Salam v. Delaney et al

Filing 80

ORDER ADOPTING REPORT AND RECOMMENDATIONS 76 ; ORDER denying 37 plaintiff's Motion for Summary Judgment; granting in part and denying in part 48 defendants' Motion for Summary Judgment. Signed by Honorable Susan O. Hickey on September 30, 2014. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION

AL JABBAR SALAM
v.

PLAINTIFF
Case No. 1:12-cv-01040

JANET DELANEY; SGT. COLLIER;
SGT. MEEKS; SGT. RICHARDSON;
JALIER PITTS; JAILER EDWARD;
JAILER TURNER; JAILER MURPHY;
TINA RICHARDSON; W. ROBINSON;
DOUG WOODS; and SHERIFF MIKE LOE

DEFENDANTS
ORDER

Before the Court is the Report and Recommendation filed September 8, 2014, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 76). Judge Bryant recommends that Plaintiff’s Motion for Summary Judgment (ECF No.
37) be denied and Defendants’ Motion for Summary Judgment (ECF No. 48) be granted in part and
denied in part. Defendants have responded with timely objections. (ECF No. 79). The Plaintiff has
not filed objections to the Report and Recommendation, and the time to object has passed. See 28
U.S.C. § 636(b)(1). The Court finds this matter ripe for its consideration.

I. Plaintiff’s Motion for Summary Judgment
Judge Bryant found that the Plaintiff’s claim that his First Amendment rights were violated
when he did not receive certain letters from his wife failed as a matter of law. The Plaintiff filed no
objections. Upon review, the Court should adopt the Report and Recommendation with respect to the
denial of Plaintiff’s Motion for Summary Judgment.

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II. Defendants’ Motion for Summary Judgment
A. Due Process and Retaliation Raised in Reply
Defendants first argue that Judge Bryant did not consider arguments made in its Reply to
Plaintiff’s Response to Defendants’ Motion for Summary Judgment.

Specifically, in Reply,

Defendants, for the first time, argue they should be granted summary judgment on (1) Plaintiff’s claims
that he was denied personal property and due process regarding his administrative move on June 6,
2012, and (2) Plaintiff’s retaliation claim. Defendants raise neither of these arguments in their opening
Summary Judgment Motion or accompanying brief to the Court.
Judge Bryant did not address the due process claims relating to property or retaliation claims
in the Report and Recommendation but rather made clear that neither claim was before the Court
because Defendants did not move for summary judgment on these claims. As a general rule, courts
do not address arguments received for the first time in a reply brief. Akeyo v. O’Hanlon, 75 F.3d 370,
374 n.2 (8th Cir. 1996); Cunningham v. City of Benton, No. 4:05CV 1130 JLH, 2007 WL 707343, at
*4 (E.D.Ark. March 5, 2007); see also Adams v. City of Manchester, No. 4:11CV1309 TCM, 2012
WL 3242078, at *4 (E.D.Mo. Aug. 7, 2012) (“‘It is well settled that [the Court] do[es] not consider[
] arguments raised for the first time in a reply brief.’” (quoting K.C.1987 Ltd. P’ship v. Reede Mfg.,
472 F.3d 1009, 1018 n.2 (8th Cir. 2007))). Because the Defendant did not make these arguments in
its opening brief to the Court, the Defendants did not move for summary judgment on these claims and
their objections to Judge Bryant’s recommendation that these claims proceed should be overruled.

B. Racial Discrimination Claim
The Defendants argue that Plaintiff was not segregated due to his race and that his claims are
merely unsupported speculation and hearsay. They also argue that his arguments relating to
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discrimination arising from the incidents that occurred June 6, 2012 should be decided as a matter of
law based on the ruling in Heck v. Humphrey, 114 U.S. 129 (1994).
Judge Bryant did not address the Plaintiff’s claims that he was discriminated against because
the Defendants did not move for summary judgment on that claim. Defendant admits in their
objections to Judge Bryant’s Report and Recommendation that this argument was “loosely addressed
in Defendants’ Reply to Plaintiff’s Response to Defendants’ Motion for Summary Judgment.” As
discussed supra, reply briefs may not be used to raise arguments omitted from the party’s original
motion for summary judgment.
The Defendants’ arguments regarding Heck were made in their opening summary judgment
brief to the court. Specifically, their argument is that if the Court were to find that Plaintiff’s
constitutional rights were violated, the Plaintiff’s sentence arising from that incident would be
potentially invalid and that cannot support a § 1983 claim. Judge Bryant construed Plaintiff’s
challenge to be one to the process of a disciplinary hearing rather than to his conviction on criminal
charges related to the altercation. Upon review, the Court agrees with Judge Bryant and, thus, the
Defendants’ objection on this point should be overruled.

