# Barnes v. Byers

> District Court, E.D. Arkansas · May 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10006689

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** May 16, 2022
- **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/10006689

## How later opinions describe it (automated extraction)

- noting plaintiff’s duty to meet proof with proof in affirming summary judgment in defendant’s favor

## Opinion text

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

CAMBRIN BARNES,
ADC #147871 PLAINTIFF

v. 4:21CV00144-JTK

JARED BYERS, et al. DEFENDANTS

ORDER
Plaintiff Cambrin Barnes (“Plaintiff”) filed a Motion for Summary Judgment. (Doc. Nos.
68-71). Defendants Jared Byers, Claudia Harris, Dexter Payne, and Rodney Ford (collectively,
“Defendants”) have responded. (Doc. Nos. 77-79). Defendants filed a competing Motion for
Summary Judgment. (Doc. Nos. 74-76, 87, 91, 92). Plaintiff has responded. (Doc. Nos. 80,
81, 82, 84, 115, 120). In addition, Defendants have filed a Motion for Summary Judgment on the
issue of exhaustion. (Doc. Nos. 108-110). Plaintiff has responded. (Doc. No. 119).
For the reasons set out below, Defendants’ Motion for Summary Judgment on the issue of
exhaustion (Doc. No. 107) is DENIED as moot; Defendants’ Motion for Summary Judgment on
the merits (Doc. No. 74) is GRANTED; Plaintiff’s Motion for Summary Judgment (Doc. No. 68)
is DENIED, and Plaintiff’s Complaint, as amended, is DISMISSED with prejudice.
I. Introduction—Plaintiff’s Amended Complaint
Plaintiff is incarcerated at the Maximum Security Unit of the Arkansas Division of
Correction (“ADC”). He sued Warden Jared Byers, Assistant Warden Claudia Harris, Arkansas
Division of Correction Director Dexter Payne, and Correctional Manager Rodney Ford in their
personal and official capacities. (Doc. No. 5 at 1-2). Plaintiff alleges that he “spent 428 days
straight in punitive isolation even though there is an established thirty day limit on the amount of
time a prisoner can spend in punitive isolation.” (Id. at 4). Plaintiff also alleges that while in
punitive isolation: he has only been allowed to have undershorts; his mattress is taken for 24 hours
a day; for 234 of the 428 days he has been locked down for 24 hours without exercise; he had
almost no access to the law library; he has been allowed only three five-minute showers a week;
he is allowed to purchase commissary items only once a month with a $10 spending limit; there is

no heat in winter and in summer the temperature reaches well into the 100s; he has been physically
abused; he tried to kill himself; he has developed a chronic masturbation disorder; he has been
denied access to news and current events; and his conditions of confinement are unsanitary. (Id.
at 4-5). Plaintiff maintains Defendants violated his rights under the Eighth and Fourteenth
Amendments; he seeks damages and injunctive relief. (Id. at 6).
II. Summary Judgment Standard
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is
appropriate if the record shows that 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). “The 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). “Once 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, “in
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.
III. Background
Plaintiff received 23 major disciplinaries between December 31, 2019 and March 5, 2021.

(Doc. No. 74-5 at ¶ 7; Doc. No. 74-8). He was sentenced to 30 days in punitive isolation in
connection with 14 of the 23 disciplinaries. (Doc. No. 74-5 at ¶ 7; Doc. No. 74-8).
Administrative Regulation 839, applicable to all ADC inmates, defines punitive
segregation as “[a] status of confinement that entails separation from the general population for
inmates found guilty of committing serious rule violations.” (Doc. No. 74-3 at 1).
Administrative Regulation 839 explains that the “[s]pecific procedures to be followed for the
operation of punitive segregation shall be listed in the appropriate administrative directive(s).”
(Id. at 2).
Administrative Directive 19-27 explains the ADC’s policy regarding punitive isolation.
(Doc. No. 74-4). Pursuant to AD 19-27, an inmate who was found guilty of violating

departmental rules or regulations may be placed in punitive housing after an appropriate hearing.
(Id. at 1). The Directive defines 48 hour relief as follows: “An inmate in punitive housing will
receive a 48 hour period after each 30 days of being housed in punitive isolation, unless the inmate
is released to another area.” (Id. at 2). ADC 19-27 includes the following punitive restrictions:
When an inmate is found guilty of a major infraction of institutional rules and
punitive housing time is imposed; the inmate may be placed in punitive housing or
placed on punitive restriction and be subject to the limitations of that assignment.
Any exception or deviation from this policy must be authorized by the Director.

1. Mail – Inmates in punitive housing or on punitive restriction will be allowed to
send and receive letters on the same basis as inmates in the general population. This
will include both general and privileged correspondence.

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2. Newspapers/Magazines – Inmates will not be able to receive newspapers or
magazines in punitive housing or on punitive restriction. During their forty-eight
(48) hour relief, inmates will be allowed to receive the two (2) most current
newspapers and magazines on a one-for-one exchange basis.

3. Visitation – Inmates in punitive housing or on punitive restriction have
opportunities for visitation unless there are substantial reasons for withholding such
privileges. Visits will be conducted for two (2) hours, once a month (calendar) and
scheduled at least twenty-four (24) hours in advance. The Warden or designee must
approve all such visits. Approval will be contingent upon but not limited to:

a. Nature of rule violation.

b. No further rule violations while housed in punitive housing or on punitive
restriction.

c. Satisfactory cell inspection reports.

d. A legal visit may be approved in advance by the Warden/Center
Supervisor. This is only to be done when the attorney can justify the urgency
of the legal matter prior to the release from punitive status, with the
consistent need for good security.

4. Exercise – Inmates in punitive housing or on punitive restriction will be offered
a minimum of one (1) hour of exercise per day outside of their cells, five (5) days
per week, unless security or safety considerations dictate otherwise.

a. The exercise periods are to be conducted outside, security and weather
permitting. During inclement weather, coats and raincoats are available.

b. During these exercise periods, the inmate will not be afforded any
recreational equipment, television, or radio.

c. Exercise periods should be documented. Any imposition of constraint
during the exercise period will be justified and documented.

d. Inmates on restricted recreation will remain in restraints during these
periods, but may exercise in the punitive housing cell.

