The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
TONY M. RUIZ,
ADC #157474 PLAINTIFF
v. Case No. 1:18-cv-00025-KGB-JTK
ZACHERY HARMON, et al. DEFENDANTS
ORDER
Before the Court are two Proposed Findings and Recommendations submitted by United
States Magistrate Judge Jerome T. Kearney (Dkt. Nos. 51, 141). Plaintiff Tony Ruiz filed
objections to both (Dkt. Nos. 85, 143). Separate defendants Corporal Zachery Harmon and
Sergeant Richard Fry filed objections to the second Proposed Findings and Recommendations
(Dkt. No. 144). After careful review of the two Proposed Findings and Recommendations, Mr.
Ruiz’s objections, Corporal Harmon and Sergeant Fry’s objections, as well as a de novo review of
the record, the Court adopts both Proposed Findings and Recommendations as its findings in all
respects (Dkt. Nos. 51, 141). The Court writes separately to address Mr. Ruiz’s objections to both
Proposed Findings and Recommendations and Corporal Harmon and Sergeant Fry’s objections to
the second Proposed Findings and Recommendations.
I. Background
Mr. Ruiz brings this action pro se under 42 U.S.C. § 1983 alleging claims of excessive
force, assault and battery, and intentional infliction of emotional distress against defendants
Corporal Harmon, Sergeant Fry, and Lieutenant Robert Robins (Dkt. No. 2). Mr. Ruiz later
supplemented his complaint to add a failure to protect allegation against Corporal Harmon and
Lieutenant Robins (Dkt. No. 56). Warden Toni Bradley, Director Wendy Kelley, Grievance
Coordinator Peggy Durham, and the Arkansas Department of Correction (“ADC”) were also
defendants, but the Court dismissed them from the action on June 25, 2018 (Dkt. No. 15). Mr.
Ruiz alleges that an incident occurred on June 21, 2017, during which Sergeant Fry and Corporal
Harmon sprayed him with mace without warning or provocation, and that Sergeant Fry struck Mr.
Ruiz with a closed fist on more than one occasion (Dkt. No. 2, at 7-9). Mr. Ruiz further alleges
that Lieutenant Robins held him to the ground during that time (Id., at 8).
II. First Proposed Findings And Recommendations
Mr. Ruiz filed a motion for summary judgment on November 5, 2018 (Dkt. No. 29).
Defendants responded in opposition (Dkt. No. 40). On November 20, 2018, Judge Kearney
submitted Proposed Findings and Recommendations recommending that Mr. Ruiz’s first motion
for summary judgment be denied (Dkt. No. 51). Mr. Ruiz’s objections to these Proposed Findings
and Recommendations were untimely, but the Court will consider them (Dkt. No. 85).
Judge Kearney concluded that Mr. Ruiz’s motion for summary judgment should be denied
because the parties dispute the material facts concerning whether defendants’ actions were applied
in a good faith effort or maliciously and sadistically to cause harm (Dkt. No. 51, at 4). Mr. Ruiz
objects based on disagreements in the record about what occurred during the incident (Dkt. No.
85). Mr. Ruiz also repeats some of the allegations from his complaint (Id., at 4-8). Mr. Ruiz
requests a hearing with the Court to “show with proof of why [his] summary judgment should not
be denied.” (Id., at 8). Attached to the objections are two grievances filed by Mr. Ruiz and another
copy of Mr. Ruiz’s objections (Id., at 9-13; Dkt. No. 85-1).
After careful review of the Proposed Findings and Recommendations, Mr. Ruiz’s
objections, and a de novo review of the record, the Court agrees with Judge Kearney that Mr.
Ruiz’s first motion for summary judgment should be denied because there are genuine issues of
material fact in dispute that preclude granting summary judgment.
III. Second Proposed Findings And Recommendations
On April 8, 2019, defendants filed a motion for summary judgment (Dkt. No. 103). Mr.
