Davis et al v. Adams et al
OPINION AND ORDER: A judgment in favor of the defendants will be entered separately. Signed by Judge J. Leon Holmes on 6/20/2017. (ljb)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CARL A. DAVIS, ADC #141860;
and MARK A. FRANKLIN, ADC #166456
No. 5:15CV00079 JLH
EDWARD ADAMS, et al.
OPINION AND ORDER
This is a prisoner civil rights case brought by two detainees who were housed at the
W. C. “Dub” Brassell Adult Detention Center in Jefferson County, Arkansas. On June 5, 2017, all
parties appeared and announced ready for a trial to the Court. After two days of testimony, the case
is ready for findings of fact and conclusions of law.
Carl A. Davis is an inmate in the Arkansas Department of Correction. Before being
transferred to the state prison, he was held in the Jefferson County jail. Mark A. Franklin is also an
inmate in the Arkansas Department of Correction. He was held in the Jefferson County jail at the
same time as Davis. Davis and Franklin, along with Percy Little, Jr., commenced this action pro se1
by filing a hand-written complaint against Captain Edward Adams, Major Tyra Tyler, and Chief
Greg Bolin in their individual and official capacities. The complaint alleged that Davis, Franklin,
and Little were victims of an assault by other detainees at the jail. The complaint also alleged that
Davis, Franklin, and Little informed the defendants of the danger they faced in advance of the
assault, which took place on February 12, 2015. Little’s claims were later dismissed without
prejudice for failing comply with a Court order. Document #21. In an amended complaint, Franklin
The Court subsequently appointed Bettina E. Brownstein to represent Davis and Franklin.
The Court thanks Ms. Brownstein for her zealous and exemplary representation of them.
identified Judy Browley as a defendant. She was added as a named defendant, but Davis and
Franklin later voluntarily moved to dismiss her as a defendant. The Court granted that motion.
Document #88. The witnesses at trial were Davis, Franklin, Tyler, Adams, and Bolin. After all of
the evidence had been received, Davis and Franklin moved to dismiss their claim against Chief
Bolin. That motion was granted and the claim was dismissed with prejudice. Document #110. Only
Davis and Franklin’s claims against Captain Adams and Major Tyler remain for the Court to decide.
Chief Greg Bolin is the chief administrator at the jail. He answers to the county sheriff but
is otherwise principally responsible for the well-being of detainees at the jail. All jail personnel
report to Chief Bolin. Captain Edward Adams is the detention captain and chief of security at the
jail and is responsible for placement of detainees. He is also responsible for reviewing detainee
grievances and administering the disciplinary court. Major Tyra Tyler is the assistant administrator
at the jail. Part of Major Tyler’s responsibilities include reviewing and investigating detainee
complaints and managing the detainee disciplinary program. Chief Bolin, Captain Adams, and
Major Tyler all have authority to move detainees within the jail.
The jail has a written grievance policy that is provided to detainees in their handbook. The
policy states that “detainees shall have the opportunity to present written grievances without
punishment” and that “[w]ritten detainee grievances shall be promptly investigated, promptly
answered in writing, and if legitimate, satisfactorily resolved.” At the time Davis and Franklin were
housed in the jail, detainees filed a grievance by submitting a written form to a jailer at night when
the grievances were collected. The grievances were then placed in a box for Captain Adams to
review. Detainees were to receive a written response of the resolution of their grievance.
Emergency grievances received a written response within 48 hours; all others received a written
response within 10 working days from receipt.
The Jefferson County jail has beds for 316 detainees. When a detainee comes to the jail,
he is initially housed in the booking area until the jail assigns him to a more permanent area. There
are “pods” lettered A through G and other areas known as Misdemeanor 1 and Misdemeanor 2.