5. Commissary- Inmates on forty-eight (48) hour relief will be allowed to purchase
commissary items, authorized personal hygiene items and legal supplies listed in
the Personal Property Section of this policy a minimum of once every thirty (30)
days. Purchase limit shall not exceed ten dollars ($10.00). Legal supplies may be
purchased more often if the inmate can document a valid need. Inmates violating
any restrictions will be subject to additional disciplinary action.

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6. Mattresses – Inmates in punitive housing will not be allowed to have mattresses
in the cells between the hours of approximately 7:00 a.m. and 7:00 p.m. daily.

7. Showers – Males inmates in punitive housing will be afforded the opportunity to
shave and shower a minimum of three (3) times per week. Female inmates will be
afforded the opportunity to shave once a week and shower a minimum of three (3)
times per week. Exceptions are permitted when found necessary by the senior
officer on duty. All exceptions will be recorded in the log and justified in writing.

8. Law Library – After having been in punitive housing for twenty days, inmates
may order legal materials from the law library if just cause or adequate need arises
for legal material to be delivered once per week.
EXCEPTION: Legal materials will be made readily accessible to those inmates
who need to meet statutory or court-imposed deadlines.

9. Personal Property – Inmates sentenced to punitive housing are not allowed
personal property; thereby, personal property will be inventoried in accordance
with appropriate policy addressing inmate property control. While in punitive
housing, the inmate will only be allowed to have the following items, contingent
upon security considerations.

a. Legal materials/Religious text – only that amount of legal material which can be
kept neat and orderly and does not clutter the cell, plus one religious text (i.e., Bible,
Koran, etc.)

b. Soap

c. Dental Hygiene Items

d. Wash Cloth

e. Self-improvement Reading Materials Provided by Treatment Services
(one)

f. Comb (no pick)

g. Deodorant

h. Sanitary Napkins (females)

i. Paper

j. Flex pen

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k. Stamped Envelopes/Legal Envelopes

l. Shampoo (female inmates only)

m. Conditioner (female inmates only)

n. Consumable items (during forty-eight (48) hour relief only)

o. Medications as authorized in Paragraph #18

Toilet paper will be issued in increments by the punitive area supervisor on an as-
needed basis.

10. Telephones – Inmates will not be afforded telephone privileges. Inmates may
make attorney calls when a need can be verified that will not wait until the
conclusion of punitive confinement.

11. Religious Services – Inmates in punitive housing will not be allowed to
participate in group religious activities. A religious leader approved by the
Department will be available upon request for one-on-one visits, at the inmate’s
cell, subject to approval by the Warden. A departmental chaplain must make rounds
in punitive housing at least once per week.
Provisions will be made for Muslim inmates to participate in the Ramadan Fast.

12. Meritorious Good Time – Inmates in punitive housing or on punitive restriction
will not earn good time.

13. Work Assignment – Inmates in punitive housing will not have work
assignments.

14. Library – Inmates in punitive housing will not have regular library privileges.

15. Program Activities – Inmates in punitive housing will not be allowed to
participate in any group program activities (i.e., Inmate Council, SATP, Education,
Movies, etc.).

16. Clothing – Inmates in punitive housing will be provided one jump suit and
appropriate undergarments at shower time. The only footwear permitted will be
state issued canvas or approved medical footwear.

17. Paper and Pen – Inmates in punitive housing will be allowed to purchase flex
pens and/or paper through the commissary at least once monthly or more often if a
need is documented and validated. The Restricted Housing Supervisor or Chief
Security Officer will review all such requests.

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18. Medical – All inmates who are segregated from the general population will be
evaluated by qualified health personnel prior to placement in punitive isolation and
daily rounds will be made in punitive housing areas by medical staff. The pre-
placement health evaluation is to ensure the inmate does not have any medical
conditions contradictory to such placement, and to screen for mental health
referrals. Any referrals to mental health shall be made to the mental health
supervisor and/or the on-call mental health staff. The pre-placement will be
documented in the inmate’s health record.
Sick call and pill call will be held as often as required by the medical staff. Only
emergency medications authorized by the Regional Medical Director, such as
inhalers and nitroglycerin, will be kept in a punitive cell.

19. Food – Food will be served in accordance with the appropriate policy
addressing food services. Disposable utensils may be utilized. Meals will be served
in the cells. Inmates on punitive will not be served seconds.
Alternative meal service may be provided to an inmate in punitive housing who
uses food or food service equipment in a manner that is hazardous to self, staff, or
other inmates. Alternative meal service is on an individual basis, is based on health
and/or safety considerations only, meets basic nutritional requirements, and occurs
with the written approval of the Warden and responsible health authority. The
substitution period shall not exceed (7) seven days, but may be resumed, as
warranted, following one regular tray, absent a special treatment plan.

20. Mental Health Counseling – Mental health counseling may be coordinated
between mental health personnel and the Warden. A departmental mental health
counselor must make rounds in punitive housing areas no less than three (3) times
per week, on Monday, Wednesday, and Friday, and will ensure that all inmates
reassigned from population to a lock-down status since the last round are seen.
Additionally, mental health staff will see an inmate assigned to restrictive/punitive
housing during normal working hours before leaving the unit and assess the inmate
utilizing the Restricted Housing Review Form (MHS-1139.00) when notified of
concerns by unit staff or medical staff. After normal working hours and on holidays
or weekends, on-call mental health staff shall assess each inmate on whom
notification has been received from unit staff or medical staff to determine if the
inmate needs to be placed on treatment precaution status per mental health policy.
Documentation must be placed in the electronic health record.

2[1]. Cleanliness/Grooming - Inmates assigned to punitive housing are expected to
comply with the Department’s policy concerning personal cleanliness and
grooming for inmates. If an inmate’s personal cleanliness and/or grooming falls
below the Department’s standard, the Chief of Security may order that necessary
steps be taken to enforce compliance. Failure to abide by grooming standards is
grounds for disciplinary action.

(Doc. No. 74-4 at 2-7).

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AD 19-27 also provides that

Inmates serving punitive housing that exceeds thirty days will receive a forty-eight
(48) hour relief at the end of each thirty (30) days of punitive housing assignment.
Inmate privileges as previously outlined in this policy will be restored during the
forty-eight (48) hour relief period. An inmate’s telephone privilege will not be
restored during the forty-eight (48) hour relief if the privilege was suspended due
to a conviction of disciplinary rule violation 02-5 or 09-15. Commissary purchases
up to $10.00 may be made by an inmate only if the inmate’s forty-eight (48) hour
relief falls on their regularly scheduled commissary day, and will be limited to a
quantity that can reasonably be consumed in forty-eight (48) hours. Inmates on 48
hour relief are only allowed to receive property that is allowed in Restrictive
Housing.

