Keating v. Washington County Detention Center et al

Filing 70

MEMORANDUM OPINION adopting 68 Report and Recommendations. Other specifics set out in Order. Signed by Honorable Jimm Larry Hendren on August 23, 2011. (adw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
MATTHEW MICHAEL KEATING
v.

PLAINTIFF
Civil No. 08-5243

SHERIFF TIM HELDER, Washington
County, Arkansas; RANDALL DENZER,
Jail Administrator, Washington County
Detention Center; CORPORAL NATHAN
MATTHEWS; DEPUTY CODY STOUT; NURSE
SHIRLEY MOSS; SGT. MISTY CHARLES;
SGT. MICHAEL CAMBRON; SGT. J. FULLER;
SGT. S. BREWER; CORPORAL T. MUGGY; SGT.
SCHMIDT; DEFENDANT WHITEHOUSE;
CHARLES DOBBS; DEPUTY WILLIAM HURLEY;
DOYLE SHARP; KEVIN EAST; LT. MASON;
BRAD MORGAN; and CHAD MORGAN

DEFENDANTS

MEMORANDUM OPINION
Now

on

this

23rd

day

of

August,

2011,

comes

on

for

consideration the Report And Recommendation Of The Magistrate
Judge ("R&R") (document #68), and Washington County Defendants'
Objections To Report And Recommendation ("Objections") (document
#69), and from these documents, the Court finds and orders as
follows:
1.

Plaintiff Matthew Michael Keating ("Keating") brought

this action pursuant to 42 U.S.C. § 1983, challenging various
conditions of his confinement at Washington County Detention
Center ("WCDC").

United States Magistrate Judge Erin L. Setser

conducted an evidentiary hearing on Keating's claims, and issued
the R&R now under consideration.

2.

The recommendations of Magistrate Judge Setser are as

follows:
*

that Keating's claims against defendants Cody Stout,

Shirley Moss, Misty Charles, Brandon Whitehouse, Charles Dobbs,
Brad Morgan, Chad Morgan, Lori Schmidt Wilson, Deputy Hurley,
Deputy Sharp, Deputy East, and Lieutenant Mason be dismissed;
*

that

Keating's

claims

of

unreasonable

search,

unconstitutional conditions of confinement, and interference with
mail be dismissed; and
*

that Keating be awarded judgment on his due process

claim in the amount of $11.00 nominal damages, plus his $350.00
filing fee, against defendants Sheriff Helder ("Helder") and Major
Denzer

("Denzer")

defendants

Denzer,

in

their

Corporal

official
Matthews

capacities

and

("Matthews"),

against
Sergeant

Cambron ("Cambron"), Sergeant Fuller ("Fuller"), Sergeant Brewer
("Brewer"), and Corporal Muggy ("Muggy") in their individual
capacities.
3.

Helder, Denzer, Matthews, Cambron, Fuller, Brewer, and

Muggy (collectively "Defendants") object to the recommendation
that Keating receive judgment against them on his due process
claim.
Defendants make two objections:

first, that the due process

violations found by Magistrate Judge Setser amount to nothing more
than negligent conduct, which will not support a claim under 42

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U.S.C. § 1983, and second, that if Helder and Denzer are liable in
their official capacities on a failure to train theory, the
remaining Defendants cannot be liable on a deliberate indifference
theory.
4.

There is no dispute about the facts which emerged at the

evidentiary hearing conducted by Magistrate Judge Setser, and the
Court summarizes them here to form the background for its analysis
of Defendants' objections:
*

WCDC has a written policy on inmate discipline (the

"Policy"), which provides, in relevant part, as follows:
1.b. Officers shall inform the Jail Administrator in
writing whenever disciplinary actions are taken.
Incident reports shall include, the facts of the
offense, the date and time, witness's names, and the
officer's (s') actions....
1.f. All disciplinary actions shall be reviewed by the
facility administrator and an informal hearing conducted
in accordance with this section if the situation
warrants....
6.a. Any disciplinary action taken by an officer against
a detainee shall be reviewed by the shift supervisor.
If the detainee wants to appeal, he/she shall appeal to
the jail lieutenant.
If the action(s) of the jail
lieutenant are unsatisfactory to the detainee, he/she
may appeal to the jail captain. If that appeal is not
satisfactory to the detainee, an appeal my be taken to
the Sheriff for review.
*

Keating was arrested on June 17, 2008, charged with

"Possession of Drug Paraphernalia w/Intent to Manufacture (METH)"
and Possession of a Controlled Substance, and booked into WCDC.
*

On

June

24,

2008,

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Deputy

Hurley

learned

that

methamphetamine was available in S-Block of WCDC, where Keating
was a pre-trial detainee.

