# Emery v. Wilson

> District Court, E.D. Arkansas · January 13, 2021

URL: https://www.frixlaw.com/law-library/cases/10005236

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** January 13, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10005236

## How later opinions describe it (automated extraction)

- holding a disabled inmate’s allegations that he was denied assistance in “obtaining drinking water” for “less than two full days” was de minimis and did not state a claim for relief

## Opinion text

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION

JASON EMERY PLAINTIFF
ADC # 510514

v. Case No. 1:19-cv-00111 JTK

WILSON, et al. DEFENDANTS

MEMORANDUM AND ORDER

I. Introduction
Plaintiff Jason D. Emery filed this pro se action pursuant to 42 U.S.C. ' 1983, alleging
cruel and unusual punishment while incarcerated at the Grimes Unit of the Arkansas Department
of Correction (ADC) (Doc. No. 6). Plaintiff asks for compensatory and punitive damages.
Pending before the Court are the Motion for Summary Judgment, Brief in Support, and
Statement of Facts filed by Defendants Wilson and Davis (Doc. Nos. 51-53). Plaintiff filed a
Response, Brief in Support and Response to Statement of Facts (Doc. Nos. 54-56).
II. Complaint
Plaintiff alleges that on August 31, 2019, Defendants denied him water and access to the
restroom for over ninety (90) minutes in the extreme heat during inside recreation time, resulting
in him soiling himself and being ridiculed by other inmates (Doc. No. 6, pp. 6-7). He states he
suffered irreparable physical injury requiring treatment for constipation, colonitis,1 abdominal
pain and other issues related to this incident, including mental health treatment. Id. at pp. 7-8.
Plaintiff also alleges Defendant Wilson, who is African American, consistently displayed
discriminatory behavior towards him and other white inmates. Id. at p. 7.

1 Colonitis is more commonly referred to as colitis, which is inflammation of the lining tissues of the large intestine
III. Summary Judgment Standard
Pursuant to FED.R.CIV.P. 56(a), summary judgment is appropriate if the record shows there
is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
See Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997). AThe moving party bears the

initial burden of identifying >those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.=@ Webb v. Lawrence County, 144
F.3d 1131, 1134 (8th Cir. 1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (other
citations omitted)). AOnce the moving party has met this burden, the non-moving party cannot
simply rest on mere denials or allegations in the pleadings; rather, the non-movant >must set forth
specific facts showing that there is a genuine issue for trial.=@ Id. at 1135. Although the facts
are viewed in a light most favorable to the non-moving party, Ain order to defeat a motion for
summary judgment, the non-movant cannot simply create a factual dispute; rather, there must be
a genuine dispute over those facts that could actually affect the outcome of the lawsuit.@ Id.

IV. Defendants’ Material Facts in support of Summary Judgment
According to Defendant Wilson’s declaration, in August 2019, she was employed at the
ADC Grimes Unit as sergeant (Doc. No. 51-3, p. 1). On August 31, 2019, her first day on shift as
the housing sergeant, she worked in Housing Unit 4, where Emery resided. Her duties included
“supervision of the Housing Unit, the area, staff, and inmates that makeup the zone the Housing
Unit is located in; and ensuring all inmate activity and movement in the barracks and entering and
exiting of the Housing Unit is properly monitored and control[led].” Id. Wilson also oversaw the
security, sanitation, safety training, count procedures, mass movements, metal detectors, and all
other activities taking place in the unit, which is composed of 19-22 barracks----each barrack

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consisting of two tiers that house 40-50 inmates. Id. at pp. 1-2. Emery was assigned to 20
barracks. Id. at p. 2.
On August 31, one officer was located upstairs in the control booth and could not leave
that area until relieved by another officer. Id. Defendant Wilson was working alone in the unit

vestibule, a circular hallway outside the 19-22 barracks that encompassed doors to each barracks
and doors to the unit’s inside recreation area.2 Id. From the barracks, Wilson could see inside
the barracks and inside the inside recreation area. Id.
Recreational time allows inmates to obtain exercise in the outside area of their housing
unit. Recreational time is one hour, and inmates who choose the inside recreation area have
access to a basketball side and a handball side. Id. In the inside recreation area, inmates have
access to water provided in a water cooler but do not have access to a restroom. Id. Inmates
are encouraged to use the restrooms prior to going to inside recreation because, once there, they
are not allowed to leave unless a medical emergency existed or other circumstances, like a staff
member call for an inmate, necessitated an exception. Id. Many inmates were upset that day

