Baker v. Tallant et al

Filing 79

MEMORANDUM OPINION. Signed by Honorable Susan O. Hickey on March 23, 2017. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
LEE BAKER
V.

PLAINTIFF
CIVIL NO. 4:14-cv-04104

JANA TALLANT, et al

DEFENDANTS

MEMORANDUM OPINION
This is a civil rights action filed by Plaintiff, Lee Baker, pursuant to the provisions of 42
U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. Plaintiff is currently incarcerated
in the Arkansas Department of Correction, Cummins Unit, in Grady, Arkansas. The events at
issue occurred while Plaintiff was incarcerated in the Howard County Detention Center
(“HCDC”).
Plaintiff was arrested on November 14, 2013, for sexual indecency with a minor and placed
in the HCDC. During his incarceration Plaintiff claims he was verbally harassed and sexually
assaulted by other inmates because of his sexual orientation and the charges against him.1 Plaintiff
alleges that he informed Defendants about the incidents and requested to be moved to a different
location and Defendants did not respond to his requests.
Plaintiff is asserting claims for failure to protect against Defendants Jana Tallant, Dawanda
Schwope, Sean Scott, Hector Cortez, Brian Cook, and Shelbi Miller-Smith,2 in both their official
and individual capacities. Plaintiff requests Defendants pay for his pain, suffering, and mental

1

The Honorable Barry A. Bryant, Chief Magistrate Judge, United States District Court for the Western District of
Arkansas, entered a Report and Recommendation (ECF No. 31) finding Plaintiff’s claims regarding verbal sexual
harassment, while offensive, did not rise to the level of a constitutional violation in the context of a prison setting.
The Court adopted the Report and Recommendation leaving only Plaintiff’s claims of physical sexual assault for
trial.
2
A “Jailer Misty” was named as a defendant in Plaintiff’s complaint. However, she was never served. Therefore,
any allegations against Jailer Misty were not before the Court and were not considered.

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anguish and that Defendants make HCDC a safe environment for everyone despite their sexual
orientation or charges.
Defendants argue that their conduct does not rise to the level of a constitutional violation
and, to the extent they have been sued in their individual capacities, they are entitled to qualified
immunity. Defendants also assert that at no time has a policy, practice or custom of the HCDC
resulted in the violation of Plaintiff’s constitutional rights. Therefore, Plaintiff’s claims against
Defendants in their official capacity must fail.
Defendants admit there is a grievance procedure in place at the HCDC and that Plaintiff
did file several grievances. However, Defendants assert that Plaintiff never filed any grievances
concerning the allegations contained in the Complaint. Consequently, they claim Plaintiff failed
to exhaust his administrative remedies as required by 42 U.S.C. § 1983.
This matter was tried to the Court on August 22, 2016. The testimony of the following
witnesses was heard: (1) Louis Richards; (2) Brandon Null; (3) Tiffany Cowart; (4) Plaintiff Lee
Baker; (5) Defendant Jana Tallant; (6) Defendant Hector Cortez; (7) Defendant Shelbi MillerSmith; (8) Defendant Brian Cook; (9) Defendant Dawanda Schwope; and (10) Defendant Sean
Scott.
Plaintiff offered Exhibits A – G, including: (A) Inmate Request Form dated June 24, 2014;
(B) Inmate Request Form dated April 6, 2014; (C) Inmate Request Form dated June 19, 2014;3 (D)
Section 05 Grievance Procedure from the HCDC; (E) List of Property Returned dated May 21,
2014; (F) List of Property Returned dated November 15, 2013; and (G) Receipt for Evidence dated
April 15, 2014. Plaintiff’s Exhibits A – G were admitted without objection.

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Exhibits A–C were not filed in Plaintiff’s jail file.

