Covert v. Kelley

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

HAROLD MOSES COVERT PLAINTIFF

ADC #151511

V. No. 4:20-CV-202-BSM-JTR

JAMES PLUMMER, Captain,

MARY LLOYD, Lieutenant,

LAQUISTA SWOPES, Sergeant,

and HAMPTON, Sergeant DEFENDANTS

RECOMMENDED DISPOSITION

This Recommended Disposition (“Recommendation”) has been sent to United

States District Judge Brian S. Miller. You may file written objections to all or part

of the Recommendation. If you do so, those objections must: (1) specifically explain

the factual and/or legal basis for your objection; and (2) be received by the Clerk of

this Court within fourteen (14) days of the date of this Recommendation. If you do

not file objections, Judge Miller may adopt this Recommendation without

independently reviewing all of the evidence in the record. By not objecting, you may

waive the right to appeal questions of fact.

I. Introduction

Plaintiff Harold Moses Covert (“Covert”), a prisoner in the Varner Supermax

Unit of the Arkansas Division of Correction (“ADC”), filed this pro se § 1983 action

alleging that his constitutional rights were violated. Doc. 2. After screening the

Complaint, the Court permitted Covert to proceed with: (1) his Eighth Amendment

claim that Defendants were deliberately indifference to a substantial risk of harm to

his safety and; (2) his First Amendment claim that Defendants Captain James

Plummer (“Plummer”), Lieutenant Mary Lloyd (“Lloyd”), Sergeant Laquita Swopes

(“Swopes”), and Sergeant Hampton (“Hampton”) subjected him to a retaliatory cell

search, on October 27, 2019, after he reported to the “Arkansas State Crime

information line” that drugs were being smuggled into Varner Supermax. Doc. 20.

On September 19, 2022, Judge Miller entered an Order granting Defendants’

Motion for Partial Summary Judgment on Covert’s deliberate indifference claims

because he failed to fully and properly exhaust his administrative remedies on those

claims before he initiated this action. Doc. 74. Thus, Covert’s only remaining claim

is his First Amendment retaliation claim against Plummer, Lloyd, Swopes, and

Hampton.

On January 3, 2023, Defendants Plummer, Lloyd, and Swopes1 filed a Motion

for Summary Judgment, Brief in Support, and a Statement of Undisputed Facts.

Docs. 88–90. On January 11, 2023, Covert filed a Response, Brief in Support of

Response, and Statement of Disputed Facts. Docs. 92–94. Thus, the legal issues

raised in the Motion for Summary Judgment are joined and ready for disposition.2

1 Defendant Hampton has never been served in this matter. See Doc. 22; Doc. 51.

2 Summary judgment is appropriate when the record, viewed in a light most favorable to

the nonmoving party, demonstrates that there is no genuine dispute as to any material fact and the

II. Relevant Facts

In support of their Motion for Summary Judgment, Defendants submit their

verified discovery responses to Covert’s First Set of Interrogatories and Request for

Production of Documents (Doc. 88-1) and a letter from Arkansas State Police

counsel indicating that she had contacted several State agencies but not one of them

had any records to support Covert’s claim that, on October 27, 2019, he placed a

phone call from Varner Supermax reporting that prisoners in his cell block were

selling drugs (Doc. 88-2).

In support of his Response, Covert submits the following relevant documents:

(1) his own sworn Declaration (Doc. 95); (2) a grievance he filed immediately after

the allegedly retaliatory cell search on October 27, 2019 (Doc. 92 at 7–12);3 (3)

Swopes and Lloyd’s Answers to his Requests for Admission (Doc. 92 at 21–29);4

and ADC Administrative Directive 18-15, “Searches of Inmates, Unit Searches and

Control of Contraband” (“AD 18-15”) (Doc. 92 at 31–35).

moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50

(1986). The moving party bears the initial burden of demonstrating the absence of a genuine

dispute of material fact. Celotex, 477 U.S. at 323. Thereafter, the nonmoving party must present

specific facts demonstrating that there is a material dispute for trial. See Fed R. Civ. P. 56(c);

Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011).

3 In an attached Affidavit, Covert declares under penalty of perjury that the facts contained

in that grievance are “true to the best of [his] knowledge.” Doc. 92 at 12.

4 These Answers to Covert’s Requests for Admission are signed by Defendants’ counsel in

accordance with Rule 36(a)(2) of the Federal Rules of Civil Procedure.