(Id. at 8) (emphasis added).

The Maximum Security Unit has in place a policy, MS 10.02.1, that largely tracks the
language of AD 19-27. (Doc. No. Doc. No. 74-6). The policy provides that “48 hour relief
periods are to be in housing outside the Punitive Isolation area if at all possible.” (Id. at 6)
(emphasis added).
It is undisputed that Plaintiff was in punitive isolation for 428 days. (Doc. No. 5; Doc.
No. 74-5 at ¶ 36). Plaintiff maintains he was not given 48-hour relief periods during his time in
punitive isolation. (Doc. No. 71 at ¶ 4). Defendants disagree. (Doc. No. 79 at ¶ 4).
Plaintiff does acknowledge that prison records reflect he received 48-hour relief periods
after roughly each 30 days he spent in punitive isolation. (Doc. No. 74-1 at 46:21-63:6). It is
undisputed that Plaintiff was not removed from his cell during the 48-hour relief periods reflected
in prison records. (Doc. No. 76 at ¶ 43; Doc. No. 74-5 at ¶ 38; Doc. No. 74-8).
IV. Analysis
The Court first will address Defendants’ Motion for Summary Judgment on the Issue of
Exhaustion, and afterwards will reach the merits of the case.

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A. Motion for Summary Judgment on the Issue of Exhaustion
The Court granted Defendants leave to file a Motion for Summary Judgment on the issue
of exhaustion outside of the deadline set in the Court’s scheduling order. (Doc. Nos. 14, 102,
107). While the Court allowed the Motion to be filed, the Court declines to reach the Motion.

In Defendants’ Motion for Leave to File, Defendants’ argued that they had not interpreted
Plaintiff’s complaint as raising an Eighth Amendment claim regarding denial of outside activity.
(Doc. No. 103 at 1-2). Plaintiff’s Amended Complaint clearly invokes both the Eighth and
Fourteenth Amendments, and Plaintiff clearly alleged he was locked down in his cell with no
exercise for 234 days. For example, Plaintiff wrote in his Amended Complaint, “[Defendants
Byers, Harris, and Payne . . . are . . . solely responsible for me being forced to spend 428 days
straight in punitive isolation where I suffered the before mentioned conditions and these are said
conditions that amounted to cruel and unusual punishment.” (Doc. No. 5 at 5). One of the
conditions mentioned was that “for 234 days of the 428 [Plaintiff] [has] been locked down for 24
hours without the opportunity to exercise.” (Id. at 4). Further, Defendants’ Brief in Support of

Motion for Summary Judgment on the merits begins with the following explanation of the case:
“[Plaintiff] initiated the instant lawsuit on February 24, 2021 with the filing of a pro se complaint
. . . alleging the Defendants violated his Eighth and Fourteenth Amendment rights.” (Doc. No.
75 at 1). Defendants also argued Plaintiff failed to establish an Eighth Amendment violation in
connection with other alleged conditions of confinement in punitive isolation. (Id. at 13).
Plaintiff alleged cruel and unusual punishment in his Amended Complaint. Defendants’
Brief in Support of the Motion for Summary Judgment on the merits acknowledged those claims
and argued that those claims fail. The length of the delay in Defendants seeking dismissal based
on failure to exhaust was substantial. The Court’s initial scheduling order set the deadline for

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such a motion on July 11, 2021. (Doc. No. 14). Defendants filed their Motion for Leave only
on April 15, 2022. (Doc. No. 102). The nine-month delay was within Defendants’ control. The
possibility of prejudice to Plaintiff was minimal.
Despite the lengthy delay, the Court believes Defendants acted in good faith—it appears

that even for Plaintiff the focus of his lawsuit was not leaving his cell during his relief periods.
During his deposition, Plaintiff explained: “[T]he root of my argument is cruel and unusual
punishment. Due to them violating this 48-hour relief policy . . . .” (Doc. No. 74-1 at 35:3-9).
Plaintiff also testified: “That’s what this lawsuit is all about now because it’s starting to come out.
That shows right there 48-hour relief does not end restrictive housing because the inmate is not
returned to general population during this time. So when I’m on 48, I’m supposed to be going to
general population.” (Id. at 43:10-15). Plaintiff also testified that he “was supposed to have been
moved out of that cell every 30 days. For all of them days straight they just left me in that cell . .
. .” (Id. at 65:5-6). Further, in his summary judgment papers, Plaintiff repeatedly referred to not
being moved from punitive isolation, “thus [Plaintiff] received no relief from punitive housing.”

(Doc. No. 70 at ¶ 16, for example; Doc. No. 71 at ¶¶ 1, 4).
Even the three grievances Plaintiff filed focused on his removal from his cell. Grievance
MX-20-00700, filed on April 14, 2020, reflects only that Plaintiff is left in his isolation cell for
years at a time. (Doc. No. 108-4). In Grievance MX-20-02263, filed December 23, 2020,
Plaintiff grieves that he has not been removed from punitive isolation, that he has not received
notice of his 48-hour relief, and has not been allowed to access news media. (Doc. No. 108-5).
Lastly, in Grievance MX-21-00224, filed February 2, 2021, Plaintiff complains about not being
removed from his isolation cell, which is denying Plaintiff access to newspapers and personal
property from the mailroom. (Doc. No. 108-6). There is no dispute that Plaintiff did not grieve

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lack of exercise, commissary privileges, law library access, or any of the other conditions he raises
in his Amended Complaint.
Nonetheless, the length of the delay coupled with Defendants’ reason for the delay—that
they did not realize Plaintiff was making an Eighth Amendment claim—weighs against the Court

considering Defendants’ affirmative defense at this point. Chorosevic v. MetLife Choices, 600
F.3d 934, 946-47 (8th Cir. 2010). In retrospect, the Court finds Defendants did not meet the
excusable neglect standard. See Id. For this reason, while the Court initially granted Defendants
leave to file, the Court will not address the issue of exhaustion and denies Defendants’ Motion
(Doc. No. 107) as moot.
B. The Parties’ Motions for Summary Judgment on the Merits
Plaintiff alleges Defendants violated his constitutional rights during his punitive isolation
by not removing him from his cell during his 48-hour relief periods, among other things. Plaintiff
explained at deposition that the “root of [his] argument is cruel and unusual punishment.” (Doc.
No. 74-1 at 35:3-4). Plaintiff brought his claims against Defendants in the personal and official

capacities. Plaintiff and Defendants have filed competing Motions for Summary Judgment on the
merits.
1. Official Capacity Claims
Plaintiff’s official capacity claims are the equivalent of claims against the state of
Arkansas; as such, Plaintiff’s official capacity damages claims are barred by Eleventh
Amendment. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Accordingly,
Defendants’ Motion is granted in connection with Plaintiff’s official capacity damages claims.

