Simmons v. Rhodes et al

Filing 124

ORDER granting judgment for defendant Cameron Rhodes and dismissing with prejudice the claims of plaintiff Charles Simmons. Signed by Chief Judge Brian S. Miller on 7/28/2016. (ljb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CHARLES SIMMONS
v.

PLAINTIFF
CASE NO. 5:14CV00081 BSM

CAMERON RHODES and
ROBBIE FREAD

DEFENDANTS
ORDER

This is a prison abuse case brought by Charles Simmons, who alleges defendant
Cameron Rhodes used excessive force against him while Simmons was a post-conviction
detainee at the Arkansas County Detention Center. He also alleges Rhodes and defendant
Robbie Fread were deliberately indifferent to his medical needs.
The case was tried to the bench, beginning on June 15, 2016, and concluding on July
18. Although testimony was taken on June 15, the trial was recessed so that Simmons’s
witnesses could be subpoenaed. At the conclusion of the first day of testimony, judgment
as a matter of law was entered for Rhodes and Fread on Simmons’s deliberate indifference
claim. Accordingly, the only issue remaining was Simmons’s excessive force claim against
Rhodes.
The trial resumed, and was completed, on July 18. Based on the testimony and the
other evidence, including the videotape of the incident, judgment is entered for Rhodes
because Simmons has not shown that the actions taken by Rhodes were “excessive and
applied maliciously and sadistically for the purpose of causing harm.”
I. THE TESTIMONY

A.

Charles Simmons
1. Direct

On February 13, 2004, Simmons was a post-conviction detainee in the Arkansas
County Detention Center awaiting transfer to the Arkansas Department of Correction, and
Rhodes was a guard. That morning, Simmons asked for a jail issued jumpsuit and Rhodes
gave it to him. About five minutes after giving Simmons the jumpsuit, Rhodes returned to
the barracks in which Simmons was housed and Simmons had his jumpsuit only partially on.
Rhodes came into the barracks where Simmons was housed and told him to pack his
belongings. When Simmons asked Rhodes why, Rhodes told Simmons that Simmons had
three seconds to get his belongings or Rhodes was going to put Simmons on his head.
Rhodes then grabbed Simmons and began trying to fight him.
At that point, another inmate named Mark, told Simmons to go to his cell and get his
stuff. At this point, Simmons turned to walk to his cell, and when he did, Rhodes pushed
Simmons in his back. When Simmons turned around to ask why Rhodes pushed him, Rhodes
tased Simmons. The Taser was deployed so quickly that Simmons did not have an
opportunity to ask the question he intended to ask. Simmons fell to the ground and was
immobilized for more than five minutes. While immobilized, Simmons urinated on himself.
When Simmons came through, he was placed in the hole.
When Simmons was taken to isolation, he asked to speak to defendant Fread, the jail
administrator. Fread did not come to see Simmons and Simmons stayed in isolation for six

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to seven days.
2. Cross
While examining the video of the incident, the following testimony was given.
Simmons was not wearing a jumpsuit, while the other inmates were wearing a jumpsuit on
the morning of February 13. The jail has a rule that inmates must wear jumpsuits at all times
and Simmons had a jumpsuit in his cell. He was not wearing his jumpsuit because it was
wet. That is why he asked for another one. No one ever asked Simmons to put on a
jumpsuit.
At 19:15 of the video, Simmons is asking Rhodes why Rhodes wants Simmons to go
to his cell and pack his belongings. Contact is made between the parties and Simmons does
not know why. Rhodes, however, ordered Simmons to go to his cell and get his belongings
but Simmons asked why and did not immediately go to his cell. At some point, Rhodes
grabbed Simmons’s arm and Simmons turned around and told Rhodes to keep his hands off
of Simmons. At that point Rhodes pushed Simmons.
After the tasing, Simmons did not receive medical attention relating to the tasing.
When Simmons was taken to the holding cell, Rhodes snatched the Taser’s barbs out of
Simmons. On March 5, however, Simmons was seen by Ralph Maxwell, DO, for his high
blood pressure. At that visit, Simmons told Dr. Maxwell that he had been tased.
3. Redirect on July 18
The video shows that Simmons was not a threat to Rhodes at any time. All Simmons

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wanted to know was why he was being taken to the hole, and although Simmons probably
did give the jail staff a hard time, Simmons did not understand why he was being taken to the
hole because, by the time he was told he was going to the hole, he was in compliance with
the guard’s orders. Also, Simmons did not understand why Rhodes pushed him in the back
and that is why he turned around to ask, but before he could ask the question, Rhodes tased
Simmons.
4. Recross
Simmons knew he was supposed to wear a jumpsuit. Rhodes twice told Simmons to
get his belongings. On both occasions, Simmons did not immediately go and get his
belongings, but asked Rhodes why. Rhodes told Simmons he was going to put Simmons on
his head. Rhodes attempted to take Simmons by the arm and lead Simmons. Simmons never
threatened Rhodes and never balled his fists.
B.