The relevant undisputed facts, which the Court has gleaned from the

attachments to the parties’ summary judgment papers and Covert’s verified

Complaint (Doc. 2),5 are set forth below:6

1. At 8:50 a.m. on October 27, 2019, Covert used the “state phone”7 at

Varner Supermax to place a call to the “Arkansas State Crime information line.”

Compl., Doc. 2 at 14; Doc. 95 at 1.

2. In this phone call, he “reported” that prisoners in his cellblock,

“Cellblock 5,” were selling drugs. Doc. 2 at 14, 31; Doc. 95 at 1. It is unclear whether

Covert spoke with a person or simply left a message relaying that information.8

5 Because Covert’s Complaint is signed under penalty of perjury, it is “the equivalent of an

affidavit for purposes of summary judgment.” Roberson v. Hayti Police Dep't, 241 F.3d 992, 994–

95 (8th Cir. 2001).

6 Defendants argue that the Court should consider the statements in their Answer to

Covert’s Complaint as support for their Statement of Undisputed Material Facts. Doc. 90 at 1, ¶

4. The Court is not permitted to consider a party’s unverified Answer as a source for facts which

can be considered to be true in deciding a motion for summary judgment. The Court also will not

consider the letters and Affidavit about the events that took place in January 2023 (Doc. 92 at 13–

14) or the discovery correspondence between Covert and Defendants’ counsel (Doc. 92 at 15–19).

None of those documents are in any way relevant to whether Covert’s constitutional rights were

violated in the cell search that took place on October 27, 2019.

7 “[I]nmates housed in Varner Supermax are permitted to use a state phone that is brought

to an inmate's cell on a rolling cart; the inmates use the phone through the cell traps.” Shirhashirim

v. Gibson, No. 5:19-CV-11-DPM-JJV, 2021 WL 4530042, at *2 (E.D. Ark. Sept. 14, 2021).

8 It is also unclear which State “information line” Covert allegedly called. According to the

Arkansas Crime Information Center’s website, it “is the state agency responsible for providing

information technology services to law enforcement and other criminal justice agencies in

Arkansas.” Arkansas Crime Information Center, ARK. DEP’T OF PUB. SAFETY,

https://www.dps.arkansas.gov/crime-info-support/arkansas-crime-information-center/about-us/

(last visited January 24, 2023). Based on this description, it is unlikely that this is the agency

Covert intended to call.

3. Thirty-five minutes after Covert made this phone call, Sergeants

Swopes and Hampton handcuffed and removed Covert from his one-man cell in

Cellblock 5 of Varner Supermax. Doc. 2 at 14, 31; Doc. 95 at 1. Swopes conducted

a cell search while Hampton stood outside with Covert. Doc. 2 at 14, 32; Doc. 95 at

1.

4. Hampton asked Covert: “Who have you wrote a grievance on [?]” Doc.

2 at 14.

5. After the search did not reveal any drugs or other contraband, Swopes

and Hampton escorted Covert to the control booth where Captain Plummer and

Lieutenant Lloyd were stationed. Doc. 2 at 15; Doc. 95 at 1.

6. According to Covert, Lloyd asked Swopes and Hampton, “What y’all

doing [?] I told y’all to just take the state phone from him.” Doc. 2 at 15; Doc. 95 at

1.

7. Covert was then escorted back to his cell. Doc. 2 at 15.

8. Swopes and Hampton did not search any other cells in Cellblock 5.

Doc. 2 at 15, 31; Doc. 95 at 1

9. Covert immediately grieved the cell search by filing an Informal

Resolution. Doc. 2 at 31. At Step Two of the ADC’s grievance procedure, the

Warden denied his grievance because Covert had “not provided any evidence to

support [his] allegation of retaliation,” and the search was authorized by and

conducted in conformance with AD 18-5. Doc. 2 at 32. The Warden’s decision was

affirmed at Step 3. Id. at 34.

10. AD 18-15 provides that searches of inmates may include “persons,

clothing, and other personal items” and that “[s]earches of inmates are conducted as

often as necessary to control contraband, but never for purposes of punishment or

harassment.” Doc. 92 at 33.

11. The Arkansas Crime Information Center does not record phone calls.

Accordingly, it does not have a recording of the phone call Covert states he made on

October 27, 2019. Doc. 88-2.

