Avery v. Helder et al

Filing 158

MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART 154 Report and Recommendations; DENYING 81 Motion for Summary Judgment; GRANTING 112 Motion for Summary Judgment; GRANTING 128 Motion for Summary Judgment; GRANTING IN PART AND DENYING IN PART 131 Motion for Summary Judgment; GRANTING IN PART AND DENYING IN PART 132 Motion for Summary Judgment; see order for specifics. Signed by Honorable Timothy L. Brooks on September 20, 2017. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
PLAINTIFF

ROBERTW. AVERY

V.

CASE NO. 5:16-CV-05169

SHERIFF HELDER, Washington County,
Arkansas; MAJOR RANDALL DENZER;
SERGEANT MORSE; SERGEANT ARNOLD;
ARAMARK CORRECTIONAL SERVICES, LLC ;
CHIEF MIKE PETERS, Springdale Police Department;
PATROLMAN VENCE MOTSINGER;
DEPUTY BRAD MORGAN; NURSE LANDON HARRIS;
SERGEANT STANTON; KARAS MEDICAL SERVICE;
SERGEANT AKE; LIEUTENANT FOSTER;
REGINA WALKER; LIEUTENANT REESER; and
DR. KARAS

DEFENDANTS

MEMORANDUM OPINION AND ORDER

Currently before the Court is the Report and Recommendation (''R&R") (Doc. 154)
of the Honorable James R. Marschewski, United States Magistrate Judge for the Western
District of Arkansas, which was filed in this case on July 21 , 2017 . The R&R considered
four separate Motions for Summary Judgment filed by Plaintiff Robert W . Avery (Docs. 81 ,
84, 86 , 92) ; a Motion for Summary Judgment filed by Defendant Deputy Brad Morgan (Doc.
94) ; a Motion for Summary Judgment filed by Defendant Aramark Correctional Services ,
LLC ("Aramark") (Doc. 112); a Motion for Summary Judgment filed collectively by
Defendants Dr. Karas, Karas Medical Service, Nurse Landon Harris, and Nurse Regina
Walker (Doc. 128); a Motion for Summary Judgment filed collectively by Defendants Sheriff
Helder, Major Randall Denzer, Sergeant Morse, Sergeant Arnold , Deputy Morgan,
Sergeant Stanton , Sergeant Ake, Lieutenant Foster, and Lieutenant Reeser (Doc. 131 );
and a Motion for Summary Judgment filed jointly by Defendants Chief Mike Peters and

Patrolman Vence Motsinger (Doc. 132).
The R&R is 53 pages long and discusses in great detail the factual and legal bases
supporting Mr. Avery's thirteen separate claims for relief. In issuing the R&R, Judge
Marschewski considered the entire summary judgment record and the testimony that Mr.
Avery gave during an evidentiary hearing on March 30 , 2017. On August 3, 2017, Mr.
Avery filed Objections (Doc. 155) to the R&R. Then , on August 9, 2017, Aramark filed a
Response (Doc. 156) to Mr. Avery's objections , argu1ng that the objections lacked the
requisite specificity to trigger de nova review. On August 10, 2017, Chief Mike Peters and
Patrolman Vence Motsinger filed a Response (Doc. 157) to Mr. Avery's objections , also
arguing that the objections were insufficiently specific to trigger de nova review. Chief
Peters and Patrolman Motsinger also pointed out that Mr. Avery's objections raised a new
issue that was not set forth in either the complaint or Amended Complaint, nor briefed on
summary judgment, namely that Patrolman Motsinger displayed deliberate indifference to
Mr. Avery's preexisting serious medical condition by placing him in leg irons for transport
from the Springdale Police Department ("SPD") to the Washington County Detention
Center ("WCDC").
Pursuant to 28 U.S.C. § 636(b)(1 ), the Court must give de novo consideration to
those portions of the R&R to which objections are made. However, in order to trigger such
review, the objections must address particular findings or conclusions of the magistrate
judge or assert specific allegations of error. See, e.g., Hudson v. Gammon, 46 F.3d 785,
786 (8th Cir. 1995) ("A district court must make a de novo determination of those portions
of a magistrate's report and recommendation to which objections are made."). The Court