Ruiz responded in opposition (Dkt. No. 116). On May 15, 2019, Mr. Ruiz filed another motion
for summary judgment (Dkt. No. 129), and defendants responded in opposition (Dkt. No. 132).
On June 24, 2019, Judge Kearney submitted a second Proposed Findings and Recommendations
recommending that defendants’ motion for summary judgment be granted in part and denied in
part and that Mr. Ruiz’s second motion for summary judgment be denied (Dkt. No. 141). Mr. Ruiz
filed objections, and Corporal Harmon and Sergeant Fry filed partial objections (Dkt. Nos. 143,
144).
As an initial matter, Judge Kearney concluded that Mr. Ruiz asserts the same arguments in
his second motion for summary judgment as he did in his first motion for summary judgment, and
therefore, his second motion for summary judgment should also be denied (Dkt. No. 141, at 16).
As to defendants’ motion for summary judgment, Judge Kearney concluded that Mr. Ruiz’s claims
for damages against defendants should be dismissed based on sovereign immunity because
defendants’ employer, the ADC, is an agency of the State of Arkansas (Dkt. No. 141, at 4). Based
on Mr. Ruiz’s admission that he did not exhaust his remedies with respect to his failure to protect
claim, Judge Kearney determined that Mr. Ruiz’s failure to protect claim against Corporal Harmon
and Lieutenant Robins should be dismissed without prejudice (Id., at 6).
While Judge Kearney found that Lieutenant Robins was entitled to qualified immunity on
Mr. Ruiz’s excessive force claim, Judge Kearney concluded that Corporal Harmon and Sergeant
Fry were not entitled to qualified immunity on the claim because a reasonable fact finder could
find that the facts alleged or shown, construed in the light most favorable to Mr. Ruiz, established
a violation of his constitutional rights (Id., at 15). In other words, there are genuine issues of
material fact in dispute that preclude granting qualified immunity at this stage to Corporal Harmon
and Sergeant Fry. Judge Kearney further determined that Mr. Ruiz’s claim for money damages
and injunctive relief based on his loss of parole eligibility should be dismissed (Id., at 16). Finally,
Judge Kearney recommended that, because he concluded that Mr. Ruiz’s constitutional excessive
force claims against Corporal Harmon and Sergeant Fry should remain viable, the Court should
continue to exercise supplemental jurisdiction over Mr. Fry’s state law claims, absent proof that
they are covered by liability insurance “for damages for acts or omissions, other than malicious
acts or omissions, occurring within the course and scope of their employment.” (Id. (quoting Ark.
Code Ann. § 19-10-305)).
Mr. Ruiz objects to Judge Kearney’s finding that the failure to protect claim should be
dismissed for failure to exhaust (Dkt. No. 143, at 1). Mr. Ruiz admits that he did not specify in
his grievances the legal terms for his claims, but he argues that he did grieve that “there were
multiple officers around” when the incident with Corporal Harmon and Sergeant Fry occurred,
and no one intervened, which he argues would make it seem as though Corporal Harmon and
Sergeant Fry’s actions were permitted and or encouraged (Id., at 2). Mr. Ruiz argues that “it should
be ‘liberally construed’ that officers and staff have failed to provide safety from excessive use of
force and condoned all actions by these defendants” (Id., at 2-3). According to Mr. Ruiz,
Lieutenant Robins and Corporal Harmon are both liable for failing to protect Mr. Ruiz from
excessive force and battery, and they had a duty to report the misuse of force to proper personnel
and did not (Id., at 7). Mr. Ruiz requests that the Court reconsider whether the failure to protect
claim should be dismissed “since [the Prison Litigation Reform Act] doesn’t demand a detail of
every claim that would wind up in federal courts” (Id., at 8).
In his deposition, Mr. Ruiz explains that, after the incident on June 21, 2017, he filed three
grievances: “one on the excessive force, one on the mace, and one on the punching” (Dkt. No.
