Henry v. Franks

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

NORTHERN DIVISION

RODNEY HENRY PLAINTIFF

Reg. #33027-009

v. No: 3:22-cv-00186-PSH1

STEVE FRANKS, et al. DEFENDANTS

MEMORANDUM AND ORDER

I. Introduction

Plaintiff Rodney Henry initiated this lawsuit by filing a pro se complaint

pursuant to 42 U.S.C. § 1983 on July 21, 2022, while he was a pretrial detainee held

at the Greene County Detention facility (Doc. No. 2).2 He subsequently filed an

amended complaint (Doc. No. 8). Both complaints were served on Defendants Steve

Franks and Robert Case (the “Defendants”). See Doc. No. 9. Henry alleges his due

process rights were violated when he was assigned to punitive segregation (also

referred to as “lockdown”) with no disciplinary hearing in May and October of 2021.

See Doc. No. 8.

1 By consent of the parties, this case was referred to a United States Magistrate Judge

to conduct all proceedings and order the entry of a final judgment in accordance with 28

U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. No. 18.

2 Henry is currently incarcerated at the Lee U.S. Penitentiary. See Doc. No. 40.

The Defendants filed a motion for summary judgment, a brief in support, and

a statement of facts asserting that they are entitled to judgment as a matter of law on

the merits of Henry’s claims (Doc. Nos. 26-28). Henry was notified of his

opportunity to file a response and a separate statement setting forth disputed facts he

believes must be decided at trial as required by Local Rule 56.1, Rules of the United

States District Court for the Eastern District of Arkansas. Henry filed a

“Disagreement of Defendant’s Statement of Undisputed Facts” (Doc. No. 32) and

what appears to be a response to the affidavit of Sheila Robertson (Doc. No. 33).3

At the Court’s direction, the Defendants were directed to supplement the record in

this case with additional briefing regarding the constitutionality of the Greene

County Detention Center’s due process procedure. See Doc. No. 48. In response,

Defendants filed a supplement (Doc. No. 51) and an additional affidavit by Robert

Case (Doc. No. 51-1). Henry was given an opportunity to respond but has not done

so.

The Defendants’ statement of facts, and the other pleadings and exhibits in

the record, establish that the material facts are not in dispute with respect to Henry’s

claims against the Defendants in their individual capacities, and they are entitled to

3 Henry also filed a motion for summary judgment and brief in support (Doc. Nos.

30-31). Defendants filed a response to that motion (Doc. No. 39). The Court denied

Henry’s motion because he provided no evidence with his motion and did not submit a

separate statement of undisputed facts as required by Local Rule 56.1. See Doc. No. 49.

judgment as a matter of law on those claims. However, because there remain issues

of fact as to Henry’s official capacity claims, the Defendants’ motion for summary

judgment is denied in part, and those issues will proceed to trial.

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, and must instead

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 nonmoving 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. Complaint Allegations

In his Complaint, Henry alleged:

I Plaintiff Rodney Henry sometime in May of 2021 was placed in

punitive segregation for disciplinary infractions upon arriving in

segregation immediately my mat and blanket was taken. When the

officer read my disciplinary, I was never issued an advanced written

notice of disciplinary charges, a hearing or opportunity to be heard, nor

a written statement of the evidence relied upon and the reasons for the

disciplinary action. The oral disciplinary notice failed to contain

adequate information, specifically the name of the allege victim, a

general time and general location which precluded the plaintiff from

defending himself in a meaningful manner. Because of no written

notice being issued, this denial of non-issuance of evidence caused a

chilling effect that kept me from signing the so called ‘due process

papers.’ On this particular instant, the plaintiff served 30 days in lock

down Also on 10.7.21 – 12.7.21 I was placed again in punitive

segregation for disciplinary infractions. The same procedure was

performed exactly as in the first paragraph. On this second incident I

served 60 days in lockdown.

It is a common practice and custom for Greene County Detention

Center officers and/or staff to deliberately and purposely violate

inmates constitutional rights to due process by punishing inmates for

facility rule violations without the opportunity to call witnesses and

present documentary evidence. The function of a 24 hour advance

written notice is to give the charged party a chance to marshall the facts

in his defense and clarify what the charges are, in fact. Although the

Greene County Handbook at page 3 Chapter 1 Mission (see Exhibit 1)

references the recognition and enforcement of statutory, judicial and

constitutional rights of all person in a fair and impartial manner,

detention officers fail to follow their own policies and procedures

regarding inmate disciplinary and lockdown (see: Greene County

Handbook Chapter 28, disciplinary procedures, Exhibit 2, Chapter 31,

types of lockdown, Exhibit 3) Much less the laws and rights indicated

above and cited in the Handbook. Specifically it is the normal practice

and custom for Greene County Detention officers to engage in the

following process when an inmate is initially found to have violated a

facility rule. As follows

Step 1: inmate is identified of violating a facility rule by a DO. Step 2:

inmate is ordered to pack his belongings and placed in punitive

lockdown status.

Note: A) punitive lockdown status consists of 23 hour lockdown in a

two man cell. B) removal of mattress and blanket from 6:30 a.m. and

returned at 10:30 p.m. C) one (1) hour a day, out of cell, to shower and

day room recreate, no phone calls are allowed, contrary to what’s

indicated in the handbook.

Step 3: Officers bring and read a so called “due process form” within a

24 hour period and do not provide you with a copy. The officer explains

to you what it says and encourages you to sign the waiver portion of the

form so that you can get out of lockdown sooner.