12. The Arkansas State Police Criminal Investigation Division “does not

have a file for [Covert], which would house any recordings received or made part of

an investigation file.” Id.

13. The Arkansas State Police Fusion Center “do[es] not have any

recordings under [Covert’s] name,” dated October 27, 2019, in their records.

14. The ADC’s eOMIS system9 does not have any information regarding a

phone call Covert made on October 27, 2019 to the Arkansas Crime Information

Center, or any other state agency. Doc. 88-1 at 2–3.

9 “eOMIS is an acronym for the Electronic Offender Management Information System, a

corrections software system used by the ADC.” Dykes v. Corizon LLC, No. 2:14-CV-107-BSM-

PSH, 2016 WL 3039634, at *3 (E.D. Ark. Apr. 15, 2016).

III. Discussion

A. Plummer, Lloyd, and Swopes Are Entitled to Qualified Immunity

In support of their summary judgment papers, Defendants primarily argue

they are each entitled to qualified immunity because Covert has not demonstrated a

violation of his First Amendment Rights.

Whether Defendants are entitled to qualified immunity is a two-prong inquiry,

that requires the Court to determine if Covert has demonstrated: “(1) a deprivation

of a constitutional right, and (2) that the right was clearly established at the time of

the deprivation.” Robbins v. City of Des Moines, 984 F.3d 673, 678 (8th Cir. 2021).

While a district court may address the prongs in any order, it may not deny qualified

immunity without answering both questions in the plaintiff's favor.” Watson v. Boyd,

2 F.4th 1106, 1112 (8th Cir. 2021) (citation and internal quotations marks omitted).

1. Covert Has Not Demonstrated A Constitutional Violation

To support his retaliation claim, Covert must show that: (1) he engaged in

constitutionally protected activity; (2) Defendants took adverse action against him

that would chill a prisoner of ordinary firmness from engaging in that activity; and

(3) a causal connection exists between the Defendants’ retaliatory motive and the

adverse action. De Rossitte v. Correct Care Sols., LLC., 22 F.4th 796, 804 (8th Cir.

2022); Santiago v. Blair, 707 F.3d 984, 992 (8th Cir. 2013); Nieves v. Bartlett, 139

S. Ct. 1715, 1722 (2019).

The Court assumes, without deciding, that Covert engaged in First-

Amendment-protected activity when he called a State information line to report

prisoners selling drugs in his cellblock in Varner Supermax.10 Even so, Defendants

are entitled to qualified immunity because Covert cannot demonstrate that (1) the

subsequent search of his cell would have chilled a prisoner of ordinary firmness from

reporting the sale of drugs; and (2) the search of his cell would not have taken place

but for Defendants’ allegedly retaliatory motive.

“[R]outine shakedowns of prison cells are essential to the effective

administration of prisons,” and prisoners do not have a right to privacy in their prison

cells. Hudson v. Palmer, 468 U.S. 517, 529 (1984). To effectuate a “safe, secure

environment for inmates,” the ADC conducts cell searches “as often as necessary to

control contraband.” AD 18-15 §§ II, IV(B), Doc. 92 at 31, 33. Especially, for

prisoners like Covert, who are housed in the Varner Supermax Unit, cell searches

are a routine part of their incarceration that can happen at any time.

10 See Osborne v. Grussing, 477 F.3d 1002, 1005 (8th Cir. 2007) (free-world plaintiff's

public criticism of county's lax enforcement of regulations was clearly “First Amendment-

protected activity”); Sisk v. Briggs, No. 4:20-CV-1121-DPM-JTR, 2022 WL 885891, at *3 (E.D.

Ark. Feb. 25, 2022) (finding pretrial detainee “engaged in First Amendment-protected activity

when he complained about the conditions inside [the county jail] during [a] telephone call”), report

and recommendation adopted, 2022 WL 883429 (E.D. Ark. Mar. 24, 2022); but see Beaulieu v.

Ludeman, 690 F.3d 1017, 1037–41 (8th Cir. 2012) (noting that prisoners’ First Amendment right

to access the courts does not provide them unbridled access to telephone calls).

Covert does not allege and the record does not establish that the cell search

conducted by Swopes on the morning of October 27, 2019 was unreasonably

invasive, abusive, or had any other aggravating factors.11 In other words, nothing

about the routine search of Covert’s cell rose to a level that would have dissuaded a

prisoner of ordinary firmness from exercising his First Amendment rights.