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Defendants offered Exhibits 1 – 8, including: (1) Plaintiff’s Booking Sheet and
Classification Report; (2) Howard County Inmate Rules and Regulations; (3) Inmate Release
Reports; (4) HCDC General Population Inmate rules and Regulations Amended August 14, 2013,
acknowledged by Plaintiff on November 15, 2013 and March 19, 2014; (5) ADC Inmate Search –
Inmate Details; (6) Jana Tallant’s Jail Administrator’s Notes dated July 24, 2015; (7) Inmate
Grievance/Request forms from January 8, 2014, through June 18, 2014, and (8) Statements of
Defendants Hector Cortez, Brian Cook, Shelbi Miller-Smith, Dawanda Schwope and Sean Scott
each dated July 24, 2015. Defendants’ Exhibits 1 – 8 were admitted without objection.
The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Venue is proper pursuant to 28
U.S.C. § 1391. The Court now renders its findings of fact and conclusion of law pursuant to Rule
52 (a) of the Federal Rules of Civil Procedure.
FINDINGS OF FACT
Plaintiff was arrested on November 14, 2013, for indecency with a minor and booked into
the HCDC. He was placed in H pod with other inmates. The following day he was moved to
general population – D pod. Plaintiff was concerned that he would be harassed because of the
charge against him and his sexual orientation. From the time he was booked into the HCDC until
he bonded out in February, 2014, he was verbally harassed by other inmates. Plaintiff did not file
any grievances with the HCDC relating to the verbal harassment nor did he communicate verbally
about the harassment to any defendant.
Plaintiff was arrested again on March 19, 2014, and incarcerated in the HCDC. On April
2, 2014, Plaintiff was sentenced to the Arkansas Department of Correction (“ADC”) and moved
to A Pod – the holding pod for inmates waiting to be transferred to the ADC. Although there are
cameras in some of the pods in the HCDC, there are no security cameras in A Pod.

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On April 3, 2014, Plaintiff woke up with another inmate on top of him “dry humping” up
against him. On April 12, 2014, three inmates pulled Plaintiff’s pants down and held him down
while another inmate pretended to have sexual intercourse with him in front of other inmates. In
addition, sometime during the month of April, Plaintiff was slapped on his buttocks by another
inmate. Plaintiff did not sustain any physical injury from the assaults but he did suffer humiliation
and mental anguish. There was no testimony from Plaintiff or other evidence identifying the
inmates who committed the assaults. Plaintiff did not file any criminal charges against the inmates
nor did he file any police reports relating to the incidents. Plaintiff remained in A Pod until June
27, 2014, when he was transported to the ADC.
Defendant Tallant is the Jail Administrator for the HCDC. She testified that there is a
formal written grievance procedure at the HCDC. In addition to this procedure, inmates are free
to approach her and/or other HCDC employees at any time with concerns relating to the inmate’s
safety. According to Defendant Tallant, when an inmate expresses concern for his safety the
inmate will be moved to a different location.
Plaintiff testified that he submitted three separate grievances while in the HCDC relating
to the physical assaults. One grievance was submitted to Defendant Schwope relating to Plaintiff
being held down and assaulted, another was submitted to Defendant Cook relating to the incident
where Plaintiff was slapped on the buttocks, and another was submitted to either Defendant Cortez
or Defendant Miller-Smith relating to the inmate who “dry humped” up against him. However,
there is no record of these grievances being sent by Plaintiff or being received by any defendant.
There is also no evidence Plaintiff ever attempted to follow up on these grievances, either in
writing or verbally.

