Davis v. Watson et al

Filing 58

ORDER ADOPTING 56 REPORT AND RECOMMENDATIONS and granting 49 Motion for Summary Judgment. Plaintiff's claims are DISMISED WITH PREJUDICE. Signed by Honorable Susan O. Hickey on August 12, 2019. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
LARRY DAVID DAVIS
v.

PLAINTIFF
Civil No. 6:18-cv-6009

SHERIFF JASON WATSON and
JAIL ADMINISTRATOR DERRICK
BARNES

DEFENDANTS
ORDER

Before the Court is the Report and Recommendation filed June 26, 2019, by the Honorable
James R. Marschewski, United States Magistrate Judge for the Western District of Arkansas. (ECF
No. 56). Judge Marschewski recommends that the Court grant Defendants Jason Watson and
Derrick Barnes’ motion for summary judgment (ECF No. 49) and dismiss Plaintiff Larry David
Davis’ claims with prejudice. Plaintiff has filed objections. (ECF No. 57). The Court finds the
matter ripe for consideration.
I. BACKGROUND
On January 12, 2018, Plaintiff filed this case pursuant to 42 U.S.C. § 1983, alleging that
Defendants violated his constitutional rights while he was incarcerated in the Clark County
Detention Center (“CCDC”) from May 19, 2017, through December 29, 2017. After pre-service
screening, two official capacity claims remained: a deliberate indifference claim related to
Defendants’ alleged failure to provide him a diabetic diet and a conditions of confinement claim
related to allegations that, during the winter, Plaintiff was forced to sleep in a cell with an open
window covered only by bars.

On December 19, 2018, Defendants filed a motion for summary judgment. Plaintiff
responded to the summary judgment motion on January 19, 2019. On June 26, 2019, Judge
Marschewski issued the instant report and recommendation. Judge Marschewski finds that
Plaintiff failed to produce evidence that any injury he suffered related to a diabetic diet was the
result of a policy, practice, or custom of CCDC. Judge Marschewski also finds that Plaintiff failed
to exhaust his administrative remedies with respect to his conditions of confinement claim prior to
bringing this action and, alternatively, that Plaintiff failed to produce evidence establishing a
genuine dispute of material fact related to this claim.

Accordingly, Judge Marschewski

recommends that the Court grant Defendants’ summary judgment motion and dismiss Plaintiff’s
remaining claims with prejudice. On July 11, 2019, Plaintiff filed objections.
II. DISCUSSION
The Court may designate a magistrate judge to hear pre- and post-trial matters and to
submit to the Court proposed findings of fact and recommendations for disposition. 28 U.S.C. §
636(b)(1). Within fourteen days of receipt of a magistrate judge’s report and recommendation, “a
party may serve and file specific written objections to the proposed findings and
recommendations.” Fed. R. Civ. P. 72(b)(2); accord Local Rule 72.2(VII)(C). After conducting
an appropriate review of the report and recommendation, the Court may then “accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge . . . or
recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1).
“[T]he specific standard of review depends, in the first instance, upon whether or not a
party has objected to portions of the report and recommendation.” Anderson v. Evangelical
Lutheran Good Samaritan Soc’y, 308 F. Supp. 3d 1011, 1015 (N.D. Iowa 2018). Generally,
“objections must be timely and specific” to trigger de novo review. Thompson v. Nix, 897 F.2d

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356, 358-59 (8th Cir. 1990). However, the Court may, in its discretion, conduct a de novo review
of any issue in a report and recommendation. Thomas v. Arn, 474 U.S. 140, 154 (1985). The
Court must apply a liberal construction when determining whether pro se objections are specific.
Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995).
The Court will separately address Plaintiff’s objections as to each of the two claims.
A. Conditions of Confinement Claim
Plaintiff claims that he was kept in a cell with an open window covered only by bars,
exposing him to the outside air during the winter. Judge Marschewski made two findings on this
claim. First, Judge Marschewski found that Plaintiff failed to exhaust his administrative remedies
related to his cell’s conditions before bringing this action. Second, Judge Marschewski found
alternatively that Plaintiff failed to show a genuine dispute of material fact as to the claim. For
both reasons, Judge Marschewski recommends that summary judgment is proper on this claim.
Plaintiff objects, arguing that Defendants did not respond to any grievance he filed while at the
CCDC and that they would “sometimes” tell him that they were out of grievance forms. Plaintiff
also argues that Defendants knew that he was locked in a cell with no glass on the window,
exposing him to the elements during winter. The Court will first take up Judge Marschewski’s
findings on failure to exhaust and, if necessary, the Court will then proceed to Judge
Marschewski’s findings on the merits.
1. Failure to Exhaust
Judge Marschewski found that Plaintiff has produced no evidence that he filed and fully
exhausted a grievance with respect to the cell window or the temperature in his cell. From that,
Judge Marschewski reasoned that Plaintiff failed to exhaust his administrative remedies and, thus,

