Opinion

Radford v. Byers

Court
District Court, E.D. Arkansas
Filed
Mar 29, 2024
Cited by
0 cases
Authority
More cited than 17.1%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

TOMMY RADFORD PLAINTIFF

ADC #089900

Vv. No. 4:21-cv-218-DPM

LEMARCUS DAVIS, Former Captain,

Maximum Security Unit; JOSHUA

CAUDELL, Lieutenant, Maximum

Security Unit; TERRI L. MURRAY,

Corporal, Maximum Security Unit;

QUINTIN WOODS, Former Officer,

Maximum Security Unit; JOHNNIE

BARTON, Former Officer, Maximum

Security Unit; and BREWER, Sergeant,

Maximum Security Unit DEFENDANTS

ORDER

1. The Court withdraws the reference.

2. Tommy Radford has sued various ADC defendants under

42 U.S.C. § 1983, alleging violations of his constitutional rights in the

Tucker Maximum Security Unit of the Arkansas Division of Correction.

There was an initial round of dispositive motions. Doc. 77 & 81. Six

ADC defendants remain. Two were never served; one of these

individuals has also passed away, and no estate has been substituted.

Radford brings retaliation claims against the other four. He alleges

retaliation on three occasions in 2020 —two in July and one in August —

based on grievances he filed against the officers and his allegations that

Captain LeMarcus Davis and Sergeant Brewer were both ina romantic .

relationship with Corporal Terri Murray. The four officers seek

summary judgment, arguing that they are entitled to qualified

immunity. Radford did not respond to the motion. And the material

facts are deemed admitted because Radford didn’t respond to the

officers’ Local Rule 56.1 statement, either. LOCAL RULE 56.1(c).

3. 11July 2020 Incident. For his first retaliation claim, Radford

says that Corporal Murray and Officer Quintin Woods moved him to

Shower #2 instead of letting him use Shower #1 directly across from

the control booth. Radford speculates that Corporal Murray placed

him in Shower #2 to “make [him] upset” and in retaliation for

unspecified grievances he previously filed against her. Doc. 104-1 at 20.

Corporal Murray says in her affidavit that she told the other officers to

put Radford in Shower #2 instead because he has been charged with

numerous indecent exposure violations. Doc. 104-2 at 2. Regardless of

Corporal Murray’s motivation, Radford admits that both showers were

fully functional and that there is no difference between them.

Doc. 104-1 at 19. Moving Radford to another functioning shower is a

“trivial” matter that would not dissuade a prisoner of ordinary

firmness from filing grievances. Gonzalez v. Bendt, 971 F.3d 742, 745 (8th

Cir. 2020). Radford’s retaliation claim against Corporal Murray and

Officer Woods therefore fails. They are entitled to qualified immunity.

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16 July 2020 Incident. For his second retaliation claim, Radford

says that Captain Davis called him a “homosexual punk” and

threatened to put him in isolation and to “beat his ass.”

Doc. 2 at 16 & 29; Doc. 104-1 at 22-24. Radford says Captain Davis’s

threats were made in retaliation for various, sometimes contradictory,

reasons.

First, Radford initially testified on deposition that Captain Davis

told him that he made these threats in retaliation for Radford

“harassing and writing these bogus grievances on my old lady.”

Doc. 104-1 at 23. The shower incident and grievance involving

Corporal Murray had occurred about a week before. Radford was then

asked specifically whether Captain Davis said his threat was prompted

by grievances against Corporal Murray. Radford said “No, he told me

the reason why he was doing that in a way because you're messing with

my old lady, you’re messing with my companion, you know what I’m

saying.” Doc. 104-1 at 25. Both Captain Davis and Corporal Murray

say in their affidavits that they have never had a romantic relationship.

Doc. 104-2 at 2; Doc. 104-3 at 2. This fact is among those deemed

admitted by Radford. Doc. 106 at 2; LOCAL RULE 56.1(c). Radford’s

speculation about Captain Davis’s and Corporal Murray’s relationship

status is not enough to raise a genuine dispute about that issue. And

he specifically abandoned any linkage between his grievances against

Corporal Murray — the protected activity — and Captain Davis’s threats.

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Second, Radford’s grievance says that Captain Davis’s threats

were in retaliation for past grievances Radford had filed against him.

Doc. 45-5 at 1. But there aren’t any pre-July 16th grievances against

Captain Davis in the record. The only grievance Radford exhausted

against Captain Davis is MX-20-01389, which is about the 16 July 2020

event. Doc. 45-5. And Radford makes no attempt, in sworn testimony

or otherwise, to establish a causal connection between Captain Davis's

July 16th actions and any past grievance against him.

Third, Radford testified on deposition that Captain Davis's

threats were also made in retaliation for past grievances Radford had

filed against Corporal Murray. Doc. 104-1 at 22-24 & 43-44. But in his

grievance MX-20-01389, Radford says that Captain Davis threatened

and harassed him for filing a grievance against Captain Davis in the past,

not against Corporal Murray. Doc. 45-5. Radford admitted that his

“memory ain’t that good,” and the information in his grievance is more

accurate than the information in his unverified complaint and

deposition testimony. Doc. 104-1 at 24-26. Again, when asked directly

on deposition if Captain Davis told him that he was retaliating against

him for writing grievances against Corporal Murray, Radford said,

“No, he told me the reason why he was doing that in a way because

you're messing with my old lady. . ..” Doc. 104-1 at 25. Put aside the

admitted fact that Davis and Murray were not in a relationship.

