Weaver v. Petray et al

Filing 30

REPORT AND RECOMMENDATIONS re 20 MOTION for Summary Judgment filed by Hunter Petray, Keith Ferguson. Objections to R&R due by 3/1/2010. Signed by Honorable Erin L. Setser on February 11, 2010. (src)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS F A Y E T T E V ILLE DIVISION

M A RK WEAVER v. CAPTAIN HUNTER PETRAY, Jail Administrator, Benton County D etention Center; BENTON COUNTY, A R K A N SA S; and SHERIFF K E IT H FERGUSON C ivil No. 08-5195

PLAINTIFF

D E FE N D A N T S

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE T h e plaintiff, Mark Weaver (hereinafter Weaver), filed this civil rights action pursuant to 42 U .S .C . § 1983. He proceeds pro se and in forma pauperis. Weaver is currently incarcerated at the Arkansas Department of Correction. In this action, W e a v e r contends his constitutional rights were violated while he was incarcerated in the Benton C o u n ty Detention Center from April 23, 2008, to May 26, 2009.1 Specifically, he contends he was s u b je c te d to unconstitutional conditions of confinement. D e fe n d a n ts filed a summary judgment motion (Doc. 20). To assist Weaver in responding to th e summary judgment motion, a questionnaire was propounded (Doc. 28) by the Court. Weaver file d a timely response to the questionnaire (Doc. 29). The summary judgment motion is before the u n d e rs ign e d for issuance of this report and recommendation.

The booking records submitted by Defendants as Exhibit 1 do not indicate Weaver's release date. However, the A r k a n s a s Department of Correction's website indicates Weaver's initial receipt date was M a y 26, 2009. See w w w .a d c .a rk an s a s .gov.

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Background W e a v e r was booked into the Benton County Detention Center (BCDC) on April 23, 2008, o n pending criminal charges. Plaintiff's Response (Doc. 29)(hereinafter Plff's Resp.) at ¶ 1. When b o o k e d in, Weaver signed a copy of the inmate rights and rules. Id. at ¶ 2. O n May 13th, Weaver complained that the food trays were dirty. Defendants' Exhibit 3 (h e re in a fte r Defts' Ex.). Captain Petray (hereinafter Petray) responded that the trays were cleaned d a ily. Id. Weaver maintains that Petray had no way of knowing if his tray was clean or not. Plff's R e s p . at ¶ 4(A). Further, he states the cleaning consisted of squirting water on the trays. Id. at ¶ 4 (B ). On June 1st, Weaver complained that the cell block was cleaned only once a day by trustees a n d that the inmates were not provided with safe, sanitary and orderly jail conditions. Defts' Ex. 3. Petray responded, "Cleaning supplies are brought in daily. Inmates are responsible for cleaning their o w n living areas. If you want to help them you are more than welcome to pick up a broom and a mop a n d help out." Id. Weaver asserts he was "forced to clean the showers." Plff's Resp. at ¶ 5(A). He denies he h a d access to cleaning supplies on a daily basis. Id. at ¶ 5(B) & ¶ 6. He asserts that "[s]ometimes n o cleaning supplies were brought in." Id. Further, he states that the day room was supposed to be c le a n e d after every meal and this just did not happen. Id. at ¶ 6. W e a v e r, in a grievance submitted on June 8th, indicated that besides himself there were other m e n in the jail who had the same feelings towards the trash, dirt and filth in the jail and that they w o u ld offer to clean on a daily basis. Plff's Resp. at ¶ 6. Petray responded, "Cleaning supplies are b ro u gh t in daily. You are more than welcome to pick up a mop and broom and clean." Id.