Davis and Franklin were both housed in the F-pod, the area of the jail in which the incident took
place. F-pod has six cells: three cells are in a row on the ground floor and above them are three cells
on an upper tier accessible by stairs. Each cell housed eight detainees. The ground-floor cells are
numbered 101, 102, and 103, in that order. Similarly, the upper-tier cells are numbered 201, 202,
and 203. Outside of the ground-floor cells is a dayroom with tables, a television, and a computer
station, manned by a guard, that controls the cell doors. Detainees from the lower and upper tiers
were not supposed to be out of their cells and using the dayroom at the same time.
Davis came to the jail in October 2014 awaiting transfer to the Arkansas Department of
Correction. He was taken from booking to the F-pod and assigned to cell 102 with Percy Little, his
cousin. Franklin also came to the jail in October 2014. Unlike Davis, Franklin was a pretrial
detainee waiting to face charges. Franklin was first assigned to Misdemeanor 2. He was later
moved to F-pod and assigned to cell 203.
On January 10, 2015, while Franklin was in cell 203, he was “jumped” by cellmates Marquis
Johnson, Jossinni Johnson, and Corey Okey. Franklin testified that they wanted the items he had
purchased from the commissary. The next day, Franklin wrote grievances regarding the incident.
The grievances do not specifically identify the cellmates but state that they covered the cameras
before stealing items he had purchased from the commissary. Franklin requested his property back
and that he be moved to a different pod for his safety. On January 12, Franklin wrote a grievance
to Captain Adams in which he named Jossinni Johnson and Corey Okey as participants in the
incident. On January 15, Franklin wrote an emergency grievance to Major Tyler requesting a move
for his safety because he felt retaliated against. He addressed a similar emergency grievance to
Chief Bolin. Franklin was moved to cell 102 in the F-pod. He, Davis, and Percy Little were all in
cell 102 at this time. After the fight on February 12, which will be discussed below, Chief Bolin
granted Franklin’s request to be moved to Misdemeanor 1. When Captain Adams realized that
Jossinni Johnson was also in Misdemeanor 1, he moved Franklin to A-pod. He testified that he did
so because Franklin and Johnson were enemies and had gotten into it before.
Everything that follows is the lead-up to and description of a fight between detainees that
took place on February 12—the incident at the heart of this case. Davis and Franklin testified that
they began receiving threats from other detainees who were members of a gang. The threats were
verbal as well as written. Davis is a large man. He testified that the leaders of the gang wanted him
to join their gang, but he refused, so they threatened him. Franklin testified that he would receive
“kites”—notes sent by detainees to each other—threatening him and Davis. He testified that the
threats against him eventually ceased, and he was told that the other detainees only had a problem
with Davis and no longer with him.
The leaders of the gang were in cells in the upper tier of F-pod, but some gang members were
housed in cells in the lower tier. None, however, was housed in cell 102.
On the evening of February 1, 2015, detainees from the upper-tier cells were in the dayroom
while the detainees in cells 101, 102, and 103 remained locked in their cells. It was Super Bowl
Sunday. Two cameras record different angles of the pod and capture the scene. Many of the
detainees who were out of their cells were sitting at or standing near the tables in front of the
television watching the game. There was a single guard in the room, Deputy Johnny Dorn, who can
be seen enthusiastically watching the game as well. He stood among the detainees watching the
game, cheering, jumping and running around the dayroom. Occasionally he walked back to the
computer station. Most of the time, however, Dorn’s back was to the computer station.2 A detainee
remained near the computer station throughout the recording, even when Dorn occasionally
returned. The detainee periodically reached over the station and touched the computer. Another
detainee later joined him and did the same thing. Davis identified the first detainee as Sammuel
Kimmons and the one who later joined Kimmons as Marquis Johnson. The jail roster shows that
these detainees were assigned to cell 203 and that Johnson was supposed to be on lockdown in his
cell. At least five times, a detainee can be seen reaching over the computer station and touching the
computer. Davis and Franklin testified that these detainees were unlocking the lower-tier cell doors
so that they could get into Davis and Franklin’s cell to harm them. They testified that their door was
unlocked by other detainees at other times as well.
