filed a Reply (Doc. Nos.
62, 63).
Plaintiff is a state inmate who filed this action pursuant to 42 U.S.C. § 1983 with another
former inmate, Dottie Deshae Racy, while they were incarcerated at the Dub Brassell Detention
Center (Jail) (Doc. No. 3).1 By Order dated November 9, 2011 (Doc. No. 29), the Court granted
Plaintiffs’ Motion to Amend their Complaint, with respect to Plaintiff Racy’s allegation of denial
of due process by Defendants Tyler and Adams, and both Plaintiffs’ retaliation allegations against
Defendant Adams. On May 9, 2012, Plaintiff Racy was dismissed from this action, for failure to
prosecute (Doc. No. 55).
II.

Summary Judgment Motion
Pursuant to FED.R.CIV.P. 56(a), summary judgment is appropriate if the record shows that

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During the course of this litigation, Plaintiff Guy was transferred to the McPherson Unit
of the Arkansas Department of Correction and Plaintiff Racy was released from incarceration
(Doc. Nos. 9, 43.)
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there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. See Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997). “The moving party bears
the initial burden of identifying ‘those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.’” Webb v. Lawrence County, 144 F.3d
1131, 1134 (8th Cir. 1998), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (other
citations omitted). “Once the moving party has met this burden, the non-moving party cannot
simply rest on mere denials or allegations in the pleadings; rather, the non-movant ‘must set forth
specific facts showing that there is a genuine issue for trial.’” Id. at 1135. Although the facts are
viewed in a light most favorable to the non-moving party, “in order to defeat a motion for summary
judgment, the non-movant cannot simply create a factual dispute; rather, there must be a genuine
dispute over those facts that could actually affect the outcome of the lawsuit.” Id.
A.

Defendants’ Motion

Defendant Tyler asks the Court to dismiss her from this action, because the only claim
against her was Plaintiff Racy’s due process claim, which was dismissed when Racy was dismissed
on May 9, 2012 (Doc. No. 55). Defendant Adams asks the Court to dismiss Plaintiff’s retaliation
claim against him for failure to state a claim upon which relief may be granted. According to the
Amended Complaint, the retaliation claim against Defendant Adams is based on his alleged transfer
of Plaintiff Racy from a cell where she was housed with Plaintiff Guy (Doc. No. 22, p. 22; Doc. No.
25, p. 6.) In the present Motion, Adams states that Plaintiff’s speculative allegation that the transfer
was retaliatory is insufficient to support her claim, and that she cannot provide any evidence to
support her claim. Adams cites in support Meuir v. Green County Jail Employees, 487 F.3d 1115,

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1119 (8th Cir. 2007) and Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996). Adams also asks
the Court to dismiss Guy’s claim because she was not the inmate who was transferred, and it appears
that there is no constitutional right to be housed with a particular inmate.
B.

Plaintiff’s Response

Plaintiff Guy states in her Response that Adams was aware of the Plaintiffs’ lawsuit and was
responsible for the transfer of Racy. She also states Adams retaliated against her by punishing her
for possession of cigarettes and by failing to provide adequate cleaning supplies for her cell.
C.

Defendants’ Reply

Defendants state that Guy’s reasons in support of her retaliation claim – that everyone in the
jail knew she filed a lawsuit, and that a deputy told her Adams made the call to move Racy – are
speculative and do not support a retaliation claim.

In addition, the remaining claims referred to by

Plaintiff in her Response were dismissed pursuant to the Court’s November 9, 2011 Order (Doc. No.
29).
D.

Analysis

Initially, the Court finds that Defendant Tyler should be dismissed, because the only claim
against her was asserted by Plaintiff Racy, who is no longer a party to this lawsuit. In addition, the
Court agrees with Defendant Adams that Plaintiff’s claims against him in his official capacity should
be dismissed for failure to allege that his actions were the result of a governmental custom or policy,
pursuant to Monell v. Dep’t of Social Services, 436 U.S. 658, 691 (1978), and Parrish v. Luckie, 963
F.2d 201, 204 (8th Cir. 1992).
With respect to Plaintiff’s individual-capacity claim against Defendant Adams, an inmate
states a claim for retaliation if the defendant takes an adverse action in response to the inmate’s

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protected activity, such as retaliating against someone for filing a grievance or lawsuit. See Burgess
v. Moore, 39 F.3d 216, 218 (8th Cir. 1994). However, Plaintiff must be able to submit affirmative
evidence of the retaliatory motive of Defendant in order to avoid summary judgment, and cannot
merely speculate that the act was retaliatory. See Lewis v. Jacks, 486 F.3d 1025, 1029 (8th Cir.
2007), where the court stated, “To avoid summary judgment, [plaintiff] must submit ‘affirmative
evidence [of] a retaliatory motive.’” quoting Wilson v. Northcutt, 441 F.3d 586, 592 (8th Cir. 2006)
(other citations omitted). See also Meuir, 487 F.3d at 1119, where the court stated, “The plaintiffinmate has a heavy evidentiary burden to establish a prima facie case....Merely alleging that an act
was retaliatory is insufficient.” (Other citations omitted.)
In this case, Plaintiff states in the Amended Complaint that the only reason they (she and
Racy) can think of for Adams’ transfer of Racy “was the lawsuit.” (Doc. No. 22, pp. 22-23).
However, this is insufficient speculation to support her claim against Defendant Adams. Plaintiff
provides no specific facts to link the filing of the lawsuit to Defendant Adams’ decision to transfer
Racy, or in which a retaliatory animus could be inferred. Furthermore, the Court finds that Plaintiff
cannot rely on another inmate’s transfer (as opposed to her own transfer) as the retaliation for the
filing of her lawsuit. Therefore, the Court finds as a matter of law that Plaintiff’s retaliation claim
against Defendant Adams should be dismissed.
III.

Conclusion
IT IS, THEREFORE, ORDERED that Defendants’ Motion for Summary Judgment (Doc.

No. 58) is GRANTED and Plaintiff’s complaint against Defendants is DISMISSED with prejudice.
An appropriate Judgment shall accompany this Memorandum and Order.

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IT IS SO ORDERED this 10th day of September, 2012.

_____________________________________
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE

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