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Weaver complained on June 18th that during clean up the mop was put in the commode and th e floor was mopped. Plff's Resp. at ¶ 7(A). Petray responded, "I will have the sgt. check on this. W h o did this?" Id. Weaver states he did let Petray know who was responsible for this. Id. at ¶ 7(A). However, the practice did not stop. Id. at ¶ 7(B). In this regard, Weaver states: "How could it stop. The inmates have no rights to tell another inmate what to do. Deputies spend 96% of [their] time in p o d control. They might walk through once on a shift." Id. O n June 19th, Weaver complained that the public restroom2 did not conform to the inmates' righ t to be provided conditions of confinement that are safe, sanitary and orderly. Plff's Resp. at ¶ 8 (A ). He complained that the public restroom was cleaned with a mop that had been dipped into the c o m m o d e . Id. Petray responded, "I will have the sgt. Check on this." Id. A s far as he knows, Weaver states the commode was not cleaned before the mop was used. Plff's Resp. at ¶ 8(C). In fact, Weaver asserts the commode was never cleaned. Id. When the mop w a s dipped in the commode, he indicates there were no cleaning chemicals in the commode, on the m o p , or on the floor. Id. at ¶ 8(E). Weaver states the inmates only had flip flops to wear on their fe e t. Id. at ¶ 8(D). On June 24th, Weaver submitted a third grievance regarding this practice. Plff's Resp. at ¶ 9 . He stated: "I sat down this morning after breakfast to just watch the clean up. And sure enough, a s soon as the mop came out, it went straight to the public restroom, into the commode, and onto the flo o r." Id. Lt. Carter responded, "A sergeant will look into this." Id. O n June 25th, Weaver again complained that the mop had been dipped in the commode and th e n used to mop the public restroom and day room. Defts' Ex. 3; Plff's Resp. at ¶ 10 (without

W h e n the inmates are in the day room, one cell is left open for the inmates to use as a restroom. This open cell is t y p i c a l l y referred to as the public restroom.

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knowledge to agree or disagree). Lt. Carter responded that he would advise the shift sergeants of the is s u e . Id. O n June 28th Weaver submitted a request stating: "Congratulations! I actually got to see a d e p u ty add some comet to the showers and around the lavatory/commode in the public bathroom. T h i s is a start at helping get this filthy place cleaned up." re s p o n d e d , "What is your request?" Id. Weaver complained on July 4th that the shower was dirty with "soap and human scum." Plff's Resp. at ¶ 12. Petray responded that he would check on the matter. Id. Weaver in responding to the summary judgment motion adds that "[h]uman seaman (sic) was in the showers quite often. Along with all sorts of scum." Id. On July 31st, Weaver submitted a grievance stating that water was standing in front of the s h o w e rs on the top tier and that a mop and bucket should be left out so that the water could be c le a n e d up before and after showers. Defts' Ex. 3; Plff's Resp. at ¶ 13(A)(Without knowledge to a gre e or disagree). Petray responded that he would check with maintenance about the problem. Id. Weaver maintains the inmates tramped through standing water from the top tier shower for w e e k s . Plff's Resp. at ¶ 13(A). This was true despite his complaint. At the time, Weaver was h o u s e d in the top tier of D cell. Id. at ¶ 23(B). The water was deep enough to come over his flip flo p s . Id. at ¶ 13(B). He asserts there was nothing the inmates could do to keep the water from e s c a p in g the shower. Id. He indicates he slipped in the water and pulled a muscle in his back. Id. As a result, he states he was in extreme pain in his back and legs. Id. at ¶ 32. Weaver states he told N u rs e Marsha and received two Tylenol in response. Id. On August 6th, Weaver complained he had to walk through stagnant shower water every time h e went to his cell. Defts' Ex. 3; Plff's Resp. at ¶ 14 (Without knowledge to agree or disagree). He Plff's Resp. at ¶ 11. Jail personnel