Dorn filed an incident report for use of force on the evening of February 1, 2015. He stated
that a detainee unlocked the cell doors to 102 and 103 while his back was turned to his computer.
This allowed detainee Courtland King, who was on lockdown in 103, to run out of his cell. Dorn
stated that he used the amount of force needed to restrain King and return him to his cell. He
reported that he then secured cells 102 and 103. Dorn did not identity the detainee who unlocked
Dorn was discharged on October 26, 2016, after several incidents of neglect of duty. The
incident on February 1, 2015, is the first such incident reflected in his personnel file. He was given
a verbal warning for neglect of duty as a result of the February 1 incident. Dorn was not on duty in
F-pod when the February 12 fight occurred.
the cell doors. The recording introduced as an exhibit at trial did not include the incident reported
Captain Adams testified that he reviewed Dorn’s incident report and the recordings from the
February 1 incident when he returned to work on Monday or Tuesday, February 2 or 3. Captain
Adams was unable to identify which detainees were unlocking the cell doors. He asked two
detainees mentioned in Dorn’s incident report if they were responsible, and they denied it, but he
did not further investigate who might be. Although his testimony was equivocal, at trial Captain
Adams said that he did not discipline any detainee relating to the February 1 incident. He testified
that he was unable to determine from the recordings whether the detainees by the computer actually
unlocked the cell doors. However, in response to a grievance by Little on February 13, Judy
Browley, Adams’s assistant, wrote that the detainees involved in unlocking the cell doors on
February 1 were disciplined. Davis and Franklin requested these disciplinary records in discovery,
but none was produced.
It is clear that detainees unlocked Davis and Franklin’s cell door on the evening of
February 1, 2015. Dorn’s incident report and the testimony of Davis and Franklin are consistent in
that respect. The recordings do not show what the detainees by the computer were touching or that
a cell door actually opened, but it is evident that the detainees by the computer were reaching over
the computer station and pressing something.
Both Davis and Franklin testified that before February 12 they wrote grievances regarding
the February 1 incident. Two grievances written by Franklin predating February 12 and pertaining
to the February 1 incident were presented at trial. One was written on February 3, 2015, and the
other on February 7, 2015. In those grievances, Franklin expressed concern that detainees were
unlocking cell doors and requested that he be moved to Misdemeanor 1 for his safety. Davis and
Franklin claim that they wrote other grievances that were never returned to them asking to be moved
to a different pod because they felt unsafe. Davis and Franklin have not produced any additional
grievances relating to the February 1 incident that predate February 12. Several detainees in cell 102
signed a statement after the February 12 fight saying that Little had submitted a grievance before
the fight about the February 1 incident. Davis and Franklin also wrote grievances after the fight
saying that they had submitted grievances about the February 1 incident before the February 12
fight. Those grievances have not been produced.
Franklin wrote several grievances during his time at the jail that have been preserved. As
mentioned above, Franklin’s January 15, February 3, and February 7 grievances included requests
to be moved for his safety. It is difficult to believe that other detainees in the same cell gave their
grievances to the same guards for processing through the same system—grievances purportedly
relating to the same issue and making the same request as Franklin’s February 3 and 7
grievances—but all of them were lost except for Franklin’s. Still, Franklin and Davis both have
records of complaining about unreturned and unanswered grievances. Franklin has grievances
predating the February 1 incident in which he complains that some of his grievances were not
coming back to him. He also made a similar complaint in his February 3 grievance. Davis wrote
a grievance after the fight on February 12, saying that he warned of the threat to his and Franklin’s
safety in a grievance on February 1. Moreover, one of Franklin’s grievances that he filed on
January 15, asking to be moved for his safety, was misfiled and did not receive a response until
February 19, 2015.
