The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
DEMARIO S. CANNON PLAINTIFF
ADC #155021
v. Case No. 3:21-cv-00037 KGB
KEITH BOWERS, Captain
Craighead County Detention Center, et al. DEFENDANTS
ORDER
Before the Court is the Recommended Disposition (“Recommendation”) submitted by
United States Magistrate Judge Joe J. Volpe (Dkt. No. 60). Also before the Court are a pending
motion for summary judgment filed by Sheriff Marty Boyd, Captain Keith Bowers, Officer Ty
Frazier, and Corporal Hall (collectively “County Defendants”) and a motion for status filed by
plaintiff Demario S. Cannon (Dkt. Nos. 49; 74).
I. Background
Mr. Cannon filed a pro se amended complaint pursuant to 42 U.S.C. § 1983 based on
alleged violations of his constitutional rights while he was in the Craighead County Detention
Center (Dkt. No. 14). He brings these claims based on his contracting COVID-19 (Id.). At this
stage of the litigation, Mr. Cannon’s remaining claim is that County Defendants Sheriff Marty
Boyd, Captain Keith Bowers, Officer Ty Frazier, and Corporal Hall did not take proper precautions
to prevent him from contracting COVID-19. Mr. Cannon sues County Defendants in their official
and individual capacities and seeks $250,000.00 in monetary damages (Id.). Mr. Cannon’s other
claims and the defendants named in those claims have been dismissed without prejudice (Dkt. No.
58). The Court addresses the background of this case to understand the procedural posture, to
assess Judge Volpe’s pending Recommendation, and to rule on the pending motions.
Judge Volpe, to whom this case is referred for all pretrial matters, issued an initial
scheduling order that set the discovery deadline for November 9, 2022, and the deadline to file
dispositive motions, also referred to as motions for summary judgment, for December 9, 2022
(Dkt. No. 38). Defendant Nurse Chassity Hall filed a motion to extend the discovery and
dispositive motions deadline, and the remaining defendants joined in this request (Dkt. No. 45).
Judge Volpe granted the request and reset the discovery deadline for January 9, 2023, and the
dispositive motions deadline for February 9, 2023 (Dkt. No. 46).
On February 7, 2023, County Defendants Sheriff Marty Boyd, Captain Keith Bowers, Ty
Frazier, and Corporal Hall, in their individual and official capacities, filed a motion for summary
judgment (Dkt. No. 49). On February 9, 2023, separate defendants Licensed Practical Nurses Hall
and Heather Madden filed a motion for summary judgment (Dkt. No. 52).
On March 9, 2023, Judge Volpe entered two Orders (Dkt. Nos. 55, 56). First, he entered
an Order that permitted County Defendants to file a supplemental brief in support of their motion
for summary judgment on or before April 10, 2023, and extended to April 24, 2023, Mr. Cannon’s
time to respond to that motion (Dkt. No. 55, at 4). Second, as Mr. Cannon’s time to respond to
defendants Hall and Madden’s motion for summary judgment had elapsed without response, Judge
Volpe entered a Partial Recommended Disposition recommending that defendants Hall and
Madden’s motion for summary judgment be granted and that Mr. Cannon’s claims against them
be dismissed with prejudice (Dkt. No. 56). Mr. Cannon did not object to Judge Volpe’s Partial
Recommended Disposition. This Court adopted that Partial Recommended Disposition and
dismissed with prejudice Mr. Cannon’s claims against defendants Hall and Madden (Dkt. No. 58).
On March 14, 2023, County Defendants filed a supplemental brief in support of their
motion for summary judgment (Dkt. No. 57). Mr. Cannon again did not respond, either to County
Defendants’ original motion for summary judgment or to County Defendants’ supplemental
motion for summary judgment. On May 5, 2023, Judge Volpe issued the pending
Recommendation, recommending among other matters that this Court dismiss with prejudice Mr.
Cannon’s claims against County Defendants (Dkt. No. 60). Mr. Cannon did not timely object to
Judge Volpe’s Recommendation.
Then, on June 9, 2023, Mr. Cannon filed a motion to reopen the case and for an extension
of time to respond (Dkt. No. 61). This Court entered an Order granting Mr. Cannon’s motion,
extending by 30 days the deadline for Mr. Cannon to respond to Separate Defendants’ motion for
summary judgment and to file a motion to reconsider the Court’s previous Order granting separate
defendants Licensed Practical Nurses Hall and Madden’s motion for summary judgment (Dkt. No.
62).
II. Recent Filings
After entry of that Order, Mr. Cannon filed an affidavit and response to Separate
Defendants’ motion for summary judgment (Dkt. No. 64) and what the Court construes as a motion
to reconsider the Order granting separate defendants Licensed Practical Nurses Hall and Madden’s
motion for summary judgment (Dkt. No. 67). County Defendants filed a reply to Mr. Cannon’s
response to their motion for summary judgment (Dkt. No. 71).