Furthermore, there is no direct evidence that Defendants searched Covert’s

cell in retaliation for his phone call to the Arkansas State Crime information line

thirty-five minutes earlier.12 Instead, Covert has only speculation, conjecture, and

coincidence to support his retaliation claim. “To avoid summary judgment, [Covert]

must submit “affirmative evidence [of] a retaliatory motive.” Lewis v. Jacks, 486

F.3d 1025, 1029 (8th Cir. 2007). “[M]ere allegations of retaliatory motive are

insufficient.” De Rossitte, 22 F.4th 796, 804 (8th Cir. 2022).

11 The United States Supreme Court and the Eighth Circuit have only found cell searches

that have involved abusive or aggravating factors to state a claim for Eighth Amendment and due

process violations. For example, cell searches that have involved intentional destruction of

property (Hudson, 468 U.S. 517); ten searches over nineteen days that “left the cell in disarray”

(Scher v. Engelke, 943 F.2d 921, 923 (8th Cir. 1991)); and legal papers being searched outside the

prisoner’s presence and scattered throughout the cell (Welch v. Spangler, 939 F.2d 570 (8th Cir.

1991)). Although Covert does not need to show that the October 27, 2019 cell search itself violated

his constitutional rights, Santiago v. Blair, 707 F.3d 984, 994 (8th Cir. 2013), he is required to

demonstrate an abusive or aggravating aspect of the cell search which objectively would have a

chilling effect on a prisoner’s exercise of his First Amendment rights.

12 For the search to have been triggered within thirty-five minutes of Covert making the

phone call a telephone monitor at Varner Supermax would have had to listen to the call and either

immediately ordered staff to search Covert’s cell or immediately reported the information to

Captain Plummer or Lieutenant Lloyd. Covert has alleged no facts or made any allegations that

this unidentified and unknown telephone monitor had any motive to retaliate against him.

Covert has not submitted any evidence to show that any of the Defendants

who conducted the search had any knowledge of the content of his phone call thirty-

five minutes earlier.13 Doc. 2 at 14. Covert points to Lieutenant Lloyd’s statement

that Sergeants Swopes and Hampton were only supposed to “take the state phone

from him,” as apparent evidence of a retaliatory motive by Swopes and Hampton.

Doc. 2 at 15; Doc. 95 at 1. At most, this suggest a good faith miscommunication

between Lloyd, who told Swopes and Hampton to take the portable state phone

Covert had been using and return it to the duty station, and Swopes and Hampton

construing Lloyd’s statement to mean they were also supposed to take the phone and

conduct a search of his cell. Nothing about this misunderstanding suggests any

retaliatory motive.

Finally, even accepting Covert’s version of the facts as true, he still has failed

to establish the third element of his First Amendment retaliation claim. In order to

establish a causal connection between his protected speech and the cell search,

“[Covert] must show that the protected activity was a ‘but-for cause’ of the adverse

action, meaning that the adverse action against [him] would not have been taken

absent a retaliatory motive.” De Rossitte, 22 F.4th at 804 (citation and quotation

13 In response to Covert’s Requests for Admission, Lloyd states that she does “not recall

having received a phone call regarding information made by the Plaintiff from the Arkansas State

Crime Information [C]enter,” on October 27, 2019. Doc. 92 at 26. In short, there is nothing in the

record to support Covert’s speculation that his phone call reporting the sale of drugs triggered the

search of his cell.

omitted). “Though this is generally a jury question, it may provide a basis for

summary judgment when the question is so free from doubt as to justify taking it

from the jury.” Id. (citation and quotation omitted).

Here, Covert reported in his phone call that drugs were being sold in Cellblock

5. Assuming the almost immediate search of his cell was triggered by his phone call,

Defendants began the cell search at the logical starting point—the cell of the

prisoner who reported there were drugs being sold in Cellblock 5.14 See AD 18-15 §

IV(B) (cell searches are to be conducted “as often as necessary to control

contraband”), Doc. 92 at 33; see also Hudson, 468 U.S. at 526–27 (“[P]rison

administrators are to take all necessary steps to ensure the safety of not only the

prison staffs and administrative personnel, but also visitors…[and] the inmates

themselves.”). Thus, Covert cannot show that the cell search would not have been

conducted absent a retaliatory motive.