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In Plaintiff’s jail file, there is written documentation that Plaintiff submitted one grievance
and four inmate request forms during his incarceration at HCDC. On January 8, 2014, Plaintiff
submitted a grievance concerning his anxiety and sleep medication. On February 6, 2014,
Defendant Tallant spoke with Plaintiff about his medication and responded to the grievance in
writing asking if he had any medication at home that could be brought to him. On February 5,
2014, Plaintiff submitted an inmate request form seeking assistance in finding his car and the cost
of retrieving it. On February 6, 2014, Defendant Tallant responded to Plaintiff in person providing
him with the requested information. On April 23, 2014, Plaintiff submitted an inmate request form
requesting information regarding his phone and other property being held by Nashville Police.
Defendant Tallant responded to the request form in writing informing Plaintiff that she had given
him a copy of the evidence receipt from Nashville Police. On May 6, 2014, Plaintiff submitted
another inmate request form requesting assistance with a 2008 or 2009 warrant for his arrest.
Defendant Tallant responded to the request form in writing informing him that she had checked
with both the City of Malvern and Hot Springs County and that neither had an outstanding warrant
for his arrest. Finally, on June 18, 2014, Plaintiff submitted an inmate request form asking for
assistance in connection with an arrest warrant for a hot check violation. In response, Defendant
Tallant met with Plaintiff and informed him what fees were owed and how to pay them.
In each of these instances, Defendant Tallant responded, either in writing or verbally, to
Plaintiff’s grievance or request form. At no time during these exchanges did Plaintiff mention
being verbally or physically harassed by other inmates.
Plaintiff identified three additional inmate request forms submitted during his incarceration
at the HCDC which were not included in his jail file. On April 6, 2014, an inmate request form
was submitted by Plaintiff requesting he be permitted to work on the road crew. Defendant Tallant

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responded on the form that Plaintiff had been approved for road crew. On June 19, 2014, Plaintiff
submitted an inmate request form thanking Defendant Tallant for finding out about his warrant
and asking her if he would still be required to appear in court. Defendant Tallant responded in
writing stating that Plaintiff would need to go to court.

Finally, on June 24, 2014, Plaintiff

submitted another inmate request form asking for copies of his plea agreement and other papers
he signed on April 2, 2014. He also requested information regarding his sex offender fee. That
same day, Defendant Tallant responded in writing that she had faxed his request to the courthouse.
In each of these instances, Defendant Tallant responded to Plaintiff’s request form in
writing. At no time during these exchanges did Plaintiff mention that he was being verbally or
physically harassed by other inmates.
Defendant Cortez was employed by the HCDC during Plaintiff’s incarceration and he
witnessed inmates calling Plaintiff names. When this occurred Defendant Cortez instructed the
inmates to stop. During these incidents, Defendant Cortez observed Plaintiff laughing, smiling
and pointing his middle finger up. Defendant Cortez did not report this name calling to Defendant
Tallant or any other HCDC employee.

Defendant Cortez never witnessed Plaintiff being

physically harassed by other inmates and Plaintiff never asked to be moved.
Defendant Cook, a former employee of HCDC, recalls inmates calling Plaintiff names but
does not recall what the names were or what dates the incidents occurred. Defendant Cook would
instruct the inmates to stop. Defendant Cook believed Plaintiff was joking, laughing and carrying
on with the other inmates. Defendant Cook did not report this name calling to Defendant Tallant
or any other HCDC employee. Plaintiff never came to Defendant Cook with a complaint or asked
if he could be moved.

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During her employment at the HCDC, Defendant Miller-Smith once heard another inmate
say “hey sugar” or “hey girl” to Plaintiff. She gave the inmate a look of disapproval and the inmate
apologized to Plaintiff. Defendant Miller-Smith observed Plaintiff laughing and smiling during
the incident. Defendant Miller-Smith did not report this name calling to Defendant Tallant or any
other HCDC employee. Plaintiff did not go to Defendant Miller-Smith with complaints of
harassment and never requested to be moved.
Defendant Schwope has been employed at the HCDC for sixteen years. She did not witness
any physical abuse or any verbal harassment of Plaintiff during his incarceration at the HCDC.
She was never advised by Plaintiff, either verbally or in writing, that he was being harassed or
threatened in any way.
During his employment at the HCDC, Defendant Sean Scott never witnessed any verbal or
physical harassment towards Plaintiff. Plaintiff did not advise him that he was being harassed and
never asked Defendant Scott if he could be moved.
Plaintiff never notified Defendant Tallant, either verbally or in writing, that he was being
verbally harassed, threatened or assaulted.