2

finds that, on balance, Mr. Avery's objections are specific enough to trigger de novo review,
and in performing that review, the Court has considered the R&R, the entire record on
summary judgment, and the audio recording of the nearly three-hour evidentiary hearing
on March 30.
The R&R recommends that the Court take the following action :
(1) dismiss all claims against Nurse Harris, Nurse Walker, Sergeant Arnold,
and Lieutenant Reeser, as per Mr. Avery's request made during the
evidentiary hearing;
(2) dismiss Mr. Avery's claims concerning the refusal to provide him with a
vegetarian diet, the handling of his food, and the jail's grievance procedure,
as per Mr. Avery's request made during the evidentiary hearing;
(3) deny all of Mr. Avery's motions for summary judgment;
(4) grant Defendants' motions for summary judgment as to all of Mr. Avery's
claims, with the exception of his claim about the WCDC's denial of inmate
access to newspapers and/or news media ; and
(5) decline to take supplemental jurisdiction over Mr. Avery's Arkansas
Deceptive Trade Practices Act ("ADTPA") claim.
The Court has reviewed Mr. Avery's filing and discerns ten separate objections,
which are summarized as follows:
(1) objection to granting summary judgment on the claim that the prisoner
transport van used by the SPD created an unreasonable risk of harm;
(2) objection to granting summary judgment on the claim that Patrolman
Motsinger used excessive force or displayed deliberate indifference to an
established medical condition by placing Mr. Avery in leg irons during a
transport from the SPD to the WCDC;
(3) objection to the Court declining to exercise supplemental jurisdiction over
the ADTPA claim;
(4) objection to granting summary judgment to Aramark on Mr. Avery's claim
that he was served substandard, nutritionally inadequate food at the WCDC,
which resulted in his excessive weight loss;
3

(5) objection to granting summary judgment to Karas Medical Service for the
alleged delay in testing Mr. Avery for Hepatitis C;
(6) objection to granting summary judgment to Washington County and
various WCDC officers regarding Mr. Avery's claim about the lack of access
to a law library, and the alleged failure to provide sufficient paper, envelopes,
and access to the U.S. Postal Service;
(7) objection to granting summary judgment on the conditions-of-confinement
claims, including the lack of skid plates on the stairs, the slippery "overspray"
area in the showers, the lack of drain covers in the showers, the lack of
intercoms in the inmates' cells, the single toilet for 32 inmates to share , and
the policy of housing violent and non-violent inmates together;
(8) objection to granting summary judgment on the claim that the WCDC 's
visitation system creates an unreasonable risk of harm to inmates and
violates visitors' and inmates' right to privacy;
(9) objection to granting summary judgment on the claim that Deputy Brad
Morgan used excessive force or displayed deliberate indifference to an
established medical condition by placing leg irons on Mr. Avery during a
transport from the Arkansas Department of Correction ("ADC") to the WCDC;
and
(10) objection to granting summary judgment on certain official-capacity
claims.
Below, the Court will consider each of Mr. Avery's objections and explain its
reasoning as to which claims are sufficiently supported to survive summary judgment. In
doing so, the Court will not restate all the background facts that were set forth in the R&R,
but will instead mention only those facts that are pertinent to discussing each of the
objections. For the reasons set forth in this Opinion and Order, the Court will ADOPT IN
PART AND DECLINE TO ADOPT IN PART the R&R and preserve two of Mr. Avery's

claims for trial.

I. LEGAL STANDARD
The standard of review on summary judgment is well established. Under Federal

4

Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law. " The Court must review the facts in the light most favorable
to the opposing party and give that party the benefit of any inferences that logically can be
drawn from those facts. Canada v. Union Elec. Co. , 135 F.3d 1211 , 1212-13 (8th Cir.
1997). The moving party bears the burden of proving the absence of a genuine dispute
of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 586-87 (1986);

Nat'/ Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F .3d 602 , 606 (8th Cir.
1999). Once the moving party has met its burden , the non-moving party must "come
forward with 'specific facts showing that there is a genuine issue for trial. "' Matsushita , 4 75
U.S . at 587 (quoting Fed. R. Civ. P. 56(c)).
In order for there to be a genuine issue of material fact , the non-moving party must
produce evidence "such that a reasonable jury could return a verdict for the nonmoving
party. " Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson

v. Liberty Lobby, Inc. , 477 U.S. 242 , 248 (1986)). "The nonmoving party must do more
than rely on allegations or denials in the pleadings, and the court should grant summary
judgment if any essential element of the prima facie case is not supported by specific facts
sufficient to raise a genuine issue for trial. " Register v. Honeywell Fed. Mfg. & Techs., LLC,
397 F.3d 1130, 1136 (8th Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986)).

