Cupples v. Union County Sheriff's Office
Filing
63
ORDER ADOPTING in part REPORT AND RECOMMENDATIONS re 60 REPORT AND RECOMMENDATIONS ; 31 MOTION for Partial Summary Judgment filed by Joshua Temple, Deputy Myers, Mike McGough, Sherrie Rice, Kevin Pendleton; claims against defendants McGough and Myers are dismissed without prejuidce; the court declines to adopt on the claim failure-to-protect claim against Defendant Joshua Temple. Signed by Honorable Susan O. Hickey on March 27, 2017. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
SAMMY WELSEY CUPPLES
v.
PLAINTIFF
Case No. 1:15-cv-1011
LT. KEVIN PENDLETON; DEPUTY
SHERIFF JOHSUA TEMPLE 1; DEPUTY
MYERS; SHERIFF MIKE McGOUGH;
NURSE SHERRIE RICE
DEFENDANTS
ORDER
Before the Court is the Report and Recommendation filed February 6, 2017, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
ECF No. 60. Judge Bryant recommends that Defendants’ Partial Motion for Summary Judgment
(ECF No. 32) be granted in part and denied in part. Specifically, Judge Bryant recommends that
Plaintiff’s claims against Defendants McGough, Temple, and Myers be dismissed with prejudice.
Judge Bryant further recommends that Plaintiff’s official-capacity claims for denial of medical
care against Union County2 and his individual-capacity claims for denial of medical care against
Defendant Rice and Pendleton remain for further consideration. Plaintiff has responded with
objections. ECF No. 61. The Court finds the matter ripe for consideration.
I. FACTS
Plaintiff is currently an inmate of the Arkansas Department of Correction Varner Unit.
Plaintiff’s amended complaint, however, centers on events occurring during his incarceration in
the Union County Detention Center. He filed this civil rights action pursuant to 42 U.S.C. §
1
The Court notes that documents submitted by Defendant indicate Temple’s correct surname is Templeton.
However, to be consistent with the Report and Recommendation and the docket sheet, the Court will refer to
Defendant as Joshua Temple.
2
Because Plaintiff has sued all Defendants in their personal and individual capacities, Union County is a Defendant
in this case. See Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (citing Hafer v. Melo, 502 U.S. 21, 25
(1991)). (“Claims against individuals in their official capacities are equivalent to claims against the entity for which
they work; they require proof that a policy or custom of the entity violated the plaintiff’s rights.”)
1983, alleging several constitutional violations by Defendants. Plaintiff objects to the Report and
Recommendation only as it relates to his Eighth Amendment failure-to-protect claim against
Defendant Joshua Temple in his individual capacity. 3
On December 13, 2014, Plaintiff alleges he informed Defendant Temple that he “feared
physical harm” from several inmates in his pod. ECF No. 59, pp. 4-5. According to Plaintiff, he
slid two handwritten grievances to Temple through the hole in his cell door which stated that he
would be “jumped on if he wasn’t moved to another pod.” Id. Plaintiff alleges that Defendant
Temple failed to investigate the situation and refused to act on the requests for protection. ECF
No. 10, p. 4; ECF No. 59, p. 5. On December 14, 2014, Plaintiff claims he was “jumped” by
three inmates and did not receive help until Defendant Temple entered his cell three hours later.
ECF No. 59, p. 6. Plaintiff was then taken to the hospital and diagnosed with a clavicle fracture.
Plaintiff alleges that Defendant Temple ignored his two requests for protection on
December 13, 2014, which resulted in Plaintiff’s injury the next day. Thus, Plaintiff claims that
Defendant Temple violated his Eight Amendment rights by failing to protect him from harm.
Defendant Temple argues that he is entitled to summary judgment on this claim. In the Report
and Recommendation, Judge Bryant concluded that “[t]here are no disputed issues of material
facts concerning Plaintiff’s failure to protect claim against Defendant Temple, and Defendant
Temple is entitled to summary judgment as a matter of law on this claim.” ECF No. 60, p. 20.
II. LEGAL STANDARD
The Court shall grant summary judgment when evidence in the record, viewed in a light
most favorable to the nonmoving party, shows that there is no real dispute as to any material fact.
Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50 (1986); Celotex
3
Plaintiff does not object to the Report and Recommendation as it relates to his claims against Union County,
Defendant McGough, Defendant Myers, and Defendant Rice. ECF No. 61, p. 2.
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Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A dispute is genuine if the evidence is such that it
could cause a reasonable jury to return a verdict for either party. Othman v. City of Country Club
Hills, 671 F.3d 672, 675 (8th Cir. 2012). A fact is material if its resolution is important to the
outcome of the case. Id. Once the motion for summary judgment is made and supported, the
nonmoving party must “set forth specific facts sufficient to raise a genuine issue for trial.”
Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir.2002).
The Eighth Amendment’s prohibition against cruel and unusual punishment requires
prison officials to “take reasonable measures to guarantee” inmate safety by protecting them
from attacks by other prisoners. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128
L.Ed.2d 811 (1994). However, prison officials do not commit a constitutional violation every
time one prisoner attacks another. Young v. Selk, 508 F.3d 868, 871 (8th Cir. 2007); Blades v.
Schuetzle, 302 F.3d 801, 803–04 (8th Cir. 2002). Instead, to establish a failure to protect claim, a
prisoner must demonstrate that: (1) objectively, there was a substantial risk of serious harm; and
(2) subjectively, the defendant knew of and disregarded that substantial risk of serious harm.
Lenz v. Wade, 490 F.3d 991, 995–996 (8th Cir. 2007); Crow v. Montgomery, 403 F.3d 598, 601
(8th Cir. 2005).
III. DISCUSSION
There is no argument as to whether Plaintiff has shown that there was a substantial risk
of serious harm. Defendant Temple argues that the attack on Plaintiff was a random assault and
that Defendant Temple did not know of the risk to Plaintiff of assault by other inmates.
Defendant Temple asserts that “Plaintiff’s failure to protect claim should be dismissed as he does
not allege facts from which any trier of fact could reasonably conclude that there was as
substantial risk of harm to the Plaintiff prior to the December 14, 2014 incident and that
[Defendant Temple was] subjectively aware of the risk.” ECF No. 32, p. 10.
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To support this argument, Defendant Temple submits the affidavit of Captain Richard
Mitcham, Chief Administrative Officer of the Union County Detention Center. Captain Mitcham
states that “the jail records for December 13, 2014, the day before [Plaintiff] claims he was
jumped on by several inmates in C-Pod, do not show that [Plaintiff] filed an Inmate Grievance or
requested to be removed from C-Pod.” ECF No. 32-5, ¶ 6. Captain Mitcham further states that
the records for that day do not show that Plaintiff made an attempt to speak with jail staff or
make jail staff aware that he was concerned for his physical safety.
ECF No. 32-5, ¶ 7.
According to Captain Mitcham, an inmate can communicate a concern for his physical safety by
either filing a grievance or “tell[ing] a detention officer personally.”
On the other hand, Plaintiff’s sworn statement indicates that he informed Defendant
Temple that he feared physical harm on December 13, 2014, by handing him two handwritten
grievances through the hole in his cell door. ECF No. 59, p. 38. Judge Bryant discredited this
statement by Plaintiff and found that there were no disputed material facts concerning Plaintiff’s
failure to protect claim because: (1) the jail records do not indicate an attempt by Plaintiff to
communicate a concern for his physical safety to Defendant Temple; and (2) that documents
submitted by Plaintiff and Defendant Temple show that Plaintiff was familiar with the grievance
process and did not use it to communicate his concern for his physical safety. The Court,
however, declines to discredit Plaintiff’s sworn statement based on the fact that there is no jail
record indicating Plaintiff filed a grievance.
The evidence submitted by Defendant Temple does not show that he never received the
grievances allegedly handed to him by Plaintiff through the hole in the cell door or that he was
unaware that Plaintiff was concerned for his physical safety. The evidence simply indicates that
the jail has no record of any such grievance communicated to Temple. Moreover, Plaintiff
indicates in his sworn statement that he also spoke to Defendant Temple at the “noon chow call”
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about Plaintiff’s concern for his physical safety. ECF No. 59, p. 38. Accordingly, the Court
finds that issues of fact remain that are important to the outcome of this case regarding whether
Defendant Temple knew of and disregarded a substantial risk of serious harm. Therefore,
summary judgment in favor of Defendant Temple regarding the failure-to-protect claim is not
appropriate.
IV. CONCLUSION
For the reasons stated above, based on its own de novo review, the Court ADOPTS IN
PART and DECLINES TO ADOPT IN PART the Report and Recommendation. The Court
adopts the Report and Recommendation as to all claims against Defendants McGough and Myers
and grants summary judgment in favor of Defendants on these claims. Accordingly, all claims
against Defendants McGough and Myers are DISMISSED WITH PREJUDICE.
The Court adopts the Report and Recommendation as to Plaintiff’s official-capacity
claims for denial of medical care against Union County and his individual-capacity claims for
denial of medical care against Defendants Rice and Pendleton. Accordingly, these claims remain
for further consideration. 4
The Court declines to adopt the Report and Recommendation as to Plaintiff’s failure-toprotect claim against Defendant Temple.
Accordingly, this claim remains for further
consideration.
IT IS SO ORDERED, this 27th day of March, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
4
The Court notes that the claim of excessive force against Defendant Pendleton also remains for further
consideration as he did not move for summary judgment on this claim.
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