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asserted that it was a health hazard. Id. Petray responded, "I have forwarded this to maintenance." Id. O n September 2nd, Weaver submitted a grievance stating there was dirt on his food tray near th e meat. Defts' Ex. 3; Plff's Resp. at ¶ 15(A)(Without knowledge to agree or disagree). He stated th a t more care needed to be taken when things were washed. Id. Petray responded, "The trays are c le a n e d ." Id. Weaver was asked whether September 2nd was the first time since May 13th that his fo o d tray had dirt on it. Plff's Resp. at ¶ 15(B). He responded no, that dirt was always present either o n the food or the tray. Id. He submitted another complaint on September 3rd. Id. at ¶ 16(A). While the BCDC has an established, written policy concerning sanitation, Weaver maintains it is not followed. Plff's Resp. at ¶ 18(A). According to Weaver, the floors under the tables were not c le a n e d three times a day, people were sleeping on the floor in the cell used as a public bathroom, a n d there was black fungus around the walls, in the closets, and in the vents. Id. Weaver agrees the employee assigned as "pod rover" dispenses cleaning materials and s u p p lie s on an as needed basis. Plff's Resp. at ¶ 18(C). The supply and janitorial closet is kept lo c k e d when the employee is not at the closet getting or returning supplies. Id. Weaver concedes inmates are responsible for cleaning their own living areas. Plff's Resp. a t ¶ 19. According to Weaver, inmates were not provided with rubber gloves to clean commodes or s h o w e rs . Id. at ¶ 21. He maintains they were simply supplied with a broom, mop, and bucket. Id. a t ¶ 26. He asserts the mop bucket is missing the part that squeezes the water out of the mop. Defts' E x . 3 (Doc. 22-5) at page 20. Weaver disagrees that cleaning supplies are placed in the housing unit immediately following m e a ls . Plff's Resp. at ¶ 18(D). Instead, he states it could be up to four hours before the inmates got

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the supplies. Id. In fact, he asserts sometimes they never got the supplies. Id. The closest thing to a n inspection is when a deputy does a walk down. Id. at ¶ 18(F). According to Weaver, the jail is never inspected for cleanliness. Plff's Resp. at ¶ 18(F). In th e whole time he was there, Weaver states he only saw Petray in the barracks twice. Id. He in d ic a te s one of those times was during a shakedown. Id. While Defendants maintain the facility is sprayed for insects/spiders every month and is sprayed outside once every three months, Weaver s ta te s he only saw it being sprayed for bugs once. Plff's Resp. at ¶ 25. During his incarceration at the BCDC, Weaver maintains he was supplied with insufficient n u tritio n . Plff's Resp. at ¶ 29(A). He states he weighed 242 pounds when he was booked in and w h e n he was transferred he weighed 152 pounds. Id. He was provided with clothing. Plff's Resp. at ¶ 29(B). He had a bunk or a mattress to sleep o n each night. Id. at ¶ 29(C). The inmates were able to shower on a regular basis but did not get to s h a v e or have a haircut unless they were going to court. Id. at ¶ 29(D). He was able to send and re c e i v e mail. Id. at ¶ 29(E). He denies the detention center was maintained at a reasonable te m p e ra tu re . Id. at ¶ 29(F). He says: "If it was a reasonable temperature why was a blanket required to stay warm with. Deputies even wore [their] coats inside to stay warm." Id. Summary Judgment Standard S u m m a ry judgment is appropriate if, after viewing the facts and all reasonable inferences in th e light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 4 7 5 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), the record "show[s] that there is no ge n u in e issue as to any material fact and that the moving party is entitled to a judgment as a matter o f law." Fed. R. Civ. P. 56(c). "Once a party moving for summary judgment has made a sufficient s h o w in g, the burden rests with the non-moving party to set forth specific facts, by affidavit or other