Davis may have written grievances regarding the February 1 incident that have been lost, but
assuming that he did so changes little about what Captain Adams and Major Tyler knew. Davis
testified that he did not know whether any grievance he wrote reached Adams. He testified that he
never spoke to Adams about the threats, though he asked Adams to move him back to booking.
Davis did not testify that he had any communication with Tyler until he wrote a grievance after the
February 12 fight. In Davis’s February 12 grievance, he wrote that on February 1 Marquis Johnson
had unlocked cell doors in order to let Cedric Howe and Mashadric Chaney out of their cells.3 Davis
said that these detainees planned to “jump” him, Franklin, and Little.
Captain Adams and Major Tyler were aware of the February 1 incident. Both testified that
they knew about the incident within days of it happening. Major Tyler responded to each of
Franklin’s grievances on February 3 and 7. On the February 3 grievance, Major Tyler wrote “No,
who are your enemies?” next to Franklin’s request to move to Misdemeanor 1 for safety reasons.
On the February 7 grievance, Franklin did not name names, but he did give additional identifying
information regarding his enemies. For example, he wrote that “[t]wo of the people that jumped me
[in the January 10 incident] are still upstairs and used the computer to pop my door open to fight.”
He also stated that he had enemies on the lower tier, but he did not name them. Major Tyler
responded to this grievance saying that “Capt. Adams advised you can either stay in F pod or move
to A pod.” She testified that before she responded to the February 7 grievance that she had viewed
the recordings with Captain Adams. She also testified that she knew that there were detainees in Fpod who were threatening Davis and Franklin’s cell. Tyler testified, however, and Franklin
Marquis Johnson, Cedric Howe, and Mashadric Chaney were on lockdown. According to
Captain Adams, detainees on lockdown are not supposed to be out of their cells at anytime.
confirmed, that he refused to give her the names of his enemies. Tyler testified that without names
or some identifying information of a detainee’s enemies, she cannot take appropriate steps to protect
him. Franklin testified that he told Captain Adams the names of the detainees with whom he had
fought in the upper tier, but he did not testify that he told Captain Adams the names of any detainee
on the lower tier whom he regarded as dangerous to him.
Captain Adams testified that he reviewed Dorn’s incident report and the recordings from the
incident shortly after it took place. Dorn’s incident report expressly states that detainees unlocked
Davis and Franklin’s cell door. Captain Adams also testified that he knew Franklin had fought with
detainees in the upper tier of F-pod on January 10. As mentioned above, when Chief Bolin moved
Franklin to Misdemeanor 1, Captain Adams moved Franklin to A-pod because Jossinni Johnson was
also in Misdemeanor 1 and they had fought on January 10.
After investigating the February 1 incident, Major Tyler and Captain Adams knew that
detainees from the upper-tier cells unlocked Davis and Franklin’s cell. They knew that Franklin said
that detainees in F-pod were threatening Davis and Franklin’s cell, that he felt unsafe, and that he
had previously fought with detainees from the upper-tier cells during the January 10 incident.
Franklin had not, however, identified anyone on the lower tier whom he deemed a threat to his
safety. The jail had a policy that prohibited detainees in the upper- and lower-tier cells from using
the dayroom at the same time. And of course, jail policy also prohibited detainees from unlocking
cell doors and dictated that the guard on duty was to prevent detainees from unlocking cell doors.
Major Tyler testified that detainees should have been moved after the February 1 incident for their
safety, but she also testified that she deferred to Captain Adams on such questions because she did
not work “in the back” enough to know who is an enemy of whom. Captain Adams, as chief of
security, was the officer whose duty it was to investigate the February 1 incident. He did not appear
to share Major Tyler’s opinion that some detainees should have been moved for safety reasons after
February 1. He testified that there was no fight on February 1, that no one was hurt, “and that was
Had the jail policy been followed, the computer station would not have been left unattended
and detainees would not have been able to unlock cell doors. Because the upper and lower tiers
were prohibited from being in the dayroom at the same time and because detainees on lockdown are
prohibited from being out of their cells at any time, the jail policy, when followed, protected
Franklin and Davis from the detainees they claim threatened them on February 1.