She had no knowledge of any written grievances

submitted by Plaintiff relating to physical sexual assaults. Although Defendants Cortez, Cook and
Miller-Smith witnessed Plaintiff being verbally harassed they never informed Defendant Tallant
about the harassment.
CONCLUSIONS OF LAW
1. Official Capacity
Section 1983 provides a federal cause of action for the deprivation, under color of law, of
a citizen's "rights, privileges, or immunities secured by the Constitution and laws" of the United
States. In order to state a claim under 42 U.S.C. § 1983, plaintiff must allege that the defendants

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acted under color of state law and that they violated a right secured by the Constitution. West v.
Atkins, 487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999).
Under section 1983, a defendant may be sued in either his individual capacity, or in his
official capacity, or claims may be stated against a defendant in both his individual and his official
capacities. Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998). With respect to the official
capacity claims, they are “functionally equivalent to a suit against the employing governmental
entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). In other words,
Plaintiff’s official capacity claims against Defendants are treated as claims against Howard
County. See Murray v. Lene, 595 F.3d 868, 873 (8th Cir. 2010).
“[I]t is well established that a municipality [or county] cannot be held liable on a
respondeat superior theory, that is, solely because it employs a tortfeasor.” Atkinson v. City of
Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). To establish Howard County’s liability
under section 1983, “plaintiff must show that a constitutional violation was committed pursuant to
an official custom, policy, or practice of the governmental entity.” Moyle v. Anderson, 571 F.3d
814, 817 (8th Cir. 2009) (citation omitted). The applicable law has been summarized as follows:
There are two basic circumstances under which municipal liability will attach: (1)
where a particular municipal policy or custom itself violates federal law, or directs
an employee to do so; and (2) where a facially lawful municipal policy or custom
was adopted with “deliberate indifference” to its known or obvious consequences.
Seymour v. City of Des Moines, 519 F.3d 790, 800 (8th Cir. 2008). There need not
be a finding that a municipal employee is liable in his or her individual capacity
before municipal liability can attach. Speer v. City of Wynne, 276 F.3d 980 (8th Cir.
2002); Parrish v. Luckie, 963 F.2d 201, 207 (8th Cir. 1992) (“A public entity or
supervisory official may be held liable under § 1983 even though no government
individuals were personally liable.”). Where an official policy is itself
unconstitutional or directs employees to take unconstitutional action, no evidence
beyond a statement of the policy and its exercise is necessary to establish § 1983
liability. Szabla v. City of Brooklyn Park, 486 F.3d 385, 389-90 (8th Cir. 2007).
Id. at 817-18.

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To establish the existence of an unconstitutional policy, the Plaintiff must point to “a
deliberate choice of a guiding principle or procedure made by the municipal official who has final
authority regarding such matters.” Mettler v. Whiteledge, 165 F.3d 1197, 1204 (8th Cir. 1999). In
Johnson v. Douglas County Medical Dept., 725 F.3d 825 (8th Cir. 2013), the Court outlined the
necessary elements for establishing the existence of an unconstitutional custom. It stated:
To establish a claim for “custom” liability, [Plaintiff] must demonstrate:
1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees; 2)
Deliberate indifference to or tacit authorization of such conduct by the
governmental entity’s policymaking officials after notice to the officials of that
misconduct; and 3) That Plaintiff was injured by acts pursuant to the
governmental entity’s custom, i.e., that the custom was the moving force behind
the constitutional violation.
Id., 725 F.3d at 828 (citations omitted).
There was no testimony or evidence presented that there was an unconstitutional policy or
custom of the HCDC that contributed in any way to Plaintiff’s injuries. Accordingly, Plaintiff’s
claims against Defendants in their official capacities fail.
2. Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) provides: “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory. Porter v. Nussle, 534
U.S. 516, 524-25 (2002).
In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court concluded that “to properly
exhaust administrative remedies prisoners must complete the administrative review process in
accordance with the applicable procedural rules.” Id. at 218 (internal quotation marks and citation

