Hubbard v. John Does 1 to 4 et al
Filing
56
OPINION AND ORDER granting in part and denying in part 45 Motion for Summary Judgment and dismissing the claims against Defendants Sergeant Walton, Michael Freeman and Bret Hagan. The Motion 45 is DENIED with respect to the excessive force claim asserted against Deputies Stout and Corporal Baughman. A trial will be scheduled. Signed by Honorable P. K. Holmes, III on April 23, 2018. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
PATRICK LEWIS HUBBARD
v.
PLAINTIFF
Civil No. 5:16-cv-05319
SGT. WALTON; DEPUTY JAMES
STOUT; CORPORAL KEVIN
BAUGHMAN; DETECTIVE
BRET HAGAN; and SERGEANT
MICHAEL FREEMAN
DEFENDANTS
OPINION AND ORDER
Plaintiff, Patrick Lewis Hubbard, filed this action pursuant to 42 U.S.C. §1983. He
proceeds pro se and in forma pauperis. Plaintiff is currently incarcerated in the Grimes Unit of
the Arkansas Department of Correction. The events at issue in this case occurred while Plaintiff
was detained in the Washington County Detention Center (WCDC).
The case is before the Court on the Motion for Summary Judgment (ECF No. 45) filed by
the Defendants. Plaintiff has responded (ECF No. 51) to the Motion.
Plaintiff maintains that while he was incarcerated at the WCDC that his constitutional
rights were violated in the following ways: Deputy Stout and Corporal Baughman used excessive
force against him on August 18, 2015; he was subjected to cruel and unusual punishment when
Sergeant Freeman ordered that he be waist chained and shackled whenever he left the cell
including in the shower which resulted in Plaintiff slipping and falling; Sergeant Walton exhibited
deliberate indifference to Plaintiff’s safety when she watched the August 18, 2015, use of
excessive force against him and did not intercede on his behalf; and Detective Hagan deprived him
of substantive due process and invaded Plaintiff’s privacy when he forced the Plaintiff to undergo
1
testing for Hepatitis C and human immunodeficiency virus (HIV). Plaintiff has sued each
Defendant in his/her personal capacity only. (ECF No. 31).
I. BACKGROUND
Plaintiff was arrested on August 17, 2015, by the Fayetteville Police Department for 1st
degree terroristic threatening and 2nd degree stalking. (ECF No. 48-2 at 1). The allegations behind
the criminal charges were that he had been threatening Brandi Copeland, an employee of the
WCDC. (ECF No. 48-11 at 6). Plaintiff indicated in his deposition that he had been dating her on
and off for about two weeks. (ECF No. 48-11 at 6). However, when he was interviewed by
Detective Hagan, Plaintiff indicated he had been seeing Copeland on and off for two months. See
also (ECF No. 48-2 at 12) (statement of Brandi Copeland that they had been seeing each other on
and off for about four months).
Plaintiff is Black. (ECF No. 48-2 at 3). When booked on August 18, 2015, it was noted
that he was 6'3" tall and weighed 280 pounds. Id. at 2.
Following his arrest, Plaintiff was taken to the WCDC just prior to midnight. (ECF No.
48-2 at 1). In the early morning hours of August 18, 2015, during the booking process, Plaintiff
was taken to the Automated Fingerprint Identification System (AFIS) room for fingerprinting, to
have booking pictures taken, and to document his tattoos. Id.
Defendants’ Version of the Events In the AFIS Room
Defendants state that Plaintiff was verbally aggressive and “very slow and resistive turning
to face the appropriate directions.” (ECF No. 48-5 at 3). When told to face the grey wall so a
picture could be taken of a tattoo on his neck, Plaintiff struck the wall hard enough to break the
grey photograph backdrop and causing two of his knuckles to “bust open” and “splatter[] blood on
the wall.” Id.
2
Deputies Stout and Harris attempted to restrain the Plaintiff but were struggling due to
Plaintiff’s “size” and “aggressiveness.” (ECF No. 48-5 at 3). Corporal Baughman attempted to
“assist by gaining control of Hubbard’s head and guiding him to the floor.” Id. When this did not
work, Corporal Baughman drew his taser and deployed it striking Plaintiff in the right side just
below his breast. Id. When this elicited only a mild reaction, Corporal Baughman concluded that
“the probes had not made a good connection.” Id. For this reason, Corporal Baughman “drive
stunned [Plaintiff] in the right lower thigh area completing the arc.” Id. The deputies were then
able to force Plaintiff to the floor. Id.
When the five second drive stun cycle was over, Corporal Baughman reported that he
instructed the Plaintiff to “stop resisting and place his hands behind his back or he would be tased
again.” (ECF No. 48-5 at 3). When Plaintiff continued to resist and refused to comply with
instructions, Corporal Baughman again “deployed a five second drive stun.” Id. When Plaintiff’s
behavior continued, Corporal Baughman warned him that he would be tased again. Id. When
Plaintiff did not comply, Corporal Baughman “delivered another five second drive stun to
[Plaintiff’s] left lower back.” Id. This time when Plaintiff was instructed to place his hands behind
his back, he complied and handcuffs were placed on him. Id.; see also (ECF No. 48-5 at 1112)(Corporal Baughman’s incident report).
The nurse was called and came and removed the probes. (ECF No. 48-5 at 3). Plaintiff
was placed in a restraint chair and put into a holding cell. Id. According to Corporal Baughman,
Plaintiff then began saying he had AIDS. Id. Plaintiff also told Corporal Baughman and several
other deputies that when they got home they had better make love to their wives and kiss their kids
goodbye because they were going to die due to their behavior. Id. Plaintiff made multiple
statements to the affect that harm would come to the deputies and their families. Id.
3
Sergeant Walton reported that her first contact with the Plaintiff occurred when she was
called to the booking area due to the fact that he was “yelling and acting strange.” (ECF No. 485 at 5). When she arrived, Plaintiff had already been placed in a holding cell by Corporal
Baughman. Id.
Sergeant Walton instructed Deputy Stout and Corporal Baughman to take Plaintiff to the
AFIS room for prints. (ECF No. 48-5 at 5). Sergeant Walton indicated she could hear the Plaintiff
“ranting and screaming about being a gangster and what he could do to all of us.”
Id.