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2. Individual Capacity Claims
In his Amended Complaint, Plaintiff asserts that adequate forty-eight hour relief includes
being removed from his punitive isolation cell during the relief period. He also alleges poor
conditions while in punitive isolation such as heat, cold, physical abuse, and unsanitary conditions.

(Doc. No. 5). Further, Plaintiff alleges that of the 428 days he was in punitive isolation, he was
denied the opportunity to exercise on 234 days. (Id. at 4). Plaintiff asserts Defendants violated
prison policy, as well as Plaintiff’s rights under the Eighth and Fourteenth Amendments, through
their actions.
a. Prison Policy
To the extent Plaintiff bases his claims on the violation of prison policy, his allegations fail
to state a § 1983 claim on which relief may be granted. Gardner v. Howard, 109 F.3d 427, 430
(8th Cir. Cir. 1997).
b. Eighth Amendment Claims
“A prisoner alleging an Eighth Amendment violation must prove both an objective and

subjective element.” Revels v. Vincenz, 382 F.3d 870, 875 (8th Cir. 2004) (citing Wilson v.
Seiter, 501 U.S. 294, 298 (1991)). “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.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 342 (1981)). In addition, the
defendant’s conduct also must also demonstrate a subjective state of mind that indicates deliberate
indifference to the health or safety of the prisoner. Id. (citing Estelle v. Gamble, 429 U.S. 97, 104
(1977)). To succeed on a deliberate indifference claim, a plaintiff must show that “the defendant
was substantially aware of but disregarded an excessive risk to inmate health or safety.” Id.
(citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)).

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c. Fourteenth Amendment Claims
Plaintiff also raised claims under the Fourteenth Amendment. The safeguards of the due
process clause are triggered when a protected liberty interest is at issue. Sandin v. Conner, 515
U.S. 472, 484 (1995); Phillips v. Norris, 320 F.3d 844, 846-47 (8th Cir. 2003). A protected liberty

interest “may arise from two sources-the Due Process Clause itself and the laws of the States.”
Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). State law may create a liberty
interest if “state statute or regulation involved uses mandatory language and imposes substantive
limits on the discretion of state officials.” Snodgrass v. Robinson, 512 F.3d 999, 1003 (8th Cir.
2008).
d. Qualified Immunity
Defendants argue they are protected from liability in their individual capacities by qualified
immunity, which protects officials who act in an objectively reasonable manner. It may shield a
government official from liability when his or her 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.”).
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

13
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).1 Defendants are 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).

i. Removal from Cell
To a large extent, Plaintiff’s claims turn on what “48-hour relief” means. Does that term
mean that an inmate must be physically removed from his punitive isolation cell? Or can an
inmate receive sufficient relief while remaining confined in punitive isolation?
In Finney v. Hutto, the Court of Appeals for the Eighth Circuit held that “the policy of
sentencing inmates to indeterminate periods of confinement in punitive isolation is unreasonable
and unconstitutional.” 410 F. Supp. 251, 278 (E.D. Ark. 1976), aff’d, 548 F.2d 740 (8th Cir.
1977), aff’d, 437 U.S. 678 (1978). Plaintiff believes Finney requires an inmate be physically
removed from his punitive isolation cell and housed elsewhere during relief periods. (Doc. No.
5; Doc. No. 71 at ¶¶ 1, 4). For example, in a Declaration in support of Plaintiff’s Motion for

Summary Judgment, Plaintiff explains that “[o]n 1/27/20, my status within the computer system
changed automatically to 48-hour relief but my physical location remained the same. Thus I
received no relief from punitive housing.” (Doc. No. 70 at ¶ 16.) Plaintiff makes the same
statement as to his other relief periods reflected in ADC documents.

1Courts are “permitted to exercise their sound discretion in deciding which of the two
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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But the Court of Appeals for the Eighth Circuit has indicated that the Constitution does not
necessarily require that an inmate be moved from his cell during a relief period. See Ford v.
Kelley, case no. 5:17-cv-00270-JM-JJV, 2019 WL 1906255, at *4 (E.D. Ark. April 9, 2019), aff’d
2019 WL 6464027 (8th Cir. 2019). Rather, the analysis is not limited to where the inmate is

confined, but extends to how he is confined. The Court of Appeals for the Eighth Circuit affirmed
the district court’s entry of summary judgment in defendants’ favor where a prisoner remaining in
his punitive isolation cell during relief periods had privileges restored during relief. Id. In light
of Ford v. Kelley, instead of looking merely at where Plaintiff was housed, the Court must also
consider whether Plaintiff’s privileges were restored during relief periods.
The ADC and Maximum Security Unit had in place policies governing punitive isolation.
Both Administrative Directive 19-27 and MS 10.2.1 describe forty-eight-hour relief as a period in
which an inmate’s privileges will be restored. (Doc. No. 74-4 at 8; Doc. No. 74-6 at 6.) On April
20, 2022, the Court held an evidentiary hearing in connection with the pending motions for
summary judgment. At the hearing, Defendant Payne explained that

[o]n your 48 hour relief, your privileges are restored. Those privileges you lost in
disciplinary court are restored to you. So, basically, if you lost your commissary
privileges, those are restored to you; if you lost your visitation privileges, those are
restored to you. So, whatever you lost in disciplinary court is what can be restored
to you.

(Doc. No. 117 at 49:18-25).
At the hearing, Plaintiff called witness Alonzo Hampton, a fellow inmate who spent a
significant amount of time in punitive isolation at the same time Plaintiff did. Mr. Hampton
testified, in part, as follows:
It wasn’t policy that you had to be removed from punitive isolations, as long as
your phone was cut on, and if your – if your store – if your 48 fell on your store
days, you received your commissary, that entitled you to some kind of relief. But a

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lot of us had numbers removed from our list due to phone charges, so we wasn’t
able to utilize or operate the phone. And then, sometime in punitive isolation, the
inmates tear the phone up, so there’s no phone available.