5

II. OBJECTIONS
A. Safety of Prisoner Transport Van

The van that was used to transport Mr. Avery from the SPD to the WCDC lacked
seatbelts and safety bars. Even so , Mr. Avery testified in his deposition that he was never
involved in an accident while he was a passenger in this transport van , and he at most
suffered scratches and bruises from being jostled about in the van. In his objections, Mr.
Avery asserts that the van should have been equipped with seatbelts, as he believes the
lack of seatbelts is evidence of the City of Springdale's deliberate indifference to his (and
other inmates') health and safety.
The Court overrules Mr. Avery's objection. As the R&R explained , the Eighth Circuit
has already determined that the lack of seatbelts in a transport van does not, in and of
itself, give rise to a viable Section 1983 claim . See Spencer v. Knapheide Truck Equip.
Co., 183 F.3d 902 , 906 (8th Cir. 1999), cert denied, 528 U.S. 1157 (2000) ("[E]ven using
an objective standard , we do not think that the Board's purchase of patrol wagons without
safety restraints nor its manner of transporting individuals in these wagons were policies
that obviously presented a 'substantial risk of serious harm."'). This claim is dismissed on
summary judgment.

B. Motsinger's Use of Excessive Force or Display of Deliberate Indifference
Mr. Avery apparently concedes that his excessive-force claim against Patrolman
Motsinger should be dismissed , as per the R&R's recommendation. See Doc. 155, p. 2.
However, Mr. Avery asserts that "[t]he Court used excessive force as the legal reasoning
when in fact my Complaint was about his deliberate indifference to my injured right

6

calf/ankle area ." Id. In other words, Mr. Avery objects to the Court dismissing his claim
altogether, using only an "excessive force" analysis, when he intended the claim to be
asserted in terms of the officer's "deliberate indifference." Patrolman Motsinger responds
that a deliberate.. indifference claim was never raised in the Amended Complaint and only
appears for the first time in Mr. Avery's objections to the R&R. See Doc. 157, p. 3.
The Court disagrees with Patrolman Motsinger's contention that the deliberateindifference claim is a brand new issue that was neither raised in the Amended Complaint
nor contemplated by the parties prior to the issuance of the R&R. With respect to the
Amended Complaint, the allegations concerning Patrolman Motsinger are as follows:
Springdale P.O. Patrolman Motsinger placed leg irons that were too small
upon my ankles, despite the numerous request[s] for larger leg irons. I suffer
nerve damage and blood clots as well as vericose veins. Motsinger was
wanto[n]ly abusive in the mistreatment of the plaintiff. The use of small leg
irons by Motsinger caused undue pain and suffering as well as mental and
emotional anguish .
(Doc. 27, p. 5). Interpreting Mr. Avery's prose pleading liberally, as the Court is required
to do, see Estelle v. Gamble , 429 U.S. 97 , 106 (1976), he has adequately set forth a
deliberate-indifference claim . Furthermore , Mr. Avery's Motion for Summary Judgment
against Patrolman Motsinger (Doc. 81) supports and gives additional color to that claim.
In the Motion, he reviewed his own medical history to establish that his leg condition had
been previously diagnosed by doctors; he asserted that he showed Patrolman Motsinger
his injured legs, and that the officer was well aware of those injuries prior to placing him in
leg irons; and he claimed that he warned Patrolman Motsinger that placing him in leg irons
could cause him pain and further injuries. Id. at 6. The Motion also charged Patrolman
Motsinger with "careless treatment of [Mr. Avery's] right leg and ankle" and with causing

7

intentional "pain , suffering and mental anguish ," id. at 7, both of which are facts that
support a deliberate-indifference claim.
According to the Supreme Court in Farmer v. Brennan , 511 U.S. 825 , 837 (1994),
an officer shows deliberate indifference when he "knows of and disregards an excessive
risk to inmate health or safety .... " Further, the Eighth Circuit has explained:
A claim of deliberate indifference has both an objective and a subjective
component. Thus, the relevant questions here are: (1) whether [the plaintiff]
had a serious medical need or whether a substantial risk to [his] health or
safety existed , and (2) whether [the officer] had knowledge of such serious
medical need or substantial risk to [the plaintiff's] health or safety but
nevertheless disregarded it.
Nelson v. Corr. Med. Servs. , 583 F.3d 522 , 529 (8th Cir. 2009) (internal citation omitted).