Subsequently, Sergeant Walton heard a loud bang and looked into the room and saw the deputies
trying to restrain the Plaintiff. Id. Sergeant Walton called for assistance and then entered the
room. Id. Deputies responded and once she saw that the Plaintiff was secured, she called the
deputies off one at a time. Id. Sergeant Walton indicates she then noticed the Plaintiff had been
tased and she called the nurse. Id.
Plaintiff was strapped down in a restraint chair. While in the chair, Sergeant Walton
reported that Plaintiff made threats against Deputy Stout and Corporal Baughman and their
families. (ECF No. 48-5 at 5). Sergeant Walton indicated that Plaintiff stated that he had gang
members and family who could take care of them all. Id. She also noted that Plaintiff stated he
“went way back” with Deputy Stout and the next time he saw Deputy Stout that he would die. Id.
According to Sergeant Walton, Plaintiff repeated this threat. Id. Sergeant Walton instructed
Deputy Stout to have no further contact with the Plaintiff. Id.
Deputy Vickery, Deputy Stout, Deputy Tripodi, Deputy Hudgens, Deputy Sena, Corporal
Rose, Deputy Ridenoure, Sergeant Muggy, Deputy Garcia, and Deputy Gardner, who all
responded to the request for assistance, also submitted incident reports about Plaintiff’s conduct
and the threats that he made. (ECF No. 48-5 at 6-19, 21). Deputy Harris was also present during
4
the incident. Id. at 20. Plaintiff was placed in administrative segregation for fifteen days “due to
his mental state and making threatening comments towards officers.” Id. at 7. Instructions were
issued providing that there had to be two deputies present any time they were dealing with the
Plaintiff. Id.
Plaintiff’s Version of What Occurred in the AFIS Room
According to the Plaintiff, he punched the wall as they told him to turn around because he
was upset about being arrested. (ECF No. 48-11 at 11). Plaintiff testified that Deputy Stout was
“acting kind of tough” and was “saying some smart stuff out of the mouth.” Id. at 33. In Plaintiff’s
opinion, Deputy Stout had a “foul attitude towards” him. Id.
Plaintiff indicated that when they all rushed him that he just stood there and made no
attempt to hit anyone and was not struggling or resisting in anyway. (ECF No. 18-11 at 11 & 19).
Plaintiff testified that the first time he was tased he just stood there. Id. The second time he was
tased he started going to the ground. Id. Plaintiff testified that when he was on the floor, he was
tased another time when he was face down on the ground, three people had his arms, and one
deputy had a foot on his head. Id. Plaintiff indicated that right before Corporal Baughman tased
him the fourth time, Corporal Baughman told him to stop resisting. Id. at 20. Plaintiff testified he
screamed that they were trying to kill him. Id. He also told them that his arm had been broken
and would not bend back like they wanted it to. Id. at 25.
Plaintiff testified it was Corporal Baughman who tased him “and continued to tase [him],
even though [he] wasn’t struggling or – anything.” (ECF No. 48-11 at 19). Plaintiff denied that
Corporal Baughman warned Plaintiff that he was going to be tased unless he complied with orders.
Id.
5
Plaintiff testified that he was tased a total of four times. (ECF No. 48-11 at 11). Plaintiff
was then handcuffed and restrained and Plaintiff testified Deputy Stout still had his knee on the
left side of Plaintiff’ head. (ECF No. 48-11 at 11). Plaintiff testified Deputy Stout “stood up and
dropped back down on my head with his knee.” Id. at 11-12 & 14. Plaintiff indicated that this
action caused blood to come from his left ear. Id. at 14. Plaintiff was then stood up and placed in
the restraint chair. Id. at 12. Plaintiff testified the entire incident happened in a matter of seconds.
Id. at 22.
Plaintiff stated that the taser caused extreme pain but the pain only lasted seconds. (ECF
No. 48-11 at 26). He suffered no other physical injuries other than where the prongs had been in
his skin on his left side. Id. Plaintiff testified the taser peeled the skin away and “burn[ed] it in
that area.” Id. The only treatment he received from the nurse was that she removed the prongs.
Id. Plaintiff did not ask for any medical treatment. Id. at 27. He did not receive any treatment for
the injuries to his hand from where he struck the wall. Id. Plaintiff testified his hand was not
bleeding very much. Id.
Plaintiff testified he did not complain about his ear bleeding. (ECF No. 48-11 at 14).
In
fact, Plaintiff testified he actually did not realize his ear was bleeding until after he was taken to
isolation. Id. at 15. He stated that his ear was hurting so he rubbed it and felt the blood. Id. It
was not a lot of blood and he did not ask for any treatment and did not report it on the kiosk. Id.
at 16. His ear continued to ache from the knee drop for approximately four days. Id.
Plaintiff testified that with respect to Sergeant Walton, she just basically “sat” and
“watched” without doing anything to intervene or “correct or discipline the officers for doing it.”
(ECF No. 48-11 at 29-30). Plaintiff also indicated that Sergeant Walton could not have heard him
6
ranting and raving in the AFIS room about a Gangster Disciple because he never said a word until
after he was being tased. Id.
When Plaintiff was placed in the restraint chair, he stated that he and Deputy Stout knew
each other. (ECF No. 48-11 at 17). Specifically, Plaintiff testified he said that “Deputy Stout and
I go way back, and he’s going to die when I see him.” Id. Plaintiff, however, did not have any
prior relationship with Deputy Stout. Id. at 16-17. Plaintiff testified he only said that to aggravate
Deputy Stout. Id. at 17. Id.
Plaintiff admitted that he threatened to kill Deputy Stout’s family and have sex with his
wife while Deputy Stout watched. Id. at 19. Plaintiff also asked the deputies if they were scared
of contracting HIV since his hand was bleeding. Id. at 17-18. Plaintiff testified he told the
deputies that he was a member of the Gangster Disciples. Id. at 30.
At this point, Sergeant Walton started completing the medical questionnaire part of the
booking process. (ECF No. 48-11 at 12). Plaintiff testified that he noticed “someone had blood
on them, so when she asked me was I HIV-positive, I told [her] yes.” Id. He also indicated he had
been diagnosed with Hepatitis C. (ECF No. 48-4 at 1). When Sergeant Walton asked him if he
had answered the questions truthfully, Plaintiff testified he stated “no, I wasn’t HIV-positive; I just
said that.” (ECF No. 48-11 at 12).
