Maxwell/G-Doffee v. Simmons

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

DON THOMAS MERCELEANY PLAINTIFF

MAXWELL/G-DOFFEE

ADC #108778

V. NO. 4:22-cv-00482-JM-ERE

ALICIA SIMMONS, et al. DEFENDANTS

RECOMMENDED DISPOSITION

I. Procedure for Filing Objections:

This Recommendation has been sent to United States District Judge James M.

Moody Jr. You may file written objections to all or part of this Recommendation.

Any objections filed must: (1) specifically explain the factual and/or legal basis for

the objection; and (2) be received by the Clerk of this Court within fourteen (14)

days of the date of this Recommendation. If no objections are filed, Judge Moody

may adopt this Recommendation without independently reviewing all the evidence

in the record. By not objecting, you may waive the right to appeal questions of fact.

II. Background:

Pro se plaintiff Don Thomas Merceleany Maxwell/G-Doffee (“Mr. G-

Doffee”), an Arkansas Division of Correction (“ADC”) inmate, filed this civil rights

lawsuit under 42 U.S.C. § 1983. Doc. 2. Mr. G-Doffee currently proceeds on the

following claims: (1) Corporal Wayne Price, Sergeant Alicia Simmons, Corporal

Donavan Hill, Sergeant Oliver Steverson, and Warden Gary Musselwhite

(collectively, “ADC Defendants”) failed to protect him from an inmate attack that

occurred on July 23, 2021; (2) Sergeant Simmons failed to protect him from the July

23 inmate attack in retaliation for his use of the ADC inmate grievance procedure;

(3) Sergeant Steverson used excessive force against him by spraying him with a

chemical agent; (4) Advanced Practice Nurse (“APN”) Rose Newby failed to

provide him adequate medical treatment during his clinical encounter with her on

August 11, 2021; (5) APN Lerizza Nunag failed to provide him adequate medical

treatment when she failed to renew his nortriptyline prescription after July 23, 2021;

and (6) APN Nunag failed to renew his prescriptions in retaliation for his for his use

of the grievance process.1 Doc. 119.

Defendants Newby and Nunag (collectively, “Medical Defendants”) and the

ADC Defendants have filed motions for summary judgment, briefs in support, and

statements of fact arguing that they are entitled to judgment as a matter of law on

Mr. G-Doffee’s claims against them. Docs. 152, 153, 154, 157, 158, 160, 186, 187,

188, 200. Mr. G-Doffee has responded to Defendants’ motions, ADC Defendants

1 The Court previously dismissed Mr. G-Doffee’s claims against Defendant Jones and the

unidentified Doe Defendant based on his failure to timely serve those Defendants. Doc. 84. In

addition, the Court previously dismissed Mr. G-Doffee’s medical deliberate indifference claims

against Defendants Kemper, Chisom, Mosby, and Gardner, as well as any additional claims against

Defendants Newby and Nunag, based on his failure to exhaust his administrative remedies. Doc.

119.

have replied to Mr. G-Doffee’s response, and Mr. G-Doffee has filed a sur-reply.

Docs. 166, 167, 168, 169, 173, 175, 176, 177, 179, 192, 193, 194, 198, 199, 203,

206, 213. The motions are now ripe for review.

III. Discussion:

A. Summary Judgment Standard

Summary judgment is appropriate when the record, viewed in a light most

favorable to the nonmoving party, demonstrates that there is no genuine dispute as

to any material fact, and the moving party is entitled to judgment as a matter of law.

See FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50 (1986). The moving party

bears the initial burden of demonstrating the absence of a genuine dispute of material

fact. Celotex, 477 U.S. at 323. Once that has been done, the nonmoving party must

come forward with specific facts demonstrating that there is a material dispute for

trial. See FED. R. CIV. P. 56(c); Torgerson v. City of Rochester, 643 F.3d 1031, 1042

(8th Cir. 2011). A party is entitled to summary judgment if -- but only if -- the

evidence shows that there is no genuine dispute about any fact important to the

outcome of the case. See FED. R. CIV. P. 56; Odom v. Kaizer, 864 F.3d 920, 921 (8th

Cir. 2017).

B. ADC Defendants’ Motions for Summary Judgment

1. Facts Related to the ADC Defendants2

The following events are documented on ADC video footage. Docs. 157-21,

157-22. On July 23, 2021, at approximately 7:56 p.m., Mr. G-Doffee and other

Cummins Unit inmates were watching television in the 11 barracks dayroom, when

Mr. G-Doffee rose from his back-row seat and began walking out of the room. Doc.