Because Covert has not shown the October 27, 2019 cell search was sufficient

to create an objective “chilling effect” or that retaliatory animus was the but-for

cause of the cell search, he has not met his burden to show he was deprived of a

14 That is not to say Defendants needed a “good reason” to search Covert’s cell. The Court

has explicitly rejected the notion that prison officials must have reasonable suspicion to conduct

cell searches or that “random searches [must] be conducted pursuant to an established plan.”

Hudson, 468 U.S. at 526–27. Instead, the Court has noted that it is imperative that prison officials

have unfettered access to search prison cells in order to ferret out drugs and contraband and

maintain sanitary surroundings. Id. at 527.

constitutional right. Accordingly, Defendants are entitled to qualified immunity

under the first prong of the qualified immunity analysis.

2. The Alleged Constitutional Right Was Not Clearly Established

Alternatively, Defendants are entitled to qualified immunity because Covert

has failed to demonstrate the existence of a clearly established right.

Neither party has submitted any argument or case law on the second prong of

the qualified immunity analysis. Nevertheless, the Court is free to decide if, under

relevant precedents, “a right was clearly established at the time the conduct

occurred.” Wright v. United States, 813 F.3d 689, 696 (8th Cir. 2015) (noting

Defendants did not expressly waive the “clearly established” argument by failing to

argue it before the district court or on appeal and ultimately finding Defendants were

entitled to qualified immunity because the right at issue was not clearly established).

The Eighth Circuit has described the “clearly established” prong of qualified

immunity as follows:

Qualified immunity shields a government official from suit under

§ 1983 if his conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.

For a right to be clearly established, the contours of the right must be

sufficiently clear that a reasonable official would understand that what

he is doing violates that right. A plaintiff must identify either

“controlling authority” or “a robust consensus of cases of persuasive

authority” that placed the statutory or constitutional question beyond

debate at the time of the alleged violation. In other words, the law at the

time of the events in question must have given the officers “fair

warning” that their conduct was unconstitutional.

Kelsay v. Ernst, 933 F.3d 975, 979 (8th Cir. 2019) (cleaned up) (citations omitted).

As a generally proposition, Covert’s right to be free from retaliation was

clearly established at the time of the incident on October 27, 2019. See e.g., Santiago

v. Blair, 707 F.3d 984, 991 (8th Cir. 2013); Rouse v. Benson, 193 F.3d 936, 940 (8th

Cir. 1999). However, “[t]he Supreme Court has repeatedly told courts not to define

clearly established law at a high level of generality.” Dillard v. O'Kelley, 961 F.3d

1048, 1052 (8th Cir. 2020) (en banc), cert. denied, 141 S. Ct. 1071 (2021) (citation

and internal ellipsis omitted); City of Escondido, Cal. v. Emmons, 139 S. Ct. 500,

503 (2019). Instead, “[a] more specific and particularized inquiry is necessary in

order to assess clearly established law in the context of an assertion of qualified

immunity.” Thurmond v. Andrews, 972 F.3d 1007, 1012 (8th Cir. 2020). In other

words, the narrow issue to be decided is: “whether the violative nature of particular

conduct is clearly established ... in light of the specific context of the case.” Ryan v.

Armstrong, 850 F.3d 419, 427 (8th Cir. 2017) (emphasis in original) (quoting

Mullenix v. Luna, 577 U.S. 7, 11 (2015)).

In this case, the “particular conduct” is a cell search conducted in response to

Covert’s report of drugs being sold in his cellblock. The Court has located no Eighth

Circuit or Supreme Court cases suggesting that: (1) a prisoner’s phone call to a state

agency is speech protected by the First Amendment; or (2) a cell search is an adverse

action that may constitute retaliatory conduct.15

Without controlling authority, or even a “robust consensus of persuasive

authority,” no reasonable official in Defendants’ position would be on notice that

the October 27, 2019 cell search would violate Covert’s First Amendment rights.

Accordingly, because the constitutional right alleged by Covert was not clearly

established in October of 2019, Defendants Plummer, Lloyd, and Swopes are also

entitled to qualified immunity under the second prong of the qualified immunity

analysis.