(Doc. No. 117 at 31:1-9). This explanation is consistent with the ADC’s and Maximum Security
Unit’s written policy regarding relief periods, as well as consistent with Defendant Payne’s
testimony.
Defendant Byers also explained that inmates are made aware of their relief periods either
by an informal written notice not requiring a signature that was given to the inmate, or simply by
inmates tracking the date on which the 48-hour relief would be due. (Doc. No. 117 at 80:6-82:1).
Additionally, an inmate’s relief period is reflected on the prison’s EOMS, or offender management
system. (Id. at 81:20-21).
Despite the policy mandating that privileges be restored during the relief periods, Plaintiff
alleges he was denied the following: access to news and media; access to the law library;
commissary; visitation; personal property; and telephone privileges. The record reflects Plaintiff
repeatedly lost commissary, telephone, and visitation privileges in connection with the
disciplinaries he received. (Doc. No. 74-8).
Commissary
Plaintiff alleged he was denied commissary privileges during his relief period. ADC
records reflect Plaintiff’s relief periods and commissary purchases as follows:
48-hour Relief Dates Commissary Purchases
1/27/2020—1/29/2020 1/8/2020 – two entries
1/22/2020
1/29/2020—two entries
2/26/2020—2/28/2020 2/26/2020

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3/30/2020—4/1/2020 3/3/2020
3/30/2020
4/30/2020—5/1/2020 5/1/2020—two entries
5/29/2020—6/1/2020 6/1/2020
6/30/2020—7/2/202 6/8/2020
7/1/2020
7/31/2020—8/3/2020 7/8/2020
7/20/2020
7/22/2020
8/31/2020—9/2/2020 9/1/2020
10/1/2020—10/5/2020 10/5/2020
10/12/2020 – two entries
10/19/2020
10/30/2020—11/4/2020 11/2/2020
12/1/2020—12/4/2020 12/3/2020
1/5/2021—1/7/2021 1/6/2021
2/2/2021—2/4/2021 2/2/2021—four entries

(Doc. No. 74-9; Doc. No. 74-10).
At the April 20, 2022 evidentiary hearing, Plaintiff testified that he never knew when he
had a relief period because he was never notified when his relief started. (Doc. No. 117 at 9:1-
16, 9:1-5). Commissary records, however, reflect that Plaintiff’s purchases coincided with his
relief periods, with purchases sometimes also made when Plaintiff was not on relief. (Doc. No.
74-9; Doc. No. 74-10). Additionally, at the evidentiary hearing Plaintiff acknowledged that he
was allowed commissary during his 48-hour relief periods. (Doc. No. 117 at 8:10-16). The
Court also notes Plaintiff did not complain about any commissary-related issues in his grievances.

17
Additionally, there is no constitutional right to a prison gift or snack shop. Tokar v.
Armontrout, 97 F.3d 1078, 1083 (8th Cir. 1996). To the extent Plaintiff complained that he was
limited to spending $10 a month at the commissary (Doc. No. 5 at 5), that limitation does not rise
to the level of a violation.

Access to News and Media
Administrative Directive 19-27 provides that “[i]nmates will not be able to receive
newspapers or magazines in punitive housing or on punitive restriction.” (Doc. No. 74-4 at 2).
However, “[d]uring their forty-eight (48) hour relief, inmates will be allowed to receive the two
(2) most current newspapers and magazines on a one-for-one exchange basis.” (Id.).
Plaintiff alleges he was denied access to news and media during periods of 48-hour relief.
(Doc. No. 5; Doc. No. 108-5 at 1). Plaintiff believes Administrative Directive 19-27 requires
officers to take the initiative to bring an inmate newspapers or magazines during the inmate’s 48-
hour relief period, without having been requested to do so. (Doc. No. 74-1 at 24:22-25:8).
During his deposition, Plaintiff explained his understanding of the policy as follows: “It don’t

say nowhere in that policy that I should ask. The policy don’t state the inmate should ask for
these things. These things is entitled, you know what I’m saying. They’re supposed to be given
to you.” (Id. at 35:23-36:1).
Plaintiff acknowledged that the prison library has a newspaper subscription. (Id. at 25:21-
23). Plaintiff also acknowledged that no Defendant ever prevented him from getting a newspaper
subscription. (Id. at 25:9-20). And Plaintiff acknowledged that he never tried to get a
subscription. (Id.) Plaintiff maintains Defendants violated his rights “because they don’t give
us no newspaper or no magazine.” (Id. at 24:5-9). Plaintiff also maintains that he was denied

18
access to the news because he was not allowed to have batteries to power his radio. (Doc. No. 71
at ¶ 9).
Despite Plaintiff’s deposition testimony, in his Response to Defendants’ statement of
material facts not in dispute Plaintiff denied not having a newspaper subscription, among other

denials. (Doc. No. 76 at ¶¶ 55-59; Doc. No. 82 at ¶¶ 55-59).
Federal Rule of Civil Procedure 56(c)(1) provides:
A party asserting that a fact cannot be or is generally disputed must support the
assertion by:

(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers, or other materials;
or
(B) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence
to support the fact.

FED. R. CIV. P. 56(c)(1). See also Glover v. Bostrom, case no. 20-2884, 2022 WL 1087586, at
*4 (8th Cir. Apr. 12, 2022) (an unsubstantiated allegation is not enough to raise a genuine dispute)
(citing Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002). Plaintiff did not support
his denial by citing to the record or otherwise offering any evidence in support of his denials.
Plaintiff was entitled to access news during relief periods by purchasing magazine and
newspaper subscriptions, requesting them from the library, or having family or friends send him
copies. The Court notes that mail is not restricted for inmates serving a sentence in punitive
isolation. (Doc. No. 74-4 at 2) (“Inmates in punitive housing or on punitive restriction will be
allowed to send and receive letters on the same basis as inmates in the general population.”); (Doc.
No. 74-6 at 5). Plaintiff, however, did not take advantage of any of these methods. Moreover,
although prisoners have a First Amendment right to receive published materials subject to