Assume that they were. Radford’s testimony indicates that Captain

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Davis threatened and harassed him for the indecent exposure incidents

in Corporal Murray’s presence, not for filing a grievance against her.

Though the record is a bit jumbled, Radford has not offered sufficient

evidence to support a verdict that his filing of any grievance against

Corporal Murray was the “but-for” cause of Captain Davis’s threats.

De Rossitte v. Correct Care Solutions, LLC, 22 F.Ath 796, 804 (8th Cir. 2022).

He hasn’t shown that Captain Davis wouldn’t have threatened him if

he hadn’t filed grievances against Corporal Murray. Ibid.

For all these reasons, Radford’s retaliation claim against Captain

Davis fails. Captain Davis is entitled to qualified immunity.

12 August 2020 Incident. Radford alleges that Sergeant Brewer

threatened him in August 2020 in retaliation for past grievances

Radford had filed against Corporal Murray. Doc. 104-1 at 43-44. One

is in the record—the 11 July 2020 Shower #2 grievance. Doc. 45-3.

Radford believed that Sergeant Brewer and Corporal Murray also had

a romantic relationship. Doc. 104-1 at 43-44. On deposition, Radford

first testified that he did not remember the details of Sergeant Brewer's

alleged retaliation. Doc. 104-1 at 43. But, when counsel read his

allegations from the grievance, Radford said that they were true. Doc.

104-1 at 45-46. In his exhausted but unsworn grievance

No. MX-20-01552, Radford wrote that “Brewer threaten me again

alleging that I written his old lady up on grievance forms in the past

(Cpl. T. Murray) and he will teach me a lesson and make my life

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miserable, then Cpl. Brewer threaten to squeeze my penis and testicles

tomorrow 8-13-20 since I will be in restraints and cannot stop him

because Cpl. Brewer stated that he’s been wanting to touch me.”

Doc. 45-9 at 1. This last statement was, Radford said, a homosexual

overture. Doc. 45-9 at 1-2.

All of this doesn’t add up to a claim for the jury. First, Sergeant

Brewer said he would “teach [Radford] a lesson” and “make [his] life

miserable.” Doc. 45-9 at 1. There is no controlling precedent or robust

consensus of persuasive authority establishing that those statements

are actionable. See, e.g., Evanstad v. Herberg, 994 F. Supp. 2d 995,

1001 (D. Minn. 2014). They are too vague and generic to chill an inmate

of ordinary firmness from continuing to file grievances. Ibid.

Second, the threats of sexual assault. They are troubling. And

those words alone are probably enough to chill an inmate of ordinary

firmness from filing more grievances. De Rossitte, 22 F.4th at 804. But

Radford’s affirmed grievance and his deposition testimony indicate

that these words were a homosexual overture. Doc. 104-1 at 45-46. They

were not sufficiently rooted in any prior grievance filing. While

causation is usually a jury question, Radford hasn’t offered sufficient

evidence to support a verdict that his filing of any grievance against

Corporal Murray was the “but-for” cause of Sergeant Brewer's

homosexual overture. De Rossitte, 22 F.4th at 804. Radford’s grievance

said that Sergeant Brewer “stated that he’s been wanting to touch me.”

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Doc. 45-9 at 1. This indicates that Sergeant Brewer allegedly would have

still threatened him with sexual assault even if Radford hadn't filed any

previous grievances against Corporal Murray. And Radford was clear

that Sergeant Brewer did not “squeeze [his] penis and testicles” the

following day. Doc. 104-1 at 45-46. This record is too thin on causation

to support a solid retaliation claim based on these words.

For all these reasons, Sergeant Brewer is also entitled to qualified

immunity.

4. The ADC defendants argue they are entitled to sovereign

immunity, in their official capacities, because Radford seeks monetary

damages against them. The Court agrees. Claims for monetary

damages against state employees acting in their official capacity are

barred by sovereign immunity. Nix v. Norman, 879 F.2d 429,

431-432 (8th Cir. 1989). Because Radford seeks only monetary damages

against the ADC defendants, his official-capacity claims will be

dismissed without prejudice.

5. Radford has not shown timely service on Officer Johnnie

Barton or sought any other relief; and the time to do so has passed.

Doc. 38. His claims against her will be dismissed without prejudice.

Fed. R. Civ. P. 4(m).

6. Radford received a notice that Lieutenant Joshua Caudell

died in 2022. Doc. 24. Radford then moved to substitute an improper

party. Doc. 39. That motion was denied. Doc. 63. He then moved to

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substitute “the appropriate representative” of Lieutenant Caudell’s

estate. Doc. 66. That motion was also denied because Radford didn’t

identify the personal representative of Caudell’s estate or provide an

address for service. Doc. 68. Radford did not attempt any further cure.

Under Federal Rule of Civil Procedure 25, the Court shall dismiss a

deceased party if a motion to substitute a proper party “is not made

within 90 days after service of a statement noting the death.” Fed. R.

Civ. P. 25(a)(1). That period has long passed. Therefore, Radford’s

claims against Lieutenant Caudell will be dismissed without prejudice

for lack of proper substitution.

Motion for summary judgment, Doc. 104, granted. Motions,

Doc. 108, 109, 110 & 111, denied as moot. The embedded request for

appointment of counsel, Doc. 115, is also denied as moot. After the

summary judgment briefing closed, Radford filed various declarations

and notices. But they relate to claims that have previously been

dismissed or to Radford’s other lawsuits. They do not have any bearing

on the summary judgment motion. Judgment will issue.

So Ordered.

choll

D.P. Marshall Jr.

United States District Judge

AB Moreh 202aY

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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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