Solomon v. The United States Marshal Service et al

Filing 270

OPINION AND ORDER. Signed by Honorable J. Leon Holmes on May 30, 2017. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JAMES CLAYTON SOLOMON
REG. #03633-063
v.

PLAINTIFF

No. 5:10CV05163 LH

HUNTER PETRAY, Captain,
Benton County Detention Center, et al.

DEFENDANTS

OPINION AND ORDER
This is a prisoner civil rights case which, unfortunately, took nearly seven years to get to
trial. The day for trial finally came on May 22, 2017. All parties appeared and announced ready
for a trial to the Court. After nearly three days of testimony, the case is ready for findings of fact
and conclusions of law.

RELEVANT PROCEDURAL HISTORY
Having been convicted of a federal offense and served a term of imprisonment, in 2007
James Clayton Solomon was on supervised release in the jurisdiction of the Western District of
Arkansas when he was charged with committing new crimes while under supervision. On January 7,
2008, United States District Judge Robert T. Dawson found that Solomon had violated the
conditions of supervised release and sentenced him to five years in prison. United States v.

Solomon, No. 2:07CR20009-RTD (Jan. 7, 2008) (Document #29). Judge Dawson allowed Solomon
to self-report and gave him until April 2, 2008, to surrender at the Bureau of Prisons to begin serving
his sentence. Id. On February 6, 2008, Solomon wrote a letter designed to suggest that he was
committing suicide. He sent one copy of the letter to a local newspaper and another copy to Judge
Dawson. On Judge Dawson's copy he wrote, "judge dawson, may you die a slow and painful death
by a disease. You're not a god!"

Solomon did not commit suicide. He absconded. He was later apprehended in California
and returned to the Western District of Arkansas where he was placed in the custody of the United
States Marshals Service and housed in the Benton County Detention Center, which contracted with
the United States Marshals Service to house prisoners. Solomon was then indicted for failing to
surrender for service of sentence in violation of 18 U.S.C. §§ 3146(a)(2) and (b)(l). United States

v. Solomon, No. 2:08CR20029 JLH (Document #5). Solomon entered a guilty plea on May 23,
2008, before United States District Judge Jimm Larry Hendren. On October 10, 2008, Judge
Hendren sentenced Solomon to a term of imprisonment of twenty-four months to run consecutive
to the sentence in Case No. 2:07CR20009 and consecutive to sentences imposed in two different
state court cases.
Solomon commenced this action pro se by filing a handwritten complaint on August 31,
2010. He initially named as defendants the United States Marshals Service and twenty-four officers
of the Benton County Detention Center. In an addendum to the complaint, he subsequently
identified two Deputy United States Marshals, Susan Jones and Cory Thomas, as defendants. The
complaint and addendum alleged that Solomon had been beaten by deputies at the Benton County
Detention Center on two occasions, once in late April of 2008 and once in late August of 2008. He
referred to the incident in April of 2008 as a "blanket party." He also alleged that he was tasered
in the August incident.
The two Deputy United States Marshals were named as defendants because, according to
Solomon, they had conspired with the deputies at the Benton County Detention Center for him to
be beaten as a result of writing a letter to Judge Hendren. Solomon also alleged that Thomas had
used excessive force against him on a separate occasion.

2

Eventually, Solomon's court-appointed counsel 1 filed a seven-count amended and
supplemented complaint, which Solomon verified. Document# 146. That complaint reiterated the
essential facts alleged in Solomon's original complaint and addendum but did so with more clarity.
The amended and supplemented complaint named as defendants Deputy United States Marshals
Susan Jones and Cory Thomas, as well as the following officers of the Benton County Sheriffs
Department: Sheriff Keith Ferguson, Sheriff Kelley Cradduck, Major Gene Drake, Captain Hunter
Petray, Captain Robert Holly, Lieutenant Carter, Sergeant Robbins, Sergeant Torres, Sergeant Larry
Vaughn, Sergeant Charles Tomlin, Deputy Fry, Deputy Carlton, Deputy Wright, Deputy Johnston,
Deputy Roland, Deputy Rankin, Deputy Elkington, Deputy Lockhart, Deputy Strickland, Deputy
Lowther, Deputy Morrison, Deputy Wales, Deputy Juan Hernandez, Deputy Duncan, Deputy
Engleman, Deputy Randy Bryson, Deputy Reyes, and Deputy Christopher Johnson.2 Sheriff
Cradduck was named in his official capacity. All of the other defendants were named in their
individual capacities.
The first four counts were aimed at the Marshals. Count I alleged that Jones and Thomas
retaliated against Solomon for writing an "unsavory letter to Judge Hendren." Count II alleged that
the John Doe United States Marshals 1-5 retaliated against Solomon for writing the letter to Judge
Hendren. Count III alleged that Jones and Thomas conspired with personnel of the Benton County

