The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
REGINALD L. DUNAHUE PLAINTIFF
ADC #106911
v. Case No. 5:16-cv-00144 KGB/JTR
JAMES PLUMMER, et al., DEFENDANTS
ORDER
Before the Court is the Recommended Disposition submitted by United States Magistrate
Judge J. Thomas Ray (Dkt. No. 126). Plaintiff Reginald L. Dunahue filed objections to the
Recommended Disposition (Dkt. No. 127). After careful consideration of the Recommended
Disposition, the objections, and a de novo review of the record, the Court adopts the Recommended
Disposition as its findings in all respects (Dkt. No. 126). As a result, the Court grants summary
judgment in favor of defendants on Mr. Dunahue’s remaining claims and dismisses with prejudice
this case. The Court therefore denies as moot Mr. Dunahue’s motion for an evidentiary hearing
and for the appointment of counsel (Dkt. No. 128).
Mr. Dunahue filed this action pursuant to 42 U.S.C. § 1983 alleging that: (1) defendants
Lieutenant John Herrington (“Lt. Herrington”), Lieutenant James Plummer (“Lt. Plummer”), and
Sergeant Sedrick Foote (“Sgt. Foote”) used excessive force on July 19, 2015, when they sprayed
him with mace, “smoke bombed” his isolation cell, and hog-tied him; (2) defendant Major
Lasaundra Malone (“Maj. Malone”) authorized that use of force; (3) Lt. Herrington, Lt. Plummer,
and Sgt. Foote refused to provide him with medical care for the injuries he sustained during the
July 19, 2015, use of force; (4) Lt. Herrington, Lt. Plummer, Sgt. Foote, and Maj. Malone subjected
him to inhumane conditions of confinement by failing to provide him with adequate nutrition for
the seven days he was being punished for his role in the July 19, 2015, incident; (5) Lt. Herrington,
Lt. Plummer, and Sgt. Foote refused to remove the chemical residue from his cell; and (6)
defendants Warden Randy Watson (“Warden Watson”), Deputy Warden Jeremy Andrews
(“Deputy Warden Andrews”), and Deputy Warden Christopher Budnik (“Deputy Warden
Budnik”) knew about these constitutional violations but failed to take corrective action (Dkt. No.
7). On January 23, 2018, this Court allowed Mr. Dunahue to proceed with his excessive force
claim against defendants Lt. Herrington, Lt. Plummer, Sgt. Foote, and Maj. Malone; inadequate
medical care claim against defendants Lt. Herrington, Lt. Plummer, and Sgt. Foote; and inhumane
conditions of confinement claims against Warden Watson, Deputy Warden Andrews, Deputy
Warden Budnik, Lt. Herrington, Lt. Plummer, Sgt. Foote, and Maj. Malone (Dkt. No. 57). On
September 17, 2018, the Court held that Mr. Dunahue failed to exhaust his corrective inaction
claims against Warden Watson, Deputy Warden Andrews, and Deputy Warden Budnik, and the
Court dismissed those claims without prejudice (Dkt. No. 101). The Court also concluded that
Mr. Dunahue failed to exhaust his claims that Lt. Plummer violated his constitutional rights by
refusing to remove chemical residue from Mr. Dunahue’s cell and therefore dismissed those claims
without prejudice (Id.).
The four remaining defendants then moved for summary judgment on Mr. Dunahue’s
remaining claims (Dkt. No. 110). The Recommended Disposition recommends granting
defendants’ motion for summary judgment and the dismissal of Mr. Dunahue’s remaining claims
(Dkt. No. 126). In his objections, Mr. Dunahue argues that the Court should not adopt the
Recommended Disposition because there was “[n]o urgent need . . . to seize [his] tooth paste &
brush, soap, clothes, shoes, mattress & food on July 19, 2015” (Dkt. No. 127, at 3). He also argues
that “[d]efendants went against ADC policy by using force on July 19, 2015[,] for the purpose of
seizing items ADC sold to [Mr. Dunahue], and items by law ADC must give an inmate” (Id.). Mr.
Dunahue further argues that defendants’ actions on July 19, 2015, were “to punish” him (Id., at 8).
He also asserts that he was deprived of meals for seven days and that this deprivation “was
malicious and not pursuant to policy . . . .” (Id.).
