May v. Tims

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

PARNELL R. MAY PLAINTIFF

ADC #153557

v. No: 4:21-cv-00255-LPR-PSH

KAWHUN TIMS, et al. DEFENDANTS

PROPOSED FINDINGS AND RECOMMENDATION

INSTRUCTIONS

The following Recommendation has been sent to United States District Judge

Lee P. Rudofsky. You may file written objections to all or part of this

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 this Recommendation. By not objecting, you

may waive the right to appeal questions of fact.

DISPOSITION

Plaintiff Parnell R. May filed a pro se complaint on April 1, 2021, while

incarcerated at the Pulaski County Regional Detention Facility (“PCRDF”) (Doc.

No. 2). May subsequently filed two supplements to his complaint (Doc. Nos. 6-7).

May alleges that on March 20, 2021, he made a complaint under the Prison Rape

Elimination Act (“PREA”) against defendant Deputy Kawhun Tims. Doc. No. 2 at

2-8. May claims that Tims sexually harassed him by making sexually derogatory

comments and unwelcome gestures. Id. at 6-8. May further claims that Tims used

excessive force against him on March 21, 2021, causing injury to his left leg and

back, in retaliation for the PREA complaint. Id. May also asserts that Sergeant

Jawaski Conners ignored May’s requests for help when Tims used excessive force.

Id. at 2-8.

May also claims that he made multiple requests for treatment of his injuries

over a period of five days, but was denied treatment by Nurse Lowe and/or the acting

charge nurse.1 Id. at 9. After the Court screened May’s complaint, as supplemented,

the following claims were allowed to proceed: May’s individual capacity retaliation

and excessive force claims against Deputy Tims; May’s individual capacity failure-

to-protect claim against Sergeant Connors; and May’s individual capacity deliberate

indifference claims against LPN Lowe and an unnamed nurse. Doc. Nos. 9 & 13.

Before the Court is a motion for summary judgment, brief-in-support, and

statement of facts filed by Tims and Connors (Doc. Nos. 79-81). May filed a

response, statement of facts, and an affidavit (Doc. Nos. 86-88). Also before the

Court is a motion for summary judgment, brief-in-support, and statement of facts

filed by Lowe (Doc. Nos. 89-91). May moved to have his pleadings filed in response

1 May’s claims against the acting charge nurse were dismissed for lack of service

after he did not timely name her. See Doc. Nos. 48 & 78.

to Tims’ and Connor’s motion for summary judgment considered as his responsive

pleadings to Lowe’s motion (Doc. No. 93). The Court granted that motion (Doc.

No. 94). The Court notes that May failed to specifically controvert most of the

defendants’ asserted facts in his statement of disputed facts; accordingly,

defendants’ uncontroverted facts are deemed admitted. See Local Rule 56.1(c).

Because the defendants’ statements of facts, and the other pleadings and exhibits in

the record, establish that they are entitled to judgment as a matter of law, the

undersigned recommends that the defendants’ motions for summary judgment be

granted.

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is

proper if “the movant shows that there is no genuine dispute as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(a); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for

summary judgment, the court must view the evidence in a light most favorable to

the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir.

2002). The nonmoving party may not rely on allegations or denials, but must

demonstrate the existence of specific facts that create a genuine issue for trial. Mann

v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party’s allegations

must be supported by sufficient probative evidence that would permit a finding in

his favor on more than mere speculation, conjecture, or fantasy. Id. (citations

omitted).

An assertion that a fact cannot be disputed or is genuinely disputed must be

supported by materials in the record such as “depositions, documents, electronically

stored information, affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers, or other materials

. . .”. Fed. R. Civ. P. 56(c)(1)(A). A party may also show that a fact is disputed or

undisputed by “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)(B). A dispute is genuine if

the evidence is such that it could cause a reasonable jury to return a verdict for either

party; a fact is material if its resolution affects the outcome of the case. Othman v.

City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes that are not

genuine or that are about facts that are not material will not preclude summary

judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th Cir. 2010).

In Reed v. City of St. Charles, Mo., 561 F.3d 788 (8th Cir. 2009), the Eighth

Circuit Court of Appeals discussed the requirement that facts be viewed in the light

most favorable to the non-moving party when considering a motion for summary

judgment. The Court stated, “[i]f ‘opposing parties tell two different stories,’ the

court must review the record, determine which facts are material and genuinely

disputed, and then view those facts in a light most favorable to the non-moving

party—as long as those facts are not so ‘blatantly contradicted by the record . . . that

no reasonable jury could believe’ them.” Id. at 790 (quoting Scott v. Harris, 550

U.S. 372, 380 (2007)).