1

On March 30, 2010, the Court appointed Morgan E. Welch to represent Solomon. Welch
was elected to a judicial office in 2012 and withdrew. On December 11, 2012, the Court appointed
Colin M. Johnson of Davis, Clark, Butt, Carithers & Taylor, PLC, to represent Solomon. Andrew
D. Curtis, also of the Davis firm, subsequently entered his appearance as co-counsel for Solomon.
Johnson and Curtis have represented Solomon in an exemplary fashion. The Court thanks them for
accepting the appointment and representing Solomon zealously.
2

The amended and supplemented complaint also named John Doe U.S. Marshals 1-5, but
they were never identified, never served, and never became part of the case.
3

Detention Center to cause the beating that he endured during the "blanket party" on May 19 or the
early hours of May 20, 2008. Count IV alleged that Thomas used excessive force by striking an
unprovoked blow to Solomon on or about April 25, 2008.
The last three counts targeted the Benton County defendants. Count V alleged that Deputy
Strickland, Sergeant Torres, Deputy Roland, Deputy Duncan, Deputy Bryson, and Sergeant Vaughn
beat Solomon during the "blanket party" on May 19, 2008, or the early morning hours of May 20,
2008. Count VI alleged that Captain Petray, Captain Holly, Sergeant Robbins, Sergeant Torres,
Sergeant Vaughn, Sergeant Tomlin, Deputy Fry, Deputy Carlton, Deputy Wright, Deputy Johnston,
Deputy Roland, Deputy Rankin, Deputy Elkington, Deputy Lockhart, Deputy Strickland, Deputy
Lowther, Deputy Morrison, Deputy Wales, Deputy Hernandez, Deputy Duncan, Deputy Engleman,
Deputy Bryson, Deputy Reyes, and Deputy Johnson used excessive force against Solomon in August
of2008 when they entered Solomon's cell, beat him, and repeatedly tasered him. Count VII alleged
that the officers of rank at the Benton County Detention Center failed to supervise and train the
personnel of the Benton County Detention Center properly and fostered a custom whereby the use
of excessive force was allowed and condoned.
Solomon subsequently filed a motion stating that, after the completion of discovery and a
review of all of the evidence exchanged, he was requesting that the Court dismiss his claims against
Sheriff Cradduck, Captain Holly, Sergeant Robbins, Deputy Reyes, Sergeant Torres, Sergeant
Tomlin, Deputy Fry, Deputy Carlton, Deputy Wright, Deputy Johnston, Deputy Rankin, Deputy
Elkington, Deputy Lowther, Deputy Morrison, Deputy Engleman, Deputy Bryson, and Deputy
Johnson.

Document #193.

The Court granted that motion and dismissed those defendants.

Document #194.