On the evening of February 12, 2015, a fight broke out in the F-pod. Detainees from the
lower-tier cells were using the dayroom when the fight broke out. Detainees in the upper-tier cells
were locked in their cells, with the exception of Cedric Howe. Howe was supposed to be on
lockdown in cell 201. Somehow, he was in cell 103 and able to access the dayroom. As with the
February 1 incident, two cameras recorded the event. Below is a timeline and description of the
fight based on combining views from the two cameras:
The recording starts. Percy Little [Davis’s cousin] is pacing and gesturing
in the dayroom of F-pod, while other detainees are playing cards, watching
television, talking on the telephone, and the like. Carl Davis and Mark
Franklin are inside 102.
Little opens the door to 103. Davis testified that Little was telling Cedric
Howe4 to come out since he wanted to fight Davis.
Davis testified that Howe was the gang’s “enforcer,” meaning that he would fight
whomever the gang leader directed him to fight. On the recording, Davis appears to be much
heavier than Howe.
While Little is holding the door to 103 open, Davis and Franklin emerge
from 102. The door to 103 is then closed. Franklin stands in the door to 102.
Davis walks around in dayroom.
The guard on duty, Carl Nelson, opens the door to 103 and appears to be
speaking to someone inside.
Davis speaks to Little and both start toward 102.
Detainee Douglas Porter emerges from 103. Davis is in 102. Little is at the
door to 102, and Franklin is in the dayroom near Little.
Porter says something to Little. Little takes two steps toward Porter and
strikes him. Porter and Little are both swinging fists.
Another detainee joins the fight to hit Little.
Davis tries to separate the second detainee and Little, grabbing the second
Franklin approaches the fight and is struck from behind.
Cedric Howe and Little are fighting near 102.
Davis heads toward them and swings at or grabs Howe as Howe grasps Little
around the waist and attempts to take him to the floor. Several detainees
jump on Davis from behind, throwing punches. Two groups of detainees
fight near the cells.
A second guard comes through a door to the left of the camera and the
fighting stops briefly.
Little crosses the room and attacks again. Another skirmish starts in the
middle of the dayroom.
Howe attacks Davis from behind in the dayroom.
Davis pushes, punches, and slings Howe to the corner. Little chases Howe
into the corner to the right of the camera where the two of them exchange
blows. Two detainees attempt to restrain Little.
A third guard enters through the left door.5
The fight is broken up.
A guard orders Little to leave the pod.
Davis returns to cell 102.
Little is forcibly removed through the left door by two guards. Davis has
exits his cell and helps remove Little. Franklin returns to cell 102. Only one
guard (Nelson) is left.
Davis and another detainee (Mashadric Chaney) square off. Porter and
another detainee circle around Davis.
Davis lunges toward Chaney and strikes him. Other detainees take Chaney’s
side. Davis fights a group of detainees. Franklin exits cell 102 and heads
Franklin attempts to intervene and is attacked.
Davis and Howe are in the corner to the right fighting.
Franklin is removed from the fight by four or five detainees.
Three or four detainees return to the corner to help Howe.
A guard returns through the left door.
Franklin starts back to the fight and is stopped by the guard who has just
Davis and Howe are separated. A guard is there.
Howe is bent over covering his face. The report by Lt. Williams says that he
sprayed Howe in the face with his OC spray.
While Howe is bent over covering his face, Davis gives him an uppercut to
the face. Howe staggers toward a door to the right of the camera and is
surrounded by detainees who had been fighting on his side.
The two guards who assisted Nelson were Corporal Nehemiah Buffkin and Lieutenant
Another guard returns through the left door.
A guard orders Davis out.
The guards start taking Davis out.
A detainee taunts Davis. Davis steps toward the taunting detainee and wants
to fight again but is forcibly restrained by the guards.