III. Facts2

On December 26, 2019, Plaintiff Parnell Robert May was booked into the

PCRDF on a 1st degree murder charge. Doc. No. 81-2, May’s Arrest and Booking,

at 1. On November 1, 2021, May was released to the custody of the Arkansas

Department of Corrections. Id. at 2.

March 20, 2021 PREA Complaint

On March 20, 2021, May, submitted a PREA complaint, stating:

The emergency call devices in the cell 415 does not work so as to call

for emergency, whereas, on or about the date of 03/20th/2021 at around

or about 5:30 PM, that Saturday, evening Deputy Tims did make a

direct repeatedly unwelcome comment of a sexual nature, that did

include a demeaning reference to gender sexually derogatory

comments, about a sexual nature, against me, when the deputy Tims,

was at the cell door of room 415, where that we both had engaged into

a disagreement about my break, where that I told him, I did not deny

my break, I never spoked [sic] to him that morning, and that the only

time I would turn my break down, is for food and that he was a being

to me, etc, etc, which led to the Deputy Tims eventually telling me

directly, “you act like you would suck a dick for food” and that “I

probably was tricking for crack,” and I told Deputy Tims, that what he

2 These facts are taken from the defendants’ statements of facts (Doc. Nos. 81 &

90), and the documents and records attached to the defendants’ motions for summary

judgment, including relevant video of the incident in question. Disputed facts are noted.

said was illegal and that I got this much understanding, to report you,

in for a sexual harassment, because you are supposed to be of

professional standards, and that, he was not permitted by law, to make

any repeated and/or unwelcome comments or gestures of a sexual

nature, against me in the accordance with the PREA law.

I hollered aloud to the Deputy Tims to call his watch commander and/or

supervisor, right now, I wish to file a PREA complaint immediately,

because, the Deputy Tims is clearly a threat by a sexual nature against

I Parnell May, while I am pre-trial detainee under such a sexually

dangerous jailer [sic], who has the ability to open my food tray and

contaminate it, with his fluids, for his personal pleasures or even

specifically select my food tray for malicious purposes or contaminate

the outer exterior of the food tray, to be served to me, Deputy Tims, did

not call any of the supervisors, or watch commander, and left his shift

at 6:00 PM, that aforementioned day, without reporting to any of the

supervisors or responsible authorities, about my request to file PREA

charge against deputy Tims because Deputy Tims, knew that he was

wrong, and guilty for inflicting sexual harassment against me on

03/20/2021 at around 5:30 PM.

Doc. No. 81-6, PREA Complaint, at 1. According to incident reports prepared by

other officers, May told Deputy Cody Smith about his PREA complaint, and Smith

informed his supervisor, Sergeant Evans. Doc. No. 81-5, Incident Reports, at 1.

Sergeants Bilbruck and Evans then spoke to May regarding his complaint. Id. at 2.

Defendant Kawhun Tims submitted an affidavit explaining that he is a Deputy

employed by the PCRDF. Doc. No. 81-8, Affidavit of Deputy Kawhun Tims, at ¶1.

He stated that he and May discussed a missed break on March 20, 2021, and that on

the morning of March 21, 2021, Deputy Stovall informed him that May had filed a

PREA Complaint against him. Id. at ¶¶ 2-3. Tims did not receive a copy of May’s

complaint until April 26, 2021. Id. at ¶ 12. He then completed the following Official

Memorandum to the PREA Coordinator, stating:

During feeding time, Inmate May, Parnell called me to his cell about

his one-hour break at approximately 1737 hours. I told the inmate that

it got very busy in the unit, and I forgot about his break, I then

proceeded to apologize to Inmate May for the mix-up. In response the

inmate intended to be very respectful. I never had a verbal exchange or

argument with Inmate May. We did not have any problems after that.

I was at his door for no more than 15 seconds. Nothing further to report.

Doc. No. 81-6, PREA Complaint, page 5.

A Video of the March 20, 2021 interaction between May and Deputy Tims

shows Tims approaching May’s cell at 17:37:45, speaking with May, and then

walking away at 17:38:03. Doc. No. 81-7, Video Footage.

March 21, 2021 Incident

Video footage taken on March 21, 2021 captures the incident about which

May complains in this action. That footage, in T-unit 2f rear sub-day at time stamp

11:07:27.981 shows Tims approaching May’s cell with a food cart. Doc. No. 81-7,

Video Footage. Tims opens the food port in the cell door, then walks back to the

cart to pick up a food tray to pass through the port. At this time, May places his

lower leg through the food port. Between 11:07:49.340 and 11:12:03.960, Tims

attempts to push May’s leg back through the food port. May clearly does not

cooperate, and fights Tims’ efforts. Tims then opens the cell door at 11:12:24.735.