4

Also before trial, Solomon agreed that Count V, concerning the "blanket party," should be
dismissed as to Deputy Strickland, Deputy Duncan, and Sergeant Vaughn. The Court therefore
granted summary judgment as to those three defendants on Count V. Document #213 at 2. Thus,
when trial commenced, the only remaining Benton County defendant on Count V was Deputy
Roland. Id.
During the trial, near the completion of his case-in-chief, Solomon moved to dismiss his
claims against the United States Marshals Service defendants. That motion was granted and those
claims were dismissed with prejudice. Document #261. Solomon also dismissed his claims against
Deputy Roland and Deputy Duncan3 during the trial. Document #260. Deputy Roland had been the
remaining named defendant on Count V, which alleged the beating during the "blanket party." With
his dismissal, no defendants remained in that count.
After all of the dismissals described above, the remaining defendants were Sheriff Ferguson,
Major Drake, Captain Petray, Lieutenant Carter, Sergeant Vaughn, Deputy Lockhart, Deputy
Strickland, Deputy Wales, and Deputy Hernandez. The remaining counts were Count VI, which
alleged excessive force in August of 2008, and Count VII, which alleged a custom or practice of
allowing or condoning excessive force at the Benton County Detention Center, as well as a failure
to train and supervise the Benton County Detention Center personnel.
FINDINGS OF FACT

On August 22, 2008, Captain Hunter Petray, the jail administrator at the Benton County
Detention Center, assembled a specialized emergency response team, which the defendants called

3

Duncan had been named in Count Vand Count VI. The claim against him in Count V, as
noted above, was dismissed before trial, so this dismissal concerned Count VI.
5

the SERT team, for an operation in the section of the detention center where Solomon was housed.
The SERT team is the jailhouse version of a riot squad or a SWAT team. The members of the team
received special training and wore additional protective gear so they could enter a pod and quickly
gain control ofinmates without suffering injury. When inmates and their cells needed to be searched
for contraband, a SERT team would be deployed.
Captain Petray's decision to assemble the SERT team on August 22, 2008, was precipitated
by some inmates in the section of the detention center where Solomon was housed flooding their
cells, apparently by stopping their toilets or breaking sprinkler heads. According to Petray, inmates
would take advantage of shift changes to gain extra rolls of toilet paper or clothing. They would
report to an officer on duty during one shift that they were out of toilet paper or "whites" and, when
the shift change came, would reiterate the request for additional toilet paper or whites. Those
additional items would be hidden and used at a later time to plug the drain in the toilet, which would
cause flooding in the pod.
Because the officers had been unable to determine which inmates were causing the flooding,
the SERT team was assembled to go into the cells in the affected area, search the inmates and their
cells, seize any contraband found, and order inmates who had plugged their toilets to clean the area.
The team assembled on August 22 included Sergeant Larry Vaughn, Sergeant James Jessen,
Corporal Christopher Lockhart, Deputy Charles Strickland, Deputy Chad Wales, Deputy Frischman,
Deputy Michael Charles Dowdle, and Deputy Juan Hernandez. After being briefed, they assembled
outside the area where the operation was to occur and divided into teams of two. Frischman and
Hernandez went to cell 220 of Pod E-102, where Solomon was housed. Cell 220 was on the second
floor of the pod with a landing or mezzanine, bounded by rails, outside the door to the cell.

6

Frischman and Hernandez ordered Solomon to get on his knees and put his hands on the wall. He
complied with all of the orders that they gave. They searched the cell, found no contraband and
exited without incident.
Sometime later, at or near the end of the SERT team operation, Strickland and Jessen went
to Solomon's cell, accompanied by Petray, who was in civilian clothes, not in riot gear, and who
stood back. According to the Benton County defendants, Strickland and Jessen went to Solomon's
cell because he had been kicking and banging on the cell door, which is prohibited, and they
intended to instruct him not to do that. They say that when they arrived at the cell Solomon
precipitated an encounter by threatening Strickland. Solomon was ordered to put his hands on the
wall. He initially complied but then spun around and moved to strike Strickland. A struggle ensued.
With the assistance of Dowdle, Strickland and Jessen eventually subdued and handcuffed Solomon.
On this account, the incident was precipitated entirely by Solomon, who threatened Strickland and
then, after placing his hands on the wall, turned and went after Strickland.
Solomon's account is quite different. He testified that Strickland had been taunting him
before August 22 and came to his cell that day, alone, and taunted him. Solomon responded to the
taunting by inviting Strickland to remove his riot gear, enter the cell and lock the door so that they
could settle it. Strickland left and came back with other officers. The officers immediately started
yelling "stop resisting" and began tasering and beating Solomon for no reason. He responded, not
by striking back, but by attempting to pull himself out to the landing area where he could be seen
by other inmates, so the officers would stop beating and tasering him. He testified that he was
tasered nonstop throughout the confrontation.
The parties agree that the altercation took between two and three minutes.