III. Pending Recommendation Regarding County Defendants’ Motion
Having reviewed the Recommendation, Mr. Cannon’s filings, and the record de novo, the
Court adopts, in part, Judge Volpe’s Recommendation (Dkt. No. 60). With respect to the
evidentiary record before it and Mr. Cannon’s claims against County Defendants in their official
capacity, the Court adopts Judge Volpe’s Recommendation in its entirety (Id., at 5-6).
With respect to the evidentiary record before it and Mr. Cannon’s claims against County
Defendants Boyd, Bowers, Frazier, and Hall in their individual capacity, the Court adopts Judge
Volpe’s Recommendation in part (Id. at 6-9). The Court concurs that Mr. Cannon’s causation
evidence is lacking and that, therefore, defendants Boyd, Bowers, Frazier, and Hall are entitled to
summary judgment as to Mr. Cannon’s claims against them in their individual capacity (Id.).
Because of Mr. Cannon’s failure to prove causation the Court need not, and therefore does not,
reach the second question of the qualified immunity analysis and declines to determine whether
the constitutional right was clearly established at the time of the alleged violation. For these
reasons, the Court grants County Defendant Boyd, Bowers, Frazier, and Hall’s motion for
summary judgment (Dkt. No. 49).
IV. Motion To Reconsider As To Separate Defendants Licensed Practical
Nurses Hall and Madden
Mr. Cannon also filed what he titles a motion to deny the defendants’ Nurse Hall and Nurse
Madden’s motion for summary judgment, which the Court construes as a motion to reconsider the
Order granting separate defendants Licensed Practical Nurses Hall and Madden’s motion for
summary judgment (Dkt. No. 67).
“Motions for reconsideration serve a limited function: to correct manifest errors of law or
fact or to present newly discovered evidence.” Hagerman v. Yukon Energy Corp., 839 F.2d 407,
414 (8th Cir. 1988) (internal quotation omitted). “A motion for reconsideration is not a vehicle to
identify facts or legal arguments that could have been, but were not, raised at the time the relevant
motion was pending.” Julianello v. K-V Pharm. Co., 791 F.3d 915, 923 (8th Cir. 2015). The
Court’s decision on a motion for reconsideration rests within its discretion. Hagerman v. Yukon
Energy Corp., 839 F.2d 407, 413 (8th Cir. 1988).
Judge Volpe entered a Partial Recommended Disposition recommending that defendants
Hall and Madden’s motion for summary judgment be granted and that Mr. Cannon’s claims against
them be dismissed with prejudice (Dkt. No. 56). Mr. Cannon did not object to Judge Volpe’s
Partial Recommended Disposition. This Court adopted that Partial Recommended Disposition
and dismissed with prejudice Mr. Cannon’s claims against defendants Hall and Madden (Dkt. No.
58).
When assessing Mr. Cannon’s motion for reconsideration, the Court has reviewed his
motion, brief in support, statement of facts, and affidavit, as well as the record de novo (Dkt. Nos.
63; 67–69). Mr. Cannon’s filings do not correct manifest errors of law or fact or present newly
discovered evidence that alters the analysis in Judge Volpe’s Partial Recommended Disposition,
which this Court adopted (Dkt. Nos. 56; 58). For these reasons, the Court denies Mr. Cannon’s
motion for reconsideration (Dkt. No. 63).
V. Motion For Status
Mr. Cannon filed a motion for status update and notice of change of address (Dkt. No. 74).
The Court grants his motion for status update and directs the Clerk of Court to send to Mr. Cannon
a copy of the docket sheet in this case, along with a copy of this Order and the Judgment.
VI. Conclusion
The Court adopts, in part, Judge Volpe’s Recommendation with regard to County
Defendants’ motion for summary judgment (Dkt. Nos. 49; 60). The Court dismisses with prejudice
Mr. Cannon’s claims against County Defendants Boyd, Bowers, Frazier, and Hall. The Court
denies Mr. Cannon’s motion which the Court construes as a motion to reconsider the Order
granting separate defendants Licensed Practical Nurses Hall and Madden’s motion for summary
judgment (Dkt. No. 67). The Court grants Mr. Cannon’s motion for status update (Dkt. No. 74).
Having addressed and ruled on all of Mr. Cannon’s claims, the Court directs the Clerk to close this
case. A separate Judgment will be entered.
Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis
appeal from an Order adopting this Recommendation and the accompanying Judgment would not
be taken in good faith.
It is so ordered this the 25th day of March, 2024.
Yu shy A. Praler—
istine G. Baker
Chief United States District Judge