Several inmates implicated Keating as

the supplier, saying that he concealed the drug in his rectum and
also received it through the mail.

Keating was sent to the

hospital, where an x-ray and an enema failed to reveal any drugs
concealed in his rectum.
*

Immediately after Keating's return from the hospital,

Captain Osburn authorized locking him down1 for ten days for
"Introducing Contraband in a Controlled Facility."
*

Keating's cell was searched, and several greeting cards

he had received in the mail were seized.

Lieutenant Mason

("Mason") and Detective Hulsey ("Hulsey") wrote incident reports
indicating that a drug-sniffing dog alerted on the cards, and that
paper shavings from one tested positive for the presence of
methamphetamine. The weight to be given to both the testimony and
the reports of Mason and Hulsey is considerably diminished by the
fact that the reports did not turn up until the day of the
evidentiary hearing.
*

On June 25, 2008, Matthews wrote up the Disciplinary

Report of the previous day's incident, even though Matthews had no
personal knowledge about it.
the

facts

of

the

offense,

Matthews' report does not include
the

1

date

and

time

it

supposedly

Lockdown involves confinement to a cell 23 hours a day, and loss of commissary and
visitation privileges and reading and writing materials.

-4-

occurred, or the names of witnesses2.

In fact, the Disciplinary

Report does not find Keating guilty of any misconduct.

Instead,

it states that there is "suspicion" of Keating "introducing a
controlled

substance

into

the

facility,"

and

an

"ongoing

investigation." It recommends that Keating be locked down for ten
days "until further notified."
*

Matthews did not give Keating a copy of the Disciplinary

Report.
*

Cambron, the Shift Supervisor, signed off on Matthews'

report, despite its obvious failure to comply with the Policy.
*

Although the Disciplinary Report had a box checked

indicating that Keating had been "notified of the right to file a
disciplinary appeal in writing to the Disciplinary Review Board,"
Matthews did not recall telling Keating of his right to appeal,
and Keating testified that he was not aware of any such right.
*

No copy of Matthew's report was provided to Denzer, the

Jail Administrator.

Denzer received a copy of Hurley's Incident

Report, but he did not receive even this until "a day or two after
the incident." Denzer did nothing to ensure that the Policy was
followed or that Keating received due process in connection with
the lockdown.
*

The

Disciplinary

Review

Board,

which

consisted

of

2
Coty Stout signed the Disciplinary Report in the line for "Witness Signature." It
does not appear, however, that Stout was a witness to anything other than the report
itself.

-5-

Fuller, Brewer, and Muggy, did not review Keating's disciplinary
lockdown until June 29, five days after he was locked down.
According to Denzer, this type of delay was routine.
*

The

Disciplinary

Review

recommended ten days' lockdown.

Board

agreed

with

the

Its members were not informed

that no methamphetamine was found on Keating at the hospital.
They were told that drug residue was found on some of Keating's
mail, but had no documentation to that effect. Fuller acknowledged
that the Disciplinary Review Board did not conduct a thorough
investigation.
*

Denzer testified that the written disciplinary Policy

did not accurately reflect actual disciplinary practice at WCDC.
He also conceded that there was insufficient information to lock
Keating down, and that it was a mistake for the Disciplinary
Review Board to fail to review the lockdown for six days.
5.

In

light

of

the

foregoing,

the

Court

turns

to

Defendants' objection that the due process violations found by the
Magistrate Judge amount to nothing more than negligent conduct,
which will not support a claim under 42 U.S.C. § 1983.
Section 1983 provides for civil liability against a person
acting under color of state law who deprives a citizen of any
constitutional right.

"A § 1983 plaintiff must prove (1) the

violation of a constitutional right, (2) committed by a state

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actor3, (3) who acted with the requisite culpability and causation
to violate the constitutional right."