7

The conflict in the testimony requires some assessment of the credibility of the witnesses.
Solomon's testimony, when it is not corroborated by other evidence, is difficult to credit. Solomon
alleged in his complaint that he had written a letter to Judge Hendren, stating that he hoped that
Judge Hendren would die a slow death. He also alleged that the Marshals retaliated against him for
writing this letter to Judge Hendren. The letter was produced in discovery and was written to Judge
Dawson, not to Judge Hendren. At trial, Solomon testified that Judge Hendren had sentenced him
to five years in prison for violating his terms of supervised release, when in fact it was Judge
Dawson. When it was pointed out to him that the court records show that Judge Dawson, not Judge
Hendren, revoked his supervised release and sentenced him to five years in prison, he expressed
surprise, because he continued to believe that it was Judge Hendren. Solomon also named several
persons as defendants who participated in the "blanket party" who were not employed at the Benton
County Detention Center in 2008 or who were not in the building on the date that the blanket party
allegedly occurred. He stated that he recognized the voices of these persons, but that proved to be
false. Similarly, Solomon alleged that he was transported from federal court in Fort Smith to the
Benton County Detention Center by United States Marshals, but that also was proved to be false.
And, as noted above, Solomon absconded after he was allowed to self-report. He wrote a false
suicide note, assumed an alias and obtained a false identification, and lied to the marshals about his
identity when he was arrested. Solomon is not a credible witness.
Strickland's account also is subject to doubts as to its credibility. According to his
testimony, the entire incident was precipitated by Solomon, and he and the other deputies were
entirely without fault. On Strickland's testimony, the physical confrontation was initiated by
Solomon, and he and the other deputies acted solely in self-defense. Someone at the Benton County

8

Detention Center, however, must have thought that the deputies were less than blameless in this
confrontation.
First, on Saturday, August 23, Solomon notified his public defender, James Pierce, that he
needed to visit with him regarding the incident on the previous day. Pierce sent his investigator,
Rafael Marquez, to the Benton County Detention Center to visit Solomon. When Marquez arrived,
he was denied access to Solomon. Marquez has worked for the public defender for more than fifteen
years. During that time, he has been denied access to a client of the public defender on only one
occasion: when he sought access to Solomon on August 23, 2008. As a result of Marquez being
denied access, Pierce had to travel to the Benton County Detention Center and insist that he and
Marquez be allowed to visit with Solomon, threatening to notify Judge Hendren or the Marshals
Service were he to be denied. 4
Second, there was evidence that on August 22 Deputy Lockhart photographed the places on
Solomon's body where he claimed to have been injured or where a taser had been used. Those
photographs disappeared. No one knows who caused them to disappear or what happened to them.
No evidence showed that they were deliberately destroyed or that any of the named defendants in
this case had anything to do with their disappearance. But it is suspicious.
Third, on Strickland's account, Solomon not only threatened an officer but also assaulted an
officer. These are very serious infractions of the detention center rules. Every witness from the
Benton County Detention Center who was questioned on the point testified that a disciplinary report
should have been written and that Solomon should have been disciplined. In fact, on August 23, in

4

After Pierce arrived at the detention center, he and Marquez were given access to Solomon.
Marquez photographed Solomon's injuries. Those injuries included skin abnormalities, which will
be discussed later; minor abrasions; and a broken toe.
9