Kirk Johnson
1. Direct

Johnson was employed by the Arkansas County Sheriff’s Department on the day in
question. He was on duty that day but did not see the incident. He knew immediately about
Simmons being tased but did not see it. Johnson did not stop what he was doing to see if
Simmons was okay.
2. Cross
Johnson came into contact with Simmons on February 13, as Rhodes was taking

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Simmons to isolation. Johnson could hear Simmons hollering at Rhodes when Rhodes was
moving Simmons to isolation. He could hear Simmons “down the hall.” Simmons was
saying “[w]hat was you moving me for” and “[w]hat did I do[?]”
The jail’s policy is that inmates have to wear jumpsuits while they are in the day room.
When this rule is not enforced for one inmate, “it becomes a problem” with the other
inmates. Therefore, it is not unusual for an inmate to be placed in isolation if he does not
follow the rule. Further, inmates normally go to lock down after they are tased because
tasing usually occurs because an inmate is not following orders. Tasing is not used for
discipline. It is used to maintain order in the jail.
3. Responses to the Court’s Questions
Jail guards are not required to beg inmates to follow directives. At some point, the
inmates have to follow the guard’s directives. The Taser is not deadly force; a guard is
permitted to use it when the guard gives an instruction and the inmate responds by trying to
fight back, or walks into the guard’s space. A guard is also permitted to use the Taser when
the guard is attempting to move an inmate and the inmate jerks away from the guard or
throws his arm because the guard does not know what action the inmate is about to take.
C.

Peggy Pitts
1. Direct

Pitts is a lieutenant at the Arkansas County Detention Center. She was on duty on the
day in question but does not know anything about the incident.

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2. Cross
Pitts has been employed at the jail for eighteen years. She is familiar with Simmons.
The jail has a rule that inmates who are in the pod area must have on jumpsuits. This was
the rule on February 13. Normally, when an inmate is in the pod without a jumpsuit on, the
inmate is given three warnings to put a jumpsuit on. If the inmate fails to comply, he will be
taken from the pod and put in the holding tank for a couple of hours to let the inmate calm
down. Normally, the inmate will calm down and then will be taken back to the pod. It is
important for the inmates to wear the orange jumpsuit because it readily distinguishes the
inmates from the guards. This is necessary to maintain order in the jail and is for the safety
of the officers and inmates.
3. Redirect
The rule regarding the wearing of jumpsuits is posted on the pod door.
4. Responses to the Court’s Questions
Simmons did not give Pitts many problems. Pitts supervised Rhodes and was not
aware of any pre-existing conflicts between Simmons and Rhodes. Nothing about the
relationship between Rhodes and Simmons would lead Pitts to believe that Rhodes had
animosity towards Simmons. Nothing about Simmons’s history in the jail would lead the
jailers to have the view that they should take action against him immediately if he gets out
of line.
D.

Tabetha Inman

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Inman has been a jailer at the Arkansas County Detention Center for seven years. She
is also a control room operator. Although she was on duty on February 13, she has no
recollection of the incident at issue. She grew up with Simmons and attended school with
him. She was left in charge of the jail on the day in question because Pitts had left the jail.
Inman does not know whether there was animosity between Simmons and Rhodes.
Simmons was an easy inmate for her to deal with. He, however, was not so easy for the other
guards to deal with. If Inman or Pitts asked Simmons to do something, he would always do
it without causing any problems. Because she worked in the control room, she would hear
issues between Simmons and other guards, unless she blocked it out. Simmons had conflicts
with other guards for failing to put on his jumpsuit.
E.