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evidence, showing that a genuine issue of material fact exists." National Bank of Commerce v. Dow C h e m ic a l Co., 165 F.3d 602, 607 (8th Cir. 1999). T h e non-moving party "must do more than simply show that there is some metaphysical doubt a s to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient evidence to support a . . . verdict in their favor." National Bank, 165 F.3d at 607 (citing Anderson v. Liberty L o b b y, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). "A case founded on s p e c u la tio n or suspicion is insufficient to survive a motion for summary judgment." Id. (citing Metge v . Baehler, 762 F.2d 621, 625 (8th Cir. 1985)). D is c u s s io n A s mentioned above, Defendants have now moved for summary judgment. First, Defendants a rgu e Plaintiff was not subjected to unconstitutional conditions of confinement. Second, they argue P la in tiff suffered no actual physical injury as a result of the conditions he was confined under. Finally, they argue that Plaintiff has brought only official capacity claims against them and as there is no suggestion of an unconstitutional custom or policy they are entitled to judgment as a matter of la w . The Eighth Amendment to the United States Constitution prohibits the imposition of cruel a n d unusual punishment. U.S. Const. amend. VIII. The Cruel and Unusual Punishment Clause of th e Eighth Amendment forbids conditions that involve the "wanton and unnecessary infliction of p a in ," or are "grossly disproportionate to the severity of the crime." Rhodes v. Chapman, 452 U.S. 3 3 7 , 347, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981). See also Nelson v. Correctional Medical S e rv ic e s , 583 F.3d 522, 528 (8th Cir. 2009)(en banc). For conditions of confinement cases,

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wantonness is the equivalent of deliberate indifference.3 See Wilson v. Seiter, 501 U.S. 294, 302-04, 1 1 1 S. Ct. 2321, 115 L. Ed. 2d 271 (1991). "A prisoner alleging an Eighth Amendment violation must prove both an objective and s u b je c tiv e element. Revels v. Vincenz, 382 F.3d 870, 875 (8th Cir. 2004)(citing Wilson, 501 U.S. a t 298). "The defendant's conduct must objectively rise to the level of a constitutional violation by d e p riv in g the plaintiff of the minimal civilized measure of life's necessities. The defendants' c o n d u c t must also reflect a subjective state of mind evincing deliberate indifference to the health or s a fe ty of the prisoner" Revels, 382 F.3d at 875 (citations and internal quotation marks omitted). Deliberate indifference is established when the plaintiff shows "the defendant was substantially a w a re of but disregarded an excessive risk to inmate health or safety." Revels, 382 F.3d at 875. The s ta n d a rd s against which a court measures prison conditions are "the evolving standards of decency th a t mark the progress of a maturing society." Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 5 0 L. Ed. 2d 251 (1976). Weaver complains generally about the unsanitary conditions in the jail and the diet provided. With respect to Weaver's claim about the diet he receives, we note that he has filed a separate case in which he claims the diet and food service was inadequate, Weaver v. Holly, et al, Civil No. 095 1 1 7 . It will therefore be recommended that the claims regarding his diet and the unsanitary food tra ys be dismissed as they are duplicative of the claims raised in Weaver v. Holly, et al, Civil No. 095117.

The Court of Appeals for the Eighth Circuit has adopted the Eighth Amendment's deliberate indifference standard for b o t h detainees and convicted inmates. See Butler v. Fletcher, 465 F.3d 340, 344 (8th Cir. 2006)(adopting the Eighth Amendment's d e l i b er a t e indifference standard as the "appropriate standard of culpability for all claims that prison officials failed to provide p r e t r i a l detainees with adequate food, clothing, shelter, medical care and reasonable safety.)" Thus, Weaver's date of conviction is n o t relevant to this case.

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Weaver's remaining claims all concern the issue of sanitation. In discussing unsanitary c o n d itio n s of confinement claims, the Eighth Circuit has noted that conditions, "such as a filthy cell, m a y be tolerable for a few days and intolerably cruel for weeks or months." Whitnack v. Douglas C o u n ty , 16 F.3d 954, 958 (8th Cir. 1994)(internal quotation marks and citation omitted). The court c o n s id e re d both the length of time a prisoner must endure the filthiness and the level of filthiness. Id. Here, Weaver identifies the following unsanitary conditions: dirt on the food or the food tra ys ;4 general dirt, filth, and trash in the cell block; the mop being dipped in the commode and then u s e d to clean the floor; soap and human scum in the shower; standing water in front of the showers; a black fungus around the walls, in the closets, and vents; spiders and insects in the cells; and in m a te s not being provided with gloves to be used while cleaning. It is undisputed that a jail policy placed the responsibility on inmates to maintain the c le a n lin e s s of their own living areas. Resp. at ¶ 19. With respect to the showers, Weaver states he w a s "forced to clean the showers. Deputy Wells made sure of it." Weaver agrees the employee a s s ign e d as pod rover dispensed cleaning materials and supplies on an as needed basis. Plff's Resp. a t ¶ 18(C). Weaver does not maintain that he was prevented from cleaning his living areas or that he was n o t provided with an opportunity to clean his living areas. A detention facility does not violate the E igh th Amendment standards by giving inmates access to cleaning supplies and requiring them to k e e p their own living areas clean. Wilson, 501 at 304 (Eighth Amendment violation requires a jailer to deprive a prisoner of a "single, identifiable human need.").