a separate incident, Strickland wrote a disciplinary report against Solomon for making threatening
comments even though that day there was no physical confrontation and Solomon did not attempt
to strike him. Yet, no one wrote a disciplinary report charging Solomon with any infraction on
August 22, 2008. 5
Nevertheless, the Court has concluded that the written report prepared by Jessen is probably
accurate. That conclusion is based in part on the fact that Jessen' s report of the portions of the
SERT operation in which he participated includes an account of force used by Dowdle against an
inmate named Wilmoth, which, by Jessen's admission at trial, showed that Dowdle's use of force
was contrary to the policies of the Benton County Detention Center. The testimony established that
Wilmoth subsequently brought suit alleging that excessive force had been used against him during
the SERT operation on August 22, 2008, and that Benton County settled the case. That Jessen
documented an inappropriate use of force during the same SERT operation in the same report in
which he described the Solomon incident is reason to believe that his report is an honest and
accurate account.
Jessen's report, which is Plaintiffs Exhibit 14, states in pertinent part:
Once Deputy Strickland and I were at pod control, Deputy Johnston advised us that
Inmate Solomon in E-102 cell 220 had been kicking his cell door. Deputy Strickland
and I entered E-102 and proceeded to cell 220 where Inmate Solomon was being
housed. Deputy Strickland radioed for pod control to open the cell door. Deputy
Strickland ordered Inmate Solomon to get off of his bunk and to place his hands on
the wall. Deputy Strickland informed Inmate Solomon that he needed to stop
kicking or banging on his cell door.

5

Each member of the SERT team wrote a report of the events in which he participated.
These reports are not disciplinary reports-they report what happened but do not invoke the
disciplinary process.
10

After talking to Inmate Solomon Deputy Strickland instructed Inmate
Solomon to get back in his bunk. Deputy Strickland also instructed Inmate Solomon
to sit on his bunk and not to get up until told otherwise by a deputy. Inmate Solomon
asked Deputy Strickland what would happen ifhe did not stay in his bunk. Deputy
Strickland replied, "Then me and Sergeant Jessen would have to come back to your
cell." Inmate Solomon then stated to Deputy Strickland, "So you will come back by
yourself?" Deputy Strickland asked Inmate Solomon what he meant by himself.
Inmate Solomon said, "Why don't you take off your gear and shut the fucking door
behind you. Just you and me, one on one." I entered Inmate Solomon's cell from
Deputy Strickland's left and I ordered Inmate Solomon to get off of his bunk and
place his hands on the wall. Inmate Solomon responded very slowly to my order and
he was placed on the wall.
Once Inmate Solomon's hands touched the wall he pushed off of the wall
attempting to tum around. I attempted to gain control oflnmate Solomon's left arm
while delivering two knee strikes to Inmate Solomon's left common peronial.
Deputy Strickland attempted to gain control of Inmate Solomon's right arm while
delivering numerous knee strikes to Inmate Solomon's right common peronial.
Inmate Solomon continued resisting us and Deputy Strickland and Inmate Solomon
fell to the floor. I gave loud verbal commands for Inmate Solomon to stop resisting
or he would be tased. Inmate Solomon did not comply with my order and he
continued resisting. Deputy Dowdle arrived and attempted a mandibular angle
pressure point on Inmate Solomon. Inmate Solomon continued to resist.
I removed my taser from its holster and I yelled, "Taser, Taser, Taser" to let
Deputy Strickland know that I was deploying my taser. I drive stunned Inmate
Solomon in his back left lower shoulder area. After the cycle was finished on the
taser, Inmate Solomon continued to fight and resist. I again gave loud verbal
commands to Inmate Solomon to stop resisting or he would be tased again. Inmate
Solomon continued resisting and I attempted to drive stun him in his lower left back
area, but it was unsuccessful due to Inmate Solomon kicking at me and the taser. I
again attempted to drive stun Inmate Solomon, this time in his left outer thigh area.
On this attempt my taser made contact with Inmate Solomon's left outer thigh area.
At this point Deputy Frischman and Deputy Wales arrived to assist with Inmate
Solomon. I placed my taser back into its holster. Inmate Solomon was placed in
restraints and escorted to pod control to talk to Captain Petray and Sergeant Vaughn.
After operations were complete in E-102, the S.E.R.T. team returned to pod control.
Sergeant Vaughn, Corporal Lockhart and Myself entered E-102 and took pictures of
where I had tased Inmate Branson and Inmate Solomon. The S.E.R. T. team returned
to f-pod for debriefing by Captain Petray.