As discussed in the Recommended Disposition, Mr. Dunahue’s operative complaint alleges
claims arising out of an incident that occurred on July 19, 2015. The record evidence contains
four video recordings of this incident, which the Court has reviewed (Dkt. No. 113). After
reviewing the record evidence, the Court agrees with Judge Ray that no reasonable juror could
conclude that defendants violated Mr. Dunahue’s constitutional rights. Therefore, Mr. Dunahue’s
claims against defendants are barred by qualified immunity. See Pearson v. Callahan, 555 U.S
223, 232 (2009) (holding that plaintiff must establish a violation of a constitutional or statutory
right in order to overcome qualified immunity).
As to Mr. Dunahue’s excessive force claims, the undisputed record evidence indicates that
Mr. Dunahue flooded his cell and then refused to be restrained in order to leave his cell. The
undisputed record evidence also shows that Mr. Dunahue refused when Lt. Herrington asked for
his compliance, and then Lt. Herrington used a limited amount of pepper spray and tear gas in
order to force Mr. Dunahue to accept restraints. Even viewing the record evidence in the light
most favorable to Mr. Dunahue, the Court concludes that no reasonable juror could conclude that
defendants used excessive force against Mr. Dunahue when they removed him from his cell or at
any point afterwards during this incident.
The Court also concludes that, reviewing the record evidence in the light most favorable to
Mr. Dunahue, no reasonable juror could conclude that defendants were deliberately indifferent to
Mr. Dunahue’s health and safety with regard to the manner in which he was decontaminated in the
shower. The undisputed record evidence shows that Mr. Dunahue was provided a shower
promptly after being exposed to pepper spray and tear gas. At no point immediately after that
shower, as shown on the video recording, did Mr. Dunahue complain about the sufficiency of the
shower. Whether Mr. Dunahue was in handcuffs during that shower does not create a disputed
genuine issue of material fact that is outcome determinative, as there is no record evidence that
suggests that the shower was insufficient to decontaminate him, regardless of whether he was
handcuffed. The defendants presented sufficient record evidence to shift the burden to Mr.
Dunahue, at which point Federal Rule of Civil Procedure 56 requires him to “discard the shielding
cloak of formal allegations and meet proof with proof” as to his deliberate indifference claim.
Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 909 (8th Cir. 2010) (quoting Flentje v. First Nat’l
Bank of Wynne, 11 S.W.3d 531, 536 (Ark. 2000)). Mr. Dunahue has presented no additional proof
to rebut the video evidence presented by defendants. Accordingly, as Mr. Dunahue has failed to
meet proof with proof, the Court grants summary judgment as a matter of law to defendants on
Mr. Dunahue’s deliberate indifference claim arising out of allegations regarding his
decontamination shower.
Similarly, the Court concludes that there are no disputed genuine issues of material fact
with respect to Mr. Dunahue’s claim that he received inadequate medical care after he was exposed
to pepper spray and tear gas. In Farmer v. Brennan, 511 U.S. 825, 837 (1994), the Court held that
a prison official is “deliberately indifferent” if the official “knows of and disregards an excessive
risk of serious harm to inmate health or safety.” In Saylor v. Nebraska, 812 F.3d 637, 644 (8th
Cir. 2016), the Court explained that “the deliberate indifference standard [articulated in Farmer]
has both objective and subjective prongs,” which require a prisoner to prove that: (1) “he suffered
from an objectively serious medical need [the objective prong]”; and (2) the defendants “actually
knew of but deliberately disregarded [the prisoner’s] serious medical need [the subjective prong]”
(citations omitted). Defendants have presented medical records which indicate that Mr. Dunahue
was seen immediately after the incident by a nurse and that the nurse found that all of his vital
signs were normal (Dkt. No. 110-2, at 10). Mr. Dunahue argues that he did not see medical
professionals on July 19, 2015, and that defendants falsified the medical record (Dkt. No. 110-10,
at 54). Mr. Dunahue did, however, testify that “when medical personnel came down, they were
not able to analyze [him] or examine [him] because by [him] being placed in a shower like that,
they couldn’t enter the shower.” (Id.). He clarified that he “visually saw medical professionals,
but [he] was not able to be tended to by medical professionals.” (Id., at 55). Mr. Dunahue has
presented no record evidence to dispute the medical records documenting additional treatment he
received in the weeks following this event; those records include no complaints of medical
problems related to his alleged exposure to pepper spray and tear gas on July 19, 2015 (Dkt. No.