As noted above, all claims regarding the food service and the nutritional value of the meals provided are encompassed b y Case No. 09-5117.

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With respect to the standing water, Weaver submitted his first grievance regarding this c o n d itio n on July 31st. Plff's Resp. at ¶ 13(A). Petray responded to Weaver's complaint by notifying m a in te n a n c e . Id. Despite this, Weaver maintains the conditions went on for "weeks." Id. Weaver d o e s not further quantify how long this condition lasted but he last mentioned it in a grievance dated A u gu s t 6th. Plff's Resp. at ¶ 14. There is no indication Petray failed to advise maintenance of the p ro b le m . At most, the facts presented suggest Petray was negligent in failing to follow through and m a k e sure the problem was solved quickly. With respect to the black fungus, Weaver merely asserts that black fungus was present around th e floor, closets, and vents. Plff's Resp. at ¶ 24. He does not point out any grievances in which he c o m p la in e d of the existence of a black fungus. He submits nothing to support his conclusory a s s e rtio n . He presents nothing to suggest the Defendants were aware of this condition. Tokar, 97 F .3 d at 1082 (Once defendants supported their motion for summary judgment, the "burden shifted t o Tokar to go beyond his pleadings and `by affidavits or . . . otherwise . . . set forth specific facts s h o w in g that there is a genuine dispute for trial.'")(quoting, Fed. R. Civ. P. 56(e)). W ith respect to the presence of insects and spiders, Weaver did not disagree with Holly's s ta te m e n t that the BCDC is sprayed for insects/spiders every month and is also sprayed outside the fa c ility every three (3) months. Defts' Ex. 4 at ¶ ; Plff's Resp. at ¶ 25 (Without knowledge to agree o r disagree). Instead, he merely states he only observed "once that it was sprayed for bugs." Plff's R e s p . at ¶ 25. Weaver was not bitten by a spider but states he was bitten by unknown bugs. Id. He d o e s not indicate the bug bites were numerous or frequent. He does not argue the Defendants failed to take proper measures after he reported being bitten. O n the record before the Court, there is simply no genuine issue of fact as to whether the D e fe n d a n ts knew of a substantial risk to Weaver's health or safety and failed to take reasonable

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measures to abate it. Farmer, 511 U.S. at 837. In summary, there is no genuine issue of fact as to w h e th e r Weaver suffered the level of objectively serious harm necessary to show an Eighth A m e n d m e n t violation. See e.g., Tokar v. Armontrout, 97 F.3d 1078, 1082 (8th Cir. 1996). Conclusion F o r the reasons stated, I recommend that: (1) Weaver's claims regarding his diet and the u n s a n ita ry food trays be dismissed as they are duplicative of the claims raised in Weaver v. Holly, e t al, Civil No. 09-5117; and (2) Defendants' motion for summary judgment (Doc. 20) be granted o n all other claims and this case dismissed. The parties have fourteen (14) days from receipt of the report and recommendation in w h ic h to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely o b je c tio n s may result in waiver of the right to appeal questions of fact. The parties are r e m in d e d that objections must be both timely and specific to trigger de novo review by the d is tr ic t court. D A T E D this 11th day of February 2010. /s/ Erin

L. Setser

HON. ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE

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