Cameron Rhodes

Rhodes was a guard at the Arkansas County Detention Center from October 2012 until
October 2015. He left to join the U.S. Marine Corps. He now serves in the Marines while
working at Ed’s Supply. Rhodes did not use excessive force against Simmons.
The events occurred at six o’clock in the morning. Simmons was inside the pod with
the other inmates and Rhodes was in the control room outside the pod but could see in.
Rhodes pushed the intercom button and told Simmons to get a jumpsuit and that Simmons’s
visitation rights were being taken because Simmons had been warned previous times. He
also told Simmons “you’re coming up to the front for not having a jumpsuit on.” At that
point, Simmons did not tell Rhodes that he did not have a jumpsuit. When an inmate is going

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to be locked down, it creates a lot of problems with the other inmates. This is the case
because the other inmates “mess with” or “terroriz[e]” the inmate being locked down. To
prevent this, the inmate being locked down is brought “up front” out of the pod. Simmons
told Rhodes that he did not have a jumpsuit, although Rhodes learned later that Simmons had
one folded jumpsuit lying on the bed in his cell.
Rhodes was continuing to perform other duties but was told to take Simmons a
jumpsuit and he did so. After giving Simmons the jumpsuit, Rhodes continued performing
his other responsibilities. He, however, assumed that Simmons put the jumpsuit on. At some
point later, Rhodes could see through the glass that Simmons had put on the jumpsuit
partially. Rhodes gestured to Simmons to put on the jumpsuit fully and then walked down
the hallway. A little more than four minutes later, Rhodes came back to the pod area, face
to face with Simmons. Any communication between the two prior to this moment had been
via intercom.
Rhodes told Simmons to go to his cell and pack his belongings. In response, Simmons
said: “what the fuck for? I ain’t done shit.” Rhodes informed Simmons that he had told
Simmons multiple times to put his jumpsuit on, and Simmons told Rhodes, “I ain’t going no
fucking where with you.” Rhodes then told Simmons to get to stepping and go “pack your
shit, Charles Simmons, you’re going to the front.” Simmons got louder and hostile with
Rhodes. Rhodes approached Simmons to grab Simmons and lead him to his cell. At this
point, Simmons told Rhodes, “I ain’t going no fucking where with you. If you touch me, I’ll

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crack you in your head.” During this confrontation, Simmons denied Rhodes’s instructions
at least five times.
Rhodes then tried to put his right hand on Simmons’s right hand, but Simmons pulled
away. Because Simmons is larger than Rhodes, Rhodes tried to grab Simmons with both
hands while asking him to comply, but Simmons said “I’m not going nowhere...” and
shrugged away, and then balled his fist up and said “I’m going to crack you on your head if
you touch me again.” Rhodes then tased Simmons. During the entire confrontation, Rhodes
told Simmons to go to his cell approximately nine or ten times and at no time did Rhodes
comply.
At the time Rhodes tased Simmons, Rhodes thought Simmons was going to hit him.
Rhodes believed that his only option was to tase Simmons because it was the only way
Rhodes was going to be able to move Simmons. Simmons and Rhodes had no history of
anger or animosity and Rhodes harbored no grudges against Simmons. The parties had never
fought, although Simmons and Rhodes had engaged on prior occasions regarding Simmons’s
failure to wear his jumpsuit.
After tasing Simmons, Rhodes asked Simmons if he needed medical attention and
Simmons said no. As soon as Simmons was on his feet and walking to the holding tank,
however, Simmons started threatening Rhodes.
2. Cross
When asked whether the video shows that Rhodes did not try to grab Simmons’s shirt,

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but tried to grab Simmons’s throat, Rhodes responded “no.” When asked whether the video
shows Rhodes pushing Simmons in the back, Rhodes responded that he did not push
Simmons in the back. Rhodes attempted to grab Simmons’s shoulder but Simmons jerked
his arm away from Rhodes. When asked whether Rhodes remembered a prior incident
between the parties in which Rhodes threw his taser onto the table and said he did not need
it, and invited Simmons to fight him in the day room, Rhodes said he did not.
II. DISCUSSION
When the evidence is weighed, it seems pretty clear that Simmons has a very difficult
time following rules. Given the witnesses’ testimony, he was routinely out of his jumpsuit
although he was aware the rules of the county jail required him to wear his jumpsuit when
he was out of his cell and in the common areas. It is without question that Simmons was
aware of this rule, not only because, as he testified, he has spent a lot of time in the county
jail, but also because the rules are clearly posted on the wall. Despite this, he has had many
run-ins with jail officials because he refused to wear his jumpsuit.
Further, it is clear Rhodes was simply performing his job when he told Simmons to
put on his jumpsuit. It is also clear Rhodes was simply doing his job when he brought
Simmons a jumpsuit to put on. Finally, it is clearer than day that Rhodes acted appropriately
when he attempted to remove Simmons from the pod because Simmons had violated jail
policy.
The question is whether Rhodes used excessive force when he tased Simmons. Given