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omitted). The Court stated that the “level of detail necessary in a grievance to comply with the
grievance procedures will vary from system to system and claim to clam, but it is the prison’s
requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Id. “[F]ailure
to exhaust available administrative remedies is an affirmative defense, not a matter of subject
matter jurisdiction.” Lenz v. Wade, 490 F.3d 991, 993 n. 2 (8th Cir. 2007).
The Eighth Circuit Court of Appeals, however, has recognized two exceptions to the PLRA
exhaustion requirement: (1) when officials have prevented prisoners from utilizing the grievance
procedures; or (2) when the officials themselves fail to comply with the grievance procedures. See
Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (citing Miller v. Norris, 347 F.3d 736 (8th Cir.
2001)) (explaining that a prisoner is only required to exhaust those administrative remedies that
are available and any remedies that prison officials prevent a prisoner from utilizing are not
considered available).
Although Plaintiff claims he submitted three grievances relating to the physical assaults,
there is no record of any defendant receiving such a grievance. Each Defendant testified that he
or she never received or had any knowledge of any grievances filed by Plaintiff relating to a
physical sexual assault. Even so, the Court will not dismiss Plaintiff’s claims solely on his failure
to file a written grievance in light of the fact that three of the defendants witnessed Plaintiff being
verbally harassed prior to the physical assaults. In addition, Defendant Tallant testified that,
although it would be rare, it is possible that a grievance could be misplaced.
3. Failure to Protect
Prison officials have a duty, under the Eighth Amendment, to protect prisoners from
violence at the hands of other prisoners. See Perkins v. Grimes, 161 F.3d 1127, 1129 (8th Cir.

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1998).4 However, not “every injury suffered by one prisoner at the hands of another . . . translates
into constitutional liability for prison officials responsible for the victim’s safety.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994).
To prevail on his failure to protect claim, Plaintiff must satisfy a two prong test: (1) show
he was “incarcerated under conditions posing a substantial risk of serious harm;” and (2) the prison
officials were “deliberately indifferent [to his] health or safety.” See Holden v. Hirner, 663 F.3d
336, 341 (8th Cir. 2011) (internal citations omitted). The first prong is an objective requirement
to ensure the deprivation is a violation of a constitutional right. Id. The second, however, is
subjective requiring Plaintiff to show the official “both knew of and disregarded ‘an excessive risk
to inmate’s health or safety.’” Id. (quoting Farmers, 511 U.S. at 837). “An official is deliberately
indifferent if he or she actually knows of the substantial risk and fails to respond reasonably to it.”
Young v. Selk, 508 F.3d 868, 873 (8th Cir. 2007). Negligence alone is insufficient to meet the
second prong, instead, the official must “recklessly disregard a known, excessive risk of serious
harm to the inmate.” Davis v. Oregon County, 607 F.3d 543, 549 (8th Cir. 2010) (internal
quotation marks and citation omitted).
Claims under the Eighth Amendment require a compensable injury to be greater than de
minimis. Irving v. Dormire, 519 F.3d 441, 448 (8th Cir. 2008). Whether an injury is sufficiently
serious is “claim dependent.” Id. at 447. The Eighth Circuit has held that rape or sexual assault
at the hands of other prisoners is sufficiently serious to amount to a constitutional violation.
Walton v. Dawson, 752 F.3d 1109, 1118 (8th Cir. 2014) (“It is . . . beyond dispute that rape or
sexual assault at the hands of other prisoners is sufficiently serious to amount to a deprivation of
constitutional dimension.”) (internal quotations omitted); see Seltzer-Bey v. Delo, 66 F.3d 961,

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 Plaintiff was a convicted prisoner at the time of the physical altercations at issue. Therefore, the Eighth
Amendment standard will be applied. 