Keeping the above legal standard in mind , it is clear from the record that the parties
engaged in discovery with the understanding that Mr. Avery had, in fact, asserted a
deliberate-indifference claim. Take, for instance, Mr. Avery's deposition. In it, he testified
about his medical history and verified that he had been prescribed antibiotics for an open
wound on his right leg as late as March of 2015. See Doc. 115-1 , pp. 57-59. He further
testified that the wound "was still pretty much a raw wound ," id. at. 59 , and that it had not
yet healed as of May 23, 2016 , when Patrolman Motsinger placed him in leg irons for the
transport in question. Mr. Avery also testified that after he showed his wound to Patrolman
Motsinger before the transport, the officer "didn't care ," id. at 57 , and then proceeded to
tighten the leg shackle "one click" on the left, uninjured leg , but "three clicks"-which is
tighter-around the right, injured leg, id. at 56.
It appears that Patrolman Motsinger chose to view all of these allegations

8

exclusively as an excessive-force claim, and not a deliberate-indifference claim .1 The
Magistrate Judge also treated the claim as one alleging excessive force only, presumably
because Patrolman Motsinger briefed the issue that way in his affirmative Motion for
Summary Judgment (Doc. 134 ).

The narrow treatment of the claim in the R&R is

somewhat surprising, though, since Mr. Avery clearly stated during the evidentiary hearing
that he intended to sue Patrolman Motsinger for deliberate indifference, but not for
excessive force.
It goes without saying that even though the deliberate-indifference claim was not
briefed by Patrolman Motsinger, nor mentioned in the R&R, it is still a viable claim that
merits the Court's consideration. 2 In taking up the merits of the claim, the facts must be
viewed in the light most favorable to Mr. Avery. Doing so requires the Court to assume that
Patrolman Motsinger did, in fact, place leg irons on Mr. Avery during the transport on May
23, 2016-a fact Patrolman Motsinger denies. See Patrolman Motsinger's Affidavit, Doc.
106-1, p. 2 (explaining that he "specifically did not place leg irons on Mr. Avery" that day).
The parties agree that the entire trip was a distance of approximately 17 miles, which
Patrolman Motsinger maintains would have taken about 20-30 minutes to drive. However,
Mr. Avery contends that his legs remained shackled for over an hour before the shackles

.

1

By contrast, Deputy Morgan, against whom similar allegations were made, assumed in
his briefing on summary judgment that Mr. Avery had made both an excessive-force claim
and a deliberate-indifference claim against him. See Doc. 95, pp. 2-7.
2

The Court also observes that Patrolman Motsinger was certainly on notice of the
deliberate-indifference claim as of the date of the evidentiary hearing, and for the next
several months before the R&R was published, he had the opportunity to provide
supplementary briefing to the Magistrate Judge to address the issue. He chose not to do
so, in favor of arguing at this stage in the proceedings that the issue is "new," and that the
Court should not even consider it. See Doc. 157, pp. 3-4.
9

were finally removed .
Patrolman Motsinger agrees that the SPD's transport policy is to place inmates in
leg irons "if the inmates are being combative. " Id. He does not state in his affidavit if he
remembers whether Mr. Avery was combative that day; but the SPD jailers who assisted
with Mr. Avery's transport do remember.

Jailer Austin Bowen submitted an affidavit

affirming that all the detainees who were placed in the transport van under Patrolman
Motsinger's watch that day were cooperative, including Mr. Avery. See Doc. 106-2, p. 2.
Jailer Jean Rodriguez also stated in her affidavit that "Mr. Avery was being cooperative on
May-23, 2016 and that he and the other inmates transported to the WCDC on May 23 ,
2016 were placed in 'belly chains' per the standard practice ." (Doc. 106-3, p. 2).
Although Patrolman Motsinger insists that Mr. Avery remained in belly chains, and
not leg irons, for the duration of transport, Mr. Avery tells an entirely different story. Mr.
A very remembers showing his right leg wound to Patrolman Motsinger, and the officer
deliberately rolling down the soft leather uppers of Mr. Avery's boots, placing the leg irons
on Mr. Avery's ankles, and tightening the leg irons one click on the left ankle, and three
clicks on the right, injured ankle. Mr. Avery contends that no one else in the transport van
was placed in leg irons, and that he was singled out for this treatment. He also testified
that upon arriving at the WCDC, his ankles were in such a bruised and swollen state that
he required treatment on May 25, 2016, with ice packs and Naproxen, an anti-inflammatory
drug . The WCDC's medical records confirm that he was prescribed this course of
treatment on that date. See Doc. 130-1 , p. 19.
Because no one disputes that Mr. Avery was being cooperative prior to the
transport, and no one disputes that the SPD's policy was to place cooperative detainees
10