Note: An inmate is placed in punitive lockdown for “any and all”

violations, no matter if the violation is the lowest violation cited de

minimis in addition, officers explain that if you fight the violation and

request a hearing, it will take longer to get out of punitive lockdown

and you will not get out of lockdown until after the hearing. (If there is

a hearing.) Most inmates sign the waiver out of coercion.

Note: The ones who do sign the Due Process form requesting a

disciplinary hearing do not get a disciplinary hearing any way.

Note: All inmates are already being punished before any kind of due

process procedures are being afforded by being placed in punitive

lockdown status without a mattress and blanket upon arrival in

segregation.

Note: If a so called “Hearing” is conducted, it is without the presence

of the inmate and in a secretive, bias, arbitrary, and capricious manner

giving extreme weight to the charging officers statements, with no

opportunity to be heard, present evidence, present witnesses, and

without being provided with a copy of a written statement of the

evidence relied upon and reason – for the actions taken.

Step 4: Inmate is released from punitive lockdown into general

population upon completion of sanctioned time in lockdown imposed.

No copy of any “due process form” or reasons for the actions taken are

provided. . . . .

Doc. No. 2 at 4-7.4

Henry further alleged:

It is the common practice and custom for the officers to engage in such

punitive mistreatment and it is clearly obvious that the facility lacks the

proper training of officers in regards to this particular issue.

Proper training of D.O’s is vital and critical in order to safeguard

inmates constitutional rights and protects and maintains all other

Detention facility interests. It also must be noted the Disciplinary

Procedures that are outlined and described in the Greene County

Detention Center’s handbook are not constitutional because it does not

provide for written statements of notice of Disciplinary infraction, fails

to provide a hearing or an opportunity to be heard, nor a written notice

of Disciplinary actions taken. (See Handbook Ch. 28, Disciplinary

Procedures “Exhibit 2, Ch. 31 Types of lockdown “Exhibit 3) These

procedure, or lack thereof, help contribute to the “Good Ol’ Boy

system” that is the current practice and custom and any inmate at

anytime can get thrown into Segregation under punitive lockdown for

any infraction without the opportunity to a defense or opportunity to be

heard. An Impartial Adjudicator is also essential for a Constitutional

Due Process Procedure. Pre-Trial detainees cannot be subjected to any

type of punishment without being afforded Proper Due Process

Procedures and sentenced inmates should also be given those same

procedural safeguards.

Id. at 7-8.

In his amended complaint, Henry alleged:

Defendant, Robert Case

May 2021 when Plaintiff served 30 days for disciplinary infractions, at

that time Robert Case was the new jail administrator of Greene County

4 All documents are transcribed verbatim without any corrections for misspellings

or mistakes.

Detention Center. Robert Case was also responsible for all inmates at

the Greene County Detention Center, being the jail administrator of

Greene County Detention Center gives Robert Case order to safeguard

inmates constitutional rights and protects and maintaining all other

detention facility interests. Well in this case Robert Case failed to

protect my constitutional rights to due process, by not give plaintiff a

proper due process procedure. Which included plaintiff being offered a

chance to plead his case in presence of staff, no inmate at Greene

County Detention Center is given a disciplinary hearing. Robert Case

is violating Plaintiff’s rights by not giving Plaintiff a disciplinary

hearing. If a disciplinary hearing were to be given Plaintiff would’ve

been given a better chance to exercise his rights and plead and present

his case. But no hearing is conducted but it is being conducted out of

inmates presence, giving extreme weight to the charging officers

statement. Again Robert Case continues to violate Plaintiff’s rights by

not properly training his officers/staff to protect my constitutional

rights to due process and disciplinary hearing. Robert Case is

responsible and liable in his official capacity and personal capacity. The

same occurrence happened October 7th where Plaintiff served 60 days

with his constitutional rights being violated. Neither time did Plaintiff

get a written statement of the evidence relied upon and a copy of

reasons for the disciplinary action the oral disciplinary notice failed to

contain adequate information.

Doc. No. 8 at 1.

Defendant, Steve Franks.

May 2021 when Plaintiff served 30 days for disciplinary infractions at

that time Steve Franks was the sheriff of Greene County. Steve Franks

was liable and responsible of Plaintiff welfare and livelihood being a

sheriff of the County the sheriff is responsible for all inmates in that

county. Steve Franks failed to protect Plaintiff constitutional rights, by

not properly training his staff at the Greene County Detention Center.

By Steve Franks not properly training officers or staff on due process

and disciplinary hearings, inmates such as Plaintiff falls victim to the

lack of procedures. The proper exercise rights to due process and

disciplinary hearings are not met at Greene County Detention Center,

Steve Franks is responsible in his official and personal capacity. Steve

Franks involvement is liable and is clearly violating Plaintiff’s

constitutional rights to due process and the same occurrence happened

October 7th were Plaintiff served 60 days with his constitutional rights

being violated.

Id. at 2.

IV. Facts5

On or about December 11, 2019, Plaintiff, Rodney Henry, was booked into

the Greene County Detention Center (“GCDC”) on first degree murder and robbery

charges. Doc. No. 28-2, Henry’s Arrest and Booking, at 1.