The Video of What Occurred in the AFIS Room
Plaintiff is seen entering the AFIS room. He is not wearing a shirt and has a pair of jeans
on. Plaintiff walks to a gray backdrop or screen on a cement block wall and stands in front of it.
His back is to the screen. One deputy is standing at what appears to be a camera station. Another
deputy is sitting at a computer with his back to the Plaintiff. Another deputy is standing at the
door with a man who was dressed in street clothes. There is no audio.
7
Plaintiff then turns to his left side. The deputy at the camera station and the Plaintiff appear
to be talking and the deputy is gesturing to the Plaintiff. Plaintiff turns so he again has his back to
the screen. After a period of time, Plaintiff turns to his right side. Plaintiff then turns to face the
screen. Plaintiff strikes the screen with his right fist. The screen breaks.
The deputy, who is at the camera station, grabs ahold of the Plaintiff’s right arm and then
pushes him against the wall. The two other uniformed deputies rush to the wall to assist. The man
in street clothes also rushes over to assist. Plaintiff is wrestled to the ground (time stamp
approximately 2:50) with one deputy pulling him around the face and neck area. There is no view
of Corporal Baughman’s use of the taser. Plaintiff is placed on the floor face down. One deputy
is at Plaintiff’s head with one hand on Plaintiff’s head holding it to the floor and the other hand
appears to be on his back or arm. The two uniformed deputies are each on one side of the Plaintiff.
The man in street clothes is to the Plaintiff’s right side. A uniformed female enters the room and
is standing at Plaintiff’s feet. Another two deputies enter the room and assist with holding the
Plaintiff on the floor. Several more deputies enter the room but just observe.
Plaintiff remains on the floor for several minutes (from time stamp 2:50 to approximately
time stamp 6:15) with deputies holding him down. A woman wearing scrubs, presumably the
nurse, enters the room (approximately time stamp 6:00). Plaintiff is handcuffed with his arms
behind his back and then raised to a sitting position (at approximately time stamp 6:15). The nurse
bends down and appears to be examining the Plaintiff. She then leaves the room. Plaintiff is stood
up (time stamp 6:49) and led from the room. There is a round spot on the floor that may be blood.
The spot was not there are the beginning of the video.
8
The HIV Investigation
Information regarding the incident was presented to the prosecuting attorney in support of
an arrest warrant for terroristic threatening, aggravated assault on a corrections officer, and
destruction of vital public property. (ECF No. 48-2 at 5 & 24). Judge Lindsay found probable
cause and set bond. (ECF No. 48-2 at 6). An order of protection was issued by Judge Martin
covering Brandi Copeland. (ECF No. 48-2 at 7-9).
Detective Hagan began an investigation regarding Plaintiff’s HIV status. (ECF No. 48-6
at 1). He discovered that Plaintiff had advised the Granada County Sheriff’s Office in Mississippi
that he was HIV positive. 1 Id. at 2. On August 20, 2015, Plaintiff advised Detective Hagan that
he had made up the HIV statement. Id. at 3. Plaintiff testified that Detective Hagan told him if he
did not consent to the blood draw that “he would have a subpoena done and forcefully draw the
blood.” (ECF No. 48-11 at 13). Plaintiff consented to a blood draw. Id. Southern Health Partners
(SHP) drew his blood on August 20, 2015, but it was later learned that the Arkansas Department
of Health (AHD) requires their own blood draw. (ECF No. 48-6 at 3). The blood drawn by SHP
was discarded. Id.
On August 21, 2015, Plaintiff again consented to a blood draw for testing purposes and
was transported to the AHD where the blood draw was done. (ECF No. 48-6 at 3). On August
26, 2015, the test results were received by Detective Hagan stating Plaintiff was HIV negative. Id.
Plaintiff testified that he was not given the results of the blood test until after he filed this case.
(ECF No. 48-11 at 13). After receiving the negative test results, Detective Hagan requested that a
prosecutor review and, if applicable, obtain an arrest warrant for Plaintiff for communicating a
1
Plaintiff testified he was “pretty sure” that he had not made this statement to Grenada County. (ECF No. 48-11 at
38).
9
false alarm. (ECF No. 48-6 at 6). Plaintiff submitted no requests or grievances about the blood
draws or Detective Hagan’s conduct.
Plaintiff testified he feels that the actions taken by Detective Hagan invaded his privacy.
(ECF No. 48-11 at 40). Plaintiff stated he “never gave any indication that me and Brandi Copeland
had unprotected sex, that we had anything.” Id. He also notes that it was not in Detective Hagans’s
report that Copeland said anything about them having been intimate. Id. Plaintiff conceded it was
possible that she did report they had intimate contact. Id.
The Interview
There is a video with audio of the interview. (ECF No. 48-8, Exhibit A-7). Plaintiff is
seen first sitting in an interview room with his arms and legs shackled. Detective Hagan enters the
room and explains that he will be talking to the Plaintiff about his HIV status because there was
some information that Plaintiff reported being HIV positive. Detective Hagan said he did not
know if the information was true or not.
Plaintiff replied he was so drunk when he was being booked in that he was “out of his
mind.” Plaintiff stated that the deputies had “caged” him, tased him, used physical force against
him, and threw him on the floor. Plaintiff admitted he did tell the deputies he was HIV positive
when he saw the blood on his hands. However, Plaintiff states he then turned around and told the
booking deputy he did not have AIDS and the only medical problem he had was high blood
pressure.
Detective Hagan read Plaintiff his rights before he asked Plaintiff any questions. Plaintiff
signed the rights form.
Detective Hagan then went through the intake medical questionnaire with Plaintiff.
Despite what his intake medical questionnaire said, Plaintiff stated he had never been diagnosed
10
with Hepatitis C. Plaintiff also indicated that after the struggle, when they continued asking him
questions off the medical questionnaire, he answered that he had HIV. Plaintiff indicated he was
still in a restraint chair at this point, was mad, and just kept “throwing stuff” at them—trying to
scare them. Plaintiff indicated he had never been diagnosed with HIV or AIDS.
Plaintiff indicated he had gone to the emergency room at the Springdale Hospital
approximately two months ago because of his high blood pressure and they drew blood. Plaintiff
denied ever having told authorities in Mississippi, where he had been arrested and imprisoned, that
he had Hepatitis C or AIDS. Plaintiff indicated he had just gotten out of prison in Mississippi in
January. Plaintiff stated that he would consent to having his medical records provided to the
Sheriff’s Office.