in belly chains and not leg irons, the material question of fact here is whether Patrolman
Motsinger-of his own accord , and not pursuant to SPD policy-placed leg irons on Mr.
Avery, without being required to and without any provocation , despite being shown the
injury on Mr. Avery's right leg. See Doc. 155, p. 3. The Court must now consider whether
triable issues of fact exist as to: (1) whether Mr. Avery's leg condition constituted a serious
medical need or a substantial risk to his health , and (2) whether Patrolman Motsinger knew
of such serious medical need or substantial risk , but deliberately disregarded it.
As to the first question , a serious medical need is "either obvious to the layperson
or supported by medical evidence , like a physician's diagnosis." Aswegan v. Henry, 49
F.3d 461 , 464 (8th Cir. 1995). There is no dispute that Mr. Avery's leg condition had been
diagnosed and treated by doctors for more than a year prior to the transport in question.
The record is replete with undisputed medical evidence of Mr. Avery's lower leg and foot
pain associated with varicose veins as early as January 13, 2014. (Doc. 130-1 , p. 34 ). He
was diagnosed with "[c]hronic venous stasis ulceration of the right lateral lower leg" on
November 27, 2015 . Id. at 37. He developed a wound on his right ankle that was deemed
"very slow to heal." Id. at 36 . And as of December 11 , 2015, the wound remained
unhealed and was being treated with Silvadene cream and dressing changes. Id.
A photograph of the wound appears in the record. See Doc. 149-4. Even though
the photo was taken at the WCDC on October 28 , 2016 , several months after the transport
in question, Mr. Avery testified during the evidentiary hearing that the photo accurately
reflects how the wound looked back in May of 2016 , when he first showed it to Patrolman
Motsinger.

11

As to the second question, the Supreme Court has held that the "unnecessary and
wanton infliction of pain" shows deliberate indifference to a prisoner's serious medical
needs. Estelle v. Gamble , 429 U.S. 97, 104 (1976) (internal quotation and citation
omitted).

Considering the legal standard the Court must adhere to when ruling on

summary judgment, there remain genuine, material disputes of fact as to whether
Patrolman Motsinger knew of Mr. Avery's serious medical need or condition prior to the
transport, and disregarded it in favor of placing him in leg irons for the purpose of inflicting
pain , without any legitimate penological reason for doing so. Mr. Avery's objection is
sustainee,-and this claim will be preserved for trial.
C. Supplemental Jurisdiction over ADTPA Claim
Mr. Avery objects to the R&R's recommendation that the Court decline to take
supplemental jurisdiction over his ADTPA claim. This claim alleges a civil conspiracy
between Washington County, Arkansas, and Aramark to manipulate food portion size in
order to drive up commissary sales of food that would supplement the ordinary diet. Mr.
Avery offers no reasons as to why the Court should continue to exert jurisdiction over this
state-law claim , other than the fact that he believes the claim to be meritorious.
The Court overrules his objection and adopts the Magistrate Judge's analysis and
conclusion that this claim involves complex and novel issues of state law, and is more
appropriately heard in state court.

Accordingly, the claim will be dismissed without

prejudice, and Mr. Avery will have an opportunity to refile it in state court if he so chooses.
D. Quality of Food and Weight Loss
Mr. Avery maintains a claim that the low caloric value of the food he was served at

12

the WCDC by Aramark resulted in him rapidly losing a significant amount of weight over
a short period of time . He asserts that Aramark, in concert with Washington County and
certain individual Defendant employees of Washington County, agreed to serve the
inmates insufficient amounts of food, such th.at Mr. Avery suffered weight loss in the
amount of approximately two pounds per week over a four-month period, for a total of
about 33 pounds of weight loss. Mr. Avery's objection as to the dismissal of this claim
offers no new law or facts that were not previously before the Magistrate Judge on
summary judgment.
The Court has reviewed the entire record with regard to Mr. Avery's weight loss and
concurs with the Magistrate Judge. Although the Constitution certainly does not condone
the starvation of inmates, Mr. Avery has not submitted a triable issue of fact that he
suffered an Eighth Amendment violation. He was considered obese, at 269 pounds, when
he entered WCDC custody in May of 2016 , and even after losing 33 pounds, he was still
considered overweight. He testified that prior to his arrest, in the "free world ," he routinely
ate up to 4,000 calories a day. See Doc. 115-1 , p. 18. But after his arrest, when he was
forced to eat the portion-controlled food that Aramark provided , his meals totaled about
3,000 calories a day-much less than what Mr. Avery was used to eating , but still sufficient
to meet the current daily recommended intake established by the Food and Nutrition Board
of the National Academy of Sciences' Institute of Medicine. See Doc. 115-2, p. 2.
Mr. Avery maintains that he suffered hunger pains and emotional distress as a result
of the diet that he was served at the WCDC.