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summary judgment is proper on this claim. For the following reasons, the Court respectfully
disagrees.
The Prison Litigation Reform Act (“PLRA”) mandates exhaustion of available
administrative remedies before an inmate files suit under section 1983. 42 U.S.C. § 1997e(a).
“[R]eliance upon the PLRA exhaustion requirement is an affirmative defense under [Federal Rule
of Civil Procedure] 8(c).” Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001). In other words,
the burden is on Defendants to plead and show that administrative remedies were available to
Plaintiff and that he did not properly exhaust them before filing suit. Lyon v. Vande Krol, 305
F.3d 806, 809 (8th Cir. 2002).
Although Defendants pleaded failure to exhaust as an affirmative defense in their answer
to Plaintiff’s complaint, they did not assert a failure to exhaust argument in their underlying
summary judgment motion. Although Defendants state in their summary judgment motion that
Plaintiff did not file a grievance related to his cell window or the temperature in the cell, they do
so in the context of arguing that Plaintiff had not put Defendants on notice of his cell conditions.
At no time do Defendants argue that Plaintiff’s conditions of confinement claim should be
dismissed for failure to exhaust. The Court cannot sua sponte take up and determine that issue
and, thus, summary judgment is not appropriate on this basis. Id.
Even assuming arguendo that Defendants asserted a failure to exhaust argument in their
summary judgment motion, the Court finds that it is without sufficient information to find that
Plaintiff failed to exhaust his administrative remedies for this claim. Defendants offer several
grievances filed by Plaintiff at the CCDC, none of which appear to concern the cell window or the
temperature in his cell. Defendants also filed the transcript of Plaintiff’s deposition, where he

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testified that he wrote two “requests” about the cold temperature in his cell. 1 (ECF No. 51-8, p.
56).
Based on the current summary judgment record, the Court cannot find that Plaintiff failed
to exhaust his administrative remedies. “Defendants have provided the Court with no information
indicating how inmates at the [CCDC] are informed of the grievance procedure, what the grievance
procedure is, or who responds to the grievances.” Williams v. Turner, 4:10-cv-4053, 2010 WL
3724827, at *2 (W.D. Ark. Sept. 17, 2010). Moreover, “[t]he Court has not been provided with
an affidavit or any other information stating that Plaintiff’s jail file was searched and no grievances
were submitted regarding the issues in his complaint.” Id. Thus, the Court sees no basis upon
which to hold at this time that Plaintiff failed to properly exhaust his administrative remedies.
Foulk, 262 F.3d at 698; Williams, 2010 WL 3724827, at *2. The Court now will turn to Judge
Marschewski’s recommendation as to the merits of the claim.
2. Merits of Claim
Judge Marschewski also found that Plaintiff failed to demonstrate a genuine dispute of
material fact related to his claim that the CCDC had a policy, practice, or custom which resulted
in him being housed in a cell open to the elements in winter. Accordingly, Judge Marschewski
recommended that the Court grant summary judgment on the claim. Plaintiff objects, arguing that
Defendants knowingly placed him in a cell that was open to the elements, resulting in him being
exposed to freezing temperatures. The Court agrees with Judge Marschewski’s recommendation
as to the merits, but does so for slightly different reasons, which will now be outlined.
Plaintiff brings his conditions of confinement claim against Defendants in their official
capacities only.

1

Official capacity claims are “functionally equivalent to a suit against the

However, these “requests” have not been put into the record as evidence.