Plaintiff stated he and Copeland had been dating off and on for two months. He stated he
never said anything to her about having HIV because it is not true. Plaintiff stated the first people
he ever told he had HIV were the deputies in booking. Again, Plaintiff asserted that he tried to tell
Sergeant Walton that he did not have HIV. Plaintiff stated that if he had known it would result in
an investigation he would have never said it.
Detective Hagan said it might be easier and quicker if Plaintiff consented to having his
blood drawn rather than them having to obtain a subpoena for his records through the Mississippi
prison system. Detective Hagan called it the “path of least resistance” and a good way for Plaintiff
to exonerate himself. Plaintiff stated he would sign a written consent form. Plaintiff asked if he
could just make one or two phone calls in order to get someone to pick up his pay check so he
could bond out. Detective Hagan replied that he did not have a problem with Plaintiff making
some phone calls and would check with them out front. Detective Hagan then left the interview
room to get a consent form.
11
Detective Hagan re-entered the interview room with two nurses and asked Plaintiff to sign
the consent form. The form provided that a search of his blood would be conducted for Hepatitis
C and/or HIV. Detective Hagan told Plaintiff that he did not have to consent and could say no at
any time. Plaintiff voluntarily signed the consent form. Detective Hagan removed Plaintiff’s
handcuffs so the nurse could draw blood more easily. Plaintiff’s blood was drawn. The nurses
were told that Detective Hagan would maintain the chain of custody by obtaining the blood from
them. Plaintiff asked Detective Hagan to advise him of the results.
The Slip and Fall
According to Plaintiff, he was in isolation for two days following the incident in booking
and then was moved to lock-down segregation. (ECF No. 48-11 at 41). When he was moved to
segregation, Sergeant Freeman ordered that the Plaintiff be handcuffed, waist chained, and
shackled each time he was out of his cell--even when Plaintiff was in the shower area. (ECF No.
48-11 at 10 & 42). Plaintiff testified that when he was given his hour out he usually spent about
thirty minutes on the phone. Id. at 44. Plaintiff stated that he would hold the phone receiver in his
hand and then would duck his head down to talk on it. When he was done on the phone, Plaintiff
would press a button and tell the deputies that he needed a shower. The deputies would remove
the shackles to allow Plaintiff to remove his clothing and then the deputies placed the shackles
back on. Id. at 44. Plaintiff showered each day. Id. The order regarding the shackles lasted about
a week. Id. at 10.
Plaintiff testified that one day he was in the shower in the waist chains and shackles and
slipped and fell. (ECF No. 48-11 at 49). Plaintiff indicated he tried to catch himself and could not
resulting in his hitting his head when he fell. Id. He also hurt his lower back. Id. at 49-50. He
was seen by the nurse and given an ice pack for his head overnight and “aspirin or something.”
12
Id. at 50. He continued to receive the medicine for two weeks. Id. He continued to experience
headaches for about two weeks. Id.
Deputy Brannan was asked to assist Deputy Morgan in A-pod K-block and upon entering
the block saw Plaintiff lying on his back in the shower area. (ECF No. 48-5 at 22). Plaintiff stated
he had slipped and fallen. Id. Nurse Mia began to evaluate Plaintiff and decided to get Plaintiff
some medicine from the nurse’s station. Id. Nurse Mia asked Deputies Morgan and Brannan to
assist the Plaintiff to a bunk or seat so she could further evaluate him. Id. Plaintiff was moved to
cell K-11. Id.
According to Defendants, Plaintiff was only wearing ankle shackles. Defendants also
maintain that Plaintiff stepped outside the shower area and appeared to be spreading a substance
across the floor using his feet.
After his release, Plaintiff testified he went to the emergency room in Springdale. (ECF No.
48-11 at 51). He was put on Lortab, a pain medication, for thirty days. Id. at 52. He did not
receive any treatment for his head. Id. Plaintiff testified that he has ongoing back pain as a result
of the incident but while he was out of jail did not get any additional treatment because he could
not afford it. Id. at 53.
The Video of the Slip and Fall
Plaintiff enters the dayroom from a cell located under the stairwell leading to the second
tier (time stamp 7:48). He is wearing a towel around his waist. He walks across the day room
wearing ankle shackles but his hands are not restrained in anyway. He initially goes into the
shower area but then walks off the screen into the area opposite the shower area. He returns and
enters the shower area again (time stamp 8:43).
13
The shower area consists of two showers one located on the right of the video screen and
one on the left of the screen with an open walkway area between the showers. Plaintiff enters the
shower on the right of the screen. After beginning to shower, Plaintiff leaves the shower and
stands in the walkway between the two showers (time stamp 11:49) and can be seen moving his
feet around. He then returns to the shower on the right and continues his shower.
Plaintiff completes his shower (time stamp 15:13) and begins drying off. He then steps into
the walkway between the showers (time stamp 15:42) and moves into the left shower area to
continue drying himself (15:57). He does not appear to be having any trouble keeping his balance.
As he leaves the left shower area, Plaintiff appears to be heading for the right shower area when
his feet slip and he begins falling (time stamp 16:01). Plaintiff reaches for the half wall that divides
the shower area from the dayroom but appears unable to break his fall. He falls initially onto his
buttocks, then to his right side, and then to his back. Plaintiff remains lying on the floor with his
head and upper body in the left shower area, his torso and legs in the walkway, and his feet in the
right shower area. Plaintiff remains lying on the floor until a deputy enters the dayroom several
minutes later (time stamp 20:07).
The deputy approaches the Plaintiff and begins talking to him as he is lying on the floor. A
woman dressed in scrubs, presumably a nurse, enters the day room (time stamp 22:31) followed
closely by another deputy and another woman dressed in scrubs, also presumably a nurse. Plaintiff
is helped into a sitting position and is examined by one of the nurses. He then lays back down and
the nurse continues to examine him. A third deputy enters the dayroom and both nurses walk out
of the dayroom (time stamp 27:07). Plaintiff remains lying on the floor in the shower area. Two
deputies then assist Plaintiff to his feet (time stamp 28:30). Plaintiff, who is leaning over at the
waist and walking slowly, is assisted back to his cell. A mat is brought in and taken into Plaintiff’s
14
cell. The Plaintiff’s cell is under the stairs and from the angle of the video camera only glimpses
can be seen of what occurred inside the cell. The deputies then leave Plaintiff’s cell (time stamp
32:03) and close the cell door. The deputies leave the dayroom.