However, the fact remains that while

incarcerated , Mr. Avery transformed from an unhealthy body weight, to a healthier body
weight. Moreover, the nursing staff at the WCDC noted his complaints of weight loss, and
13

they indicated on his medical record that if his weight dropped below the healthy range
indicated by his body mass index score, the staff would "reassess" his request to receive
additional food on his trays. (Doc. 130-1 , p. 10). It also is notable to the Court that Mr.
Avery admits he manipulated his caloric intake at the WCDC by choosing not to eat all the
food that was placed on his trays. He admitted during the evidentiary hearing that he often
traded food with other inmates because he perceived he had an allergy to processed
meats-a condition that he conceded was never diagnosed by a doctor. He also testified
that the item he tended to trade away to others was the protein-rich meat serving. He
would trade high-calorie meat for low-calorie vegetables, not because he had an
established medical or religious reason to refuse to eat meat, but because he simply did
not want to eat the meat. In short, the Court has difficulty sympathizing with Mr. Avery's
argument that the WCDC and Aramark starved him, when he voluntarily restricted his own
caloric intake. For all of these reasons and the ones stated in the R&R, this claim is
dismissed with prejudice , and Mr. Avery's objection to the dismissal is overruled.
E. Delay in Providing Results of Hepatitis C Test
When Mr. Avery was incarcerated at the WCDC, he was involved in a physical
altercation with an inmate. The inmate spat blood and saliva into Mr. Avery's eyes, and
Mr. Avery later learned that the inmate had tested positive for Hepatitis C. Mr. Avery then
became concerned that he might have contracted Hepatitis C from the inmate. It appears
that shortly after the incident, Dr. Karas ordered him to undergo a Hepatitis C screening ,
but then at some point, his chart was amended to reflect that the screening would be
performed three to six months later. After about three months, Mr. Avery was transferred
to ADC custody, never having been told whether he had contracted Hepatitis C. He had
14

not-but he claims that he suffered mental and emotional trauma due to the long period
of uncertainty.
"To prevail on a claim that a delay in medical care constituted cruel and unusual
punishment, an inmate must show both that: (a) the deprivation alleged was objectively
serious; and (b) the prison official was deliberately indifferent to the inmate's health or
safety. " Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005). And in order to find that
the deprivation alleged was objectively serious, the Court must first consider what, if any,
effect the delay in treatment had upon the inmate's health . Id. As the situation in the case
at bar did not inv~ve treatment for a medical condition , but only a scr-eening for a disease,
and since Mr. Avery provided no proof in the form of medical evidence to establish that he
suffered any detrimental health effect from the delay-as is required , see id. (quoting
Crowley v. Hedgepeth , 109 F.3d 500, 502 (8th Cir. 1997))-his objection is overruled , and

the claim is dismissed with prejudice .

F. Lack of Access to Law Library and Issues Regarding Mail
Mr. Avery's sixth objection concerns the lack of a law library at the WCDC. This
claim lacks merit and will be dismissed , as per the Magistrate Judge's recommendation .
Mr. Avery argues that the multiple civil lawsuits he was pursuing while incarcerated at the
WCDC might have been resolved in his favor, if only he had access to an on-site law
library. However, as the R&R explained , the WCDC is not required under law to have a
law library. Instead , prison officials are simply required to provide inmates with meaningful
access to the courts, which may be accomplished in a variety of ways. For example , the
WCDC is agreeable to transporting an inmate to the county law library if he is first granted

15

permission by a court. Mr. Avery stipulates that he never requested a court's permission
to use the county law library.
To prevail on this claim , Mr. Avery would need to show that he suffered either
prejudice or actual injury as a result of the WCDC's policy. "To prove actual injury, [a
prisoner] must 'demonstrate that a nonfrivolous legal claim had been frustrated or was
being impeded. "'

White v. Kautzky, 494 F.3d 677, 680 (8th Cir. 2007) (quoting Lewis v.

Casey, 518 U.S. 343, 353 (1996)). Here, Mr. Avery fails to establish facts that show that
the lack of an on-site law library was the cause of the dismissal of otherwise nonfrivolous
legal claims.3
With respect to Mr. Avery's claims regarding the amount of paper and envelopes
he was provided free of charge by the WCDC, and the allegation that certain WCDC
Defendants interfered with his mail, the Court has reviewed his objection and finds that it
asserts no new law or facts . The Court agrees with the Magistrate Judge that Mr. Avery
has failed to create a genuine, material issue of fact concerning prejudice he might have
suffered in bringing any of his legal claims due to alleged interference with the mail by the
prison guards, or due to a lack of paper or envelopes. For these reasons, the objection is
overruled .