126, at 69). When asked if he filed any grievances about his failure to protect claim, Mr. Ruiz
responded, “No, I didn’t. No, I didn’t.” (Id., at 89). Mr. Ruiz does not contest defendants’
exhaustion argument in his response to defendants’ motion for summary judgment (Dkt. Nos. 116,
117, 118, 120). Mr. Ruiz responded to defendants’ reply and argued that, because he is a pro se
litigant, he is allowed to have the Court draw reasonable inferences from his writings (Dkt. No.
128, at 1). Mr. Ruiz argues that the Court should draw from his grievances that he grieved the
failure to protect claim and, thus, that he administratively exhausted such claim (Id.). Mr. Ruiz
asserts that, “Did I specifically grieve the failure to protect or equal protection claim that was
placed as a claim in this lawsuit, no, but I did supply the Courts with a number of grievances to
which (if I had) a lawyer would’ve inserted the equal protection in the claims as well.” (Id., at 1-
2). Mr. Ruiz points the Court to Docket No. 26, pages 1 to 2, where he alleges that he states “there
were multiple officers around” at the time of the incident (Id., at 1). Mr. Ruiz also points the Court
to Dkt. No. 16, pages 3 to 4 and 6 to 8 (Id., at 2). According to Mr. Ruiz, these grievances show
that he did exhaust administrative remedies in his complaint because it can be inferred from his
grievances that officers failed to intervene during the use of excessive force and battery (Id.). Mr.
Ruiz further argues that defendants’ argument on exhaustion should also fail because grievances
need not include legal terminology or legal theories unless they are in some way necessary to
provide notice of the harm being grieved nor, he argues, must grievances contain every fact
necessary to prove each element of an eventual legal claim (Id., at 2-3).
The Court has reviewed the grievances Mr. Ruiz filed after the June 21, 2017, incident
(Dkt. Nos. 16, at 3-4, 6-8; 26, at 1-2). The Court finds no language in Mr. Ruiz’s grievances in
Docket No. 26, pages 1 and 2, or in Docket No. 16, pages 3, 4, and 7, that could be construed to
allege his failure to protect claims. The Court cannot review Mr. Ruiz’s grievances in Dkt. No.
16, pages 6 and 8, as they appear illegible due to copying or scanning. However, based on Mr.
Ruiz’s admission in his deposition that he did not file any grievances about his failure to protect
claim, the Court agrees with Judge Kearney that this claim should be dismissed without prejudice.
Corporal Harmon and Sergeant Fry also object to Judge Kearney’s findings, arguing that
the evidence shows that the amount of force used was appropriate given the escalating situation,
and/or that, given the rapid escalation of events, a reasonable correctional officer would not know
that his or her actions violated a clearly established right (Dkt. No. 144, at 2). Corporal Harmon
and Sergeant Fry argue that the need for physical force became high as Mr. Ruiz refused multiple
direct orders, used a raised voice, and kept his hand in what appeared to at least one ADC officer
as a clenched fist (Id., at 5). Further, Corporal Harmon and Sergeant Fry submit that Mr. Ruiz is
a sizable and strong inmate who repeatedly defied reasonable orders and assumed an aggressive
posture (Id.). According to Corporal Harmon and Sergeant Fry, they used the appropriate amount
of force given the situation that Mr. Ruiz created (Id.). Corporal Harmon and Sergeant Fry assert
that Mr. Ruiz was given multiple opportunities to comply with reasonable orders to step away
from the door and then later to kneel and submit to restraints (Id., at 6). For these reasons, Corporal
Harmon and Sergeant Fry argue that they are entitled to qualified immunity and statutory immunity
(Id., at 7).
As Judge Kearney explained, to determine whether defendants are entitled to qualified
immunity, courts generally consider two questions: (1) whether the facts alleged or shown,
construed in the light most favorable to the plaintiff, establish a violation of a constitutional or
statutory right; and (2) whether the right was so clearly established that a reasonable official would
have known that his or her actions were unlawful (Dkt. No. 141, at 6 (citing Pearson v. Callahan,
555 U.S. 223, 232 (2009))). Defendants are entitled to qualified immunity only if no reasonable
fact finder could answer both questions in the affirmative (Id., at 6-7 (citing Nelson v. Correctional
Medical Services, 583 F.3d 522, 528 (8th Cir. 2009))).