May 13, 2021 Incident

On May 13, 2021, Corporal Dylan Works authored an incident report, stating:

On the day of 5/13/21 at approximately 07:10am I was in central

helping do cell checks. I heard Nurse Bailey Burns yell “dylan their

fighting” i ran towards the Nurse in north rounded the corner and saw

Ofc. Josh Young pulling inmate Rodney Henry out of North 3 pod. I

entered the pod and told the inmates to lockdown, Inmate Lyron

Johnson handed me North Keys. Myself and Ofc. Wade Caldwell

assisted Inmate Steven Halfacre to the wall. Medical requested him

come to a med cell to have his face cleaned, We escorted Halfacre to

medical without further incident. I have nothing further to report.

Doc. No. 28-4, Incident Reports, at 1, 4. Officer Young authored an incident report,

stating:

5 These facts are taken from the Defendants’ Statement of Indisputable Material

Facts (Doc. No. 28), and the documents and records attached. Henry did not specifically

dispute any of the facts asserted by the Defendants in his Disagreement of Defendant’s

Statement of Undisputed Facts (Doc. No. 32), apart from generally alleging that inmates

who do not waive their right to due process are not in fact afforded a hearing, which is

undisputed. He also argues that due process requires more than that provided by the

GCDC.

AT APPROXIMATELY AT 7:10 5/13/2021 B-DAY SHIFT I;

OFFICER YOUNG HAD STARTED CLEAN UP IN N3. UPON

ENTERING THE POD, I VERBALLY AND MOTION THE

INMATES TO GET ON THE WALL FOR CLEAN UP SO THE

TRUSTEES COULD BRING IN THEIR CLEANING SUPPLIES. AS

THE TRUSTEES GOT STARTED INMATE STEVEN HALFACRE

(CELL N3-06 NOW MOVED TO N5-05) ASKED ME THE

QUESTION HEY ARE YOU GOING TO DO A WALK THROUGH

LIKE YESTERDAY?´IN MY REPLY TO INMATE HALFACRE I

SAID DON’T KNOW YET, YES MAYBY WILL SEE. HALFACRE

THEN ASKED AGAIN WITH THE SAME QUESTION AND I

REPLIED DIFFERENTLY SAYING TO HIM WAIT A MINUTE.

HE WOULD GO ON TO ASK THE SAME QUESTION AGAIN I

THIS TIME DID NOT REPLY TO HIM INMATE LYRON

JOHNSON (CELL N3-11) RESPOND TO HIM SAYING THE

OFFICER MAN HE JUST TOLD YOU WE WILL SEE. HALFACRE

GOT AGGRESSIVE TOWARD JOHNSON YELLING AND

GETTING IN HIS FACE WITH HIS POSTURE TO FIGHT

JOHNSON INMATE RODENY HENRY (CELL N3-02) GOT OFF

THE WALL AND TRIED TO GET HALFACRE TO STEP BACK

FROM JOHNSON HALFACRE WOULD THEN STEP INTO

HENRYS FACE. THATS WHEN I STEP IN ORDERING THE

INMATES TO HEY; HEY; STOP; GET BACK AND ON THE

WALL. THE TRUSTEES THAT WERE ALREADY IN THE POD

WITNESS HALFACRE POKE HENRY CAUSING HIM TO

THROW THE FIRST PUNCH AND REPEATED PUNCHES AT

HALFACRE. AT THE FIRST PUNCH I GRAB HENRY FROM

BEHIND UNDER HIS ARMS REACHED FOR MY RADIO

CALLING ALL AVAILABLE OFFICERS TO NORTH WHILE

PULLING HIM AWAY AND, ON THE GROUND, AWAY FROM

HALFACRE. IN THE STRUGGLE OF PUT HERNY ON THE

GROUND I; OFFICER YOUNG JOSHUA WILL ADMIT TO

LOSING CUSTODY OF NORTH KEYS WHILE VISIBLY SEEING

WHERE THEY FELL, I HAD ALREADY RESTRAINED HENRY

BY MY ARMS AND DIDN’T WANT TO RISK LETTING GO OF

HIM BUT THE KEYS WERE RECOVERED AND BACK IN MY

CUSTODY. WHEN FELLOW OFFICER ARRIVED TO N3 I

RUSHED HENRY OUT OF THE POD AND ON THE WALL TO

PUT HANDCUFFS ON HIM AND ESCORTED TO S8 LOCK

DOWN (CELL S8-03) BY OTHER OFFICERS AND HALFACRE

WAS TAKEN TO MEDICAL FOR TREATMENT ON HIS LEFT

EYE AND A POSSIBLE BROKEN NOSE WHILE HENRY

SUSTAINED A BROKEN RIGHT RING FINGER. I HAVE

NOTHING FURTHER TO REPORT AT TIME

Id. at 2.

On May 13, 2021, Henry was given a due process form providing notice that

he was charged with violation of “[Rule] A7: Assault or batter anyone else, including

fighting,” which would result in a 30-day disciplinary sanction. Id. at 6. Rather than

marking the box “I choose to exercise my right to due process,” Henry marked the

box stating: “I choose to waive this right.” Id. There is an illegible signature above

the line for the inmate’s signature. Id. The same day, he was transferred from cell

N3-02 to cell S8-03. Doc. No. 28-5, Housing Logs, at 1.

On May 19, 2021, Henry submitted a grievance, stating: “cani get out the 8

days early im sorry.” Doc. No. 28-3, Requests and Grievances, at 1. On May 21,

2021, Lt. Alicia Hubble responded: “this is not a grievance.” Id. On May 26, 2021,

Plaintiff submitted a general inquiry, stating: “can i get out the home early? im

deeply sorry i been here 2 years now im not a trouble to nobody im actually a model

inmate could you so compansion on me and let me out next week.” Id. at 2. It

appears Henry received no response. Id.