157-21 at 1; Doc. 157-22. While leaving, Mr. G-Doffee said something to inmate

Frederick Mason, seated on the end of the front row. Id. After Mr. G-Doffee left the

dayroom, he immediately returned and appeared to have words with inmate Mason.3

Id. Mr. G-Doffee then walked to the television and struck it, causing the screen to

crack and go black. Id.; Doc. 157-15 at 2. Before leaving the room a second time,

Mr. G-Doffee approached inmate Mason in an aggressive stance. Doc. 157-21 at 1;

Doc. 157-22.4

2 Unless otherwise specified, these facts are taken from: (1) a video recording of the

incident, including the video outline of the incident (Doc. 157-21, Doc. 157-22); (2)

investigative documents regarding the incident (Doc. 157-16, Doc. 157-17, Doc. 157-19,

Doc. 157-20); and (3) Defendant Steverson’s amended declaration (Doc. 199-1).

3 According to inmate Mason, on July 23, 2021, Mr. G-Doffee “threaten[ed] [his]

life with a homemade knife before going to pill call.” Doc. 157-20 at 2.

4 In his declaration and statement of disputed facts in opposition to the ADC

Defendants’ motion for summary judgment, Mr. G-Doffee disputes whether: (1) he was

the inmate in the video recording presented by the ADC Defendants; and (2) that the video

depicts destruction of the dayroom television. Doc. 168 at 2; Doc. 169 at 9.

Several minutes later, at 8:05 p.m., Mr. G-Doffee returned to 11 barracks,

where inmate Mason was sitting on Mr. G-Doffee’s bed. Id. Inmate Mason then

struck Mr. G-Doffee with a white object resembling a pillowcase. Id. For the next

twenty seconds, inmate Mason continued to strike Mr. G-Doffee and then placed

Mr. G-Doffee in a bear hug. Id.

At 8:07:58 p.m., Defendant Simmons arrived inside the barracks and

attempted to speak with Mr. G-Doffee and inmate Mason. Id. At 8:08:13, Defendant

Hill began to walk toward Defendant Simmons. Id. At 8:08:38, Defendant Simmons

called a Code 2 (assault with a weapon) and Defendant Hill left the barracks. Id. At

8:09:29, Defendant Simmons attempted to have other inmates in the immediate area

step back, then he left the area where Mr. G-Doffee and inmate Mason were located.

During this time, Mr. G-Doffee and inmate Mason continued to struggle.

At 8:09:38, Defendant Steverson entered the barracks and walked directly

toward Mr. G-Doffee and inmate Mason, and Defendants Simmons and Price

returned to the barracks. Doc. 157-21 at 2; Doc. 157-22. At this time, inmate Mason

held Mr. G-Doffee in a bear hug, and Defendant Steverson observed a “shank” in

Mr. G-Doffee’s hand. Doc. 199-1 at 1. Unidentified ADC officers then instructed

Mr. G-Doffee to let go of the weapon, threatening that a chemical agent would be

used if he disobeyed the order. Id. At 8:11:31, Mr. G-Doffee released the weapon,

and inmate Mason released Mr. G-Doffee. Doc. 157-21 at 2; 157-22. Both inmate

Mason and Mr. G-Doffee then exit the barracks with blood on their clothing. Doc.

157-22.

Immediately following the incident, ADC officers confiscated both a padlock

and a homemade shank. Doc. 157-16; Doc. 157-20 at 1; Doc. 157-20 at 4, 7.

At no time did any ADC staff member deploy a chemical agent. Doc. 199-1

at 2. The entire incident lasted less than eight minutes. Doc. 157-21 at 1-2; Doc.

157-22.

Upon arrival at the Cummins infirmary, medical staff placed Steri Strips on

Mr. G-Doffee’s head and photographed his injuries. Doc. 157-19. Defendant

Simmons then prepared a “gate pass” for Mr. G-Doffee, allowing his transport to an

outside medical facility. Doc. 157-17 at1.

ADC officers transported Mr. G-Doffee to Jefferson Regional Medical Center

for medical treatment and then returned him to the Cummins Unit, where medical

staff noted he had sustained puncture wounds, a head laceration, and face abrasions.

Doc. 154-1 at 1.

2. Sovereign Immunity

A civil litigant cannot recover money damages from state actors sued in their

official capacities. Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989).

Accordingly, Mr. G-Doffee’s official-capacity claims against Defendants seeking

money damages are barred by sovereign immunity.

3. Qualified Immunity

As to individual-capacity claims, the ADC Defendants assert qualified

immunity, which protects government officials from personal 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 overcome the defense

at the summary judgment stage, a plaintiff must show: “(1) the facts, viewed in the

light most favorable to the plaintiff, demonstrate the deprivation of a constitutional

or statutory right; and (2) the right was clearly established at the time of the

deprivation.” Howard v. Kansas City Police Dep’t, 570 F.3d 984, 988 (8th Cir.

2009).

In deciding the question of qualified immunity, the Court cannot treat

Defendants as “one unified group,” but must consider each Defendant’s conduct to

determine whether evidence against that “individual officer [is] sufficient to

overcome qualified immunity.” Manning v. Cotton, 862 F.3d 663, 668 (8th Cir.