After a short period of time, the two female nurses accompanied by a male nurse and two
deputies re-enter the dayroom (time stamp 36:34). All five enter the Plaintiff’s cell. Again, only
glimpses of movement can be seen. All five leave the Plaintiff’s cell (time stamp 37:27) and exit
the dayroom. The remainder of the video simply shows an empty dayroom and shower area.
The Submission of Grievances
During Plaintiff’s incarceration, detainees had access to an electronic kiosk for purposes
of, among other things, submitting requests or grievances. (ECF No. 48-1 at 4). Plaintiff submitted
a number of requests beginning on August 22, 2015. (ECF No. 48-3 at 1-2). None addressed any
of the incidents at issue in this case. Id. Plaintiff testified he was familiar with the kiosk system.
(ECF No. 48-11 at 45). He could not recall complaining about his housing or the waist chains.
(ECF No. 48-11 at 45). He testified that he did verbally complain to deputies about the waist
chains. Id. Even when he was in shackles, Plaintiff testified he could use the kiosk system. Id. at
53.
Plaintiff posted bonds on all charges and was released on September 1, 2015. (ECF No.
48-2 at 24). Following his release, one deputy reported that his wife had received a Facebook
friend request from Plaintiff. (ECF No. 48-6 at 5). Another deputy and one clerk reported
receiving Facebook friend requests from the Plaintiff. Id.
Plaintiff was incarcerated in the WCDC again in January, March, August, and September
of 2016. (ECF No. 48-11 at 7-8). On September 28, 2016, Plaintiff submitted an inmate request
that stated he needed a § 1983 form to file a lawsuit against the WCDC about the use of excessive
15
force against him, being subjected to cruel and unusual punishment when made to go to the shower
in waist chains and shackles, for discrimination, and for harassment. (ECF No. 48-3 at 3). He
stated he had been threatened “inside” by detectives, picked up several times on bogus charges,
and should be out of jail but the court would not appoint him a public defender. Id. Plaintiff stated
he felt it all stemmed from an incident he had last year with someone who had been working there
about twelve years. Id.
Plaintiff submitted a second grievance that same day about what occurred during his
booking. (ECF No. 48-3 at 3). He stated he had been attacked and tased by several deputies even
after he was restrained and lying face down. Id. He indicated that he continued to be tased even
after a deputy had a knee on his head. Id. Plaintiff was then placed in segregation. Id.
While in segregation, Plaintiff stated that he was made to shower, “waist chained, and
shackled.” (ECF No. 48-3 at 3). He believed this was Washington County’s way of “showing me
they still think of me as a slave.” Id. He indicated being chained caused him to fall, hitting his
head, and injuring his back on two occasions. Id. Before he bonded out, Plaintiff stated he was
taken into a room and detectives threatened his life. Id. After he bonded out, Plaintiff indicated
he was constantly harassed by all law enforcement agencies in Washington County. Id. He stated
he had been in fear of his life. Id.
Corporal Mulvaney responded to the grievance noting that Plaintiff’s own actions
“somewhat dictated” the reaction of detention center staff. (ECF No. 48-3 at 4). Corporal
Mulvaney indicated Plaintiff had been aggressive and failed to comply with orders resulting in
Corporal Baughman tasing the Plaintiff. Id. Corporal Mulvaney noted that Plaintiff’s continued
resistance resulted in more drive stuns being applied. Id. It was noted that Plaintiff had been seen
by the nurse and no injuries were observed. Id.
16
Corporal Mulvaney further noted he had a video clip showing the fall that occurred on
August 23, 2016, in the shower area. (ECF No. 48-3 at 4). On that day, Corporal Mulvaney stated
the Plaintiff was not wearing any type of restraints.
Id. During that incarceration, Corporal
Mulvaney noted they “may have been mandated by a supervisor . . . to have [Plaintiff] placed in
belly chains any time [he was] out of [his] cell due to the threats [he] had made and [his] actions.”
Id.
Corporal Mulvaney noted that Plaintiff had never submitted a grievance referring to any of
the above incidents until a year later despite the fact that he had been incarcerated four other times
at the WCDC. (ECF No. 48-3 at 4). Finally, Corporal Mulvaney noted the first incident in the
booking area had been reviewed by supervisors and nothing was found to be excessive. Id.
Plaintiff responded by noting he had not filed a grievance because he was about to let the
issue drop. However, after “witnessing the racists acts” that went on at the WCDC during his
current incarceration, Plaintiff states he decided to start the process and knew he had to exhaust
the grievance process first. Plaintiff then asked that the grievance be closed because he had already
started the “process.”
II. LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986), the record “shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“Once a party moving for summary judgment has made a sufficient showing, the burden rests
with the non-moving party to set forth specific facts, by affidavit or other evidence, showing that
17
a genuine issue of material fact exists.” National Bank of Commerce v. Dow Chemical Co., 165
F.3d 602, 607 (8th Cir. 1999).
The non-moving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must show there is sufficient
evidence to support a jury verdict in their favor.” National Bank, 165 F.3d at 607 (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case founded on speculation or suspicion
is insufficient to survive a motion for summary judgment.” Id. (citing Metge v. Baehler, 762 F.2d
621, 625 (8th Cir. 1985)). “When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007).
III.
DISCUSSION
Defendants move for summary judgment on the following grounds: (1) Plaintiff failed to
exhaust his administrative remedies; (2) the use of force against the Plaintiff on August 18, 2016,
was reasonable in light of the circumstances; (3) Sergeant Walton was not deliberately indifferent
to Plaintiff’s constitutional rights; (4) restrictions on the Plaintiff’s movement were based on
legitimate penological goals and did not cause the Plaintiff to slip and fall; (5) there was no denial
of due process in connection with testing the Plaintiff for HIV; and (6) Defendants are entitled to
qualified immunity.
(A). Section 1983 in General
Section 1983 provides a federal cause of action for the deprivation, under color of law, of
a citizen’s “rights, privileges, or immunities secured by the Constitution and laws” of the United
States. In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that the defendant
18
acted under color of state law and that he violated a right secured by the Constitution. West v.
Atkins, 487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999). The
deprivation must be intentional, as mere negligence will not suffice to state a claim for deprivation
of a constitutional right under § 1983. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v.
Cannon, 474 U.S. 344 (1986).