Hart v. City of Little

Rock, 432 F.3d 801, 804 (8th Cir. 2005).
6.

Defendants do not dispute that Keating was deprived of

due process in connection with his disciplinary lockdown. Under
the Due Process Clause of the Fourteenth Amendment, a state pretrial

detainee

such

as

Keating

cannot

be

punished

disciplinary infraction without due process of law.

for

a

The minimum

requirements of due process in this context have been outlined as
follows:
In a prison disciplinary proceeding, the prisoner must
receive: (1) advance written notice of the disciplinary
charges;
(2)
an
opportunity,
consistent
with
correctional goals and safety, to call witnesses and
present a defense; and (3) a written statement of the
evidence relied upon by the fact finder and the reasons
for the disciplinary action. The written notice must be
adequate to enable the accused prisoner to marshal the
facts and prepare a defense.
Dible v. Scholl, 506 F.3d 1106, 1110 (8th Cir. 2007) (internal
citations and quotation marks omitted).

See also Hartsfield v.

Nichols, 511 F.3d 826, 830 (8th Cir. 2004), summarizing the
requirements set out by the Supreme Court in Wolff v. McDonnell,
418 U.S. 539 (1974):
...written notice of the charges; a brief period ... to
prepare; a written statement of the evidence relied on
and reasons for the disciplinary action; and the ability
for the inmate to call witnesses and present documentary
evidence.
3

There is no dispute that the Defendants acted under color of state law.

-7-

511 F.3d at 830 (internal quotation marks omitted).
Keating did not receive written notice of the charges against
him, the evidence against him with respect to them, or the reasons
for his punishment.

He also was not given an opportunity to

defend himself and, in fact, was punished without having been
found guilty of an infraction.

As Matthews' Disciplinary Report

stated, Keating was locked down on nothing more than "suspicion"
and an "ongoing investigation."
constitutional rights.

These actions violated Keating's

A pre-trial detainee "may not be punished

prior to an adjudication of guilt in accordance with due process
of law."
7.

Bell v. Wolfish, 441 U.S. 520 (1979).
The accepted standard for "requisite culpability" under

§ 1983 is not negligence, but deliberate indifference, which is
established only if there is actual knowledge of a substantial
risk of constitutional violation and a defendant disregarded that
risk by intentionally failing or refusing to take reasonable
measures to deal with the problem.

Daniels v. Williams, 474 U.S.

327 (1986); Szabla v. City of Brooklyn Park, Minnesota, 486 F.3d
385, 398 (8th Cir. 2007).
Deliberate indifference is something more than negligence but
less than actual intent to harm.

It requires showing that a

defendant was aware of facts from which the inference could be
drawn that there was a risk of constitutional violation, and that
he actually drew the inference. Farmer v. Brennan, 511 U.S. 825,
-8-

837 (1994). "Whether a prison official had the requisite knowledge
of

a

substantial

demonstration

in

risk
the

is

usual

a

question
ways,

of

including

fact

subject

inference

to

from

circumstantial evidence, . . . and a factfinder may conclude that
a prison official knew of a substantial risk from the very fact
that the risk was obvious." Id. at 842.
The Court notes the following facts which are essentially
undisputed:
*

Denzer knew that the written disciplinary Policy did not

reflect actual disciplinary practices at WCDC.

Denzer also knew

that Keating was being disciplined, but did not recall seeing the
Disciplinary Report that the Policy required him to receive.
*

Matthews wrote a Disciplinary Report that omitted facts,

date, time, and witnesses, in direct violation of the Policy, and
recommended that Keating be punished without any finding of guilt.
*

Cambron signed off on the Disciplinary Report despite

its obvious failure to comply with WCDC policy, and despite its
recommendation that Keating be punished without any finding of
guilt.
*

Fuller, Brewer, and Muggy agreed with the recommended

punishment, even though they had no evidence of guilt other than
being told that drug residue was found on some of Keating's mail.
This, of course, could have been the result of a contaminated
correspondent rather than drugs being placed in the cards.