11

Strickland's report and Jessen's report are substantially consistent. Because the Court has
concluded that Jessen's report is probably accurate, it follows that Strickland's report also is
probably accurate. Strickland's report (Plaintiffs Exhibit 21) says, in pertinent part:
After Sergeant Jessen and I exited E-104, Deputy Johnston advised me that
Inmate Solomon, James (OCA# 88620) was kicking his cell door. Sergeant Jessen
and I entered E-102 and walked up to cell 220, where Inmate Solomon was housed.
I called pod control to open the cell door. I instructed Inmate Solomon to get off of
his bunk and place his hands on the wall. I talked to Inmate Solomon and instructed
him to stop kicking or banging on the cell door. I also stated to Inmate Solomon that
he was supposed to remain in his bunk until told otherwise.
I instructed Inmate Solomon to get in his bunk and stay there. Inmate
Solomon complied. After Inmate Solomon was sitting on his bunk, Inmate Solomon
asked what would happen if he did not stay in his bunk. I replied, "Then I and
Sergeant Jessen will have to come back to your cell. Inmate Solomon stated to me,
"So, you will come back by yourself?" I asked Inmate Solomon, "What do you
mean by me?" Inmate Solomon stated, "Why don't you take off your gear and shut
the fucking door behind you. Just you and me, one on one."
At this point, Inmate Solomon stood up. Sergeant Jessen entered the cell
from my left and instructed Inmate Solomon to place his hands on the wall. Inmate
Solomon responded very slowly to Sergeant Jessen's orders. Sergeant Jessen and
I attempted to place Inmate Solomon on the wall. Inmate Solomon then pushed off
of the wall.
I attempted to grab Inmate Solomon's right arm, and Sergeant Jessen
attempted to grab his left arm. Inmate Solomon began resisting and fighting with us.
I initiated several knee strikes to the right common peronial. Sergeant Jessen also
initiated several knee strikes to the left common peronial. I attempted to place
Inmate Solomon in a straight arm bar take down, with no success.
Inmate Solomon locked his elbow with his arm tucked towards his body.
Due to the knee strikes to Inmate Solomon's right common peronial, motor
disfunction [sic] was apparent. Inmate Solomon could not stand on his right leg, and
we fell to the floor. Once on the floor, Inmate Solomon continued to resist, I gave
loud verbal commands to Inmate Solomon to stop resisting. Inmate Solomon did not
comply. Sergeant Jessen informed Inmate Solomon that ifhe did not stop resisting
he would be tased. Inmate Solomon did not comply.
At this point, Deputy Dowdle came to assist us, and attempted a mandibular
angle while giving knee strikes to the right common peronial. Sergeant Jessen
12

yelled, "Taser, Taser, Taser." And drive stunned Inmate Solomon's back left lower
shoulder area. After Sergeant Jessen had released the taser and stopped tasing
Inmate Solomon continued to resist and fight with us. Sergeant Jessen again, drive
stunned Inmate Solomon in the left thigh area.
At this point, Deputy Wales had come to assist with Inmate Solomon.
Sergeant Jessen placed his taser back into its holster, and assisted Deputy Wales in
securing Inmate Solomon's feet and legs. At this point, I assisted Deputy Dowdle
in placing leg shackles on Inmate Solomon, checking for double locks, and checking
for proper fit and security.
Deputy Frischman and Deputy Wales escorted Inmate Solomon out to pod
control to talk to Sergeant Vaughn and Captain Petray. After Sergeant Vaughn was
finished speaking to Inmate Solomon, Deputy Dowdle and I escorted Inmate
Solomon back to his cell. Deputy Dowdle removed the leg shackles, then the
handcuffs. Deputy Dowdle and I exited the cell, closed the door behind us and
regrouped with the S.E.R.T. team at pod control. The S.E.R.T. team regrouped in
the briefing, where Captain Petray conducted debriefing.
According to Strickland's testimony on direct examination, when he arrived at Solomon's
cell Solomon was at the door looking out. Both written reports show that Solomon was not at the
door when Strickland arrived-he was sitting on his bunk. Strickland entered and instructed
Solomon to get off of his bunk and place his hands on the wall. Strickland admitted during crossexamination that Solomon complied, though he did not note Solomon's compliance in his report.
Strickland then instructed Solomon to stop kicking or banging on the cell door. At that point, the
stated purpose of the entry into Solomon's cell-to instruct him not to kick or bang on his
door-was accomplished. Strickland, therefore, could have exited at that point. Solomon was
facing the wall with his hands on the wall, so Strickland could have exited safely. Instead,
Strickland ordered Solomon to return to his bunk and stay there. Ordering Solomon to return to his
bunk and stay there had no apparent connection to officer safety or jail administration. Nonetheless,
Solomon complied and returned to his bunk. So far as the evidence shows, Strickland had no reason
to order Solomon to stay on his bunk until he was given permission by a deputy to get up. Solomon
13