(B). Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (PLRA) provides: “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory. Porter v. Nussle, 534
U.S. 516, 524-25 (2002). In Jones v. Bock, 549 U.S. 199, 218 (2007) (internal quotation marks
and citation omitted), the Supreme Court concluded “to properly exhaust administrative remedies
prisoners must complete the administrative review process in accordance with the applicable
procedural rules.” See also Woodford v. Ngo, 548 U.S. 831, 90 (2006) (“[P]roper exhaustion of
administrative remedies … means using all steps that the agency holds out, and doing so
properly”). “The level of detail necessary in a grievance to comply with the grievance procedures
will vary from system to system and claim to claim, but it is the prison’s requirements, and not the
PLRA, that define the boundaries of proper exhaustion.” Jones, 599 U.S. at 218. A prisoner’s
remedies are exhausted “when [the] inmate pursues the prison grievance process to its final stage
and receives an adverse decision on the merits.” Hammett v. Cofield, 681 F.3d 945, 947 (8th Cir.
2012).
The WCDC grievance procedure provides that grievances should be submitted via the
kiosk located in the cell block. (ECF No. 48-10 at 3). Grievances are to be “made promptly after
19
the incident has occurred.” Id. The grievance is to “state fully the time, date, and names of the
detention deputies and/or staff members involved and pertinent details of the incident, including
the names of any witnesses.” Id. The WCDC Handbook provides that “[a] grievance must be
submitted within eight hours from the time the event complained of occurred.” Id. at 24.
With respect to the incident in booking, Plaintiff states he should be excused from
complying with the grievance procedure because Defendants admitted he was not in his right state
of mind while being booked. Further, Plaintiff states he did not have access to the kiosk during
the two days he was in isolation. He argues there was no way he could comply with the eight hour
time frame.
The Eighth Circuit Court of Appeals has recognized two exceptions to the PLRA
exhaustion requirement: (1) when officials have prevented prisoners from utilizing the grievance
procedures; or, (2) when the officials themselves fail to comply with the grievance procedures.
See Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (explaining a prisoner is only required to
exhaust those administrative remedies that are “available” and any remedies that prison officials
prevent a prisoner from utilizing are not considered available).
In this instance, there is at least a question of fact as to whether or not the Plaintiff had the
ability to submit a grievance within eight hours of the incident in the AFIS room as required by
the grievance procedure. Moreover, when Plaintiff did submit a grievance, on September 28, 2016,
Corporal Mulvaney addressed the merits of the grievance even though he recognized the grievance
had been untimely filed. Plaintiff therefore is deemed to have exhausted the grievance procedure
as to this claim. See e.g., Hammett v. Cofield, 681 F.3d 945, 947 (8th Cir. 2012)(PLRA’s
exhaustion requirement is satisfied if prison officials decide a procedurally flawed grievance on
the merits).
20
With respect to his slip and fall, Plaintiff states he should also be excused from complying
with the grievance procedure because of his mental state; and he was escorted back to his cell and
was not be allowed out of the cell until the following day for recreation—more than eight hours
after the event. While Plaintiff may have been unable to submit a grievance during the eight hour
window, Plaintiff never submitted a grievance at all addressing this issue. He made no attempt to
exhaust the grievance procedure. This claim is subject to dismissal for failure to exhaust.
Hammett, 681 F.3d at 948 (dismissal without prejudice of only unexhausted claims proper).
With respect to Detective Hagan, Plaintiff asserts that Detective Hagan advised him that
he had nothing to do with what went on in the detention center. Plaintiff further asserts that the
grievance procedures do not extend to possible criminal charges being filed against him. The
grievance procedure provides that it is “restricted to incidents that occur while the detainee is in
the custody of the facility.” (ECF No. 48-10 at 3). It applies “whenever the detainee believes they
have been subjected to abuse, harassment, an abridgement of civil rights, or a denial of privileges
specified in the Detainee Handbook.” Id. Plaintiff contends Detective Hagan invaded his privacy
during an interview conducted at the detention facility. This appears to be the type of claim that
can be brought under the grievance procedure. Plaintiff made no attempt to comply with the
grievance procedure. This claim is also subject to dismissal for failure to exhaust.
(B). Excessive Use of Force
Plaintiff, citing Taser International users product warnings, states that the risk of serious
injury or death increases with multiple and simultaneous applications especially when the subject
has certain risk factors such as struggling, being overweight, or using drugs or alcohol. With
respect to his lack of need for medical treatment, the Plaintiff notes it is the quantum of force
applied that is of importance. Further, he argues the use of force was not necessary under the
21
circumstances as he made no aggressive moves towards detention center personnel. Instead, he
maintains he was being punished for hitting the wall and cracking the plastic photographic
backdrop. He notes he was surrounded by multiple guards, more guards were just outside the door,
and no bystanders were present. He states while on the floor he was not attempting to snatch his
hands away, to get up, or fight, or buck the deputies off him.
The law is clear that a pretrial detainee cannot be punished. See e.g. Bell v. Wolfish, 441
U.S. 520, 535 (1979). “However, not every disability imposed during pretrial detention amounts
to ‘punishment’ in the constitutional sense.” Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996).
The Supreme Court held that a pretrial detainee need only show that a deputy’s use of force
was objectively unreasonable to prevail on an excessive force claim. Kingsley v. Hendrickson, et
al, ___ U.S. ____, 135 S. Ct. 2466, 2473 (2015). The objective reasonableness of a use of force
"turns on the 'facts and circumstances of each particular case.'" Id. (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)). The determination should be made:
from the perspective of a reasonable officer on the scene. A court must also
account for the "legitimate interests that stem from [the government's] need
to manage the facility in which the individual is detained," appropriately
deferring to "policies and practices that in th[e] judgment" of jail officials
"are needed to preserve internal order and discipline and to maintain
institutional security."
Id. (quoting Bell, 441 U.S. at 540). In determining whether a given use of force was reasonable or
excessive, the Court said the following may bear on the issue:
the relationship between the need for the use of force and the amount of
force used; the extent of the plaintiff’s injury; any effort made by the officer
to temper or to limit the amount of force; the severity of the security
problem at issue; the threat reasonably perceived by the officer; and whether
the plaintiff was actively resisting.
Id. The Court noted that the list was not exclusive but instead only illustrated the “types of
objective circumstances potentially relevant to a determination of excessive force." Id.