Franklin voluntarily leaves F-pod area.
Davis is forcibly removed through the left door.
Porter and others gesture at detainees in cell 102.
The recordings show that Little was the initial aggressor. According to Davis, when Little
opened the door to 103, he did so to challenge Howe to come out and fight Davis. Then, Little
started the fight by throwing the first punch at Porter. After a brief skirmish, the detainees separated
and there was a lull in the fight. The lull was interrupted when Little crossed the room and attacked
again, making him the aggressor for the second time. After Davis slung Howe toward a corner,
Little followed him to continue the fight. After Little was removed from F-pod, Davis squared off
against Chaney, who was joined by two additional detainees. Davis was the aggressor then—he
struck Chaney and started what amounts to the third skirmish. When the two guards who had
removed Little returned to F-pod, they again broke up the fight, using OC spray, which struck Howe
in the face. While Howe was bent over covering his eyes with his hands due to having been sprayed
in the face, Davis hit him with an uppercut.
In summary, either Little or Davis was the aggressor on each occasion when fighting started.
Franklin was not an aggressor or a target during the fight. He attempted to intervene twice
and was attacked both times. He was not attacked unless he attempted to intervene, and for much
of the fight, he stood by and watched. So long as he stood back, he was not molested. The
recordings confirm Franklin’s testimony that the other detainees were not after him.
The recordings of the fight on February 12 show that Little and Davis fought against a group,
which supports Davis and Franklin’s testimony that those detainees were members of a gang.
Captain Adams and Major Tyler, however, deny being informed that there was any gang activity in
F-pod, and there is no evidence that they were so informed before the February 12 fight.
When asked on direct examination if he sustained injury as a result of the fight, Davis
testified that he had a cut above his eye and “a busted nose.” When asked whether there was
anything else, he said that was it. When asked how he is now, he said that he has a little blurry
vision but is alright. Franklin testified that he suffered a broken finger as a result of the fight and
that he had headaches and blurred vision for some time thereafter. The only treatment that he had,
apparently, was an ice pack for a pulled muscle. Neither Davis nor Franklin introduced medical
records showing serious or long-lasting injury as a result of the fight.
THE LEGAL STANDARDS GOVERNING THIS CASE
Prison and jail officials have a duty to protect detainees from other detainees. Farmer v.
Brennan, 511 U.S. 825, 833, 114 S. Ct. 1970, 1976, 128 L. Ed. 2d 811 (1994). This duty arises
under the eighth amendment’s prohibition of cruel and unusual punishments. Id. Not every injury
suffered by one detainee at the hands of another gives rise to constitutional liability by a prison
official. Id. at 834, 114 S. Ct. 1977. For a claim based on a failure to prevent harm, the inmate first
“must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Id.
Second, the official must have been “deliberately indifferent” to inmate safety. Id. An official is
not deliberately indifferent “unless the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837, 114
S. Ct. at 1979. If an official responds reasonably to a known and substantial risk, the official will
not be held liable even if the harm posed by the risk was not averted. Id. at 844, 114 S. Ct. 1982-83.
Davis and Franklin’s constitutional rights governing their treatment at the jail arise under
different constitutional provisions. As a pretrial detainee, Franklin’s right arises under the due
process clause of the fourteenth amendment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239,
244, 103 S. Ct. 2979, 77 L. Ed.2d 605 (1983). Davis, though, was not a pretrial detainee; he had
already been convicted. His right, therefore, arises under the eighth amendment. See Farmer, 511
U.S. at 832, 114 S. Ct. at 1976. In the Eighth Circuit, this difference is immaterial, and both Davis
and Franklin’s claims are analyzed under Farmer's objective-subjective standard. See Walton v.
Dawson, 752 F.3d 1109, 1117-18 (8th Cir. 2014).