2017) (quoting Roberts v. City of Omaha, 723 F.3d 966, 974 (8th Cir. 2013)).

a. Failure to Protect

“A prison official may be liable for failure to protect an inmate from a use of

excessive force if he is deliberately indifferent to a substantial risk of serious harm

to an inmate.” Est. of Davis by Ostenfeld v. Delo, 115 F.3d 1388, 1395 (8th Cir.

1997) (citing Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994); Buckner v. Hollins,

983 F.2d 119, 122 (8th Cir. 1993)). Under the deliberate indifference standard,

prison officials do not commit a constitutional violation every time one prisoner

attacks another. Patterson v. Kelley, 902 F.3d 845, 851 (8th Cir. 2018); Young v.

Selk, 508 F.3d 868, 871 (8th Cir. 2007); Blades v. Schuetzle, 302 F.3d 801, 803-04

(8th Cir. 2002). Instead, prison officials must “take reasonable measures to abate

substantial risks of serious harm, of which the officials are aware.” Blades, 302 F.3d

at 803 (quoting Reece v. Groose, 60 F.3d 487, 491 (8th Cir. 1995)).

Therefore, to proceed to trial on a claim that any specific Defendant failed to

protect him, Mr. G-Doffee must come forward with evidence that would permit a

reasonable jury to find that: (1) he was incarcerated under conditions that,

objectively, posed a substantial risk of serious harm; (2) the Defendant was

subjectively aware that Mr. G-Doffee faced a serious risk of harm; and (3) the

Defendant disregarded that risk by failing to take reasonable measures to abate the

risk. Patterson, 902 F.3d at 851 (citations omitted). “The second requirement is a

subjective test; the defendant must be ‘aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists, and [they] must also draw the

inference.’” Schoelch v. Mitchell, 625 F.3d 1041, 1046 (8th Cir. 2010) (quoting

Farmer, 511 U.S. at 837).

Mr. G-Doffee “must clear a substantial evidentiary threshold” to show that

Defendants acted with deliberate indifference. Johnson v. Leonard, 929 F.3d 569,

576 (8th Cir. 2019). Deliberate indifference describes a state of mind “akin to

criminal recklessness.” Shipp v. Murphy, 9 F.4th 64, 703 (8th Cir. 2021) (quoting

Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir. 2009)). “This onerous standard requires

a showing more than negligence, more even than gross negligence, but less than

purposefully causing or knowingly bringing about a substantial risk of serious harm

to the inmate[.]” Thompson v. King, 730 F.3d 742, 747 (8th Cir. 2013) (cleaned up).

Finally, an inmate’s general fear for his safety is insufficient to establish that

a defendant acted with deliberate indifference to substantial risk of serious harm. See

e.g., Robinson v. Cavanaugh, 20 F.3d 892, 895 (8th Cir. 1994) (an inmate’s

complaints regarding a “general fear for his safety” do not establish that a defendant

“acted with deliberate indifference by not placing him in protective custody”); Jones

v. Wallace, 641 Fed. Appx. 665 (8th Cir. 2016) (unpublished) (a general fear of

another inmate is not sufficient to put guards on notice of a specific threat or danger).

i. Defendant Price

In his complaint and responses in opposition to ADC Defendants’ motions for

summary judgment, Mr. G-Doffee alleges that: (1) other inmates “put [Defendant

Price] on notice” about the initial disagreement between Mr. G-Doffee and inmate

Mason that occurred in the dayroom (Doc. 2 at 6); (2) he heard Defendant Price tell

inmate Mason “gone [sic] ahead & beat that a** then” after Mr. G-Doffee entered

11 barracks (Id. at 7); (3) once the attack began, Defendant Price “stood idly” outside

of the barracks (Id. at 8-9; Doc. 167 at 25, 28); and (4) Defendant Price failed to

give inmate Mason a direct order to stop the attack or use a chemical weapon against

inmate Mason. Doc. 2 at 9. Mr. G-Doffee alleges that after inmate Mason began

assaulting him, he saw Defendant Price leave 11 barracks, locking him in, and the

attack continued for approximately sixteen more minutes. Id. at 8, 12.

Mr. G-Doffee fails to present any evidence to support his allegations

regarding Defendant Price’s alleged knowledge of any specific threat inmate Mason

posed to Mr. G-Doffee’s safety on the date in question. First, Mr. G-Doffee fails to

identify which inmates notified Defendant Price about the initial disagreement

between Mr. G-Doffee and inmate Mason or what exactly the unidentified inmates

told Defendant Price. Furthermore, the video of the incident reveals that inmate

Mason sat on Mr. G-Doffee’s bed toward the back of the barracks when Mr. G-

Doffee entered, not by the door where he could have possibly communicated with

Defendant Price. Doc 157-21 at 1; Doc. 157-22. In addition, although Mr. G-Doffee

states that Defendant Price stood “idly by” as the assault occurred, he fails to present

any evidence regarding Defendant Price’s location during the incident or whether he

could possibly see the altercation from his vantage point. Moreover, Mr. G-Doffee’s

assertion that the altercation lasted sixteen minutes is refuted by the video evidence

showing that that it continued no longer than eight minutes.

