Sherman v. Hot Spring County et al

Filing 65

ORDER ADOPTING 63 REPORT AND RECOMMENDATIONS in toto; denying 33 Motion for Summary Judgment; granting in part and denying in part 45 Motion for Summary Judgment; granting 48 Motion for Summary Judgment; as set forth. Signed by Honorable Susan O. Hickey on March 17, 2015. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
PATRICK L. SHERMAN
vs.

PLAINTIFF
Case No. 13-6049

HOT SPRING COUNTY, ARKANSAS;
OFFICER DONALD MORELAND;
DETECTIVE DAN USSERY; CHIEF
OF POLICE DONNIE D. TABER;
SERGEANT BRIAN ORRELL; and
SHERIFF HOLLINGSWORTH

DEFENDANTS
ORDER

Before the Court is the Report and Recommendation filed on February 27, 2015 by the
Honorable James R. Marschewski, United States Magistrate Judge for the Western District of
Arkansas. (ECF No. 63). Plaintiff claims that he was unlawfully arrested on September 17, 2012
and subjected to unconstitutional conditions of confinement in the Hot Spring County Detention
Center. The Plaintiff and all Defendants have filed motions for Summary Judgment. Judge
Marschewski recommends that Plaintiff’s Motion for Summary Judgment be denied; the Motion for
Summary Judgment filed by Sheriff Hollingsworth and Sergeant Orrell be granted in part and denied
in part; and the Motion for Summary Judgment filed by Chief Donnie Taber, Officer Donald
Moreland, Officer Dan Ussery, and the City of Malvern be granted. Plaintiff has objected to the
Report and Recommendation. (ECF No. 63). The Court finds this matter ripe for its consideration.
Plaintiff’s objections to Judge Marschewski’s Report and Recommendation are as follows:
(1) he has stated a claim for municipal liability because Sergeant Orrell has final decision-making
authority; (2) Plaintiff’s convictions do not bar his § 1983 claims for his arrest without probable
cause; (3) he stated a municipal policy claim against Hot Spring County because an arrest warrant

was issued with only the Prosecutor’s filed information; (4) he has stated a claim for destruction of
his § 1983 form; (5) he is prejudiced by not having an attorney; (6) he has stated a claim for
conspiracy; and (7) he has stated a claim for retaliation.
First, Plaintiff asserts he has stated a claim for municipal liability because he has shown that
Sergeant Orrell has final decision-making authority over all matters relating to the Hot Spring
County Detention Center. He cites to Pembaur v. City of Cincinnati, 475 U.S. 469, 485 (1986) for
the proposition that an act by one who acts as final decision maker for the county establishes
municipal liability. However, the fact that a county vests a person with final decision-making
authority does not alone establish the existence of an unconstitutional policy. Instead, Plaintiff must
point to a “deliberate choice of a guiding principle or procedure” of that official. Mettler v.
Whiteledge, 165 F.3d 1197, 1204 (8th Cir. 1999). Plaintiff has failed to establish this deliberate
choice to demonstrate an unconstitutional custom. His objection on this point is overruled.
Second, Plaintiff asserts that Judge Marschewski’s recommendation, that Plaintiff’s
conviction bars his § 1983 Complaint for his arrest without probable cause, is error. However, the
Eighth Circuit is clear that “‘where law enforcement officers have made an arrest, the resulting
conviction is a defense to a § 1983 action asserting that the arrest was made without probable
cause.’” Malady v. Cruck, 902 F.2d 10, 11-12 (8th Cir. 1990) (quoting Cameron v. Fogarty, 806
F.2d 380 (2d Cir. 1986)). Because Plaintiff was convicted, his § 1983 claim is barred, and his
objection is overruled.
Third, Plaintiff alleges that the Supreme Court has held that the Prosecutor’s information
alone does not meet the requirements of the Fourth Amendment and it is therefore unconstitutional
for an arrest warrant to be issued on the information alone. He alleges that this demonstrates a
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sufficient municipal liability claim against Hot Spring County for a “custom or practice” of violating
the Fourth Amendment. To show this, Plaintiff must be able to demonstrate the existence of a
widespread, continuing, consistent pattern of unconstitutional misconduct. See Johnson v. Douglas
Cnty. Medical Dept., 725 F.3d 825 (8th Cir. 2013); see also Moyle v. Anderson, 571 F.3d 814, 817
(8th Cir. 2009) (citation omitted). Plaintiff has failed to meet this high burden. He has not
demonstrated a material, disputed issue of fact necessitating a jury determination on his claim.
Fourth, Plaintiff claims he has stated a claim for the destruction of his § 1983 form.1 The
Court finds that Plaintiff has not stated a specific error in the Report and Recommendation for the
Court to review. Judge Marschewski recommends a finding that he suffered no actual injury because
he had a copy of his Complaint and could file it at any time, and this Court agrees.
Next, Plaintiff reiterates his arguments that he is prejudiced by the fact that he is not an
attorney nor can he afford one. He asserts that, were he an attorney, he could investigate certain
records which he cannot in his capacity as a prisoner who is not an attorney. However, Plaintiff was
represented by counsel in his criminal case. He missed no deadlines imposed by the Court and no
case was dismissed because he failed to file documents with the Court. Plaintiff may not use § 1983
as a substitute for habeas relief, and he is not constitutionally entitled to an attorney to represent him
on his § 1983 claim.2
Plaintiff next asserts that he stated a claim for conspiracy. In his Complaint, Plaintiff asks
the Court to find that the “illegal arrests employed by Officer Moreland, covered up by Investigator
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In his Complaint, Plaintiff does not allege anyone threw away a § 1983 form, but rather his § 1983 Complaint to be filed
with the District Court Clerk. (ECF No. 6, ¶ 2, 61-63). The Court will assume that these two items are the same.
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To the extent Plaintiff is claiming that he was unable to discover certain documents because he is not an attorney, the
Court is unclear as to his argument. There is no indication that he was denied the ability to propound discovery in either
case.