When the cell door is opened, May wraps his arm around the outside of the door and

hangs onto the door, with his lower leg still protruding through the food port. Tims

attempts to remove May’s hand from the door. At 11:13:04.344, Tims is able to

remove May’s arm from the door and holds May’s arms behind his back while still

trying to remove May’s leg from the food port.

Tims turns on his body camera, which is timestamped at 16:12:45.3 His body

camera contains audio. The body camera footage shows that, beginning at 16:13:29,

Tims asks May numerous times to go back into the cell and states concern that May

is going to hurt his leg. Tims continues to refuse to comply and to fight against

Tims’ efforts. At 16:13:31, May yells that he wants Tims to call a supervisor so that

he can file a PREA complaint against Tims. Despite Tims’ efforts, May is able to

grasp onto the port with his arms, with his leg still protruding. May continues yelling

for Tims to call a supervisor so that he can file a PREA complaint and an excessive

force complaint. It is notable that the audio reflects that Tims remained calm and

professional in his efforts to have May remove his leg from the food port. He did

not raise his voice or exhibit any anger.

At 11:16:16.611, Tims is finally able to remove May from the food port and

cell door, and May scoots away from Tims and away from his cell. Tims attempts

to coax May back into his cell by saying “C’mon, I need you out of the trap”

repeatedly. May refuses to comply. Tims then closes and locks the food port, and

3 The footage from Tims’ body-worn camera reflects a different time than the hall

camera footage, but clearly shows the same incident.

May scoots to the other side of a glass wall. May continues to yell for Tims to call

his supervisor so that he can file a charge against him. Tims struggles with May, but

does not apply force. At 16:18:02, Tims radios for assistance. At 16:18:53,

additional PCRDF personnel respond to the Unit to assist Tims, including Sergeant

Connors. May then complies with orders to return to his cell, yelling that he needs

protection from Tims. At the conclusion of the body camera footage, Connors states

that he is going to talk to Tims. The rear sub-day camera shows that May was back

in his cell at 11:19, after which PCRDF personnel are shown outside of May’s cell

speaking with one another.

Tims completed an incident report on the same day, stating:

During feeding I attempted to serve inmate May, Parnell (22568-16)

and he stuck his leg out of the food port. I gave Inmate Parnell three

direct orders to put his leg back in the food port. He stated that he

needed to talk to a Sergeant. I attempted to push his leg back through

the food port by placing my hands on his leg by pushing forward. He

used force by moving his leg towards me. I opened the inmate’s door

to get his leg out at the food port. I attempted to take his leg out of the

food port by placing my hand on his upper shoulders and pulling him

away out the food trap. As I got him half way out of the trap, he

continued to hold onto the door causing himself to be upside down. As

I secured his food port he crawled out of the cell and out of the upper

back sub day area. I instructed Inmate May to go back to his cell which

he didn’t comply. Sergeants Conners and Ezell arrived along with

Deputy Middleton to help walk inmate May back to his cell. Medical

personnel arrived to the unit, assessed and cleared Inmate May to

remain in the unit. Nothing further to report.

Doc. No. 81-5, Incident Reports, at 4; see also Doc. No. 81-8, Affidavit of Deputy

Kawhun Tims, at ¶¶ 4-10 (providing same account). In his affidavit, Tims claimed

that his efforts to remove May’s leg from the food port were not in retaliation for

May’s filing a PREA Complaint against him. Id. at ¶ 11.

Defendant Connors, a Sergeant employed by the PCRDF, provided an

affidavit describing what he witnessed on March 21, 2021. Doc. No. 81-9, Affidavit

of Sergeant Jawaski Connors, at ¶ 1. He stated that on that date, he arrived to the T-

Unit and observed May crawling out of the upper sub-day area and sitting on the

floor of T-Unit. Id. at ¶ 2-3. According to Connors, May asked him to “keep Deputy

Tims away from [him].” Id. at ¶ 4. Connors stated that May returned to his cell after

being ordered to do so, and Connors secured him in his cell without incident. Id. at

¶¶ 5-6; see also Doc. No. 81-5, Incident Reports, at 5 (Connors’ April 30, 2021

Supplemental Report providing same account). Connors stated that he does not

recall May stating that he was injured and he did not appear to be injured, but medical

personnel responded to the scene in accordance with protocol. Doc. No. 81-9,

Affidavit of Sergeant Jawaski Connors, at ¶ 7. Connors stated he was there for

approximately 10 minutes at most. Id. at ¶ 8. He stated he did not observe Tims use

excessive force against May on March 21, 2021, and had no knowledge that May

had filed a PREA Complaint against Tims. Id. at ¶¶ 9-10.