According to the video footage, at 8:09:40, Defendant Price entered the

barracks. Doc. 157-21 at 2; Doc. 157-22. At 8:11:31, within two minutes, inmate

Mason released Mr. G-Doffee. It is well established that “prison guards have no

constitutional duty to intervene in the armed assault of one inmate upon another

when intervention would place the guards in danger of physical harm.” Prosser v.

Ross, 70 F.3d 1005, 1008 (8th Cir. 1995). Here, ADC officials confiscated two

weapons following the altercation between Mr. G-Doffee and inmate Mason, and

Defendant Steverson testified that Mr. G-Doffee was holding a shank during the

incident. Defendant Price was not constitutionally required to risk his own safety to

intervene in an altercation between two inmates armed with weapons.

Because the video lacks sound, it is unclear what Defendant Price said during

the incident or whether he ordered inmate Mason to stop. However, the video shows

that within a minute after Defendant Price entered the barracks, other ADC officers

arrived carrying a chemical agent. Doc. 157-21 at 2; Doc. 157-22. Finally, there is

no evidence that inmate Mason would have obeyed a direct order to release Mr. G-

Doffee.

Mr. G-Doffee fails to present any evidence to create any genuine issue of

material fact regarding whether Defendant Price was deliberately indifferent to his

safety during the underlying incident. Defendant Price is entitled to qualified

immunity on Mr. G-Doffee’s failure to protect claim against him.

ii. Defendants Simmons and Hill

Mr. G-Doffee alleges that once the attack began, Defendants Simmons and

Hill (1) stood idly outside the barracks (Id. at 8-9; Doc. 167 at 25, 28); and (2) failed

to give inmate Mason a direct order to stop the attack or use a chemical agent against

inmate Mason (Doc. 2 at 9).

To the contrary, the video of the alleged incident shows: (1) at 8:07:58,

Defendant Simmons arrived inside the barracks and attempted to speak with Mr. G-

Doffee and inmate Mason (Doc. 157-21 at 2; Doc. 157-22); (2) at 8:08:13,

Defendant Hill began to walk toward Defendant Simmons; (3) at 8:08:38, Defendant

Simmons called a Code 2 (assault with a weapon) (Id.); and (4) at 8:09:29, Defendant

Simmons attempted to get other inmates in the immediate area to step back (Id.).

Furthermore, while Defendants Simmons and Hill left the barracks at different times

during the incident, as discussed above, they were not required, under clearly

established law, to put themselves in harm’s way to stop an inmate attack. Based on

the evidence presented, Defendants Simmons and Hill did not stand “idly” by as the

attack continued but instead acted reasonably by attempting to intervene and calling

for assistance. Mr. G-Doffee’s self-serving, unsubstantiated allegations are

insufficient to defeat a motion for summary judgment. Conolly v. Clark, 457 F.3d

872, 876 (8th Cir. 2006); Frevert v. Ford Motor Co., 614 F.3d 466, 473-74 (8th Cir.

2010) (to avoid summary judgment “the plaintiff must substantiate allegations with

sufficient probative evidence that would permit a finding in the plaintiff's favor”).

Mr. G-Doffee has failed to create a material dispute of fact regarding the

conduct of Defendants Simmons and Hill and these Defendants also are entitled to

qualified immunity on Mr. G-Doffee’s failure to protect claims against them.

iii. Defendant Steverson

Mr. G-Doffee alleges that Defendant Steverson came into the barracks “taking

inmate [] Mason’s word” and violated his “right to be protected from an inmate

attacker (known substantial risk of serious harm and danger).” Doc. 2 at 10-11. Mr.

G-Doffee provides no facts plausibly supporting that Defendant Steverson either

knew that he faced a risk of attack on the date in question or demonstrated deliberate

indifference to any such risk. Because Mr. G-Doffee has failed to state a failure to

protect claim against Defendant Steverson, he is entitled to qualified immunity on

this claim.

iv. Defendant Musselwhite

To show that ADC Defendants had prior knowledge that he faced a risk of

attack, Mr. G-Doffee states that he filed inmate grievance CU-21-00834 and an

inmate request and “verbally informed defendant G. Musselwhite of these specific

threats of harm after identifying inmate F. Mason to staff.” Doc. 167 at 3, 17.

However, in grievance CU-21-00834, Mr. G-Doffee requested that inmate Michelle

Smith be placed on his enemy alert list, and he did not mention inmate Mason. Doc.

157-3 at 2.