B. Official Capacity Claims Against Plummer, Lloyd, and Swopes

In his Complaint, Covert purports to sue all Defendants in their individual and

official capacities. Doc. 2 at 4. However, Covert has neither alleged nor produced

any evidence suggesting that Defendants were acting pursuant to a government

policy or custom when they searched his cell.16 Accordingly, Plummer, Lloyd and

15 Conversely, it is clearly established that the filing of prison grievances and inmate

lawsuits are protected First Amendment activity. Lewis v. Jacks, 486 F.3d 1025, 1029 (8th Cir.

2007). It is also clearly established that prison transfers, disciplinaries, death threats, threats of

retaliation, worsening of prisoner’s working or living conditions, and denial of privileges may

constitute adverse actions. Id. (worsening of working conditions); Burton v. Livingston, 791 F.2d

97, 100 (8th Cir. 1986) (death threats); Spencer v. Jackson Cnty. Mo., 738 F.3d 907, 911–12 (8th

Cir. 2013) (transfer and denial of privileges); Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir.

2008) (disciplinaries); Santiago v. Blair, 707 F.3d 984, 994 (8th Cir. 2013) (living conditions);

Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994) (threats of retaliation).

16 In fact, Covert claims that Defendants failed to comply with the ADC policy on cell

searches, making it clear that he is suing them in their individual capacity. Doc. 94 at 3–4.

Swopes are entitled to summary judgment on Covert’s claims he is bringing against

them in their official capacities. See Remington v. Hoopes, 611 F. App'x 883, 886

(8th Cir. 2015) (finding defendants were entitled to summary judgment on an

official-capacity claim where plaintiffs “failed to allege facts—or produce

evidence—showing that the defendants acted pursuant to a government policy or

custom”).

C. Claims against Hampton

On December 28, 2020, the Court ordered the Clerk to issue a summons for

Defendant “Sergeant Hampton.” Doc. 20. That Order also stated that “if any

Defendant is no longer an ADC employee, the individual responding to service must

file a sealed statement providing the unserved Defendant’s last known private

mailing address.” Id. at 4, n.3. This summons was later returned unexecuted and a

sealed address was provided. Doc. 22. The Court reissued summons to Sergeant

Hampton at his last-known address. Doc. 44. That summons was also returned

unexecuted. Doc. 48; Doc. 51.

On October 19, 2021, the Court entered an Order giving Covert thirty days to

file a Motion for Service that provided a valid service address for Hampton. Doc. 54.

The Order specifically explained to Covert that, if he did not timely and properly

provide the Court with sufficient information to identify and serve Hampton, his

claims against Hampton could be dismissed, without prejudice. Id. (citing Fed. R.

Civ. P. 4(m)). Covert responded to the Court’s Order stating that he was unable to

find a valid service address for Hampton. Doc. 59. Covert concedes that Hampton

has never been served and that dismissal is appropriate. Doc. 92 at 1, ¶ 5.

Accordingly, Covert’s claims against Hampton should be dismissed, without

prejudice, due to lack of service. See Fed. R. Civ. P. 4(m); Carmona v. Ross, 376

F.3d 829 (8th Cir. 2004) (affirming dismissal of unserved defendants in civil rights

action where District Court gave plaintiff extension to complete service and warned

him that his failure to do so would result in dismissal).

IV. Conclusion

Defendants Plummer, Lloyd, and Swopes are entitled to qualified immunity,

in their individual capacities, because Covert failed to demonstrate a violation of his

First Amendment rights and he had no clearly established constitutional right.

Defendants Plummer, Lloyd, and Swopes are further entitled to summary judgment

in their official capacities because there is no allegation or evidence that they were

acting pursuant to an official policy or custom.

Finally, Covert’s claims against Hampton should be dismissed due to lack of

service.

IT IS THEREFORE RECOMMENDED THAT:

1. Defendants Plummer, Lloyd, and Swopes’ Motion for Summary

Judgment (Doc. 88) be GRANTED.

2. All of Covert’s claims against Plummer, Lloyd, and Swopes be

DISMISSED, with prejudice.

3. All of Covert’s claims against Hampton be DISMISSED, without

prejudice.

4. Judgment be entered, accordingly,!’ and this case, in its entirety, be

TERMINATED.

DATED this 27th day of January, 2023.

\Wrormnes

moa

17 All claims against all other Defendants were previously dismissed without prejudice.

Doc. 74.

17