CONCLUSIONS BASED ON THE FACTS AND THE GOVERNING LAW
Davis and Franklin have not shown that Captain Adams or Major Tyler knew that they faced
substantial risk of serious harm and deliberately disregarded it. Threats between inmates are
common and do not always establish that a prison official has actual knowledge of a serious risk of
harm. Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998). That detainees from the upper-tier
cells unlocked the door to cell 102 on February 1 is insufficient to show that Captain Adams and
Major Tyler knew of a serious risk to detainee safety that they deliberately disregarded. It was
Captain Adams’s responsibility to investigate the February 1 incident, not Major Tyler’s, and he did
so, albeit not very thoroughly. Although the investigation by Captain Adams was not as thorough
as it should have been, negligence, alone, is insufficient to impose liability. Captain Adams did not
conclude that the February 1 incident showed that some detainees needed to be moved for safety
reasons. The detainees who were responsible for unlocking the doors on February 1, though not
specifically identified by Captain Adams, were housed in the upper-tier cells. Under jail policy, they
were to be segregated from Davis and Franklin at all times. Captain Adams and Major Tyler could
reasonably rely on this jail policy in estimating the risk to Davis and Franklin. Neither of those two
detainees participated in the February 12 fight. There is no evidence that after February 1, detainees
from the upper tier were allowed access to the computer station where they could open the doors to
the cells on the lower tier. The deputy responsible for the February 1 incident, Johnny Dorn, was
verbally warned as a result of the February 1 incident, and he was not on duty in F-pod when the
February 12 fight occurred.
With the exception of Cedric Howe, all of the detainees involved in the fight were from the
lower tier. Davis and Franklin testified that detainees in the lower-tier cells were in a gang with
detainees in the upper-tier cells and were making threats to them leading up to the February 12 fight.
No evidence shows that Captain Adams or Major Tyler knew of gang activity in F-pod. Nothing
in the February 1 recordings or Franklin’s grievances leads to the conclusion that Captain Adams
or Major Tyler knew that Davis and Franklin were in danger from detainees in the lower tier and
deliberately disregarded that danger. Franklin’s February 7 grievance mentions his enemies in the
upper-tier cells from the January 10 incident and says that he has enemies on the lower tier, but that
grievance did not identify the alleged enemies housed in the lower tier. Franklin admitted that Tyler
interviewed him and he declined to identify the persons who were threatening him. Nor did he
testify that he informed Captain Adams of the names of persons on the lower tier whom he deemed
a danger to him. No one involved in the January 10 fight with Franklin was involved in the
February 12 fight. Davis’s February 12 grievance about the February 1 incident lists detainees
Cedric Howe, Mashadric Chaney, and Marquis Johnson. Each of these detainees was supposed to
be separated from Davis and Franklin: Chaney and Howe because they were on lockdown, and
Johnson and Howe because they were in the upper-tier cells. Davis, moreover, did not testify that
he gave Captain Adams or Major Tyler the names of anyone who threatened him before February
12. Indeed, he did not testify that he reported any threats to them.
This is not a case in which a detainee was alone in a locked cell with a detainee whom prison
officials knew to be his enemy. The fight on February 12 occurred in the dayroom, not in a locked
cell where guards could not see and intervene. Although only one guard, Carl Nelson, was in the
dayroom with the detainees, he was able to call additional guards to come and assist in breaking up
the fight. Two additional guards—Williams and Buffkin—came twice and broke up the fight
promptly each time. The recording of the entire incident is barely more than six minutes—from
10:25 p.m., to 10:31:38 p.m. The first skirmish lasted from 10:27:25 to 10:27:49—twenty-four
seconds. The second skirmish lasted from 10:27:53 to 10:28:15—twenty-two seconds. The third
skirmish lasted from 10:29:08 to 10:29:41—thirty-three seconds. Not counting the uppercut thrown
by Davis against Howe while Howe was bent over with his eyes covered, the fighting consumed a
total of seventy-nine seconds. No weapons were used. No one was seriously hurt. Although the
evidence does not show that Major Tyler or Captain Adams had reason to know that a fight would
occur in the F-pod dayroom, it appears that the jail administration had a plan and resources for
protecting detainees should a fight occur; and the plan worked. Guards responded properly and
broke up the fight—twice. No one was seriously injured.