Furthermore, in his own declaration, Mr. G-Doffee acknowledges that on

approximately June 15, 2021, he sent a request for an interview to Defendant

Musselwhite, asking to be classified to another barracks. Doc. 168 at 2.5 Notably,

Mr. G-Doffee does not state that he notified Defendant Musselwhite of any specific

threat posed by inmate Mason at any time or on the date in question; nor does he say

whether Defendant Musselwhite received or responded to his request for an

interview.

5 In his Complaint, Mr. G-Doffee alleges that Defendant Musselwhite was

deliberately indifferent to his safety via inadequate staffing and security. Doc. 2 at 14.

However, in deciding the ADC Defendants’ motion for summary judgment on exhaustion,

the Court permitted Mr. G-Doffee to proceed with specified claims, none of which include

the general claim that Defendant Musselwhite failed to provide adequate staff or security.

Doc. 119 at 1; Doc. 111 at 7 (describing claims against ADC that would proceed). Thus,

no such claim is before the Court.

Even if the Court were to consider this claim, it fails as a matter of law. Mr. G-

Doffee generally claims that the Cummins Unit was understaffed and “has a long duration

of these type of cruel prison conditions.” Doc. 167 at 3. However, he presents no evidence,

other than his own conclusory testimony, that he was incarcerated under conditions that

posed a substantial risk of serious harm to inmates based on inadequate staffing. If a

plaintiff “presents evidence showing that a substantial risk of inmate attacks was

longstanding, pervasive, well-documented, or expressly noted by prison officials in the

past, and the circumstances suggest that the defendant-official being sued had been exposed

to information concerning the risk and thus must have known about it, then such evidence

could be sufficient to permit a trier of fact to find that the defendant-official had actual

knowledge of the risk.” Farmer, 511 U.S. at 842. Mr. G-Doffee fails to present any such

evidence.

Because Mr. G-Doffee has failed to present any evidence to support his self-

serving allegation that he notified Defendant Musselwhite that inmate Mason posed

a threat to his safety, Defendant Musselwhite also is entitled to qualified immunity

on Mr. G-Doffee’s failure to protect claim.

b. Retaliation – Defendant Simmons

“As a general matter the First Amendment prohibits government officials

from subjecting an individual to retaliatory actions for engaging in protected

speech.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (quoting Hartman v.

Moore, 547 U.S. 250, 256 (2006)) (cleaned up). To succeed with his retaliation

claim, Mr. G-Doffee must prove that: (1) he engaged in constitutionally protected

activity; (2) Defendant Simmons took adverse action against him that would chill a

person of ordinary firmness from continuing in that activity; and (3) the adverse

action was motivated by the exercise of the protected activity. Lewis v. Jacks, 486

F.3d 1025, 1028 (8th Cir. 2007). The Eighth Circuit has explained:

To survive summary judgment, a plaintiff must show that a reasonable

jury could find that a retaliatory motive of the government official was

a “but-for cause” of the adverse action, meaning that the adverse action

against the plaintiff would not have been taken absent the retaliatory

motive.

Graham v. Barnette, 5 F.4th 872, 889 (8th Cir. 2021) (cleaned up). “It is not enough

to show that an official acted with a retaliatory motive and that the plaintiff was

injured—the motive must cause the injury.” Nieves v. Bartlett, 587 U.S. 391, 398

(2019).

“And, of course, [Mr. G-Doffee’s] final hurdle is overcoming qualified

immunity: establishing that it would have been sufficiently clear to every reasonable

official that [Defendant Simmons’ response to the June 23 incident] violated the First

Amendment.” Beard v. Falkenrath, 97 F.4th 1109, 1119 (8th Cir. 2024) (cleaned

up).

Mr. G-Doffee alleges that Defendant Simmons failed to protect him from

inmate Mason on June 23, 2021 in retaliation for grievances he filed against her on

May 11 and May 15, 2021. Doc. 2 at 17, 18, 44, 46. Mr. G-Doffee successfully

establishes the first element of his claim because it is undisputed that he filed the

grievances, and clearly established law holds that using a prison grievance process

is protected First Amendment activity. Santiago v. Blair, 707 F.3d 984, 991 (8th Cir.

2013) (“The right to be free from retaliation for availing one’s self of the prison

grievance process has been clearly established in this circuit for more than twenty

years.”).

However, Mr. G-Doffee’s claim fails under the second and third elements,

which together require proof of “an adverse action that would chill a person of

ordinary firmness from continuing in the activity, which itself must be a ‘but-for

cause’ of the injury suffered.” Beard, 97 F.4th at 1119 (cleaned up).