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employing governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir.
2010). Accordingly, Plaintiff’s official capacity claims are treated as claims against Defendants’
employing governmental entity, Clark County, Arkansas. See Murray v. Lene, 595 F.3d 868, 873
(8th Cir. 2010).
“[I]t is well established that a municipality [or county] cannot be held liable on a
respondeat superior theory, that is, solely because it employs a tortfeasor.” Atkinson v. City of
Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). To establish Clark County’s liability
under section 1983, Plaintiff “must show that a constitutional violation was committed pursuant
to an official custom, policy, or practice of the governmental entity.” Moyle v. Anderson, 571 F.3d
814, 817 (8th Cir. 2009) (internal citation omitted).
To establish the existence of an unconstitutional policy, Plaintiff must point to “a deliberate
choice of a guiding principle or procedure made by the municipal official who has final authority
regarding such matters.” Mettler v. Whiteledge, 165 F.3d 1197, 1204 (8th Cir. 1999). A custom
conflicting with a written policy can also support an official capacity claim. Johnson v. Douglas
Cnty. Med. Dept., 725 F.3d 825, 829 (8th Cir. 2013). A single deviation from a written policy
does not establish a custom but, rather, to establish the existence of a custom, Plaintiff must
demonstrate:
1) The existence of a continuing, widespread, persistent pattern of unconstitutional
misconduct by the governmental entity’s employees;
2) Deliberate indifference to or tacit authorization of such conduct by the
governmental entity’s policymaking officials after notice to the officials of that
misconduct; and
3) That plaintiff was injured by acts pursuant to the governmental entity’s custom,
i.e., that the custom was a moving force behind the constitutional violation.
Id. at 828. Under this standard, “multiple incidents involving a single plaintiff could establish a
custom if some evidence indicates that the incidents occurred over a course of time sufficiently
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long to permit notice of, and then deliberate indifference to or tacit authorization of, the conduct
by policymaking officials.” Id.
Plaintiff has provided no evidence that Clark County’s official policy is to house inmates
in cells that allow the outside winter air to freely flow into the cell. Furthermore, Plaintiff presents
no evidence of a guiding principle or procedure made by the municipal official who has final
authority regarding such matters. Rather, his objections appear to contend that Clark County had
“no policy at all” related to cell temperature conditions. (ECF No. 57, p. 3). Thus, he has failed
to establish an unconstitutional policy on the part of Clark County.
Plaintiff has also provided no evidence that the complained-of conditions in his cell were
the result of a Clark County custom.

Plaintiff has failed to establish that Clark County

policymaking officials were deliberately indifferent to or tacitly authorized unconstitutional
misconduct after receiving notice of the misconduct. Plaintiff testified in his deposition that he
wrote two “requests” about the temperature in his cell. However, he provides no evidence that
those requests were received and read by Clark County’s policymaking officials, thereby putting
them on notice of his cell’s conditions.
Plaintiff also argues that the CCDC’s compliance records—produced after the Arkansas
Department of Finance and Administration inspected the CCDC—indicate that the facility had
heating compliance issues. The Court presumes that Plaintiff’s argument is that Clark County’s
policymaking officials received and read the compliance records, thereby putting them on notice
of the conditions in his cell. However, Plaintiff provides no evidence establishing this and,
moreover, the compliance records only state vaguely that the “CCDC has and is continuing to
address a number of plumbing and climate control issues.” (ECF No. 51-7, pp. 2, 11). Even when
viewing the evidence in the light most favorable to Plaintiff, the compliance records—which

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address all areas of the CCDC, not just cells—do not establish that the CCDC had heating issues
specifically in Plaintiff’s cell, that the issue amounted to a constitutional deprivation, and that the
policymaking officials were aware of the issue and were deliberately indifferent to or tacitly
authorized it. Therefore, Plaintiff has failed to establish an unconstitutional custom.
In the absence of a genuine issue of material fact regarding Plaintiff’s official capacity
conditions of confinement claim, the Court finds that summary judgment is appropriate on that
claim. The claim shall be dismissed.
B. Diabetic Meals
Judge Marschewski also found that Plaintiff failed to demonstrate a genuine dispute of
material fact related to his claim that the CCDC had a policy, practice, or custom which resulted
in him being served medically inappropriate meals.

Accordingly, Judge Marschewski

recommended that the Court grant summary judgment on the claim. Plaintiff objects, stating that
the CCDC served him bologna and salami sandwiches with chips, twice a day, for the nine months
he was incarcerated there. Plaintiff states further that for the first five months of his incarceration
at the CCDC, they did not have diabetic snacks for inmates and, once diabetic snacks were made
available, Plaintiff was refused a snack whenever he requested one.
Plaintiff’s diabetic meal claim is asserted against Defendants in their official capacities
only. As previously stated, to establish the existence of an unconstitutional policy, Plaintiff must
point to “a deliberate choice of a guiding principle or procedure made by the municipal official
who has final authority regarding such matters.” Mettler, 165 F.3d at 1204. Alternatively, Plaintiff
may establish an unconstitutional custom by showing:
1) The existence of a continuing, widespread, persistent pattern of unconstitutional
misconduct by the governmental entity’s employees;