3

For example, one of the supposedly nonfrivolous lawsuits he cites in support of his
argument is Avery v. Hys/ip, et al. , Case Number 5:16-CV-5283. The undersigned
presided over that case. Those claims were dismissed pursuant to an initial screening of
the complaint under the Prison Litigation Reform Act, 28 U.S.C. § 1915. The case was
entirely frivolous , as it consisted of allegations that the state public defenders had
inadequately represented Mr. Avery. Such claims are not cognizable under 42 U.S.C. §
1983. See 5:16-CV-5283, Doc. 8, p. 3 (citing Polk Cnty. v. Dodson , 454 U.S. 312 , 325
(1981 )). Other examples from cases cited by Mr. Avery in his objection are similarly
unpersuasive.
16

G. Conditions at the WCDC
The next objection is lengthy because it restates many of the same factual
contentions Mr. Avery raised in the summary judgment briefing and during the evidentiary
hearing concerning the conditions of his confinement at the WCDC. He mentions, for
example, the lack of skid plates on the stairs, the slippery "overspray" area near the pod
showers, the absence of drain covers in the shower area, the lack of intercoms in the
inmates' cells, the single toilet that multiple inmates must share in the pod area , and the
jail's practice of housing non-violent offenders with violent offenders.
The Court agrees with the R&R's finding that none of the above claims offend
contemporary standards of decency so as to create a constitutional right to relief. Mr.
Avery has not created a genuine, material question of fact that WCDC officials responded
inadequately to his grievances and/or showed deliberate indifference to concerns for health
and safety. It is true that the Eighth Amendment imposes upon jailers the responsibility to
"ensure that inmates receive adequate food , clothing, shelter, and medical care, and must
'take reasonable measures to guarantee the safety of the inmates."' Farmer, 511 U.S. at
832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-527(1984)). However, the particular
claims asserted by Mr. Avery, even if assumed true, would not be sufficient to create a
triable question of fact for a fact-finder to resolve . Accordingly, his objection is overruled.

H. Visitation Screens and Risk of Harm to Inmates
Mr. Avery also claims that the video-screen visitation system used at the WCDC
violates inmates' constitutional rights. He filed an objection to the dismissal of this claim,
arguing that visitors and inmates are subjected to various indecencies through the video

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visitation system , including being forced to view other inmates in the pod performing sexual
acts. He also claims that inmates' conversations with visitors are capable of being
overheard by other inmates, and on one occasion he was attacked by an inmate who had
overheard something derogatory Mr. Avery had said about him during visitation .
The Magistrate Judge is correct that neither visitors nor inmates have any
expectation of privacy in their conversations, and the way in which prisons and jails choose
to conduct visitation sessions is an administrative matter not generally within the Court's
oversight. This claim , even viewed in the light most favorable to Mr. Avery, fails to rise to
the level of a constitutional violation ; and his objection is overruled .

I. Morgan's Use of Excessive Force or Display of Deliberate Indifference
Mr. Avery claims that he suffered pain and discomfort at Deputy Morgan's han9s
when the officer placed him in leg irons on March 9, 2015, for an approximately four-hour
transport from an ADC facility to the WCDC. The transport vehicle was a car, not a van ,
and it was equipped with a security screen separating the front seat from the back seat.
Mr. Avery complains that Deputy Morgan knew about Mr. Avery's foot and ankle problems,

cf Section 11.B. , supra , but still placed him in leg irons for the duration of the trip .
According to Mr. Avery, Deputy Morgan first assured him that he would not need to wear
the leg irons , but later, when the two arrived at the transport vehicle, Deputy Morgan
changed his mind and applied the leg irons, allegedly with deliberate indifference to Mr.
Avery's preexisting foot and leg condition.
It appears Mr. Avery does not contest the fact that the WCDC 's transport policy
required the use of both waist and leg restraints during the transport in question. See Doc.

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96-4, p. 1 ("Detainee(s) transported outside the detention center will have a minimum of
waist restraints and leg restraints .. . .").