Summary judgment is appropriate if there is insufficient evidence that the

alleged adverse action would deter a person of ordinary firmness from continuing to

engage in First Amendment protected activity. Gonzalez v. Bendt, 971 F.3d 742, 745

(8th Cir. 2020). While this test is objective, Mr. G-Doffee’s actions following

Defendant Simmons’ alleged retaliation is evidence of what a person of ordinary

firmness would have done. Id. The ADC Defendants provide Mr. G-Doffee’s

grievance history beginning after the July 23, 2021 incident. Doc. 173-3. Those

records show that Mr. Doffee submitted 14 grievances between July 23, 2021 and

December 31, 2021, 38 grievances in 2022; and at least 35 grievances in 2023. Id.

The volume of Mr. G-Doffee’s grievance submissions indicate that he was

undeterred from his continued and frequent use of the prison grievance process by

Defendant Simmons’ alleged retaliatory conduct. Mr. G-Doffee presents no contrary

evidence suggesting that a person of ordinary firmness would have hesitant to use

the prison grievance process as a result of Defendant Simmons’ conduct during the

inmate altercation involving Mr. G-Doffee.

Finally, beyond the temporal proximity between his May 2021 grievances and

Defendant Simmons’ alleged retaliatory conduct on June 23, 2021,6 Mr. G-Doffee

offers no facts plausibly linking his protected activity to the alleged retaliation. He

6 Temporal proximity between protected activity and alleged retaliation is relevant but

generally insufficient to provide a basis for inferring retaliatory intent. Wilson v. Northcutt, 441

F.3d 586, 592 (8th Cir. 2006)

alleges when he returned from the emergency room on June 23, 2021, Defendant

Simmons commented, “[T]hat Maxwell got what he needed, he got that a** beat.”

Id. at 20. This alleged comment does not reference Mr. G-Doffee’s grievances and

provides no evidence of a retaliatory motive. In addition, the evidence that

Defendant Simmons took reasonable action during the altercation between Mr. G-

Doffee and inmate Mason would prevent any reasonable fact finder from concluding

that retaliatory animus was the but-for cause of Defendant Simmons’ response at the

scene.

For the reasons stated, Mr. G-Doffee cannot prove: (1) a causal connection

between any grievance he filed and Defendant Simmons’ actions; (2) a retaliatory

motive on Defendant Simmons’ part; or (3) that her actions would chill a person of

ordinary firmness from exercising his or her First Amendment rights. Accordingly,

Defendant Simmons is entitled to qualified immunity on Mr. G-Doffee’s retaliation

claim against her.

c. Excessive Force – Defendant Steverson

To prevail on his Eighth Amendment excessive-force claim, Mr. G-Doffee

must demonstrate that Defendant Steverson used force “maliciously and sadistically

to cause harm,” rather than in “a good-faith effort to maintain or restore discipline.”

Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Santiago v. Blair, 707 F.3d 984, 990

(8th Cir. 2013). To act “maliciously” means “taking a course of action, without just

cause or reason, that was intended to injure the inmate.” United States v. Miller, 477

F.3d 644, 647 (8th Cir. 2007) (internal citations omitted). An officer who acts

“sadistically” engages in “extreme or excessive cruelty” or “delight[s] in cruelty.”

Id. “The word ‘sadistically’ is not surplusage; ‘maliciously’ and ‘sadistically’ have

different meanings, and the two together establish a higher level of intent than would

either alone.” Jackson v. Gutzmer, 866 F.3d 969, 974 (8th Cir. 2017) (citation

omitted).

In evaluating whether the force employed by Defendant Steverson was a

good-faith effort to restore order, factors to consider include: (1) the objective need

for the force; (2) the relationship between the need and the amount of force used; (3)

the threat reasonably perceived by Defendant Steverson; (4) any efforts made by

Defendant Steverson to temper the severity of his response; and (5) the extent of Mr.

G-Doffee’s injuries. Walker v. Bowersox, 526 F.3d 1186, 1188 (8th Cir. 2008);

Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir. 2008).

In his complaint, Mr. G-Doffee alleges that, immediately following the

altercation with inmate Mason, Defendant Stevenson sprayed a chemical agent at

him “at point blank range.” Doc. 2 at 11. Contrary to Mr. G-Doffee’s allegations,

video footage of the incident does not show Defendant Steverson using any chemical

on Mr. G-Doffee. Doc. 154-20, Doc. 154-21. In addition, according to Defendant

Steverson’s declaration, no ADC officer deployed any chemical agent during the

July 23, 2021 incident. Doc. 199-1 at 2.

Based on the undisputed evidence before the Court, Mr. G-Doffee has failed

to create any genuine issue of material fact regarding Defendant Steverson’s alleged

use of force. As a result, Defendant Steverson is entitled to qualified immunity on

Mr. G-Doffee’s excessive force claim. See Scott v. Harris, 550 U.S. 372, 380-81

(2007) (“[w]hen opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court should

not adopt that version of the facts for purposes of ruling on a motion for summary

judgment”).