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the evidence, the answer to that question is no. This is true because Simmons was a postconviction detainee. Therefore, he must prove by a preponderance of the evidence that: (1)
he was tased; (2) the tasing was excessive and applied maliciously and sadistically for the
purpose of causing harm; (3) he was injured as a direct result of the tasing; and (4) Rhodes
acted under color of law. Although it is undisputed that Rhodes was tased and that Rhodes
was acting under color of law when Rhodes tased Simmons, the second element has not been
met and the third element is met but needs a little more analysis.
Simmons has met his burden on the third element because the record supports that he
suffered pain as a result of being tased. Although the Eighth Circuit’s jury instruction states
that Simmons must prove that he was injured as a direct result of the tasing, “‘pain, not
injury,’ is the touchstone of an Eighth Amendment claim.” Hendrickson v. Cooper, 589 F.3d
887, 995 (7th Cir. 2009). This is important because it is fairly easy to conclude that Simmons
suffered pain as a result of being tased; however, in that this fact-finder does not consider
“pain” and “injury” to be synonymous terms, it would be a little more difficult to find, based
on the trial testimony, that Simmons suffered an injury as a result of being tased.
Although Simmons has met his burden on elements one, three, and four, he has not
met his burden on the second element because he has not shown that Rhodes’s use of the
Taser was excessive given the circumstances. This is true because Simmons was repeatedly
told to go to his cell and grab his belongings but refused to do so. When Rhodes attempted
to escort Simmons, Simmons jerked away. At this point, Rhodes was faced with a couple

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of choices, either stand down and permit the inmate to control the jail, or tase Simmons and
bring this altercation to a swift conclusion, thereby retaining order in the jail. See Johnson
v. Hamilton, 452 F.3d 967, 972 (8th Cir. 2006) (prison officers are allowed to “use force
reasonably in a good-faith effort to maintain or restore discipline, as long as they do not use
force maliciously and sadistically to cause harm.”). Tasing Simmons to bring the altercation
to a swift conclusion was not excessive.
Even if Rhodes used more force than was necessary (which, as set forth in the
previous paragraph, the evidence does not support), the evidence does not show that Rhodes
applied the force for malicious and sadistic purposes. See, e.g., United States v. Miller, 477
F.3d 644, 647 (8th Cir. 2007) (an officer acts maliciously by undertaking, without just cause
or reason, a course of action intended to injure another and acts sadistically by engaging in
extreme or excessive cruelty or by delighting in cruelty). The evidence simply does not
support a conclusion that Rhodes acted sadistically. Moreover, the preponderance of the
evidence shows that Rhodes did not act maliciously.
The key evidence on this point is the dispute between Rhodes and Simmons as to
whether Rhodes pushed Simmons in the back or whether Simmons jerked away from Rhodes
when Simmons tried to grab Rhodes. This is key because, it appears that at some point,
Simmons turned away from Rhodes. Once Simmons turned away, either he was pushed in
the back by Rhodes or he jerked away from Rhodes when Rhodes tried to grab him. If
Simmons was pushed in the back by Rhodes, Simmons could assert Rhodes pushed him in

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an attempt to bait him into an altercation so that Rhodes could tase Simmons. If this were
true, it would be one piece of evidence indicating Rhodes acted maliciously. Although the
video is inconclusive, it appears Simmons was not pushed in the back, but jerked away from
Rhodes. This conclusion is supported by the testimony of the witnesses and the fact-finder’s
observation of Simmons and Rhodes in court. Simmons is much more strongly built than
Rhodes. In fact, viewing the two men in court, it appears Simmons outweighs Rhodes by
more than thirty pounds. Consequently, the motion made by Simmons when Rhodes’s hand
touched Simmons’s back is more in keeping with Rhodes’s testimony than Simmons’s
testimony.
III. CONCLUSION
For the reasons stated herein, judgment is granted for defendant Cameron Rhodes and
the claims of plaintiff Charles Simmons are dismissed with prejudice.
ENTERED on this 28th day of July 2016.

________________________________
UNITED STATES DISTRICT JUDGE

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