On March 21, 2021, May submitted a standard grievance, stating:

I was sexual [sic] harassed by deputy tims on the date 03/20/2021 i tried

to reported [sic] it but he denied me access to any superior rank officers

and the next day showed up at work around me when he should not

been around me I protest and asked him to call his superior but he

refused and began to infict [sic] exessive [sic] unnecessary force against

me it is on camra [sic] I want to press criminal charge against deputy

tims now.

Doc. No. 81-3, Requests and Grievances, at 1. May submitted five additional

grievances complaining about Tims’ alleged sexual harassment on March 20, and

his alleged retaliation and excessive force on March 21. Id. at 2-4 & 7. He also

submitted an investigation tip line describing the same incident and his March 20

PREA complaint. Id. at 8.

Resolution of May’s March 20 PREA Complaint

On April 26, 2021, Sergeant D. Musaddiq wrote to Chief Deputy Hendricks,

via chain of command, an official memorandum regarding May’s PREA complaint,

stating:

On Saturday, March 20, 2021, Inmate May, Parnell reported to night

shift personnel Deputy Cody Smith of a possible PREA violation.

Sergeant Evans and Sergeant Bilbruck was [sic] in receipt of Offence/

Incident Report DI2021-08479 written by Deputy Smith. Inmate May

reported on Saturday, March 20, 2021 at approximately 1737 hours,

that Deputy Tims, Kawhun #4881 made repeated and unwelcomed

remarks of a sexual nature towards him. Specifically, Inmate May

stated that Deputy Tims told him that, “you look like you suck dick for

food, and that you trick for crack.” Inmate May also states that he asked

Deputy Tims to call his supervisor so he could report him per PREA

complaint, but was never given a chance to report it. After Deputy Tims

was relieved by Deputy Cody Smith (shift change, 1911 hours), Inmate

May made a PREA complaint to the oncoming deputy.

On Sunday, March 21, 2021, Inmate May was involved in another

altercation with Deputy Tims which involved Inmate May sticking his

leg out the food trap during lunch feeding. Deputy Tim’s [sic]

attempted to get Inmate May to remove his leg out of the trap by verbal

command and by trying to put his leg back thru [sic] the trap physically.

Deputy Tims opened the cell door, and Inmate May ran out of the sub-

day and sat down right outside the sub-day door in protest. Deputy

Tims had to eventually call for assistance from supervisors (Sergeant

Connors and Ezell). Upon his supervisors arriving, Inmate May was

walked back to his cell on his own without no further incident. Deputy

Tims was reassigned to U-unit for the rest of the rotation because of

this incident, and because of the accusations levied against him by

Inmate May.

On Monday, April 26, 2021, I (Sergeant Musaddiq) conducted an initial

interview digitally recorded for this complaint. On Saturday, March 20,

2020 [sic] Inmate May, Parnell submitted a written statement that was

lengthy in nature about complaints he had against Deputy Tims. The

main PREA complaint was in reference to a verbal disagreement or

conversation Inmate May and Deputy Tims engaged in at cell 415 at

approximately 1737 hours. Inmate May was upset about not receiving

his 1 hour break. Inmate May called Deputy Tims to the cell door to

inquire about the missed break. Both Inmate May and Deputy Tims

both agreed that they had a conversation about the missed break,

however, Inmate May insisted that an argument ensued between the two

which led to the unwelcome comments. Deputy Tims stated that the

exchange between the two was polite and respectful and that he was

only at his cell door for 15 seconds. Deputy Tims stated that he

accidently forgot his break and apologized to Inmate May, but he

thought Deputy Tims was lying to him. Also in the complaint, Inmate

May stated that he didn’t want Deputy Tims to feed him because he

would open his tray and contaminate his food with his bodily fluids for

his personal pleasure. Video footage collaborates the fact that Deputy

Tims acknowledged Inmate Parnell and did have a verbal exchange

which didn’t appear to be hostile. Deputy Tims is seen at Inmate May’s

cell doors for 12-15 seconds, and then appears to walk to the water

closest to flush toilets. The brief encounter doesn’t appear to be an

argument. Deputy Tims is seen continuing on with his duties.