On June 11, 2021, Henry was moved from cell S8-03 to cell N8-01. Doc. No.

28-5, Housing Logs, at 1. He was housed in cell N8-13 from July 24, 2021, through

October 16, 2021. Id.

October 16, 2021 Incident

On October 16, 2021, Sergeant Kelley authored an incident report, stating:

At approximately 3:30pm on 16 October 2021, I Sgt. Kelley along with

Ofc. Yeargain conducted a shakedown in N8. Within the entire pod we

found multiple altered e-cigs in the cells, 4 extra rags, 16 extra pants,

15 extra shirts, 11 extra blankets, 11 extra wash cloths and 18 extra

towels. Cell 11 we found 4 full bags of commissary belonging to

Theodis Dixson and approximately 50 extra rolls of toilet paper. I am

recommending locking the entire pod down for 24 hours. I took 2

commissary bags belonging to Theodis Dixson and placed them in

Felisha’s office since inmates are only allowed to have 2 bags on them

at one time. I have nothing further to report at this time.

Doc. No. 28-4, Incident Reports, at 7. The same day, Henry was given a due process

form providing notice that he was charged with violation of “A4: “Intimidating,

harassing, threatening, or extorting another inmate or officer,” and was to be placed

on disciplinary for 30 days. Id. at 12. On the form, he marked “I choose to exercise

my right to due process” and signed his name. Id. The record does not make clear

what Henry did to incur this charge after the shake-down in his cell pod. However,

in response to the charge, he wrote the following on an Inmate Disciplinary Due

Process Statement Form:

I Didn’t mean for that to happen I wasn’t trying to harm nobody but I

was upset that my pictures was taken from me when I first got here it

was okay for us to have them, I’ve been here almost 3 years, I never

once tried to hurt a police Im a model inmate I just lost my

cool…..Currently I’ve been locked up 4 years the feds wanna give me

the death penalty but im innocent, Im going to trial in a couple months

so I’ve been under a lot of stress, I hope you can accept my apology

and let me out sooner than 30 days, My pictures is all I have, its pictures

of my children. I always keep my cool but matters like my kids its hard

to control. Please can we make this matter go away. Im sorry and I

understand what has [illegible] Can I do 7 days to cool off and humble

[illegible] down and get out I really don’t need this matter popping up

when I got to court. lord god bless be with me at the police let us get an

understanding and peace let your will be done Amen. Come on Cody.

. . .

Cody, This is not me to be aggressive and wicked, you know I’ve never

been dangerous with the guards but honestly I’ve been sad, depressed

and stressed because my trial is in a few months. My charges carries

life or death. Right now it look like Im battling for my life as we speak

so this is why I’ve been tripping about my pictures I’m sorry but my

kids are my happiness and all I have and today their pictures were taken.

I could have handled this better but I didn’t, but can I have a chance to

get out sooner? Even if I don’t get the pictures back. I’ll be humble and

grateful, can you consider letting me out the hole? I could use a few

days to cool off and humble myself down so [illegible] Can 7 days be

enough?

I don’t wont this to pop up in Court. Wont look good on me.

Id. at 8-11. Henry received a 30-day sanction and was to be released from lockdown

on November 15, 2021. Id. at 12. He was moved to cell N5-11 that day. Doc. No.

28-5, Housing Logs, at 1.

On October 19, 2021, Henry submitted a grievance, stating: “felisha Rowland

look at my due process i know its something you can do about this 30 days their

tryna give me.” Doc. No. 28-3, Requests and Grievances, at 3. On October 25,

2021, Felisha Rowland responded: “I’m sorry I can not. You can put request into

Dane Barnum Or Robert Case. I have nothing to do with due processes.” Id.

October 21, 2021 Incidents

On October 21, 2021, at 12:59:00 p.m., Lt. Dane Barnum authored an incident

report, stating:

On 10/21/21 I Lt. Dane Barnum was informed by officer Morgan

Robinson that there were holes poked in the magnets in lockdown. He

informed me that he physically witnessed inmate Rodney Henry poke

a hole in his. When I reviewed camera, I witnessed Henry tamper with

his magnet and cell N5-3. Both magnets had holes punctured into them

and were brand new. I recommend 7 days for Destroying, defacing,

altering, or tampering with existing facility property, including doors,

walls, fixtures, security devices, structure, or other parts of the

Detention Center and then an additional 15 days for second offense

Destroying, defacing, altering, or tampering with existing facility

property, including doors, walls, fixtures, security devices, structure, or

other parts of the Detention Center. Henry will be charged for both

magnets. $50 for his and $50 for N5-3. I have nothing further to report

at this time.

On 10/21/21 I Lt. Dane Barnum was informed by Officer Morgan

Robinson that inmate Rodney Henry was flooding his cell. When I

arrived at N5 their was water coming from under Henrys door and

flooding the day room. When I opened Henry cell he told me that he

would keep doing with and he was ready to leave this place. I instructed

Henry to grab all of his belongings and he was escorted to booking in

order to keep him from doing this again. I have nothing further to report

at this time.

Doc. No. 28-4, Incident Reports, at 13.

On October 21, 2021, Officer Morgan Robinson offered Henry a due process

form providing notice that he was charged with violation of “[Rule] B5 – Destroying,

defacing, altering, or tampering with existing facility property, including doors,

walls, fixtures, security devices, structure, or other parts of the Detention Center

(first offense).” Id. at 14. There is a notation indicating that Henry refused the due

process form. Id. For violation of this rule, Henry was given seven additional days

to serve in lockdown. Id.