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2) Deliberate indifference to or tacit authorization of such conduct by the
governmental entity’s policymaking officials after notice to the officials of that
misconduct; and
3) That plaintiff was injured by acts pursuant to the governmental entity’s custom,
i.e., that the custom was a moving force behind the constitutional violation.
Johnson, 725 F.3d at 828.
In support of their summary judgment motion, Defendants provided the affidavit of Cassie
Gonzales, the nurse practitioner at the CCDC. (ECF No. 51-9). Nurse Gonzalez testified that she
regularly examined and treated Plaintiff and that the food served to him was medically appropriate.
She also testified that she directed jail staff to keep peanut butter on hand and give a scoop to
Plaintiff if his blood sugar became too low, which jail staff did. The affidavit of Defendant Barnes
likewise indicates that, when ordered by medical staff, snacks or extra food are kept in an easily
accessible area when needed for inmates. (ECF No. 53-1, p. 2). Defendants also filed Plaintiff’s
deposition transcript, indicating that the CCDC allowed him to test his blood sugar levels multiple
times a day (ECF No. 51-8, pp. 26-27); that Nurse Gonzalez recommended that he alter his blood
pressure medication, but he refused to do so (ECF No. 51-8, pp. 39-42); and that he would
selectively eat only the portions of the meals given to him that he felt were healthy (ECF No. 518, pp. 38-39). Judge Marschewski pointed to this evidence in concluding that there was no genuine
dispute of material fact as to whether Clark County had a policy, practice, or custom related to
Plaintiff’s diabetic diet.
The summary judgment record also contains Plaintiff’s intake sheet at the CCDC, which
notes that he has diabetes. (ECF No. 51-4, p. 2). Plaintiff’s sworn deposition testimony indicates
that his meals were no different than the meals given to non-diabetic inmates. (ECF No. 22).
Plaintiff also testified that he did not receive a diabetic snack for the first several months he was
incarcerated in the CCDC. (ECF No. 51-8, pp. 27-28, 31-33, 35). He further testified that he
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would not receive a diabetic snack in November, after diabetic snacks were offered at the CCDC.
(ECF No. 51-8, p. 35). Plaintiff also testified that he estimates he lost roughly ten pounds during
the time that he was incarcerated in the CCDC. (ECF No. 51-8, pp. 15-16).
The Court agrees with Judge Marschewski that Plaintiff has produced no evidence
establishing a Clark County official policy related to serving medically inappropriate meals to
diabetics. Moreover, nothing in the record indicates “a deliberate choice of a guiding principle or
procedure made by the municipal official who has final authority regarding such matters.” Mettler,
165 F.3d at 1204. Thus, the Court finds that Plaintiff has failed to establish an unconstitutional
policy.
Although it is a closer question, the Court also agrees with Judge Marschewski that Plaintiff
has failed to establish a Clark County custom related to diabetic meals or snacks. As stated above,
“multiple incidents involving a single plaintiff could establish a custom if some evidence indicates
that the incidents occurred over a course of time sufficiently long to permit notice of, and then
deliberate indifference to or tacit authorization of, the conduct by policymaking officials.”
Johnson, 725 F.3d at 829. Plaintiff has pointed to no evidence in the record demonstrating that
Clark County policymakers were aware of an unconstitutional custom of serving medically
inappropriate meals to diabetic inmates but were deliberately indifferent to or tacitly authorized
said custom. Plaintiff did not testify during his deposition that he submitted a grievance or request
related to his lack of access to medically appropriate meals or that he otherwise communicated
with the Clark County policymakers regarding this issue. Although the record contains a handful
of grievances and medical requests Plaintiff submitted at the CCDC, none of the grievances in the
record concern Plaintiff’s denial of medically inappropriate meals. 2
The closest Plaintiff comes is in a grievance expressing frustration that he had not received a box of snacks sent to
him at the CCDC by his family. (ECF No. 51-3, pp. 3-4. Plaintiff states in the grievance that he wants the box of

2

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Viewing the evidence in the light most favorable to Plaintiff, the Court finds that he has
not established that the CCDC had a custom of serving medically inappropriate meals to diabetic
inmates, that the issue amounted to a constitutional deprivation, and that the policymaking officials
were aware of the issue and were deliberately indifferent to or tacitly authorized it. Therefore,
Plaintiff has failed to establish an unconstitutional custom.
In the absence of a genuine issue of material fact regarding Plaintiff’s official capacity
claim of medically inappropriate meals, the Court finds that summary judgment is appropriate on
that claim. Accordingly, the claim shall be dismissed.
III. CONCLUSION
Upon de novo review of the Report and Recommendation, and for the reasons discussed
above, the Court finds that Plaintiff has offered neither fact nor law which would cause the Court
to deviate from Judge Marschewski’s Report and Recommendation. (ECF No. 56). Therefore,
the Court overrules Plaintiff’s objections and adopts the Report and Recommendation (ECF No.
56) insofar as it recommends that the Court grant Defendants’ summary judgment motion and
dismiss this case. Defendants’ summary judgment motion (ECF No. 49) is hereby GRANTED.
Plaintiff’s claims are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, this 12th day of August, 2019.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge

snacks to better manage his blood sugar levels, but at no point does he indicate that he is being denied diabetic meals
or snacks as ordered by CCDC medical staff. Plaintiff also submitted several grievances requesting medical treatment
for his kidneys and complaining that he was not allowed to purchase certain hygiene products from the commissary.
None of these grievances put Clark County policymakers on notice of a custom of serving medically inappropriate
meals to diabetic inmates.

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