responded to this apparently unnecessary restriction by offering to fight Strickland. Jessen then
entered the cell and instructed Solomon to place his hands on the wall. According to both reports,
Solomon responded slowly but did so slowly. At that point, Strickland and Jessen attempted to
place Solomon on the wall, which necessarily means that they put their hands on him. Strickland
testified on direct examination that he did not touch Solomon until Solomon attempted to hit him.
On cross-examination, however, Strickland admitted that he put his hands on Solomon to place him
on the wall, which was before Solomon attempted a blow. When Strickland and Jessen put their
hands on Solomon to place him on the wall, Solomon resisted, which started the struggle.
By this account, which the Court finds is probably true, Strickland and Jessen mishandled
the situation, and Solomon responded with aggression. Both sides were at fault. Either could have
avoided the struggle that ensued.
As noted, Strickland ordered Solomon to remain on his bunk until given permission by some
deputy to get up, when there was no apparent reason for such an order. Until that point, Solomon
had complied with all of the orders from both sets of deputies who had entered his cell that day.
When he was ordered to stay on his bunk until given permission by a deputy to get up, however,
Solomon responded by offering to fight Strickland, which of course was an inappropriate response,
even if the order should never have been given. Jessen, who was superior in rank to Strickland,
could have countermanded the order for Solomon to stay on the bunk. Instead, he ordered Solomon
to place his hands on the wall a second time. Solomon was in the process of complying with that
order, albeit more slowly than Strickland and Jessen wished, when they decided to put their hands
on him to expedite his movement to the wall. While that use of force may have been unnecessary,
it was not sadistic or malicious, nor was harming Solomon its purpose. Again, Solomon reacted to

14

the fact that Strickland and Jessen had put their hands on him by resisting-which he should not
have done.

The struggle began.

The deputies involved-Strickland, Jessen, and later

Dowdle-used force to gain control of Solomon. That force included grabbing and holding, striking
the common peronial area of Solomon's legs with their knees, the use of pressure point techniques,
and the use by Jessen of the taser. Jessen says that he tased Solomon twice-not multiple times as
Solomon claims. In view of the fact that the entire struggle lasted no more than two or three
minutes, Jessen's testimony is probably true.
As noted above, someone at the Benton County Detention Center apparently believed that
the officers were not blameless in the confrontation with Solomon on August 22. Otherwise, there
is no explanation as to why they denied Marquez access to Solomon on August 23. Furthermore,
if the officers recognized that they were partially at fault for precipitating the struggle with Solomon,
that could explain why they did not seek to discipline Solomon for threatening Strickland and
attempting to strike him during this encounter. And, if the photographs taken by Lockhart of
Solomon's injuries on August 22 were destroyed intentionally (which has not been proven), that fact
could be explained by the fact that the officers mishandled the situation.
Strickland and Jessen's initial use of force was to move him to the wall, where he had been
ordered to go, more quickly than he was moving on his own. The subsequent uses of force
constituted an effort to regain control after Solomon began to resist. Although they mishandled the
situation, the officers did not use force on Solomon sadistically or maliciously or for the purpose of
causing harm or injury.
Photographs of Solomon's body were taken by Marquez on August 23. The photographs
show a number of areas of his skin with an abnormal condition marked by discoloration and bumps.