Officer Robinson offered Henry another due process form the same day,

providing notice that he was charged with violation of “[Rule B5] – Destroying,

defacing, altering, or tampering with existing facility property, including doors,

walls, fixtures, security devices, structure, or other parts of the Detention Center

(second offense).” Id. at 15. A notation indicates that Henry refused that due process

form too. Id. For this rule violation, he was given 15 additional days to serve in

lockdown. Id. He was also charged $50 for each magnet he damaged. Id. at 16-17.

Henry was moved to ISO-144 on October 21, 2021, at 5:07 p.m. Doc. No. 28-5,

Housing Logs, at 1. He was ultimately released from lockdown on December 7,

2021. Id.

In November of 2021, Henry submitted several requests and grievances

asking when he would be released from the “hole.” Doc. No. 28-3, Requests and

Grievances, at 4-8. One of those requests was addressed to defendant Case – Henry

asked if he could be released by Thanksgiving, and stated, “I promise the rest of my

time here I wont get in no more trouble im sorry and hope you can consider my

request.” Id. at 4. Case said he would look into it. Id. Henry also wrote a grievance,

stating that his due process rights were violated because he had not received

commissary and his belongings during 48-hour relief breaks and had not received a

hearing before being assigned to segregation. Id. at 5. That grievance was answered

by Dane Barnum, who inexplicably addressed incoming and outgoing mail instead

of Henry’s complaints. Id. Henry did not file any more grievances concerning his

due process rights until June 2022. Id. at 10-12.

Defendants’ Affidavits

According to his affidavit, former Sheriff Steve Franks served as the sheriff

of Greene County during the time period at issue in this lawsuit (i.e., May through

December of 2021). Doc. No. 28-8, Affidavit of Steve Franks, at ¶1. He explained

that he employed a chain of command to supervise the employees in his office, and

the detention center chain of command was headed by the jail administrator. Id. at

¶2. According to Franks, Brent Cox served as jail administrator from May 2021

through July 26, 2021, and defendant Robert Case served as jail administrator from

July 26, 2021, through January 1, 2023. Id. Franks stated that he would not normally

be involved with day-to-day operations at the detention center, such as disciplinary

actions or corresponding due process procedures. Id. at ¶7. He stated the highest

ranking official to participate in due process procedures during the relevant time

period at issue in this lawsuit was Dane Barnum. Id. Franks also stated that he did

not get involved or become aware of any problems associated with due process

procedures, such as those alleged by Henry, unless his staff could not resolve an

issue. Id. at ¶¶4-5. He also stated he had no personal involvement in Henry’s

disciplinary actions or due process procedures. Id. at ¶8. Franks further stated he

had no contact with Henry in person or by writing, and was not aware of the issues

alleged by Henry until Henry filed this lawsuit. Id. at ¶9-11.

According to his affidavit, former jail administrator Robert Case served as the

Greene County Jail Administrator from July 26, 2021, through January 1, 2023.

Doc. No. 28-9, Affidavit of Robert Case, at ¶1. He stated that the due process

procedures in place in 2021 were implemented on May 11, 2021, and provide that

an inmate who violates the GCDC rules and procedures will receive a Due Process

form. Id. at ¶4. According to Case,

The form will include the following:

a. An option for the inmate to exercise or waive his right to Due

Process.

b. List any witnesses in the matter. These witnesses have the right

to provide or refuse to provide their statement.

c. The current release date from lockdown if found guilty of

accusations.

d. The officer reporting the incident and implementing the

sanction.

e. The date of the incident.

f. The name of the inmate.

g. The class and description of violation, along with amount of

days applied for each violation.

Id. at ¶5 (citing Doc. No. 28-6, GCDC Policies and Procedures, at 10 & 17). Case

further explained that the form provides an option for the inmate to state his side of

the story by exercising his right to due process, along with listing any witnesses in

the matter. Id. at ¶6. If the inmate waives his right to due process, the disciplinary

term will take effect immediately; however, it will still be subject to review by

administrative staff. Id. at ¶7. Case also explained that if an inmate refuses to sign

a due process form, it will be treated as a waiver of due process. Doc. No. 51-1,

Supplemental Affidavit of Robert Case at ¶ 12.

Once the due process form and voluntary statements, if any, are completed

and turned in to a detention officer, these reports will be reviewed by the oncoming

shift supervisor, who will be an officer not involved in the incident. Affidavit of

Robert Case at ¶8. Following the review of the due process form, the paperwork

will be forwarded to administrative staff for a final review. Id. at ¶9. In his

supplemental affidavit, Case further explained that the inmate would be informed of

the reasons for the disciplinary action being upheld or not upheld verbally or in

writing. Doc. No. 51-1, Supplemental Affidavit of Robert Case at ¶ 11.

Case also explained in his supplemental affidavit that GCDC did not generally

hold in-person disciplinary hearings due to safety and security reasons, unless an

inmate was illiterate or otherwise unable to provide his defense in writing. Id. at ¶¶

6-7. According to Case, in-person disciplinary hearings create additional safety and

security risks because having inmates charged with rule violations physically present

with authority figures, charging officers, and witnesses has the potential to result in

confrontation and violent outbursts, while requiring an inmate to present his defense

in writing minimizes these safety and security risks. Id. at ¶¶ 8-9. He also explained

that the GCDC did not have necessary size or staffing to accommodate in-person

disciplinary hearings. Id. at ¶ 10.