On Sunday, March 21, 2021 at approximately 1107 hours, Deputy Tims

attempted to serve Inmate May his food tray. Deputy Tims opened the

food trap, and Inmate May stuck his whole leg out of the trap. Deputy

Tims attempted to put his leg back in the food trap by both verbal

command and physically. Deputy Body Cam footage was submitted

with this report that showed Deputy Tims attempting to put Inmate

May’s foot back thru [sic] the food trap. Deputy Tims demeanor during

this altercation was somewhat controlled and he tried to handle Inmate

May respectfully. Deputy Tims can be heard many times begging

Inmate May to put his foot back in the trap. When Deputy Tims tried to

put his leg back in the trap, he can be heard telling Inmate May that he

wasn’t trying to hurt him. It appears that Inmate May was attempting to

get his way in getting other personnel down to the unit to respond to his

request to get Deputy Tims removed from T-unit. I explained to Deputy

Tims that the incident was a teachable moment and that he spent too

much time dealing with Inmate May. Deputy Tims stated his

supervisors (sergeant Connors and Ezell) that day also agreed that he

should have called for help sooner. Sergeant Connors and Ezell were

called by Deputy Tims via radio, and assisted in getting Inmate May

back to his cell without further incident. During Inmate May’s recorded

interview, he stated he did not want Deputy Tims to be fired, but wanted

him retrained in respectful behavior and not be allowed around him in

the future. Inmate May’s interview went on for 59 minutes total.

On Tuesday, April 13, 2021. Inmate May addressed another complaint

via Chief Deputy Charles Hendricks. Inmate May insisted on filing an

additional PREA complaint on Deputy Tims through the nurse assigned

to pill call (Nurse Whitney). Deputy Tims responded through memo

about this complaint. Deputy Tims informed Nurse Whitney that he

wasn’t comfortable opening the food trap for Inmate May due to an

incident of Inmate May placing his whole leg out of the trap 3 weeks

prior. Deputy Tims was in the unit only to break Deputy Gleason for

an hour and asked the nurse to come back.

In conclusion, after review of all documents, deputy body cam and unit

video footage, I find this incident involved an inmate forming a

preconceived notion about mistreatment (not getting a break). During

every face to face interaction between both Deputy Tims and Inmate

May, Deputy Tims appears to have conducted himself in a reasonable

manner per the video. Deputy Tims was removed from working in T-

unit a day after the 2nd altercation with Inmate May due to the PREA

allegations levied against him. However due to not having enough

evidence of this conversation ever taken place, I find this allegation

Unfounded (an allegation which produced insufficient evidence to

make a final determination of a substantiated or unfounded claim).

Since there was no physical contact or assault involved, I recommend

this case be closed.

Doc. No. 81-6, PREA Complaint, at 2-3.

On May 10, 2021, Sergeant Connors completed an Official Memorandum to

Lieutenant Atwood regarding alleged sexual comments, stating:

On March 21, 2021, while dealing with Inmate May, Parnell (22568-

16) in T-unit, he never said anything about Deputy Tims making a

sexual comment. He was trying to explain to me that Deputy Tims

didn’t give him a hour break and he wanted to speak with a Sergeant.

Doc. No. 81-6, PREA Complaint, at 4. May disputes Connor’s statement; he

maintains he told Connors about the “comments of a sexual nature” that he claims

Tims made to him on March 20, 2021. See Doc. No. 87 at 5.

May’s Medical Treatment at the PCRDF

On March 21, 2021, the day of the incident with Tims, Nurse Stephanie

Schuller noted:

During am pill call, Pt stated to nurse that he had his leg thru the trap

door & deputy put his leg back in thru the door trap & had to turn his

foot in order to get it back in. Pt also stated that deputy sexually

harassed him. Nurse left to get Charge Nurse. Nurses returned to unit

where pt showed nurses leg-small lacerations noted c/o aching pain.

Charge nurse went to confirm that the harassment is being address by

Srgnt. Calvin, which it is. Ibuprofen will be given to help with pain.

Doc. No. 89-4, May’s PCDRF Medical Records, at 107.

On March 23, 2021, at 9:23 p.m., May submitted a Sick Call Request stating

“I have been injured my left leg and back had been injured by deputy tims use of

excessive unnecessary force and I have not received any medical care.” Id. at 98.

This Sick Call Request was received by Medical the next day, and Nurse LeToree

Jackson scheduled May for Nurse Sick Call on March 26, 2021. Id. at 97-98.