-9-

Fuller, Brewer, and Muggy did not do a thorough investigation.
The Court finds the circumstantial evidence convincing on the
issue of whether Denzer, Matthews, Cambron, Fuller, Brewer, and
Muggy knew that Keating's due process rights either would be, or
were being, violated in connection with the lockdown. Denzer knew
his staff was not following WCDC Policy, and his staff punished a
pre-trial detainee without any underlying finding of guilt, in
violation of specific written Policy of their employer.
This conduct is more than negligence. In the Court's view it
satisfies the deliberate indifference standard of culpability.
Defendants' first objection will, therefore, be overruled.
8.

Defendants also contend that if Helder and Denzer are

liable in their official capacities on a failure to train theory,
the

remaining

Defendants

indifference theory.

cannot

be

liable

on

a

deliberate

Without citing any authority, Defendants

simply argue that "it would be logically and legally inconsistent
to concurrently hold that the individual officers, without being
trained, actually knew of the risk of a deprivation."
The Court does not agree.

"A prison official may be held

liable to a detainee if . . . his failure to train or supervise
the offending actor caused the violation."
F.3d 544, 550 (8th Cir. 2007).

Kahle v. Leonard, 477

Denzer admitted that WCDC did not

follow the Policy, and the facts reflect that it was not being
followed.

Denzer, as Jail Administrator, and Helder, as Sheriff,

-10-

were responsible for "managing the . . . operation of their . . .
facilit[y] in compliance with the laws and . . . within the
requirements of the United States Constitution."
503(a).

A.C.A. § 12-41-

The Court concludes, therefore, that Helder and Denzer

are liable in their official capacities for failing to train their
subordinates to follow the Policy.
It does not necessarily follow from the foregoing finding,
however, that Matthews, Cambron, Fuller, Brewer, and Muggy were
ignorant of the Policy.

The Policy is included in the official

Washington County Detention Center Policy Manual, and it is
reasonable to infer that employees are aware of what is in their
employer's official policy manual.
The

training

issue

here

is

not

failure

to

inform

the

employees that the Policy existed, but failure to train them that
they were expected to follow it.

More is encompassed in the

notion of "training" than simply making one's employees aware of
a

policy

--

it

is

incumbent

upon

superiors

to

train

their

subordinates that written policies are not mere window dressing -they are institutional practices the employees are expected to
follow. Were the law otherwise, the mere placing of an acceptable
policy

on

the

books

would

insulate

Washington

County

from

liability.
For these reasons, the Court sees no inconsistency in a
finding that Helder and Denzer -- in their official capacities as

-11-

Sheriff and Jail Administrator respectively -- are liable to
Keating for failure to train their subordinates to provide due
process in a disciplinary context, and a finding that those
subordinates

were

deliberately

indifferent

to

the

Keating's right to due process would be violated.

risk

that

Defendants'

second objection will, therefore, be overruled.
IT IS THEREFORE ORDERED that Washington County Defendants'
Objections

To

Report

And

Recommendation

(document

#69)

are

overruled.
IT IS FURTHER ORDERED that the Report And Recommendation Of
The Magistrate Judge (document #68) is adopted in toto.
IT IS FURTHER ORDERED that Matthew Michael Keating's claims
against

Cody

Stout,

Shirley

Moss,

Misty

Charles,

Brandon

Whitehouse, Charles Dobbs, Brad Morgan, Chad Morgan, Lori Schmidt
Wilson, Deputy Hurley, Deputy Sharp, Deputy East, and Lieutenant
Mason are dismissed.
IT IS FURTHER ORDERED that Matthew Michael Keating's
of

unreasonable

search,

unconstitutional

claims

conditions

of

confinement, and interference with mail are dismissed.
IT IS FURTHER ORDERED that plaintiff Matthew Michael Keating
be awarded judgment -- to be entered by separate document in
accordance with F.R.C.P. 58(a) -- in the sum of $11.00, plus his
costs

in the

amount of

$350.00,

jointly

and

severally

from

defendants Tim Helder, Sheriff of Washington County, Arkansas and
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Randall Denzer, Jail Administrator of Washington County Detention
Center, in their official capacities, and from defendants Randall
Denzer, Corporal Matthews, Sergeant Cambron, Sergeant Fuller,
Sergeant

Brewer,

and

Corporal

Muggy

in

their

individual

capacities.
IT IS FURTHER ORDERED that if any portion of the filing fee
in this case has been paid through deductions from the inmate
account of Matthew Michael Keating, the Clerk of Court refund that
amount to Keating.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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