because Wilson would not allow them to roam between the basketball and handball sides while
she was the only officer on the floor, as it would impose a security risk. Id. at p. 3.
During inside recreation on August 31, Wilson recalled Emery came to the door on the
handball side and stated he was hot and wanted to go inside. Id. at p. 3. Wilson noted Emery
did not say he needed to use the restroom, that it was an emergency, or that he was having stomach
issues. Wilson told Emery he could not go inside because he was hot and would have to wait
until the end of inside recreation. Id. Shortly thereafter, Emery requested to go inside a second

2 There are two types of recreational time: outside recreation, which takes place in an outside
area at the unit located in another, larger zone, that provides access to a water fountain and a
restroom (Doc. No. 51-3. p. 2).
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time, never mentioning it was an emergency or a medical issue; Wilson denied the request again.
Were there to be an emergency or a medical issue during inside recreation, Wilson would call for
responders to come to the area to address the issue and escort the inmate involved inside. Id.
Wilson acknowledged allowing inmate Harrison inside his barracks during inside recreation after

his return from work. Id. at p. 4. She also allowed inmate Cook inside after receiving a call from
staff who requested Cook report for work. Id. Wilson did not recall an inmate Martinez being
allowed to roam in or around the vestibule during inside recreation time. Id. at p. 3.
During the shift briefing, Defendant Davis advised staff not to let inmates in or out without
two officers on the floor. Id. Because she was the only officer in the vestibule, Wilson called
Davis and requested another officer assist her with returning the inmates from recreation. Id. at p.
4. Wilson never told Davis inmate Emery asked to go inside, and Emery did not tell Wilson he
soiled his pants. Id. From Wilson’s experience, when an inmate soiled his pants, officers would
know because of the odor and other inmates reacting thereto. Id. No such event occurred on
August 31 when the unit returned from recreation. Id.

Defendant Davis stated in a declaration that he had worked in the Grimes Unit his entire
ADC career (Doc. No. 51-4, p. 1). He is a shift Lieutenant charged with all daily operations and
supervision of subordinate sergeants. Id. Defendant Wilson was Defendant Davis’s housing
sergeant assigned to Housing Unit 4. Id. That day, Wilson worked alone in the unit’s vestibule,
the area outside the barracks 19-22 that included doors to both the basketball side and the handball
side of the inside recreation area. Id. Defendant Davis had advised the officers during the shift
briefing not to let the inmates in or out without two officers being on the floor. Defendant Davis
received a call from Defendant Wilson on August 31, 2019, requesting assistance with turning in
inmates from the Housing Unit 4 inside recreation area. Id. at p 2. Davis sent another officer

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to assist Wilson. Wilson did not say anything to Davis about inmate Emery having an issue or
requesting to go inside during inside recreational time. Id.
Defendant Davis noted inmates received one hour of recreation five days per week, but,
depending on the circumstances, may receive more time. Id. During inside recreation, inmates

are provided water in a water cooler, but there are no restrooms available. Inmates are offered
use of the restrooms before going to inside recreation because, once the time starts, they are not
allowed to return to barracks before recreation ends. Id. at pp. 2-3. Should an inmate have an
emergency or a medical issue while inside recreation, responders are dispatched who go inside
recreation to address the issue. Id. at p. 3. An inmate is not allowed inside from recreation just
because he is hot and being hot is not considered an emergency. Id. Defendant Davis was
unaware that Inmate Emery soiled his pants during recreation until several months after the
incident. Id.
V. Discussion
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the conduct of a defendant

acting under color of state law deprived him of a right, privilege, or immunity secured by the
United States Constitution or by federal law. Plaintiff claims Defendants willingly and purposely
displayed a callous disregard to his safety and wellbeing, thus violating his constitutional rights by
subjecting him to cruel and unusual conditions and racial discrimination. Defendants argue (1)
they are entitled to qualified immunity; (2) the denial of Plaintiff’s request to use the bathroom
and to drinking water for ninety minutes did not amount to a violation of Plaintiff’s constitutional
rights; and (3) Plaintiff’s equal protection claim against Defendant Wilson should fail as a matter
of law.
For the reasons that follow, the Motion for Summary Judgment is granted, Doc. No. 51,