On March 24, 2021, Dr. Absalom Tilley prescribed May a seven-day

prescription of Ibuprofen two tablets by mouth twice daily. Id. at 37-38. On March

26, 2021, at 2:25 p.m., Nurse Briana Bush performed Segregation Rounds on May,

and he did not request any Medical Services at that time. Id. at 11-12. On March

27, 2021, at 3:57 a.m., Nurse Collins Meangwe saw May in Nurse Sick Call for his

complaints of new onset of back pain. Id. at 12, 98. During this Sick Call visit, May

was given a prescription for acetaminophen 325 mg two tablets by mouth twice daily

for seven days. Id. at 12, 38.

On March 28, 2021, May reported to Nurse Christina Whitney that his

ibuprofen and Tylenol were not helping his pain, and Nurse Whitney scheduled May

for a Sick Call appointment on March 29, 2021. Id. at 98-99. On March 29, 2021,

Nurse Practitioner Cobb prescribed May methocarbamol (“Robaxin”) 750 mg one

tablet by mouth twice daily. Id. at 39. May’s prescription methocarbamol was

received from the pharmacy on March 30, 2021. Id. at 107.

May filed this lawsuit on April 1, 2021. Doc. No. 2. He continued to submit

grievances and sick call requests concerning his left leg and back injuries. Doc. No.

81-3, Requests and Grievances, at 5-6; Doc. No. 89-3, May’s Medical Sick Calls, at

3; Doc. No. 89-4, May’s PCDRF Medical Records at 13, 99, 101-103. He continued

to receive pain medications and treatment for his complaints. Doc. No. 89-4, May’s

PCDRF Medical Records, at 13-14, 16, 24, 29-33, 39-40, 42-45, 47; Doc. No. 89-6,

Keep on Person Agreement (regarding knee brace). May’s Medication

Administration Record indicates that May consistently received his prescribed pain

medications from March 25, 2021, through November 1, 2021, with very few

exceptions. Doc. No. 89-4, May’s PCDRF Medical Records, at 50-90.

Affidavit of Bertha Lowe

Bertha Lowe was employed by Turn Key Health Clinics, LLC4 as

Administrative Assistant until March 17, 2021, when she was promoted to Health

Services Administrator. Doc. No. 89-2, Lowe Affidavit, at ¶¶ 1-2. Lowe is not a

health professional and does not provide patient care to any inmates, including May.

Id. at ¶¶ 3-6. Lowe has never had any personal involvement in medical decision-

making as to May. Id. at ¶ 7. Lowe’s only involvement related to May’s claims was

when she reported to Michael Hagerty, in response to a grievance submitted by May

on April 2, 2021, that May had been seen by medical personnel for his back pain

complaints on March 27 and April 16, 2021. Id. at ¶¶ 1-13; Doc. No. 89-5 at 42.

According to Lowe, she has never denied or delayed May’s access to medical care

4 The Pulaski County Sheriff’s Office contracts with Turn Key Health Clinics,

LLC (“Turn Key”) to provide medical care and treatment to inmates incarcerated at the

PCRDC. Doc. No. 89-1, Contract.

and has never observed any other Turn Key provider who denied or delayed May’s

access to medical care. Id. at ¶¶ 8-9.

IV. Analysis

A. Defendants Tims & Connors

Defendants Tims and Connors argue that they are entitled to qualified

immunity with respect to May’s claims because no constitutional violation has

occurred.5 The Court agrees for the reasons described below.

1. Defendant Tims – Retaliation

To succeed on a First Amendment § 1983 retaliation claim, a plaintiff must

prove: (1) that he engaged in a protected activity; (2) that the government official

took adverse action against him that would chill a person of ordinary firmness from

continuing the activity; and (3) that the adverse action was motivated at least in part

by the exercise of the protected activity. Gonzalez v. Bendt, 971 F.3d 742, 745 (8th

Cir. 2020); Spencer v. Jackson Cnty., 738 F.3d 907, 911 (8th Cir. 2013). Speculative

5 Qualified immunity protects government officials from liability for damages

“insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person [in their positions] would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether a defendant is entitled to

qualified immunity, the Court must consider two questions: (1) do the facts alleged by

plaintiff establish a violation of a constitutional or statutory right; and (2) if so, was that

right clearly established at the time of the defendant’s alleged misconduct. Wright v.

United States, 813 F.3d 689, 695 (8th Cir. 2015). Courts may 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 of the particular case at hand.” Pearson v.

Callahan, 555 U.S. 223, 236 (2009).

and conclusory, or de minimis allegations cannot support a retaliation claim. See

Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996) (per curiam). A plaintiff must

also prove a causal connection between the constitutionally protected activity and

the adverse action. Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004). Temporal

proximity between a protected activity and an adverse action “is relevant but not

dispositive.” Wilson v. Northcutt, 441 F.3d 586, 592 (8th Cir. 2006) (citing Kiel v.

Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999)). To succeed on a

retaliation claim, a plaintiff must also provide affirmative evidence of a retaliatory

motive. See Haynes v. Stephenson, 588 F.3d 1152, 1157 (8th Cir. 2009); see also

Wilson, 441 F.3d at 592 (“[Plaintiff’s] belief that [defendant] acted from a retaliatory

motive is insufficient.”).

May claims that Tims’ actions on March 21 were motivated by the PREA

complaint May lodged against Tims the day before. Doc. No. 2 at 2-8. Tims

acknowledges that he was made aware of the PREA complaint that morning. See

Doc. No. 81-8 at ¶ 3. The filing of a prison grievance, such as a PREA complaint,

constitutes protected activity. See Haynes v. Stephenson, 588 F.3d 1152, 1155–56

(8th Cir. 2009). While the PREA complaint and the March 21 incident were close

in time, such proximity, without more, is insufficient to establish that Tims’ actions

on March 21 were retaliatory. And while May believes that Tims acted with a

retaliatory motive, he has offered no affirmative evidence of such a motive. Instead,

the evidence of record reflects that May instigated the March 21 incident by placing

his leg through the food trap. He refused to comply with orders to remove his leg

and fought against Tims’ efforts to do so. Tims’ calm demeanor and temperament

and his statements to May do not evidence a retaliatory motive.

Finally, the actions May alleges Tims took – pushing his leg back into his cell

and refusing to call his supervisor – are not the sort of adverse actions that would

chill a person of ordinary firmness from continuing to exercise his First Amendment

rights. “The ordinary-firmness test is designed to weed out trivial matters from

substantial violations of the First Amendment.” Gonzalez, 971 F.3d at 744 (citing

Santiago, 707 at 992). “‘The test is an objective one, not subjective. The question

is.... [w]hat would a person of ‘ordinary firmness’ have done in reaction to the

[adverse action]?’” Id. (quoting Garcia v. City of Trenton, 348 F.3d 726, 729 (8th

Cir. 2003)). While the test is an objective one, “how the plaintiff acted might be

evidence of what a reasonable person would have done.” Garcia, 348 F.3d at 729.

See Gonzalez, 971 F.3d at 745 (considering plaintiff’s actions in response to the

alleged retaliation as evidence of what a person of ordinary firmness would have

done and affirming grant of summary judgment); Naucke v. City of Park Hills, 284

F.3d 923, 928 (8th Cir. 2002) (noting that plaintiff continued to exercise her First

Amendment rights despite the retaliatory acts of the defendants). In this case, despite

Tims’ actions in trying to push May’s leg back into his cell, May continued to

threaten to file a new PREA complaint against Tims and filed several grievances

about the incident as well.

2. Defendant Tims – Excessive Force

Due process requires that a pre-trial detainee cannot be punished prior to an

adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 537 (1979). To support a claim

for relief, a plaintiff must allege and prove that the force purposely or knowingly

used against him was objectively unreasonable, and objective reasonableness turns

on the “facts and circumstances of each particular case.” Kingsley v. Hendrickson,

135 S.Ct. 2466, 2473 (2015). “Constitutionally infirm practices are those that are

punitive in intent, those that are not rationally related to a legitimate purpose, or

those that are rationally related but are excessive in light of their purpose.” Johnson-

El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989).

The Court has carefully reviewed the record, including the video recordings

submitted as evidence, and finds that May’s version of what happened on March 21,

2021, is blatantly contradicted by the evidence in the record. May claims that Tims

“bended and twisted my left leg, and physically striking pounded my back very hard

repeatedly, and twisted, bended my hands and fingers while I held on to the door.”

Doc. No. 2 at 4. The video shows Tims calmly attempting to push May’s leg back

through the food port. Tims is heard repeatedly asking May to pull his leg out of the

door and warning him that he will hurt himself. Tims’ demeanor was calm and

reasonable. May, however, refused to cooperate and pull his leg out of the trap door

and repeatedly yelled at Tims. What force Tims used in attempting to push May’s

leg back into the cell was necessitated by May’s actions in putting his leg through

the port in the first place and then refusing to pull it back out and fighting against

Tims’ efforts. Tims’ actions were not objectively unreasonable.

In reviewing May’s PREA complaints, Sergeant Musaddiq found Tims’

actions to be reasonable, although he believed Tims could have called for help

sooner. This conclusion does not support May’s claim that Tims used excessive

force; rather, it merely shows that Tims could have handled the situation differently

by asking for assistance sooner. His failure to do so does not equate to punishment

or the unconstitutional use of excessive force.