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Dan Ussery, and adopted by Chief of Police Donnie Taber, the Malvern Police Department, the City
of Malvern, and Hot Spring County is Unconstitutional, in violation of the 4th Amendment to the
U.S. Constitution.” (ECF No. 6, at 15). He points the Court to no error in Judge Marschewski’s
Report and Recommendation with regard to this claim, nor does he present any facts supporting his
claims. His mere allegations of conspiracy, without more, are insufficient to survive summary
judgment.
Finally, Plaintiff asserts that he stated a claim for retaliation. In his Complaint, he alleged
that he filed a grievance about inadquate amounts of food, and that thereafter, the same 3093 “did
all of all of [sic] cooking, fixing the trays, and passing them out to detainees.” The 309 would also
allegedly give extra food to some inmates or put foreign objects in some food. Plaintiff filed a
grievance against the 309 for retaliation. The Court would like to first note that the 309 is not listed
as a Defendant in this action. All objections as they relate to him, therefore, are overruled.
In his objections, he asserts that “retaliation for the use of the grievance procedure by
allowing a 309 to do all manner of things to his food is certainly unconstitutional, as it is retaliation.”
(ECF No. 64, at 5). The Eighth Circuit held in Sprouse v. Babcock, 870 F.2d 450 (8th Cir. 1989),
that otherwise proper acts are actionable under § 1983 if done in retaliation for filing a grievance
pursuant to established prison procedures. Therefore, even though Plaintiff does not have a
constitutional right to be free from foreign objects in his food, see Wishon v. Gammon, 978 F.3d 446,
449 (8th Cir. 1992), he does have a constitutional right to be free from retaliation by an official for
protected activity. However, Plaintiff has not demonstrated that Sergeant Orrell was involved in
altering Plaintiff’s meals. The specific facts alleged all relate to a 309, who is not subject to liability

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A “309” is a work release prisoner given special duties in the prison, such as preparing meals.

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under § 1983.
Accordingly, the Court adopts the Report and Recommendation in toto. Plaintiff’s Motion
for Summary Judgment (ECF No. 33) is hereby denied. The Motion for Summary Judgment filed
by Sheriff Hollingsworth and Sergeant Orrell (ECF No. 45) is GRANTED IN PART and DENIED
IN PART. The Motion is granted with respect to all claims except the denial of medical care claim
against Sergeant Brian Orrell. Because the claim remaining against Sergeant Brian Orrell in his
official capacity is the only claim remaining against Hot Spring County, it is unnecessary that Hot
Spring County remain as a separate defendant and it is dismissed. Sheriff Hollingsworth is also
terminated as a Defendant. Finally, the Motion for Summary Judgment (ECF No. 48) filed by Chief
Donnie Taber, Officer Donald Moreland, Officer Dan Ussery, and the City of Malvern is hereby
GRANTED. These parties are also terminated as Defendants.
IT IS SO ORDERED, this 17th day of March, 2015.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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