19
reasonable limitations, that right does not create an affirmative duty on prisons to provide news
publications to inmates. Collins v. Burl, No. 2:11CV40-DPM-BD, 2011 WL 2457532, at 1 (E.D.
Ark. June 17, 2011) (citing Pell v. Procunier, 417 U.S. 817, 822 (1974)). Plaintiff’s failure to
avail himself of the possible means to receive newspapers and magazines is not the equivalent of

being denied access to the news and media.
Access to the Law Library
Pursuant to Administrative Directive 19-27 and MS 10.02.1, “[a]fter having been in
punitive housing for twenty days, inmates may order legal materials from the law library if just
cause or adequate need arises for legal material to be delivered once per week.” (Doc. No. 74-4
at 4; Doc. No. 74-6 at 4). The Directive contains the exception that “[l]egal materials will be
made readily accessible to those inmates who need to meet statutory or court-imposed deadlines.”
(Id.). The Court notes that law library access is available to inmates after twenty days in punitive
isolation; access is not limited to relief periods.
Defendants maintain Plaintiff requested and received material from the law library while

Plaintiff was in punitive isolation. Defendants provided the following dates on which Plaintiff
requested or received material: February 12, 2020; May 18, 2020; February 10, 22, and 24, 2021;
and March 12, 2021. (Doc. No. 76 at ¶ 64). Plaintiff denies Defendants’ assertion. (Doc. No.
82 at ¶ 64). But Defendants also provided a supply history record for Plaintiff, showing various
materials supplied. (Doc. No. 74-11).
Plaintiff has not provided evidence beyond his own statement to discredit the records
provided by Defendants. The Court also notes that the grievances Plaintiff filed do not include
any complaint regarding lack of access to legal material. (Doc. Nos. 108-4, 108-5; 108-6);
Glover, 2022 WL 1087586, at *4. Further, Plaintiff has not explained why he requested legal

20
material, which legal material he sought, which legal material he was denied, or any actual injury
he suffered by any denial. Hartsfield v. Nichols, 511 F.3d 826, 831-32 (8th Cir. 2008).
Visitation
Plaintiff alleged he was denied visitation, including phone calls. In Plaintiff’s ADC

Inmate Case Notes, there is one instance noted when Plaintiff complained about not being able to
use the telephone during his 48-hour relief. (Apr. 20, 2022 hearing, Ex. 7). The notes reveal that
on October 19, 2020, Plaintiff asked to use the phone to call home when he had been denied phone
privileges during relief. (Id. at 1). Yet the Case Notes show that during Plaintiff’s relief period
on October 1-2, Plaintiff made 38 connected calls. (Id.). Staff then failed to restrict Plaintiff’s
telephone status, and between October 3-5, Plaintiff made an additional 57 connected calls. (Id.).
The Inmate Case Notes reflect that Plaintiff’s request to use the phone again was denied. (Id.).
The Court once again notes that Plaintiff did not complain about any visitation-related issue
in his grievances. And in his Amended Complaint, Plaintiff did not raise denial of visitation as
an issue. At Plaintiff’s deposition and in the April 20 evidentiary hearing, Plaintiff maintained he

was denied visitation. At the hearing, Defendant Byers testified that visitation was at the
warden’s discretion. (Doc. No. 117 at 74:11-18). He did not recall having a request for visitation
from Plaintiff. (Id. at 14-17). During his deposition, Plaintiff explained that he had not “had a
visitation in six years,” which is much longer than the period at issue in this lawsuit. (Doc. No.
74-1 at 85:2-3).
Personal Property
Though not mentioned in his Complaint, Plaintiff alleged in Grievance MX-21-00224 that
by not being removed from punitive isolation, he was being denied access to personal property.
(Doc. No. 74-7 at 3). Plaintiff also testified at the evidentiary hearing that he “never received

21
[his] property.” (Doc. No. 117 at 8:10-13). However, Plaintiff then later testified that he did get
his books back during his time in punitive isolation. (Id. at 14:2-7). Defense counsel presented
Plaintiff with an ADC personal property record dated May 29, 2020, that recorded that certain
personal property was returned to Plaintiff on that date. (Id. at 16:10-15). Based on the personal

property record, it appears that as of May 29, 2020, Plaintiff was allowed to have certain books,
shoes, and religious material, even though personal property generally was not allowed while an
inmate was in punitive isolation. (April 20, 2022 hearing, Ex. 1). Plaintiff has not explained
which other property he claims he was denied.
Privileges Restored
Evidence in the record demonstrates that Plaintiff purchased commissary items during his
relief periods, used the telephone, had access to news and media, was allowed personal property,
and requested and received material from the law library. The record supports a finding that
Plaintiff’s punitive restrictions were lifted during his relief periods. In Ford v. Kelley, mentioned
above, the Court of Appeals for the Eighth Circuit affirmed the granting of summary judgment in

defendants’ favor under similar factual circumstances. See Ford, 2019 WL 1906255, at *4.
Here, as in Ford, Plaintiff has failed to establish an Eighth Amendment violation.
To the extent Plaintiff alleged that the failure to remove him from his punitive isolation
cell during relief periods constituted a Fourteenth Amendment violation, that claim also fails. The
United States Supreme Court has recognized that states may, under certain circumstances, create
liberty interests that are protected by the Due Process Clause. Sandin v. Conner, 515 U.S. 472,
483-84 (1995) (citing Board of Pardons v. Allen, 482 U.S. 369 (1987)). “But these interests will
be generally limited to freedom from restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due Process Clause of its own force,

22
nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Id. at 484 (internal citations omitted). Because ADC policy does not
require the removal of an inmate from a punitive isolation cell during relief periods, the state has
not created a liberty interest in removal. Even if a liberty interest had been created, the failure to

move an inmate to another cell could not be considered “a dramatic departure from the basic
conditions” of confinement because the relief period entails the restoration of privileges; a relief
period entails the “basic conditions” of confinement. Id. at 485.
Why Plaintiff Was Not Moved From His Cell
While the Court finds that Defendants did not violate Plaintiff’s Eighth or Fourteenth
Amendment rights by not removing him from his cell, Plaintiff’s allegations nonetheless are
troublesome. The Court held the April 20, 2022 evidentiary hearing to develop the record as to
why Plaintiff was not moved, among other things. During the hearing, Defendant Payne testified
that Plaintiff was not moved because of a lack of available beds in the prison during Plaintiff’s
relief periods, and because movement throughout the prison was restricted from April 2020

through March 2021 as a Covid-19 precaution. (Doc. No. 117 at 51:23-52:15). Defendant
Byers’s testimony was consistent with Defendant Payne’s testimony. Defendants’ supplemented
their Motion with the number of beds available during each of Plaintiff’s 48-hour relief periods.
(Doc. Nos. 115-1; 115-2; 115-3). The records reflect that in January 2020, between the two
restrictive housing barracks where inmates in punitive isolation could have been housed during
relief, there were four beds available; in February 2020, there was one bed available; and in March
2020, there were two beds available to accommodate all inmates on relief. Defendant Byers
further explained that the restrictive housing barracks also served as quarantine barracks, and cells
had to be held open for inmates who tested COVID-19 positive and needed to quarantine. (Doc.