As stated above, if opposing parties tell two different stories, as is the case

here, the Court is required to view genuinely disputed material facts in a light most

favorable to the nonmoving party, as long as those facts are not so blatantly

contradicted by the record that no reasonable jury could believe them. The Court

finds that the facts alleged by May are so blatantly contradicted by the record that

no reasonable jury could believe them. The Court is therefore not required to view

the facts in a light most favorable to May, and declines to adopt his version of the

facts for purposes of ruling on this motion. See Boude v. City of Raymore, 855 F.3d

930, 933 (8th Cir. 2017). There was no constitutional violation, and Tims is

therefore entitled to qualified immunity.

3. Connors – Failure-to-Protect

May alleges that during the March 21 incident with Tims, Conners “began to

joke and condone to the Deputy Tims blatant actions of excessive use of unnecessary

physical force against I, while I kept asking for medical assistance.”6 Doc. No. 2 at

5. However, the video shows that May had removed his leg from the food port and

left his cell before Connors arrived. Doc. No. 81-7. Connors was not present while

Tims attempted to coerce Tims to remove his leg from the food port. Accordingly,

even if Tims’ actions in attempting to push May’s leg back into his cell constituted

excessive force, Connors could not be held liable for failing to intervene. May’s

claims against Connors therefore fail as a matter of law and Connors is entitled to

qualified immunity.

B. Defendant Bertha Lowe

May alleges that Lowe failed to ensure that he received adequate treatment

for his complaints of knee and leg pain.7 However, the record shows Lowe’s only

6 As the Court previously noted (Doc. No. 9 at n. 1), such allegations are sufficient

to state a claim for deliberate indifference. See Burgess v. Moore, 39 F.3d 216, 218 (8th

Cir. 1994) (supervisor present during alleged use of excessive force could be found to be

deliberately indifferent for failure to intervene).

7 To succeed with an inadequate medical care claim, an inmate must show that the

prison official was deliberately indifferent to the inmate’s serious medical needs.

Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). This requires a two-part showing

that (1) the inmate suffered from an objectively serious medical need, and (2) the prison

official knew of the need yet deliberately disregarded it. Id.; see also Farmer v. Brennan,

involvement in May’s care was responding to one grievance where she stated that

he had been treated on two separate dates. Participation in the administrative

grievance procedure alone is insufficient to establish liability under § 1983. See

Rowe v. Norris, 198 F. App’x 579, 580 (8th Cir. 2006). May must instead show that

Lowe was made aware of a constitutional violation and, with deliberate indifference,

failed to take corrective action or tacitly authorized the offending acts. See, e.g.,

Luckert v. Dodge Cty., 684 F.3d 808, 817 (8th Cir. 2012).

The record in this case shows that May received treatment for his complaints

of leg and knee pain immediately after the incident. On March 21, 2021, the day of

the incident, he received the pain medication ibuprofen, and he was given a

prescription for ibuprofen by Dr. Tilley a few days later. He was seen in sick call

on March 27 and given a prescription for acetaminophen. When he reported those

were not working, he was prescribed Methocarbamol. There is simply no evidence

to support his claim that he did not receive treatment for his complaints.

Accordingly, no constitutional violation occurred warranting corrective action from

511 U.S. at 837; Estelle v. Gamble, 429 U.S. 97, 105 (1976). Pretrial detainees’ claims

are evaluated under the Fourteenth Amendment’s Due Process Clause rather than the

Eighth Amendment. See Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004).

However, pretrial detainees are entitled to at least as much protection under the

Fourteenth Amendment as under the Eighth Amendment. See id. (citing Spencer v.

Knapheide Truck Equip. Co., 183 F.3d 902, 906 (8th Cir. 1999)); see also Davis v. Hall,

992 F.2d 151, 152–53 (8th Cir. 1993) (per curiam) (applying deliberate indifference

standard to pretrial detainee’s claims of inadequate medical care).

Lowe. See Choate v. Lockhart, 7 F.3d 1370, 1376 (8th Cir. 1993) (Moreover,

[defendant] did not fail to take ‘corrective action’ for constitutional violations here

because there were no predicate violations to correct in the first place.”). May’s

claims against Lowe fail as a matter of law.

V. Conclusion

The defendants’ motions for summary judgment should be granted. May’s

claims should be dismissed with prejudice.

IT IS SO RECOMMENDED this day of February, 2023.

vmaenemith? Granence