22
With respect to the use of tasers, the Eighth Circuit has found that “prisoners have a clearly
established right to be free from a Taser shock or its equivalent in the absence of a security threat.”
Brown v. City of Golden Valley, 574 F.3d 491, 500 (8th Cir. 2009)(Eighth Amendment case); see
also Walton v. Dawson, 752 F.3d 1109, 1116-17 (8th Cir. 2014)(“the Fourteenth Amendment gives
state pretrial detainees . . . rights which are at least as great as the Eighth Amendment protections
available to a convicted prisoner”)(quotation marks and citation omitted). The Eighth Circuit
noted that a review of the case law “revealed that the use of force was justified when there was a
concern for the safety of the institution, the jailers, and the inmates.” Id. (citation omitted). It was
further noted that “a stun gun inflicts a painful and frightening blow, which temporarily paralyzes
the large muscles of the body, rendering the victim helpless.” Id. (quotation marks and citation
omitted).
While Plaintiff admits he suffered no injury other than the pain at the time and an injury to
his skin from the taser probes, the Supreme Court has made clear that the focus in an excessive
force claim is on the quantum of force used and not the injury sustained. Wilkins v. Gaddy, 559
U.S. 34, 37 (2010); Hudson v. McMilliam, 503 U.S. 1, 4 (1992)(“the use of excessive physical
force against a prisoner may constitute cruel and unusual punishment [even] when the inmate does
not suffer serious injury”). The extent of injury, however, “provides some indication of the amount
of force applied” and is a “factor that may suggest whether the use of force could plausibly have
been thought necessary in a particular situation.” Wilkins, 559 U.S. at 37 (quotation marks and
citations omitted).
While a video normally provides the best evidence of an altercation, in this case there are
so many deputies surrounding the Plaintiff that it is impossible to tell when the stun gun was
deployed or what behavior the Plaintiff was exhibiting at the time. This leaves the Court with two
23
different versions of what occurred. Plaintiff states he punched the wall because he was angry and
frustrated and took no further aggressive actions and did not resist the deputies other than
questioning why they were using force against him. Defendants’ version of the events is the polar
opposite. They maintain the Plaintiff was resisting and not complying with orders necessitating
the use of force against him including the use of the stun gun four times.
As the case law discussed above demonstrates, the law was clearly established that the use
of physical force and the use of a taser multiple times, is not justified unless the detainee is resisting
and can be considered a security risk. See e.g., Smith v. Conway County, AR, 759 F.3d 853, 861
(8th Cir. 2014)(with respect to a second Taser strike, the Court stated it is clearly established that
a non-violent detainee has a “constitutional right to be free from being tased for non-compliance”);
Edwards v. Byrd, 750 F.3d 728, 732 (8th Cir. 2014)(clearly established that the use of force against
a pretrial detainee who was not resisting or being aggressive was unconstitutional under the
Fourteenth and Eighth Amendments). Here, there are opposing stories as to whether Plaintiff was
resisting or not. It cannot be determined from the video if he is offering any resistance to the
officers. Viewing the evidence in the light most favorable to the Plaintiff, as the Court must, there
is a genuine issue of fact as to whether the Defendants used excessive force against the Plaintiff.
Defendants are therefore not entitled to qualified immunity. Jones v. McNeese, 746 F.3d 887, 894
(8th Cir. 2014)(An individual is “denied qualified immunity if the answers to the following two
questions are yes: (1) whether the plaintiff has shown the violation of a statutory or constitutional
right, and (2) whether that right was clearly establish at the time of the alleged
misconduct”)(quotation marks and citation omitted).
24
(C). Failure to Intervene
Plaintiff maintains that Sergeant Walton violated his constitutional rights when she failed to
intervene when excessive force was being used against him. It has been held that even if an officer
did not participate in the use of unnecessary or excessive force, "he was nonetheless under a duty
to prevent the use of such force, even if the officers beating [the detainee] were his superiors" if
the constitutional violation took place in his presence. Webb v. Hiykel, 713 F.2d 405, 408 (8th Cir.
1983); Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981). The officer accused of failing to
take reasonable steps to protect the victim must have had a realistic opportunity to prevent the
attack. Hadley v. Gutierrez, 526 F.3d 1324, 1330-1331 (11th Cir. 2008)(citations omitted); see
also Putman, 639 F.2d at 424 (liability if the non-intervening officer saw the beating or had time
to reach the offending officer).
In this case, the video shows that Sergeant Walton did not enter the room until Plaintiff had
been wrestled to the floor and was being held down by the officers. She was not present when the
use of force began and did not see what behavior the deputies were reacting to. Quite simply, it is
obvious from the video that she had no idea what caused the struggle or whether the officers were
using excessive force. There is no genuine issue of material fact as to whether she failed to
intervene when she had a duty to do so. Sergeant Walton is entitled to summary judgment on this
claim.
Having found that the facts do not make out a constitutional violation, Sergeant Walton is
entitled to qualified immunity. See, e.g., Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009)
(unless the facts make out a violation of a constitutional right the Defendant is entitled to qualified
immunity).
25
(D). Use of Restraints while Showering
Plaintiff asserts that the video clearly shows that while his right hand was free on this
occasion, his left hand was held close to his body at all times because he was waist chained and
shackled. He also points out that the only people he had contact with during this time period were
the deputies who removed and replaced the shackles. He contends the restraints were useless as a
security measure because had he wanted to attack the deputies, he could have done so when the
shackles were removed and he was undressing.
In connection with the use of restraints, the Eighth Circuit has, in cases involving the use
of handcuffs, found the use of the restraints for their intended purpose, without additional factors,
does not amount to excessive force unless some long-term or permanent injury resulted. For
example, in Crumley v. City of St. Paul, 324 F.3d 1003, 1008 (8th Cir. 2003), the court concluded
no reasonable jury could have found excessive force in applying handcuffs because the plaintiff
failed to present any medical records indicating a long-term or permanent physical injury.
Here, the video clearly shows that Plaintiff’s hands were not restrained in anyway and he
was not wearing any type of shackles around his waist. Plaintiff was able to shower and move
without difficulty. The leg restraints were used for their intended purpose and Plaintiff suffered
no injury as a result of their use. Defendants are entitled to summary judgment on this claim.
Having found that the facts do not make out a constitutional violation, Defendants are
entitled to qualified immunity. See, e.g., Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009)
(unless the facts make out a violation of a constitutional right the Defendant is entitled to qualified
immunity).