To support an excessive force claim, Mr. Ruiz must allege and prove that force was not
applied in a good-faith effort to maintain or restore discipline but rather maliciously and
sadistically to cause harm. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). Factors to be considered in
determining the reasonable use of excessive force include whether there was an objective need for
force, the relationship between the need and the amount of force used, the threat reasonably
perceived by the officers, efforts the officers used to temper the severity of their response, and the
extent of the incarcerated person’s injury. Treats v. Morgan, 308 F.3d 868, 872 (8th Cir. 2002).
Corporal Harmon and Sergeant Fry cite cases in which the Eighth Circuit Court of Appeals
found that the prison guard did not use excessive force based on a finding that the inmate posed a
threat (Dkt. No. 144, at 4). These cases do not persuade the Court. In Jones v. Shields, 207 F.3d
491 (8th Cir. 2000), a corrections officer testified that he recalled the inmate “charging toward”
the officer who sprayed the inmate; in Burns v. Eaton, 752 F.3d 1136 (8th Cir. 2014), the inmate
threw a shampoo bottle and soap towards the guards.
As explained by Judge Kearney, Mr. Ruiz and defendants provide conflicting accounts of
the June 21, 2017, incident as to whether Corporal Harmon and Sergeant Fry warned Mr. Ruiz
prior to spraying him three times and whether the force they applied was justified. The Court has
also reviewed the videos of the June 21, 2017, incident, and the Court agrees with Judge Kearney’s
summary (Dkt. No. 127; Dkt. No. 141, at 9-10, 13-14). Viewing the facts in the light most
favorable to Mr. Ruiz, as the Court is required to do at this stage, a reasonable fact finder could
determine that Mr. Ruiz did not pose a threat to Corporal Harmon and Sergeant Fry. The Court
agrees with Judge Kearney that a reasonable juror could find objectively unreasonable the actions
of Corporal Harmon and Sergeant Fry in spraying Mr. Ruiz and of Corporal Harmon in punching
Mr. Ruiz, under the circumstances he alleges. With respect to whether Corporal Harmon and
Sergeant Fry’s June 21, 2017, alleged actions violated clearly established law, the Court further
agrees with Judge Kearney that the relevant law was clearly established at that time.
The Court concludes that a reasonable fact finder could find that the facts alleged or shown,
construed in the light most favorable to Mr. Ruiz, establish a violation of his constitutional right
and that Corporal Harmon and Sergeant Fry are not entitled to qualified immunity as to Mr. Ruiz’s
excessive force claim. The Court will continue to exercise supplemental jurisdiction over Mr.
Ruiz’s state law claims absent proof that they are covered by liability insurance “for damages for
acts or omissions, other than malicious acts or omissions, occurring within the course and scope
of their employment.” Ark. Code Ann. § 19-10-305.
IV. Conclusion
For these reasons, the Court adopts the two Proposed Findings and Recommendations as
its findings in all respects (Dkt. Nos. 51, 141). Accordingly, the Court grants in part and denies in
part defendants’ motion for summary judgment (Dkt. No. 103). Defendants are granted summary
judgment in their favor on Mr. Ruiz’s monetary claims against defendants in their official
capacities, Mr. Ruiz’s monetary and injunctive relief claims against defendants based on his loss
of parole eligibility, Mr. Ruiz’s failure to protect claims against Lieutenant Robins and Corporal
Harmon, and Mr. Ruiz’s excessive force claim against Lieutenant Robins. The Court denies Mr.
Ruiz’s motions for summary judgment (Dkt. Nos. 29, 129).
It is so ordered this 28th day of August, 2019. .
Yu shay A. Pralr—
istine G. Baker
United States District Judge