15

Pierce testified that these marks appeared to be the result of the use of the taser. All of the officers
testified to the contrary. The Court cannot say whether the skin abnormalities evident in the
photographs were caused by the taser. Solomon did not prove by a preponderance of the evidence
that these abnormalities in his skin were caused by the taser. In any event, so far as the evidence
shows Jessen is the only person who used a taser on Solomon, and he was never named as a
defendant in this case. Therefore, even if those skin abnormalities were caused by a taser, Solomon
failed to prove that any named defendant caused them.
Solomon accused Petray of striking him on the neck with a hard instrument while the
deputies were beating and tasering him. He also accused Petray of spitting in his hair at the pod
control center. Solomon did not testify at trial that Petray had done these things. Marquez testified,
however, that Solomon told him on August 23 that Petray had done those things. Petray denied
doing them. The photographs taken by Marquez show that Solomon suffered a scrape on his neck
where he alleged that Petray struck him. That scrape appears to be the kind of abrasion that would
have occurred during the struggle with Strickland, Jessen, and Dowdle-not the kind of serious
injury that would have been caused by Petray striking Solomon on his neck with a hard instrument.
Solomon has failed to prove by a preponderance of the evidence that Petray used force against him.
Solomon failed to prove by a preponderance of the evidence that Vaughn, Wales, Lockhart,
or Hernandez used excessive force against him.

16

CONCLUSIONS OF LAW

On August 22, 2008, James Clayton Solomon was in the custody of the United States
Marshals Service having been convicted in two cases and sentenced to serve a term ofimprisonment
in the Bureau of Prisons in one of them. In Case No. 2:07CR20009-1, he had been sentenced to
serve a term of sixty months in the Bureau of Prisons. In Case No. 2:08CR20029-l, he had entered
a guilty plea and been convicted of knowingly failing to surrender for service of sentence but had
not yet been sentenced. At least with respect to Case No. 2:07CR20009-l, Solomon was no longer
a pretrial detainee: he was serving a sentence of imprisonment. His constitutional claims of
excessive force therefore arise under the Eighth Amendment. Kingsley v. Hendrickson, 135 S. Ct.
2466, 2475 (2015). To prevail on his claim that a defendant used excessive force against him,
Solomon has the burden of proving by a preponderance of the evidence that the force was not
applied in a good faith effort to maintain or restore discipline but, instead, was applied maliciously
or sadistically to cause harm. See Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S. Ct. 1175, 1178, 175 L.
Ed. 2d 995 (2010). Solomon failed to prove by a preponderance of the evidence that any defendant
used force against him maliciously or sadistically to cause harm. Although the officers handled the
situation poorly, and the struggle during which Solomon suffered minor injuries was partially their
fault, those facts do not give rise to a constitutional violation. Therefore, Solomon's individual
capacity claims against Captain Petray, Sergeant Vaughn, Deputy Lockhart, Deputy Strickland,
Deputy Wales, and Deputy Hernandez for using excessive force must be dismissed.
Solomon's claims against the officers in their official capacities are essentially claims against
Benton County. See Baker v. Chisom, 501 F.3d 920, 925 (8th Cir. 2007). Individual liability must
be found on an underlying substantive claim before the County or the supervisors can be liable.

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Moore v. City ofDesloge, Mo., 647 F.3d 841, 849 (8th Cir. 2011). Because no individual has been

found liable on an underlying substantive claim, the claims asserted by Solomon for supervisor
liability against Sheriff Ferguson, Major Drake, Captain Petray, Lieutenant Carter, and Sergeant
Vaughn in their individual capacities must be dismissed, and all of Solomon's official capacity
claims also must be dismissed.
CONCLUSION

For the reasons stated above, judgment will be entered in favor of the defendants. The
claims of James Clayton Solomon will be dismissed with prejudice.
IT IS SO ORDERED this 30th day of May, 2017.

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