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and the complaint is dismissed with prejudice.
A. § 1983 Individual Capacity Claims
State officials sued in their personal capacities may invoke the affirmative defense of
qualified immunity. Gordon v. Board of Trustees of Univ. of Ark., 168 F. Supp.3d 1148, 1155

(E.D. Ark. Mar. 10, 2016). The doctrine of qualified immunity provides that “government officials
performing discretionary functions generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity is a question of law, not a question of fact. McClendon v. Story County
Sheriff's Office, 403 F.3d 510, 515 (8th Cir. 2005). Thus, issues concerning qualified immunity
are appropriately resolved on summary judgment. See Mitchell v. Forsyth, 472 U.S. 511, 526
(1985) (the privilege is “an immunity from suit rather than a mere defense to liability; and like an
absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.”).
Defendants Wilson and Davis ask the Court to dismiss Plaintiff=s claims against them in

their individual capacities based on qualified immunity because Plaintiff cannot establish that they
violated his Eighth Amendment rights and subjected him to cruel and unusual punishment on
August 31, 2019, when he alleges he was denied access to a restroom and water for ninety minutes.
To determine whether Defendants are entitled to qualified immunity, the 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
that right was so clearly established that a reasonable official would have known that his or her
actions were unlawful. Pearson v. Callahan, 555 U.S. 223, 232 (2009).3 Defendants are

3Courts are Apermitted to exercise their sound discretion in deciding which of the two
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entitled to qualified immunity only if no reasonable fact finder could answer both questions in the
affirmative. Nelson v. Correctional Medical Services, 583 F.3d 522, 528 (8th Cir. 2009).
Based on the above accounts, Defendants state they are entitled to qualified immunity
because Emery cannot establish an Eighth Amendment rights violation. They state first Plaintiff

cannot show that Defendant Davis had actual knowledge of a substantial risk to Emery’s health or
safety. Defendants also argue neither the denial of Plaintiff’s request to use the restroom nor the
denial of drinking water amounted to a violation of his constitutional rights
Davis denies Wilson said anything to him about inmate Emery having a medical issue or
requesting to go inside during inside recreational time. In response, Plaintiff states Defendant
Wilson acknowledged in her third response to interrogatories that she made Defendant Davis
aware of Plaintiff’s request to go inside from the recreational area. Specifically, he points to
Defendant Wilson’s answer to the following interrogatory: “During the time relevant to this
complaint, after being informed that the Plaintiff ‘had become too hot’ and needed to come inside
from recreation call, did you call your supervisor and request assistance so you could let the

Plaintiff in his barracks?” See Doc. No. 56, p. 33. The response provided was “Yes. Sgt Wilson
also asked for assistance in letting the inmates out for yard call (Rec) back in barracks.” Id.
“An official is deliberately indifferent if he or she actually knows of the substantial risk
and fails to respond reasonably to it.” Young v. Selk, 508 F.3d 868, 873 (8th Cir. 2007). This
requirement “follows from the principle that ‘only the unnecessary and wanton infliction of pain
implicates the Eighth Amendment.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting

prongs of the qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.@ Nelson, 583 F.3d at 528 (quoting Pearson v. Callahan, 555 U.S.
at 236).
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Wilson v. Seiter, 501 U.S. 294, 302-303 (1991)). Deliberate indifference “requires a highly
culpable state of mind approaching actual intent.” Choate v. Lockhart, 7 F.3d 1370, 1374 (8th
Cir. 1993). The defendant-official’s state of mind “must be measured by the official’s knowledge
at the time in question, not by ‘hindsight’s perfect vision.’” Schaub v. VonWald, 638 F.3d 905,