110-3, at 5-7). There is no dispute that a medical professional was present immediately following
Mr. Dunahue’s extraction from his cell. Further, there is no record evidence that defendants
actually knew that Mr. Dunahue suffered from a serious medical need after this event and were
deliberately indifferent to it. Therefore, the Court concludes that defendants are entitled to
summary judgment on Mr. Dunahue’s claim that defendants were deliberately indifferent to his
need for medical care following his removal from his cell.
The Court also agrees with Judge Ray that defendants are entitled to summary judgment
on Mr. Dunahue’s claim that they were deliberately indifferent to the decontamination of his cell.
The video evidence shows that, when Mr. Dunahue was removed from his cell, the floor was
flooded with water. The video evidence also shows that, when he was returned to his cell, there
was no longer water in his cell. The video evidence shows a cleaning cart outside of the cell, as
well as a mop and mop bucket. Furthermore, the orange substance on the cell bars—presumably
pepper spray—is no longer visible in the video that shows Mr. Dunahue returned to his cell.
Additionally, when Mr. Dunahue is returned to his cell, no one inside of the cell coughs, sneezes,
or otherwise reacts in a way that suggests that chemical residue remains in the cell. Further, the
audio from the video indicates that, after Mr. Dunahue is returned to his cell and the cuffs are
removed, the sink in Mr. Dunahue’s cell was working, providing Mr. Dunahue with another
method to remove any remaining chemical residue. Viewing all of this record evidence in the light
most favorable to Mr. Dunahue, the Court concludes that no reasonable juror could conclude that
defendants acted with deliberate indifference by returning Mr. Dunahue to his cell and by refusing
him a second decontamination shower.
The Court also agrees with Judge Ray that defendants are entitled to summary judgment
on Mr. Dunahue’s conditions of confinement claim based upon inadequate nutrition. The
undisputed record evidence shows that Mr. Dunahue has suffered no physical injury due to
receiving “nutritional loaves” while incarcerated. The Eighth Circuit has held that food which
causes cramps, nausea, and constipation does not raise constitutional issues. Brown-El v. Delo,
969 F.2d 644, 646, 648 (8th Cir. 1992). Thus, taking this evidence in the light most favorable to
Mr. Dunahue, the Court concludes that no reasonable juror could conclude that his constitutional
rights were violated by being provided nutritional loaves while incarcerated.
Finally, the Court denies as moot Mr. Dunahue’s motion for an evidentiary hearing and for
the appointment of counsel (Dkt. No. 128). Mr. Dunahue’s motion comes in response to Judge
Ray’s Recommended Disposition (Id.). Given the Court’s adoption of the Recommended
Disposition in its entirety as the Court’s findings in all respects, the Court’s grant of Lt. Herrington,
Lt. Plummer, Sgt. Foote, and Maj. Malone’s motion for summary judgment, and the Court’s
dismissal with prejudice of Mr. Dunahue’s remaining claims against these defendants, Mr.
Dunahue’s motion for an evidentiary hearing and for the appointment of counsel is mooted. As a
result, the Court denies this motion.
It is therefore ordered that:
1. The Court adopts the Recommended Disposition in its entirety as the Court’s
findings in all respects (Dkt. No. 126);
2. The Court grants Lt. Herrington, Lt. Plummer, Sgt. Foote, and Maj. Malone’s
motion for summary judgment and dismisses with prejudice Mr. Dunahue’s remaining claims
against Lt. Herrington, Lt. Plummer, Sgt. Foote, and Maj. Malone (Dkt. No. 110);
3. The Court denies as moot Mr. Dunahue’s motion for an evidentiary hearing and for
the appointment of counsel (Dkt. No. 128).
4, The Court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an in forma pauperis
appeal of this Order and an accompanying Judgment would not be taken in good faith.
So ordered this the 12th day of September 2019.
Ku shu 4A. Palur—
Kristine G. Baker
United States District Judge