C. Medical Defendants’ Motion for Summary Judgment

1. Facts Related to the Medical Defendants7

On July 28, Defendant Newby conducted a follow-up examination of Mr. G-

Doffee’s scalp laceration. Doc. 154-3 at 1. She noted swelling on Mr. G-Doffee’s

face and continued his prescriptions for amoxicillin, ibuprofen, and nortriptyline. Id.

On August 11, Defendant Newby again examined Mr. G-Doffee. Docs. 154-

3, 154-4. At that time, he complained of right jaw pain, reporting level five pain on

7 Unless otherwise indicated, these facts are taken from excerpts of Mr. G-Doffee’s

medical records. Doc. 154-3, Doc. 154-5, Doc. 154-6, Doc. 154-7, Doc. 154-8, Doc. 154-

9, Doc. 154-10, Doc. 154-11, Doc.154-12.

a ten-point pain scale and that the pain was worse when he ate. Doc. 154-4 at 1.

Defendant Newby again noted swelling and continued Mr. G-Doffee’s prescriptions.

Id. She also ordered an x-ray of Mr. G-Doffee’s facial bones. Id.

On September 9, Defendant Nunag examined Mr. G-Doffee. Doc. 154-5 at 1.

She noted that Mr. G-Doffee could open and close his jaw without popping or

difficulty and had no edema. Id. She prescribed naproxen as needed. Id.

On September 20, Defendant Nunag examined Mr. G-Doffee and reviewed

his July 23 CT scan. Doc. 154-4 at 1. The scan revealed degenerative joint disease

of the cervical spine. Id. She ordered prednisone for Mr. G-Doffee and advised him

to continue with range of motion and memory exercises. Id.

On October 20, Mr. G-Doffee returned to Health Services requesting that

medical staff renew his prescriptions for naproxen and nortriptyline. Id. He

complained of headaches and back pain. Id. Defendant Newby renewed Mr. G-

Doffee’s prescriptions for naproxen and nortriptyline. Doc. 154-5 at 1.

On January 27, 2022, Defendant Newby examined Mr. G-Doffee based on his

complaints of jaw pain. Docs. 154-8. She noted that he was able to open and close

his jaw without difficulty and noted no popping or edema. Id. Defendant Newby

ordered naproxen and nortriptyline for Mr. G-Doffee. Id.

On March 31, Mr. G-Doffee returned to Health Services for complaints of

sinus problems and back pain. Doc. 154-8. Defendant Newby ordered a continuation

of Mr. G-Doffee’s medications. Id.

On April 25, although medical staff were not able to evaluate Mr. G-Doffee

due to security concerns, Defendant Nunag ordered naproxen for Mr. G-Doffee until

he could be seen by medical staff. Id.

On April 27, Mr. G-Doffee again returned to Health Services complaining of

headaches and back pain. Doc. 154-11 at 1. He requested that medical staff renew

his medications. Id. Defendant Newby ordered naproxen for Mr. G-Doffee. Id. She

found no “clinical indication” for nortriptyline. Id.

On May 4, Mr. G-Doffee returned to Health Services again complaining of

headaches and back pain. Id. Defendant Newby again ordered Mr. G-Doffee

naproxen and found no “clinical indication” for nortriptyline. Id.

2. Medical Deliberate Indifference

Mr. G-Doffee claims that the Medical Defendants demonstrated deliberate

indifference to his serious medical needs. His remaining claims arise from: (1) his

clinical encounter with Defendant Newby on August 11, 2021; (2) his clinical

encounter with Defendant Nunag on September 20, 2021; and (3) Defendant

Nunag’s failure to renew his nortriptyline prescription. Doc. 119 1 at 2.

“[D]eliberate indifference to serious medical needs of prisoners constitutes

the unnecessary and wanton infliction of pain proscribed by the Eighth

Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (omitting quotations and

citation). At the summary judgment stage, Mr. G-Doffee “must clear a substantial

evidentiary threshold” to show that a Medical Defendant acted with deliberate

indifference. Johnson v. Leonard, 929 F.3d 569, 576 (8th Cir. 2019). An inadvertent

or negligent failure to provide adequate medical care does not amount to deliberate

indifference.8 Id. at 575. Instead, deliberate indifference requires culpability akin to

criminal recklessness, which is more blameworthy than negligence but “something

less than acts or omissions for the very purpose of causing harm or with knowledge

that harm will result.” Farmer v. Brennan, 511 U.S. 825, 835 (1994).

In addition, disagreement with treatment decisions alone cannot support a

deliberate indifference claim. Barr v. Pearson, 909 F.3d 919, 921-22 (8th Cir. 2018).