To Case’s knowledge, GCDC’s due process policy was followed by all GCDC

personnel that participated in disciplinary actions and due process procedures during

his tenure as the jail administrator. Affidavit of Robert Case at ¶10. Case stated that

he did not generally participate in disciplinary actions or due process procedures,

and was not involved in Henry’s disciplinary actions on October 16, 2021, or

October 21, 2021. Id. at ¶¶11-12, 14. His name is not on any of the incident reports

or due process forms. Id. Case stated that he did not change Henry’s housing

assignment in October 2021. Id. at ¶11. He also explained that he generally

reviewed disciplinary actions only if criminal charges were being pursued. Id. at

¶15.

V. Analysis

A. Individual Capacity Claims

The Defendants argue that they are entitled to qualified immunity with respect

to Henry’s individual capacity claims because he cannot prove they violated his

constitutional rights.6 The Court agrees for the reasons described below.

First, Henry seeks to hold the Defendants accountable due to their supervisory

positions as sheriff and jail administrator, respectively. Those claims fail as a matter

of law. Respondeat superior is not a recognized basis for § 1983 liability. See

Keeper v. King, 130 F.3d 1309 (8th Cir. 1997). Henry has not alleged that the

Defendants were personally involved in his disciplinary proceedings or responsible

for his assignment to segregated housing. See Doc. No. 8 at 1 & 2. Both Defendants

submitted affidavit testimony stating they had no involvement in Henry’s

disciplinaries or the corresponding due process procedures. Case was not even

working at the GCDC in May 2021. Henry has come forward with no evidence

controverting their testimony or showing that they were in any way personally

involved in the violations he alleges. And although he complains about the

constitutionality of the GCDC’s due process procedures, he does not allege that

either Defendant is responsible for creating or implementing that policy. A

6 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).

defendant may not be held liable under § 1983 unless he was personally involved in

or had direct responsibility for the constitutional violation. See Mayorga v.

Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006) (“Liability under section 1983

requires a causal link to, and direct responsibility for, the deprivation of rights.”)

(internal quotations and citations omitted).

Second, Henry has not supported his claim that the Defendants should be held

liable because they failed to train their subordinates. Doc. No. 2 at 7-8. To assert a

constitutional violation based on a defendant’s failure to supervise and train staff, a

plaintiff must show that the supervisor

1) Received notice of a pattern of unconstitutional acts committed by

subordinates; 2) Demonstrated deliberate indifference to or tacit

authorization of the offensive acts; 3) Failed to take sufficient remedial

action; and 4) That such failure proximately caused injury to [Plaintiff].

Parrish v. Ball, 594 F.3d 993, 1002 (8th Cir. 2010). The Court further explained,

The plaintiff must also prove that the alleged failure to train “actually

caused” the constitutional deprivation. [Andrews v. Fowler, 98 F.3d

1069, 1078 (8th Cir. 1996)] (applying the same standard from official

capacity failure to train to the individual capacity allegation). Thus, it

follows that a supervisory officer is entitled to qualified immunity for a

§ 1983 failure to train action unless a reasonable supervisor would have

known that his training program (or lack thereof) was likely to result in

the specific constitutional violation at issue. See Gold v. City of Miami,

121 F.3d 1442, 1447 (11th Cir.1997) (noting that a supervisor is entitled

to qualified immunity unless “a reasonable person in the supervisor’s

position would have known that his conduct infringed the constitutional

rights of the plaintiff and his conduct was causally related to the

constitutional violation committed by his subordinate” (quotation

omitted)).

Id.

Henry has not alleged any specific facts or produced any evidence to support

a claim based on lack of training or supervision. He does not describe what training

or supervision was provided, how the training or supervision was lacking, or how

the Defendants had notice that GCDC’s procedures were inadequate and were likely

to result in a violation of constitutional rights. Henry does not allege that either

Defendant had notice of a pattern of unconstitutional acts committed by subordinates

related to the claims he asserts; he provides no evidence of any pattern of

unconstitutional activity; and he does not allege that the Defendants were aware of

any such lack of training or supervision and failed to take remedial action.

Because the Defendants did not violate Henry’s constitutional rights, they are

entitled to qualified immunity on Henry’s due process claims.

B. Official Capacity Claims

Henry also sues the Defendants in their official capacities. Official capacity

claims are “functionally equivalent to a suit against the employing governmental

entity.” Veach v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010).

Thus, a suit against the defendants in their official capacities is in essence a suit

against the County or city itself. See Murray v. Lene, 595 F.3d 868 (8th Cir. 2010);

Liebe v. Norton, 157 F.3d 574 (8th Cir. 1998). As county employees, the Defendants

can only be held liable in their official capacities if Henry can establish that a

constitutional violation was committed pursuant to “an official custom, policy, or

practice of the governmental entity.” Moyle v. Anderson, 571 F.3d 814, 817 (8th

Cir. 2009). Henry asserts that the GCDC’s disciplinary procedures are

unconstitutional under Wolff v. McDonnell, infra, because the due process form

provided does not contain adequate information to allow for a meaningful defense,

because no hearing is held before inmates are sentenced to punitive segregation, and

because he did not receive a written statement by the factfinders about the evidence

relied on and the reasons for the disciplinary action.