915 (8th Cir. 2011) (quoting Lenz v. Wade, 490 F.3d 991, 993 n.1 (8th Cir. 2007)).
Even accepting Plaintiff’s version of the facts as true and construing them in his favor,
Defendants are entitled to qualified immunity. Defendants stated inmates are not allowed to come
in from recreation just because they become hot; being hot during recreational time is not an
emergency that warrants an inmate being allowed inside. Had there been an emergency, inmates
would still not be allowed inside but instead responders would come to inside recreation to address
any medical issues inmates there may have and escort them out thereafter if necessary. Plaintiff’s
allegations fail to create the inference that Defendants had actual knowledge of a risk to Plaintiff’s
health or safety or that Defendants willfully overlooked it.
B. Conditions of confinement

Plaintiff claims he was denied access to drinking water and use of the restroom in violation
of his constitutional rights. “[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) (citation omitted). The Constitution does not mandate comfortable prisons, but
neither does it permit inhumane ones. See Farmer v. Brennan, 511 U.S. at 832. The cruel and
unusual punishment clause of the Eighth Amendment forbid conditions that involve the “wanton
and unnecessary infliction of pain,” or that are “grossly disproportionate to the severity of the
crime.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

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A prisoner alleging an Eighth Amendment violation must prove both an objective and
subjective element. Wilson v. Seiter, 501 U.S. at 298. “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. Butler v. Fletcher, 465 F.3d 340, 344 (8th Cir. 2006).

“The defendant’s conduct must also reflect a subjective state of mind evincing deliberate
indifference to the health or safety of the prisoner.” Id. (citations and internal quotation marks
omitted). Deliberate indifference is established when “the defendant was substantially aware of
but disregarded an excessive risk to inmate health or safety.” Id. However, courts are not
concerned with de minimis levels of imposition on inmates. See Bell v. Wolfish, 441 U.S. 520,
535 (1979).
1. Access to drinking water
Plaintiff alleges he was denied access to drinking water for over ninety (90) minutes during
inside recreation. While there was no access to water fountains, Defendants both stated inmates
have access to water available in a water cooler during inside recreation. Based on the facts, the

Court does not find Plaintiff’s claim rises to the level of an Eighth Amendment violation.
“Access to a sufficient quality and quantity of water for drinking and basic personal
hygiene is, of course, a minimal life necessity, but nothing in the Constitution requires that the
water must be available on demand.” Waller v. Rice, 2018 WL 1092346 (W.D. Ark., Feb. 27,
2018). The lack of drinking water may be so temporary that it constitutes only a de minimis
imposition unworthy of Section 1983 relief. See Looper v. Sanders, 2011 WL 81714, at *3-4
(W.D. Ark., March 10, 2011) (providing water only at meal times out of a sink rather than a
fountain or other source designated only for drinking water absent any evidence of harm or other
ill effects insufficient to state a constitutional claim); Apodaca v. Sanders, 2010 WL 996399 (W.D.

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Ark., Feb. 25, 2010); Tesch v. County of Green Lake, 157 F.3d 465, 476 (7th Cir. 1998) (holding
a disabled inmate’s allegations that he was denied assistance in “obtaining drinking water” for
“less than two full days” was de minimis and did not state a claim for relief);
Even construing the facts in the light most favorable to Plaintiff, he has not shown the

deprivation of water for ninety minutes denied him of the minimal measure of life’s necessities;
nor has Plaintiff demonstrated the deprivation of water posed a substantial risk of serious harm to
his health. See Farmer v. Brennan, 511 U.S. at 834. In addition, the Court finds any discomfort
Plaintiff may have suffered for ninety minutes to be de minimis , and as a result, does not implicate
the Constitution. See Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996).
2. Access to the bathroom
Plaintiff also argues Defendants denied him access to the restroom during inside recreation.
Momentary deprivation of the right to use the bathroom, in the absence of physical harm or a
serious risk of contamination, does not rise to the level of an Eighth Amendment violation.
Revels v. Vincenz, 382 F.3d 870, 875 (8th Cir. 2004). A court in this district dismissed without

prejudice an inmate’s allegation he was not allowed to use the restroom for several hours and wet
himself for failure to state a claim for which relief could be granted. See Lamar v. Hill, Case No.
3:18-cv-00161 KGB-PSH, 2018 WL 7958169, at *1 (E.D. Ark., Nov. 13, 2018), adopted by, 2019
WL 1509595 (E.D. Ark., Apr. 5, 2019). Even if viewed in the light most favorable to Plaintiff,
the claim would fail as de minimis.
The evidence indicates that, prior to going to inside recreation, inmates are encouraged to
use the restroom. Once there, inmates are not allowed to leave inside recreation absent an
emergency. Defendant Wilson stated Plaintiff told her only that he was hot—not that he had to
use the restroom or that he had a medical emergency. Plaintiff did not allege he has a medical