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962-63 (8th Cir. 1995) (a prison guard’s sexual comments coupled with daily strip searches and
rubbing of the prisoner’s buttocks with his night stick implicated the Eighth Amendment); Watson
v. Jones, 980 F.2d 1165, 1165-66 (8th Cir. 1992) (guards daily pat-down searches, tickling, and
deliberately examining genital area implicated the Eighth Amendment).
In this case, Plaintiff was subjected to “dry humping” by another inmate, having his pants
pulled down while another inmate pretended to engage in sexual intercourse with him, and being
slapped on the buttocks by another inmate. Although he did not receive any physical injury as a
result of the sexual assaults, he was subjected to significant fear, ridicule and humiliation at the
hands of other inmates. Accordingly, the Court finds Plaintiff’s injury sufficiently serious to
amount to a constitutional violation under the Eighth Amendment.
Even though the sexual assault suffered by Plaintiff implicates the Eighth Amendment, the
Court is not convinced that any of the defendants were deliberately indifferent so as to subject
them to liability. It has long been established in the Eighth Circuit and elsewhere that “(a) prison
official may be held liable under the Eighth Amendment if he or she knows that an inmate faces a
substantial risk of serious harm and disregards that risk by failing to take reasonable measures to
abate it.” Kahle v. Leonard, 477 F.3d 544 (8th Cir. 2007) (citing Coleman v. Rahija, 114 F.3d 778,
785) (8th Cir. 1997). In this case there is no evidence that any of the defendants had knowledge or
reason to know Plaintiff would be physically assaulted by other inmates in the HCDC.  
In addition to the formal written grievance procedure at the HCDC, Plaintiff could
approach Defendant Tallant and/or other HCDC employees at any time with concerns about his
safety. The evidence demonstrates that Plaintiff submitted multiple written requests to Defendant
Tallant not only during the month he was assaulted but up until he was transported to the ADC.

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He communicated with Defendant Tallant after the sexual assaults on six different occasions and
never reported that he had been sexually assaulted.5
It is clear that Defendant Tallant had no knowledge Plaintiff was ever verbally harassed,
threatened or sexually assaulted during his incarceration at the HCDC. The same is true for
Defendants Schwope and Scott. Neither Schwope nor Scott witnessed any physical abuse or verbal
harassment of Plaintiff and they were never advised by Plaintiff, either verbally or in writing, that
he wanted to be moved to a different location. Accordingly, Plaintiff’s claims against Defendants
Tallant, Schwope and Scott in their individual capacities fail.
The remaining defendants Cortez, Cook and Miller-Smith each witnessed Plaintiff being
verbally harassed and never reported the harassment to Defendant Tallant or anyone else at the
HCDC. They each testified that when they observed the name calling incidents Plaintiff appeared
to be laughing, joking around, and even bantering back and forth with the other inmates.
Defendants Cortez, Cook and Miller-Smith should have reported the verbal harassment to
Defendant Tallant. However, their failure to report the verbal harassment was at most negligent.
Negligence alone does not constitute deliberate indifference. Davis v. Oregon County, 607 F.3d
543, 549 (8th Cir. 2010). Accordingly, Plaintiff’s claims against Defendants Cortez, Cook and
Miller-Smith in their individual capacities fail.
CONCLUSION
Based upon the above findings of fact and conclusions of law, the Court finds that
Defendants Jana Tallant, Dewanda Schwope, Brian Cook, Hector Cortez, Sean Scott, and Shelbi

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On April 6, 2014, Plaintiff followed up on a previous request he had submitted to work on the road crew. On
April 23, 2014, Plaintiff submitted a request following up on a previous inquiry relating to his phone and other
property in the possession of the Nashville Police Department. On May 6, 2014, Plaintiff submitted a request about
an outstanding warrant. On June 18, 2014, he requested assistance in connection with another warrant for hot check
violations. On June 19, 2014, Plaintiff wrote and thanked Defendant Tallant for providing him with information
concerning his warrant. Then, on June 24, 2014, Plaintiff submitted a request asking for a copy of his plea
agreement and information on the payment of his sex offender fee.  

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Miller-Smith are entitled to judgment in their favor and against Plaintiff Lee Baker. A judgment
of even date consistent with this opinion shall issue.
IT IS SO ORDERED, this 23rd day of March 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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