23
No. 115-1 at ¶ 6). And from late April 2020, “due to COVID 19, there was no movement of
inmates between barracks unless it was for a security reason such as an altercation, PREA, or
serious contraband.” (Id. at ¶ 5).
The Court notes that Covid-19 precautionary measures were at play throughout the vast

majority of Plaintiff’s time in punitive isolation. The Court is not aware of any clearly established
law that would have put a reasonable officer on notice that not removing Plaintiff from his cell
was a violation during the times relevant to Plaintiff’s claims. As such, to the extent any violation
may have occurred as a result of Plaintiff not being moved, Defendants are entitled to qualified
immunity on that point.
ii. Additional Complaints About Confinement in Punitive
Isolation

Beyond Plaintiff’s allegation that he was not removed from his cell and that he was denied
privileges, Plaintiff complains of other aspects of his confinement in punitive isolation.
Deliberate Indifference to Exercise Needs
Plaintiff alleges he was “locked down” and unable to exercise for 234 out of 428 days.
(Doc. No. 5 at 4). Defendants maintain there was no constitutional violation. In support of their
Motion, Defendants provided the Declaration of Defendant Rodney Ford. (Doc. No. 74-13).
According to Defendant Ford, “prior to Covid-19, punitive isolation inmates were afforded the
opportunity to exercise outside their cell in accordance with the unit’s policy.” (Id. at ¶ 29).
Plaintiff denies this allegation without supporting his denial. (Doc. No. 76 at ¶ 75; Doc. No. 82
at ¶ 75).
Defendants provided yard call logs showing days and times when inmates in restrictive
punitive housing left their cells. The Court has reviewed these records. On the days an inmate

24
accepted yard call, the logs note the in and out times. (Doc. No. 91). As to Plaintiff, the yard
call logs show as follows:
Dates Plaintiff Dates Plaintiff Dates Yard Call Dates With
Accepted Yard Refused Yard Cancelled Insufficient or No
Call Call Information
February 2020 3, 7, 14, 24, 25, 26 19, 21, 27 13, 18 1, 2, 4 - 6, 8-12, 15-
17, 20, 22-23, 28
March 2020 6, 9, 12 1, 2-5, 7-8, 10-11, 13-
31
April 2020 7, 8, 17, 21, 22 23 1-6, 9, 10-16, 18-20,
27-30 (treatment 24-26
precautions)
May 2020 5, 11, 18, 27, 29 1-4, 6-10, 12-17, 19-
26, 28, 30
June 2020 2, 4, 5, 9, 10, 11, 8 1, 3, 6-7, 12-14, 16,
15, 17, 18, 24 19-23, 25-30
July 2020 1, 20, 21, 22, 24, 31 30 2, 3-19, 23, 25-26, 28
27, 29
August 2020 10, 12, 13, 20, 21, 3, 4, 7, 11, 17, 5, 14, 27, 31 1-2, 6, 8-9, 15-16, 18,
24 19, 26, 28 22-23, 25, 29-30
September 2020 14, 30 3, 11 2, 10 1, 4-9, 12-13, 15-29
October 2020 6, 8, 14, 20, 21 5, 16, 22 2 1, 3-4, 7, 9-13, 15, 17-
19, 23-30
November 2020 3 2 9, 10, 12, 13, 16, 1, 4-8, 11, 14-15, 21-
17, 18, 19, 20 30

(Doc. No. 91; Doc. No. 87-5 at ¶¶ 9-11).Defendants could not locate yard call records for the
months of December 2020, and January through March, 2021. (Doc. No. 92).
In Rahman X v. Morgan, the plaintiff, an Arkansas Department of Corrections inmate, was
not allowed to go outside to exercise for three months. 300 F.3d 970 (8th Cir. 2002). Taking
into account that the plaintiff was allowed activity outside of his cell, even if not outdoors, the
Court of Appeals for the Eighth Circuit found the three-month deprivation of activity outdoors was
not “sufficiently serious to establish an Eighth Amendment violation.” Id. at 974 (8th Cir. 2002).
Here, though, Plaintiff alleges he was locked down in his cell for 234 days without exercise or out-
of-cell activity.

25
The record clarifies that the 234 days Plaintiff mentioned were not consecutive. There
was no month for which records exist in which Plaintiff had no outdoor/out-of-cell activity.
Further, unlike in 2002 when Rahman X was decided, from early 2020 forward our nation
has been fighting to contain Covid-19. Prisons did not escape this battle. As explained by

Defendants, by April 2020 the ADC had implemented Covid-19 restrictions that limited the
movement of inmates within the units. (Doc. No. 87-3 at ¶ 3). The restrictions remained in place
until April 2021. (Id.). While the Covid-19 restrictions were in place, ADC staff “continued to
make efforts to conduct yard-call because this was often the only time that the inmates were
allowed out of their cells.” (Id. at ¶ 7).
At times yard call was cancelled because of Covid-related staffing shortages. (Id.).
Defendant Payne testified that staffing levels were down by 50%, while Defendant Byers testified
that at the Maximum Security Unit, staffing levels were down by 65%. (Doc. No. 117 at 53:6-
24; 83:4-11). As described by Defendant Payne, “When we escort inmates to the yard, we have
to have two officers per every inmate that we take out. So, they’re – they’re escorted by two

officers every time. Every time a[n] inmate in restrictive housing is moved from one place to the
other, they’re escorted by two officers.” (Id. at 55:2-7). As Defendant Byers explained at the
April 20 hearing, “there were days we had to choose between, ‘Hey, we got to get this cell block
cleaned up or – or we gotta run yard.’ Those were the choices we had to make. So, generally, we
go for cleanliness and healthiness.” (Id. at 83:15-19). Again, according to Defendant Byers,
staffing at the Maximum Security Unit was down by 65%. (Id. at 83:4-11).
The record also reflects that at other times yard call was cancelled because of the weather.
(Doc. No. 91). And, as set out above, at times Plaintiff refused yard call. (Id.) The Court notes
that Plaintiff disputes this fact. FED. R. CIV. P. 56(c)(1); Glover, 2022 WL 1087586, at *4.