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condition that would prevent him from holding his bladder during recreation time; further, he could
relieve himself (as he did) to prevent any physical harm. While soiling himself may have been
uncomfortable and even embarrassing, the facts he alleges are insufficient to state an Eighth
Amendment claim. There is no evidence of the wanton infliction of pain or a deliberate

indifference to Plaintiff’s health and safety. Further, the brief deprivation was de minimis and
did not rise to a constitutional violation.
C. Disparate Treatment
Plaintiff claims Defendant Wilson discriminated against him when she would not let him
inside because he is white. He identifies three inmates, Elbert Cook, Alonzo Harrison, and an
inmate with the last name Martinez, as inmates with whom he is similarly situated yet treated
differently. Defendants argue Emery was not similarly situated to inmates Harrison, Cook, or
Martinez; thus, Defendants contend Emery’s equal protection claim against Defendant Wilson
must fail as a matter of law. Further, Defendants provide explanations why inmates Cook and
Harrison were allowed inside or outside recreation when Plaintiff was not and outright deny that

an inmate with the last name Martinez was allowed to roam around the vestibule during the
recreation period.
“A fundamental principle of equal protection is that the Constitution only prohibits
intentional or purposeful discrimination by the state.” Klinger v. Department of Corrections, 31
F.3d 727, 733 (8th Cir. 1994). Equal protection requires the government to treat similarly
situated people alike, and dissimilar treatment of dissimilarly situated persons does not violate
equal protection. Id. at 731.
It is clear to the Court that Plaintiff’s main complaint appears to be that Defendant Wilson
allowed Inmate Cook and Inmate Harrison inside and/or outside the recreation area during a time

11
when he was denied. Defendant Wilson denies that an Inmate Martinez was allowed to roam
inside during the recreation period, and Plaintiff has failed to put forth any evidence showing that
an Inmate Martinez was ever outside for recreation or that inmate Martinez asked Defendant
Wilson to go inside so as to use the restroom. Defendant Wilson testified she received a call from

staff requesting Inmate Cook report to work; therefore, she let Inmate Cook inside to get his work
clothes from his barracks and let him back out his barracks so he could report to work. Defendant
Wilson testified Inmate Harrison was permitted to enter his barracks during inside recreation
because Inmate Wilson was returning to his barracks from work and had not been out to recreation
with the other inmates. The evidence (or lack thereof) in this case is similar to that in Barnes v.
Outlaw, where the Court noted that the Plaintiff inmate’s claim of racial and sexual discrimination
was “comprised of conclusory allegations and speculation” which failed to include “supporting
facts or affidavits demonstrating comparable circumstances....The mere fact that on some
occasions a heterosexual or non-black inmate received favorable treatment does not elevate
plaintiff’s claim into a matter of constitutional concern.” No. CV. 04-2577-MI/AN, 2006 WL

840418, at *7 (W.D. Ten., Mar. 30, 2006). Similarly, absent any other evidence in this case that
non-white inmates were provided more privileges than Plaintiff, because of his race, or that
Defendant Wilson intended to discriminate against Plaintiff because he was white when she
allegedly granted non-white inmates the ability to leave the inside recreation area, the Court finds
as a matter of law that Defendant did not discriminate against Plaintiff.
IV. Conclusion
IT IS, THEREFORE, ORDERED that Defendants= Motion for Summary Judgment (Doc.
No. 51) is GRANTED, and Plaintiff=s Complaint is DISMISSED with prejudice.

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IT IS SO ORDERED this 12th day of January, 2021.

JEROME T. <<
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10005236. Public record. Not legal advice.