An inmate has no right to a particular or requested course of treatment, and a mere

difference of opinion over matters of expert medical judgment or the course of

treatment does not amount to a constitutional violation. Dulany v. Carnahan, 132

F.3d 1234, 1239-40 (8th Cir. 1997) (where medical records show that treatment was

8 Mr. G-Doffee’s pleadings assert only federal constitutional claims, the only claims

addressed in this Recommendation. Accordingly, it is unnecessary to assess whether either

Medical Defendant acted negligently in violation of state law. See also 28 U.S.C. § 1367(c)(3)

(district court may, once it has dismissed federal claims on which its original jurisdiction is based,

decline to exercise jurisdiction over supplemental state law claims).

provided; and physician affidavits state that the care was adequate, an inmate’s belief

that she did not receive adequate care is insufficient to create disputed material fact).

Stated another way, the Medical Defendants can be held liable only if their

actions were “so inappropriate as to evidence intentional maltreatment or a refusal

to provide essential care.” Dulany, 132 F.3d at 1240-1241 (citing Smith v. Jenkins,

919 F.2d 90, 93 (8th Cir. 1990)). “Merely demonstrating that a prison doctor

committed medical malpractice is insufficient to establish deliberate indifference.”

Jackson v. Buckman, 756 F.3d 1060, 1065-1066 (8th Cir. 2014) (internal citation

omitted).

The Medical Defendants submit the affidavit of Nicholas Gowen, M.D.,

FACP. Doc. 154-2. Dr. Gowen testifies that: (1) “Nortriptyline is a tricyclic

antidepressant FDA approved to treat depression”; (2) “there was no clinical

indication for Mr. []G-Doffee to be treated with nortriptyline, and nortriptyline can

have significant adverse effects”; (3) “it is a good and appropriate medical practice

to periodically re-evaluate the use of nortriptyline and consider discontinuing it”;

and (4) “Naproxen is an appropriate, first-line, medication for pain relief . . . that

was a reasonable choice here.” Id. at 2-3.

Based on the undisputed evidence before the Court, no reasonable juror could

conclude that the Medical Defendants were deliberately indifferent to Mr. G-

Doffee’s medical needs. To the contrary, on the dates in question, the Medical

Defendants: (1) promptly responded to Mr. G-Doffee’s medical requests; and (2)

addressed his complaints by providing a variety of medications. Such conduct can

hardly be described as criminally reckless.

In addition, Mr. G-Doffee offers no evidence contradicting Dr. Gowen’s

testimony that the Medical Defendants made reasonable decisions regarding his

medical care.9

On this record, there is no genuine issue of material fact on medical deliberate

indifference claims, and the Medical Defendants are entitled to judgment as a matter

of law.

3. Retaliation – Defendant Nunag

As explained above, to succeed on a retaliation claim, Mr. G-Doffee must

prove that: (1) he engaged in constitutionally protected activity; (2) Defendant

Nanag took adverse action against him that would chill a person of ordinary firmness

from continuing in that activity; and (3) the adverse action was motivated by the

exercise of the protected activity. Lewis v. Jacks, 486 F.3d 1025, 1028 (8th Cir.

2007). Moreover, allegations of retaliation must be more than speculative and

conclusory. Antonelli v. Tipton, 356 Fed. Appx. 903, 904 (8th Cir. 2009) (per

9 In his brief in support of his response to the Medical Defendants’ motion for summary

judgment, Mr. G-Doffee alleges that the Medical Defendants failed to provide him triple antibiotic

ointment to prevent scarring, a back brace, extra pillows or padding, or a soft food diet. Doc. 176

at 12, 15-16. Any such claims were not raised in Mr. G-Doffee’s fully exhausted medical

grievances and, therefore, the Court previously dismissed those claims from this lawsuit, without

prejudice. Docs. 111, 119.

curiam) (plaintiff “failed to state a retaliation claim because he . . . failed to allege

which defendants were involved in or affected by his grievances.”).

Here, Mr. G-Doffee provides no evidence that Defendant Nunag refused to

renew his nortriptyline prescriptions in retaliation for his use of the grievance

procedure. Furthermore, it is undisputed that Mr. G-Doffee continued to file

grievances after July 23, 2021. See Doc. 173-3.

As a result, Mr. G-Doffee cannot prove: (1) a causal connection between any

grievance he filed and Defendant Nunag’s actions; (2) a retaliatory motive on

Defendant Nunag’s part; or (3) that her actions would chill a person of ordinary

firmness from exercising his or her First Amendment rights. Accordingly, Mr.

Defendant Nunag is entitled to judgment as a matter of law on Mr. G-Doffee’s

retaliation claim against her.

IV. Conclusion:

IT IS THEREFORE RECOMMENDED THAT:

1. Medical Defendants’ motion for summary judgment (Doc. 152) be

GRANTED.

2. ADC Defendants’ motions for summary judgment (Doc. 157, 186) be

GRANTED.

3. Mr. G-Doffee’s motion for order (Doc. 166) be DENIED.

4. Mr. G-Doffee’s remaining claims against all Defendants be

DISMISSED, with prejudice.

5. The Clerk be instructed to close this case.

Dated 22 May 2024.

af ED STATES MAGISTRATE JUDGE

27