It cannot be ignored that the fight on February 12 was started by Little, who is Davis’s
cousin. Neither Franklin nor Davis testified that Captain Adams and Major Tyler knew that Little
intended to start a fight. Davis and Little were the aggressors in the fight. Prison officials cannot
be charged with preventing a detainee from being injured in a fight when that detainee, or someone
working closely with him, starts the fight.
Davis and Franklin have moved the Court to draw a negative inference based on the
defendants’ failure to produce the “disciplinary reports for the detainees who were ‘popping’ the
doors.” Davis and Franklin argue that the defendants intentionally withheld these documents and
that the documents would have helped demonstrate that the defendants were aware of the risks to
them. If true, the defendants’ conduct would constitute spoliation of evidence. Before sanctioning
the defendants for spoliation, the Court must find that they intentionally destroyed or withheld
evidence and that their doing so prejudiced the plaintiffs. Greyhound Lines, Inc. v. Wade, 485 F.3d
1032, 1035 (8th Cir. 2007).
Even if Davis and Franklin could show that the defendants intentionally destroyed or
withheld disciplinary records relating to the February 1 incident, they have not demonstrated that
the absence of such records has prejudiced them. Davis and Franklin argue that Kimmons and
Johnson must have been disciplined as a result of the February 1 incident and that, based on jail
policy, they must have been interviewed as a part of the disciplinary process. Davis and Franklin
surmise that Kimmons and Johnson would have disclosed their motives for unlocking the cell doors,
which would have put Captain Adams and Major Tyler on notice that Kimmons and Johnson’s
motive in unlocking the cell doors was to arrange an attack on them.
The evidence fails to prove that Kimmons and Johnson were disciplined as a result of the
February 1 incident. Adams’s testimony was equivocal, but he ultimately testified that he did not
believe that he disciplined anyone as a result of that incident because he could not identify the two
detainees involved from the video. Furthermore, the detainee rosters for F-pod on February 1, 2015,
and February 12, 2015, identify the detainees who were on lockdown with bold print followed by
“L/D.” The roster for February 12, 2015, shows that Kimmons and Johnson were housed in cell 203
on February 12; neither was on lockdown at that time. Had they been disciplined subsequent to
February 1, it is likely that they would have been moved to a punitive isolation cell or placed on
lockdown on February 12.
Even if they had been disciplined, and even if they had been interviewed, it would be quite
a stretch to assume that in their interviews they disclosed an intent to attack detainees in cell 102.
If they did not disclose such an intent, the absence of the disciplinary reports would not have
prejudiced Davis and Franklin in this case.
Franklin’s claim fails because he cannot show that he was in serious risk of substantial harm
on February 12 when the fight occurred. He testified that before February 12 he had been told that
the gang members wanted to fight Davis, not him. The video confirms that Franklin was not a
target. He was struck only when he attempted to intervene. So long as he stood back, no one
attempted to harm him.
Davis cannot show that he put Major Tyler or Captain Adams on notice that he was in a
substantial risk of serious harm. He did not testify that he told either of them before February 12
that he had been threatened. Furthermore, the gang members whom Davis says were a threat to him
did not start the fight. Davis’s cousin, Little, challenged the gang’s enforcer, Howe, to come out of
cell 103 into the dayroom and fight Davis. Little then started the fight by striking Porter. Either
Little or Davis was the initial aggressor in each skirmish. That Davis took some blows during this
fight cannot be blamed on Major Tyler or Captain Adams.
A judgment in favor of the defendants will be entered separately.
IT IS SO ORDERED this 20th day of June, 2017.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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