1. Due Process Protections for Pre-Trial Detainees

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); see also Martinez

v. Turner, 977 F.2d 421, 423 (8th Cir. 1992) (“Pretrial detainees are presumed

innocent and may not be punished.”). However, pre-trial detainees may be subjected

to certain restrictions and conditions without due process if necessary to maintain

order and security in the jail. See Bell, 441 U.S. at 538–40 (“Thus, if a particular

condition or restriction of pretrial detention is reasonably related to a legitimate

governmental objective, it does not, without more, amount to ‘punishment.’”).

Accordingly, where a detainee is “placed in segregation not as punishment but for

managerial reasons” such as “to protect himself from other prisoners, or to protect

jail staff from his violent propensities,” no due process is required. Higgs v. Carver,

286 F.3d 437, 438 (7th Cir. 2002). See e.g., Hanks v. Prachar, 457 F.3d 774, 775

(8th Cir. 2006) (holding that incidents of property destruction are arguably

constitutionally valid reasons for restraining detainee for short periods, but that

longer periods of in-cell restraints would not be justified by such property

destruction); Ferguson v. Cape Giradeau Cty., 88 F.3d 647, 650 (8th Cir. 1996)

(placing a detainee in a small observation cell for a limited time due to his medical

issues and general safety concerns did not constitute punishment requiring due

process protections).

Conversely, if the conditions or restrictions imposed on an inmate are deemed

punishment, the inmate is entitled to some due process protections. These due

process requirements, set forth in Wolff v. McDonnell, include written notice of the

charge; a written statement by the factfinders as to the evidence relied on and the

reasons for the disciplinary action; the right of the inmate to be present, call

witnesses, and present documentary evidence; and, in limited situations, a counsel

substitute.7 418 U.S. 539, 564-70 (1974). The Court further noted that “[p]rison

7 Wolff concerned the due process rights of convicted prisoners and did not

specifically discuss pre-trial detainees. 418 U.S. 539, 542. The Supreme Court in Bell

held that the principles outlined in Wolff concerning the balance between a prison’s

institutional needs and an inmate’s constitutional rights applied equally to pretrial detainees

and convicted prisoners. 441 U.S. at 546. Courts have since looked to Wolff to determine

what process is due pre-trial detainees in disciplinary matters. See Whitfield v. Dicker, 41

F. App’x 6, 7 (8th Cir. 2002) (unpublished); Rupert v. Boyd, No. 3:17-CV-119-DPM-BD,

2018 WL 1778471, at *1 (E.D. Ark. Apr. 13, 2018); Neal v. Walker, No. 4:21-CV-04068,

2023 WL 2954738, at *9 (W.D. Ark. Feb. 1, 2023), report and recommendation adopted,

No. 4:21-CV-4068, 2023 WL 2496177 (W.D. Ark. Mar. 14, 2023).

disciplinary proceedings are not part of a criminal prosecution, and the full panoply

of rights due a defendant in such proceedings does not apply.” Id.

There is no indication on this record that Henry was temporarily segregated

from other inmates to protect himself or others; rather, he was sentenced to longer

stays in punitive segregation, serving 29 days in the first instance (May 13, 2021, to

June 11, 2021) and 52 days in the second instance (October 16, 2021, to December

7, 2021). Accordingly, Henry was entitled to some due process protections before

being sentenced to punitive segregation.

2. GCDC’s Failure to Hold In-Person Hearings

Henry alleges that the GCDC disciplinary procedure does not provide for in-

person hearings. The Defendants do not dispute this, but argue instead that Wolff

does not necessarily require in-person hearings. They explained:

During the timeframe at issue within the instant lawsuit, in-person due

process hearings were not frequently held. Rather, the inmate had the

opportunity to present their defense in writing on the “Inmate

Disciplinary Due Process Statement Form,” along with the names of

any witnesses. GCDC personnel would review the inmate’s written

statement, and witnesses identified by the inmate were given the

opportunity to write a written statement as well. In-person hearings

were generally not utilized due to the additional safety and security

risks created by having charged inmates in the physical presence of

charging officers and witnesses that may have unfavorable statements.

Doc. No. 51 at 2. Additionally, defendant Case provided an affidavit stating that the

GCDC did not usually hold in-person hearings due to safety and security reasons.

Doc. No. 51-1 at ¶ 6. Specifically, he stated that both moving inmates to a hearing

and having them present with charging officers and other witnesses at an in-person

hearing created additional safety and security risks that were minimized if the inmate

simply wrote out his or her defense in writing. Id. at ¶¶ 8-9. He also explained that

the GCDC did not have the capacity to hold in-person disciplinary hearings due to

the small size of the facility and the strain on staffing such hearings would cause.

Id.

The Court agrees with the Defendants that Wolff stops short of requiring actual

in-person hearings in every disciplinary proceeding. In Wolff, the Court recognized

the risks to institutional safety that disciplinary proceedings may cause, stating:

The reality is that disciplinary hearings and the imposition of

disagreeable sanctions necessarily involve confrontations between

inmates and authority and between inmates who are being disciplined

and those who would charge or furnish evidence against them.

Retaliation is much more than a theoretical possibility; and the basic

and unavoidable task of providing reasonable personal safety for guards

and inmates may be at stake, to say nothing of the impact of disciplinary

confrontations and the resulting escalation of personal antagonism on

the important aims of the correctional process.

418 U.S. at 562. In light of these concerns, the Court concluded that inmates facing

disciplinary proceedings should only be allowed to call witnesses and present

documentary evidence if permitting them to do so would not be “unduly hazardous

to institutional safety or correctional goals.” Id. at 566. And finally, the Court

concluded that due process did not require confrontation and cross-examination in

disciplinary matters and that whether to allow confrontation and cross-examination

was better left to the discretion of prison officials. Id. at 568-69.