Unlike the situation involving Patrolman

Motsinger's use of leg irons, there is no question here that Deputy Morgan was required
to place leg irons on Mr. Avery because of established WCDC policy. Mr. Avery does not
contend that he suffered any long-term damage to his legs as a direct result of the
transport.
Under the circumstances outlined above , the Court finds that Deputy Morgan's
actions did not violate Mr. Avery's Eighth Amendment rights. But even if they did, and a
constitutional violation were- Glearly established , Deputy Morgan would be--entitled to
qualified immunity because he would have reasonably believed that placing Mr. Avery in
leg irons was required to comply with the WCDC transport policy. Mr. Avery's objection to
the dismissal of this claim is overruled .
J. Official-Capacity Claims

Mr. Avery's last objection concerns official-capacity claims related to: ( 1) the policies
adopted by Aramark and WCDC that allegedly evidence collusion and price-gouging
behavior in violation of the ADTPA, (2) the policy of the WCDC regarding the lack of an onsite law library, (3) and the policy of the WCDC regarding the distribution of a set amount
of paper and envelopes per week to each inmate.
With respect to the first policy noted in Mr. Avery's objection , the Court declined to
exert supplemental jurisdiction over the ADTPA cause of action , which relates to this
policy. As to the second policy in the objection , the Court already determined that Mr.
Avery failed to establish that the lack of an on-site law library violated his constitutional
rights. With regard to the third policy, the Court similarly found that Mr. Avery failed to
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establish that his constitutional rights were violated due to the WCDC's rules regarding
paper, envelopes, and access to the U.S. Postal Service. The objection is therefore
overruled.

Ill. CONCLUSION
For the reasons discussed herein, the Court ADOPTS IN PART AND DECLINES

TO ADOPT IN PART the R&R (Doc. 154).

The R&R is not adopted as to the

recommendation that the claim against Patrolman Vence Motsinger be dismissed. All
other recommendations are adopted.

IT IS THEREFORE ORDERED that:
•

Plaintiff Robert W. Avery's Motions for Summary Judgment (Docs. 81, 84,
86, 92) are DENIED;

•

Defendant Deputy Brad Morgan's Motion for Summary Judgment (Doc. 94)
is GRANTED;

•

Defendant Aramark Correctional Services, LLC's Motion for Summary
Judgment (Doc. 112) is GRANTED;

•

Defendants Dr. Karas's, Karas Medical Service's, Nurse Landon Harris's,
and Nurse Regina Walker's Motion for Summary Judgment (Doc. 128) is

GRANTED;
•

Defendants Sheriff Helder's, Major Randall Denzer's, Sergeant Morse's,
Sergeant Arnold's, Deputy Morgan's, Sergeant Stanton's, Sergeant Ake's,
Lieutenant Foster's, and Lieutenant Reeser's Motion for Summary Judgment

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(Doc. 131) is GRANTED IN PART AND DENIED IN PART, in that the Motion
is granted as to all claims asserted against them , with the exception of the
claim for denial of access to newspapers and/or news media against Sheriff
Helder in his official capacity, and Major Denzer in his official capacity;
•

Defendants Chief Mike Peters' and Patrolman Vence Motsinger's Motion for
Summary Judgment (Doc. 132) is GRANTED IN PART AND DENIED IN
PART, in that the Motion is granted as to all claims against them, with the

exception of the individual claim for deliberate indifference against Patrolman
Motsinger for an incrdent that occurred on May 23, 2016, involving leg irons;
•

All claims against Nurse Harris, Nurse Walker, Sergeant Arnold, and
Lieutenant Reeser, are DISMISSED WITH PREJUDICE on summary
judgment, as per Mr. Avery's request made during the March 30, 2017
hearing;

•

Mr. Avery's claims concerning the refusal to provide him with a vegetarian
diet, the handling of his food at the Washington County Detention Center,
and complaints about the jail's grievance procedure are DISMISSED WITH
PREJUDICE on summary judgment, as per Mr. Avery's request made during

the March 30, 2017 hearing; and
•

The Court declines to exert supplemental jurisdiction over Mr. Avery's
Arkansas Deceptive Trade Practices Act claim, and that claim is DISMISSED
WITHOUT PREJUDICE.

The effect of this Order is that the following claims are preserved for trial:

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(1) the individual-capacity claim for deliberate indifference against Patrolman
Motsinger for an incident that occurred on May 23 , 2016 , involving leg irons; and
(2) the official-capacity claims against Sheriff Helder and Major Denzer, which are
tantamount to claims against Defendant Washington County, Arkansas, related to the
policy of the Washington County Detention Center concerning inmate access to
newspapers and/or news media.
IT IS SO ORDERED on this

JI

f
day of Septembe ,

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