26
Covid-19 precautionary measures and Covid-related staffing shortages were an issue
throughout most of Plaintiff’s time in punitive isolation and contributed to yard call not taking
place. The Court is not aware of any clearly established law that would have put a reasonable
officer on notice of a violation resulting from not taking inmates to yard call when Covid-19

precautions and Covid-related staffing shortages were the underlying reason. As such, to the
extent any violation may have occurred, Defendants are entitled to qualified immunity on this
point.
There is no dispute that the “lack of exercise may be a constitutional violation if one’s
muscles are allowed to atrophy or if an inmate’s health is threatened.” Wishon v. Gammon, 978
F.2d 446, 449 (8th Cir. 1992). Plaintiff’s allegations include denial of exercise. Defendants have
explained that Plaintiff was housed in a one-man cell, and that Plaintiff was able to exercise inside
of his cell. (Doc. No. 87-3 at ¶ 8). At the evidentiary hearing, Plaintiff testified that his cell was
too small to allow him to exercise. (Doc. No. 117 at 10:19-21). Defendants provided the
dimensions of Plaintiff’s cell. (Apr. 20, 2022 hearing Ex. 4). With 63.54 unencumbered square

feet in his cell, and where the length of the inner cell was 8.6 feet, the Court finds no genuine issue
of material fact; the dimensions of Plaintiff’s cell were large enough for Plaintiff to exercise inside
of his cell. And Plaintiff has not alleged that any ADC official prevented him from doing so.
Shower and Sleeping Mat Claims
Plaintiff claims that he was limited to three showers a week and that his sleeping mat was
taken for 12 hours a day. (Doc. No. 5; Doc. No. 74-1 at 35:10-15, 91:11-13). These allegations
do not rise to the level of a constitutional violation. Abernathy v. Perry, 869 F.2d 1146 (8th Cir.
1989) (no Eighth Amendment violation where plaintiff allowed to shower twice per week);
Gardner v. Emsweller, case no. 6:20-cv-06006, 2020 WL 1696091, at *2 (W.D. Ark. Mar. 13,

27
2020) (“The Court is not aware of any authority in this or any other Circuit which requires inmates
without specific medical needs to be permitted access to a sleeping mat twenty-four hours a day.”)
(and cases cited therein).
Temperatures in Plaintiff’s Cell

Plaintiff alleged that the temperatures in his cell were too cold in winter and too hot in
summer. In support of their Motion, Defendants submitted logs of the temperature in Plaintiff’s
barracks. (Doc. No. 87-7). The logs cover the period from January 1, 2020 to March 5, 2021.
(Id.) While some days are missing from the records, the logs in evidence do not reflect that
Plaintiff’s barracks were ever extremely hot or cold. (Id.) Generally, the logs reflect
temperatures between the mid-60s and mid-70s. (Id.) Plaintiff has not come forward with
evidence to prove that any temperatures to which he was exposed were so extreme as to rise to the
level of a constitutional violation.
Sewage in Plaintiff’s Cell
Plaintiff alleged that sewer water routinely flooded his cell. (Doc. No. 5 at 5).

Defendant Culclager searched maintenance records for the period of January 2020 through March
2021 in connection with Plaintiff’s claim that his cell flooded with sewer water. Defendant
Culclager found no record that Plaintiff’s cell ever flooded at any time relevant to this case. (Doc.
No. 87-5 at ¶ 19). Further, there were no maintenance records indicating that Plaintiff’s cell
flooded. (Id.). Beyond his own statements, Plaintiff has not presented evidence that his cell
flooded.
Physical Abuse
According to Plaintiff, he was physically abused while in punitive isolation. (Doc. No. 5
at 5). Plaintiff submitted two grievances he filed in connection with the alleged abuse. (Doc.

28
No. 71 at 24, 25). Plaintiff submitted Grievance MX-21-01186 after he filed this lawsuit. (Id. at
24). As such, the events complained of in that grievance are not at issue in this case. Grievance
MX-19-01818, the other grievance filed, alleges that a Sergeant Wooten retaliated against Plaintiff
for Plaintiff exposing Sergeant Wooten’s “undercover sex life” with another ADC official. (Id.

at 25). Sergeant Wooten allegedly retaliated against Plaintiff by using excessive force while
escorting Plaintiff back from the shower. (Id.). This grievance does not support Plaintiff’s claim
that he was being abused as part of his confinement in punitive isolation; the abuse Plaintiff alleged
was retaliation for Plaintiff’s unrelated actions. And Plaintiff otherwise has not come forward
with evidence to support his claim.
V. Summary
Where, as here, Defendants have moved for summary judgment, Plaintiff “was required
‘to discard the shielding cloak of formal allegations and meet proof with proof by showing a
genuine issue as to a material fact.’” Fatemi v. White, 775 F.3d 1022, 1046 (8th Cir. 2015)
(internal citation omitted). Plaintiff has not, however, met proof with proof to establish facts in

dispute that would preclude partial summary judgment in Defendants’ favor. Wilson v. Miller,
821 F.3d 963, 970 (8th Cir. 2016) (allegations must be substantiated with sufficient probative
evidence); Bolderson v. City of Wentzville, Missouri, 840 F.3d 982, 986-87 (8th Cir. 2016) (noting
plaintiff’s duty to meet proof with proof in affirming summary judgment in defendant’s favor).
Plaintiff has failed to establish a genuine issue of fact that precludes entry of summary
judgment in Defendants’ favor, and has failed to establish that he is entitled to the summary
judgment he seeks. The Court again notes that Defendants are entitled to qualified immunity
where Covid-related restrictions or Covid-related staffing shortages gave rise to the issues of which
Plaintiff complained.

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VI. Conclusion
IT IS, THEREFORE, ORDERED that:
1. Plaintiff's Motion for Summary Judgment (Doc. No. 68) is DENIED.
2. Defendants’ Motion for Summary Judgment on the merits (Doc. No. 74) is
GRANTED.
3. Defendants’ Motion for Summary Judgment on the issue of exhaustion (Doc. No.
108) is DENIED as moot.
4. Plaintiff's claims are DISMISSED with prejudice.
5. This case is DISMISSED.
IT IS SO ORDERED this 16™ day of May, 2022. :

JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10006689. Public record. Not legal advice.