Opinion

Cannon v. Bowers

Court
District Court, E.D. Arkansas
Filed
Mar 25, 2024
Cited by
0 cases
Authority
More cited than 17.1%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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