In light of Wolff’s holding that does not require confrontation and cross-

examination, the Court concludes that GCDC’s disciplinary procedure is not

unconstitutional merely because it does not provide for in-person hearings.

3. GCDC’s Due Process Form

Henry also alleges that he did not receive sufficient notice of the facts

supporting the claimed violation or a written statement by the factfinders as to the

evidence relied on and the reasons for the disciplinary action.

The GCDC’s due process form identifies the assigning officer and the alleged

rule violation and proposed disciplinary sentence. See e.g., Doc. No. 28-4. It allows

the inmate to waive due process or exercise his or her right to due process. It

provides no further facts. There is no evidence in this record that the inmate is

provided with the incident report supporting the disciplinary action. Henry claims

he received no written copy of the due process form and that he did not have enough

information to prepare his defense. See Doc. No. 2 at 4, 6-7; Doc. No. 32 at 1.

In Dible v. Scholl, the Eighth Circuit described what is required in a written

notice of a disciplinary infraction. The Court stated:

The written notice must be adequate to enable the accused prisoner to

“marshal the facts and prepare a defense.” Wolff, 418 U.S. at 564, 94 S.

Ct. 2963; Freitas v. Auger, 837 F.2d 806, 809 (8th Cir.1988). Due

process aims “to prevent arbitrary deprivations without threatening

institutional interests or imposing undue administrative burdens.”

[Superintendent v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768 (1985)]. To

prevent arbitrary deprivations, the notice should spell out “more than a

conclusory charge; an inmate must receive notice of at least some

specific facts underlying the accusation.” Sira v. Morton, 380 F.3d 57,

70 (2d Cir.2004) (internal quotation omitted). If known, prison officials

should provide general information about the date, place, and nature of

the alleged misconduct. Id. at 72. Specific facts may be withheld,

however, when necessary to protect informants from intimidation and

violent reprisals. Wolff, 418 U.S. at 565–66, 94 S. Ct. 2963; see Freitas,

837 F.2d at 809.

506 F.3d 1106, 1110 (8th Cir. 2007). And more recently, this Court has held that a

“threadbare” due process form was insufficient to establish as a matter of law that a

pretrial detainee received due process. Rupert v. Boyd, No. 3:17-CV-119-DPM-BD,

2018 WL 1778471, at *1 (E.D. Ark. Apr. 13, 2018) (“‘Without support in the record,

we cannot infer that the lack of specific facts in the disciplinary notice was justified

by countervailing correctional needs.’ This record reveals no reason why Rupert

couldn't have been given more particulars about the disciplinary charge at issue.”

(quoting Dible v. Scholl, supra).

The GCDC’s due process form does not meet this standard. And with no

evidence that Henry received any other information providing the facts underlying

his disciplinary charges (such as an incident report), there remains an issue of fact

as to whether he was afforded due process with respect to the four disciplinary

actions at issue in this case. I find there is also an issue of fact as to whether Henry

could knowingly waive his due process rights without sufficient information

provided to him regarding the basis for his disciplinary charges.8 And finally, Wolff

requires “a written statement by the factfinders as to the evidence relied on and

reasons for the disciplinary action.” Wolff, 418 U.S. at 564. This record does not

show that Henry received any such written statement. By separate order, I will

schedule a bench trial in this case to decide these remaining issues of fact.

4. Available Relief

Finally, the Court notes that some relief requested by Henry is now moot.

Specifically, his request for declaratory and injunctive relief are moot because he is

no longer incarcerated at the GCDC. See Martin v. Sargent, 780 F.2d 1334, 1337

(8th Cir. 1985). The only other relief he requests are nominal and punitive damages

which are recoverable in the absence of any physical injury.9 See Sisney v. Reisch,

674 F.3d 839, 843 (8th Cir. 2012); Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir.

2004). An award of one dollar per constitutional violation is recognized as the

appropriate amount for nominal damages. See Royal v. Kautzky, 375 F.3d at 724

8 The Court understands that Henry may well have understood the facts underlying

each of the disciplinary sentences he challenges. However, Wolff requires written notice

of the charges, 418 U.S. at 564, and Dible v. Scholl explains that such written notice must

be “adequate to enable the accused prisoner to “marshal the facts and prepare a defense.”

506 F.3d at 1110.

9 Because Henry has not alleged any physical injury as a result of the violations he

asserts, he may not recover compensatory damages in any case. See 42 U.S.C. § 1997e(e)

(“No Federal civil action may be brought by a prisoner confined in a jail, prison, or other

correctional facility, for mental or emotional injury suffered while in custody without a

prior showing of physical injury or the commission of a sexual act.”).

(and cases cited therein); Williams v. Hobbs, 662 F.3d 994, 1010 (8th Cir. 2011)

(holding that the appropriate calculation for nominal damages is one dollar per

hearing violation, not one dollar for each day spent in administrative segregation).

VI. Conclusion

The Defendants’ motion for summary judgment (Doc. No. 26) is GRANTED

in PART and DENIED in PART. Judgment is awarded in favor of the Defendants

on Henry’s individual capacity claims, and those claims are dismissed with

prejudice. Henry’s official capacity claims will be set for a bench trial by separate

order.

IT IS SO RECOMMENDED this 27th day of March, 2024.

raven Seance