26
(E). HIV Investigation
Although the Court has found Plaintiff did not exhaust his administrative remedies with
regard to this claim, the Court will nevertheless address the merits of the claim for the purpose of
providing a full record for review. Plaintiff admits he stated that he had Hepatitis C and was HIV
positive. He made the statements because he was angry the deputies had used force against him
and placed him in a restraint chair. Plaintiff further admits he consented to both the blood draw at
the WCDC and the AHD. However, he states his consent was based on Detective Hagan’s
representation that he could obtain a subpoena to have the Plaintiff’s blood drawn by force. In
fact, Plaintiff states Detective Hagan had already obtained a warrant for his blood. According to
Plaintiff, “[t]he notion that it is constitutional to go through such measures to investigate a crime
without first knowing if a crime has been committed is ridiculous.”
The audio and video of Detective Hagan’s interview with the Plaintiff clearly shows that
Plaintiff voluntarily consented to have his blood drawn for the purpose of being tested for Hepatitis
C and HIV and was under no duress at the time. Detective Hagan at no time mentions Plaintiff’s
blood being taken by force. Plaintiff also volunteered to consent to Defendants obtaining his
medical records from the prison in Mississippi and from the Springdale Hospital. There was no
invasion of privacy and no duress. Detective Hagan is entitled to summary judgment on this claim.
Having found that the facts do not make out a constitutional violation, Detective Hagan is
entitled to qualified immunity. See, e.g., Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009)
(unless the facts make out a violation of a constitutional right the Defendant is entitled to qualified
immunity).
27
(F). Slip and Fall
Similarly, while the Court has held that Plaintiff failed to exhaust his administrative
remedies on this claim, the Court will nevertheless address the merits of the claim to provide a full
record for review. As noted above, Plaintiff was a pretrial detainee. “[W]hen the State takes a
person into its custody and holds him there against his will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for his safety and general well-being.” County
of Sacramento v. Lewis, 523 U.S. 833, 851 (1998)(internal quotation marks and citation omitted).
In Butler v. Fletcher, 465 F.3d 340, 344 (8th Cir. 2006), the Eighth Circuit held that deliberate
indifference is the “appropriate standard of culpability for all claims that prison officials failed to
provide pretrial detainees with adequate food, clothing, shelter, medical care and reasonable
safety.”
The Constitution does not mandate comfortable prisons, but neither does it permit
inhumane ones.
Farmer v. Brennan, 511 U.S. 825, 832 (1994).
The Cruel and Unusual
Punishment Clause of the Eighth Amendment forbids conditions that involve the “wanton and
unnecessary infliction of pain,” or are “grossly disproportionate to the severity of the crime.”
Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
“A prisoner alleging an Eighth Amendment violation must prove both an objective and
subjective element. Revels v. Vincenz, 382 F.3d 870, 875 (8th Cir. 2004)(citing Wilson v. Seiter,
501 U.S. 294, 298 (1991)). “The defendant’s conduct must objectively rise to the level of a
constitutional violation by depriving the plaintiff of the minimal civilized measure of life’s
necessities. The defendant’s conduct must also reflect a subjective state of mind evincing
deliberate indifference to the health or safety of the prisoner” Revels, 382 F.3d at 875 (citations
and internal quotation marks omitted). Deliberate indifference is established when the plaintiff
28
shows “the defendant was substantially aware of but disregarded an excessive risk to inmate health
or safety.” Revels, 382 F.3d at 875. The standards against which a court measures prison
conditions are “the evolving standards of decency that mark the progress of a maturing society.”
Estelle v. Gamble, 429 U.S. 97, 102 (1976).
Here, Plaintiff slipped and fell in the shower area while wearing leg shackles. Obviously
showers are slippery both as a result of the presence of water but also the presence of the residue
of soap and other products used in bathing. “[S]lippery floors constitute a daily risk faced by
members of the public at large.” Reynolds v. Powell, 370 F.3d 1028, 1031 (10th Cir. 2004). The
Court noted that in general slippery prison floors do not make out an Eighth Amendment claim.
Id. In Reynolds, the Tenth Circuit was faced with the question of whether or not the fact that the
prisoner was on crutches “presents sufficiently special or unique circumstances that require us to
depart from the general rule barring Eighth Amendment liability in prison slip and fall cases.” Id.
at 1032. The Court held it did not noting the Plaintiff had been aware of the problem for some
seven weeks and had safely entered and exited the shower area on crutches on numerous occasions
prior to the fall. Id. It concluded that “the hazard encountered by plaintiff was no greater than the
daily hazards faced by any member of the general public who is on crutches, and that there is
nothing special or unique about plaintiff’s situation that will permit him to constitutionalize what
is otherwise only a state law claim.” Id.
This case is of course different to the extent that members of the general public do not wear
leg shackles. However, it has been held that “shackling a dangerous inmate in a shower [does not]
create[] a sufficiently unsafe condition.” LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993).
Under the facts of this case, there has been no showing that the slip and fall was due to the restraints
29
as opposed to the floor merely being slippery. No claim of constitutional dimension has been
stated. Defendants are entitled to summary judgment on this claim.
Having found that the facts do not make out a constitutional violation, Defendants are
entitled to qualified immunity. See, e.g., Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009)
(unless the facts make out a violation of a constitutional right the Defendant is entitled to qualified
immunity).
IV.
CONCLUSION
For the reasons stated, the Motion for Summary Judgment (ECF No. 45) is GRANTED IN
PART AND DENIED IN PART. Specifically, the Motion (ECF No. 45) is GRANTED with
respect to the following claims: Plaintiff’s claim against Sergeant Walton based on her alleged
failure to intervene on his behalf; his claim that the use of restraints was unconstitutional; his
claims that Detective Hagan violated his Due Process rights and/or invaded his privacy when
Plaintiff’s blood was taken to be tested for Hepatitis C and HIV; and his claims regarding his slip
and fall. This ruling dismisses the claims against Defendants Sergeant Walton, Detective Brett
Hagan, and Sergeant Freeman.
The Motion (ECF No. 45) is DENIED with respect to the excessive force claim asserted
against Deputies Stout and Corporal Baughman. A trial will be scheduled.
IT IS SO ORDERED on this 23rd day of April 2018.
/s/P.K. Holmes,III
P. K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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