C. Mental Health Claim
Defendants object to the Report and Recommendation arguing that Judge Brant conflated the
mental health arguments as alleged in their Motion for Summary Judgment. Specifically, they argue
that, in drafting their Motion, the Defendants did not delineate Plaintiff’s mental health complaint from
the medical care or medication complaint because all healthcare claims relate to a finding of deliberate
indifference. Judge Bryant recommends dismissal of Plaintiffs claims related to medication and
medical care for a hernia. He noted that the Plaintiff’s claim related to denial of mental health care
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remained for further resolution.
The Court finds that the objection should be overruled because, again, the Defendant did not
properly make the argument in their opening brief to the Court. Defendants in their objections note
that they did not raise this claim specifically: “Although Defendants did not specifically address
Plaintiff’s mental health claim as a separate issue, the previously provided proof shows that Plaintiff
received mental health care and medication during his incarceration.” Defendants did argue in their
opening brief that the Plaintiff “cannot provide proof of any deliberate indifference . . . to any alleged
delay of receiving over-the-counter medication and [sic] quickly as he requested it.” They labeled the
section in their brief “No Constitutional Violation- Alleged Denial of Requested Pain Medication.”
These arguments were in relationship to Plaintiff’s claim that he did not get medication. Therefore,
though they now try to argue that they did not delineate Plaintiff’s mental health claim from his other
medical claims, namely the denial of over the counter pain medication, the language of their brief in
fact shows that they did. The Defendants may not now, in retrospect, construe their arguments to
attempt to encompass arguments that were not initially made.
Next, Defendants argue that they are entitled to summary judgment because Plaintiff has not
presented any evidence that any Defendant is a medical professional. They argue that, because a claim
for medical indifference must be brought against an individual responsible for Plaintiff’s care, see
Kulow v. Nix, 28 F.3d 855, 859 (8th Cir. 1994), the claim fails without that proof. This is a claim that
is made for the first time in the Defendants’ Objections to the Report and Recommendation. The Court
will not consider that argument now. Hylla v. Transportation Commc’ns Int’l Union, 536 F.3d 911,
921-22 (8th Cir. 2008) (holding that claims and arguments raised in objections but not presented to
the Magistrate should not be considered by the district court when reviewing the Report and
Recommendation).
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D. Personal Letter to Wife
Defendants argue that the isolated incident of Plaintiff’s personal mail being confiscated does
not amount to a violation of the First Amendment. Gardner v. Howard, 109 F.3d 427, 431 (8th Cir.
1997). They point to proof that Plaintiff was allowed to send other letters during the time. Though
Gardner indicates that an isolated incident of opening an inmate’s mail does not give rise to a
constitutional violation, there must be no “evidence of improper motive.” Gardner, 109 F.3d at 431.
As Judge Bryant reasoned, the Defendants’ objection fails to address the Plaintiff’s argument
that the letter was censored based on its content. Moreover, because an insufficient factual record has
been developed as it relates to this claim, the Court agrees with Judge Bryant that Defendant’s Motion
for Summary Judgment be denied as to this claim.

III. Conclusion
For the reasons stated herein, as well as those contained in the Report and Recommendation
(ECF No. 76), the Court overrules Defendants objections and adopts the Report and Recommendation
in its entirety. (ECF No. 76). Accordingly, Plaintiffs’ Motion for Summary Judgment (ECF No. 37)
is hereby DENIED. Defendants’ Motion for Summary Judgment (ECF No. 48) is hereby GRANTED
in part and DENIED in part.

IT IS SO ORDERED, this 30th day of September, 2014.

/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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