# May v. Tims

> District Court, E.D. Arkansas · February 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10007595

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** February 22, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10007595. Public record. Not legal advice.