# Brown v. Jody

> District Court, W.D. Arkansas · February 5, 2018

URL: https://www.frixlaw.com/law-library/cases/10008947

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** February 5, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

DANIEL RAY BROWN PLAINTIFF .
Civil No. 3:16-CV-03111
NURSE JODIE WOODS, DEFENDANTS
SHERIFF MIKE MOORE,
JAIL ADMINISTRATOR JASON DAY,
SERGEANT BOB KIRCHER,
ROGER JOHNSON, and
JOHN AND JANE DOE

MEMORANDUM OPINION AND ORDER
Plaintiff proceeds in this matter pro se and in forma pauperis pursuant to 42 U.S.C.
§ 1983. Currently before the Court are Motions for Summary Judgment by Defendant
Nurse Woods (ECF No. 50) and Defendants Day, Johnson, Kircher, and Moore (the
“Boone County Defendants”) (ECF No. 54). For the reasons explained in more detail
below, the Motions are GRANTED.
i. BACKGROUND
Plaintiff filed his Complaint on October 20, 2016. (ECF No. 1). On November 17,
2016, the Court entered an Order directing Plaintiff to file a First Amended Complaint.
(ECF No. 20). Plaintiff filed an Addendum to Amended Complaint on November 23, 2016
(ECF No. 21), and a First Amended Complaint on November 28, 2016. (ECF No. 23).
Plaintiff's claims arise from his incarceration in the Boone County Detention Center
(“BCDC”) from September 21, 2016, through October 19, 2016, for a parole revocation.
(ECF No. 23, pp. 4, 7, 9, 10). Plaintiff proceeds against Defendants in their personal
capacities only. (ECF No. 23, pp. 5, 6, 8, 9, 10). In Claim One, Plaintiff alleges a failure

to protect on the part of Defendants Nurse Woods and Sheriff Moore.’ Specifically, he
alleges that Nurse Woods knew that another inmate in Plaintiff's pod had a Staph
infection, but she left that inmate in in the pod, where he exposed Plaintiff to the risk of
contracting the infection. He contends that Sheriff Moore was “responsible for providing
a safe, secure, and healthy environment” in the BCDC, but failed to do so. (ECF No. 23,
p. 5). With respect to his injuries resulting from exposure to Staph, he initially claimed in
his Amended Complaint that he “got sick,” (ECF No. 23, pp. 4-5), but he later clarified in
his deposition that he did not, in fact, get sick, but had only been fearful that he might
become infected with Staph. (ECF No. 56-5, p. 30).
In Claim Two, Plaintiff alleges that he was denied medical care by Nurse Woods
and Jail Administrator Day. He maintains that even though at the time he was fearful that
he had been exposed to a Staph infection, he “would not verbally agree to pay for a sick
call” because he believed Nurse Woods was to blame for exposing him to the illness.
(ECF No. 23, p. 8).
In Claim Three, Plaintiff alleges that Defendant Day denied him mental health care.
(ECF No. 23, p. 8).
In Claim Four, Plaintiff alleges that Defendants Day, Kircher, Johnson, and Sheriff
Moore retaliated against him for writing grievances about the Staph infection and perhaps
other matters. Specifically, Plaintiff alleges that he was supposed to serve a 90-day
sentence in the BCDC, but because of the grievances he filed, jail officials decided to

' Plaintiff also includes a reference to Defendant Jail Administrator Jason Day for Claim
One, but he provides no further allegations, stating only “see Original Complaint Claim.”
Plaintiff made no allegation against Defendant Day for Claim One in the Original
Complaint.

send him to the Arkansas Department of Correction (“ADC”)—a much more restrictive
environment—to finish out his sentence. (ECF No. 23, p. 10). Plaintiff also alleges in
Claim Four that Defendant Kircher violated a court order when he “brought up old
lawsuits” that Plaintiff had previously filed against the BCDC. (ECF No. 23, p. 11).
According to Plaintiff, Defendant Kircher stated that the BCDC needed to get rid of him
“because he always sues us.” (ECF No. 21, p. 1). Finally, Claim Four also alleges that
Defendant Johnson failed to protect some of Plaintiff's personal property that he had left
in his cell at the BCDC when he was transferred to ADC custody. /d. at p. 3. Plaintiff does
not identify the lost property.
Nurse Woods filed a Motion for Summary Judgment on May 18, 2017. (ECF No.
50). The Boone County Defendants filed a Motion for Summary Judgment on May 30,
2017 (ECF No. 54), and Supplements to their Motion were filed on May 31, 2017 (ECF
No. 57), and July 27, 2017 (ECF No. 62). Plaintiff filed his combined Response to both
Motions on August 18, 2017. (ECF No. 63).
ll. LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable
inferences in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), the record “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). “Once a party moving for summary judgment has made a
sufficient showing, the burden rests with the non-moving party to set forth specific facts,
by affidavit or other evidence, showing that a genuine issue of material fact exists.” Nat’!
Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir. 1999).

The non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must
show there is sufficient evidence to support a jury verdict in their favor.” Nat Bank, 165
F.3d at 607 (citing Anderson v. Liberty Lobby, inc., 477 U.S. 242, 249 (1986)). “A case
founded on speculation or suspicion is insufficient to survive a motion for summary
judgment.” fd. (citing Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985)). “When
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.” Scott v. Harris,
550 U.S. 372, 380 (2007).
Ill. DISCUSSION
Nurse Woods argues that the case against her should be dismissed for the
following reasons: (1) she was not subjectively aware of any inmate with a Staph infection
or any other openly communicable infection in the BCDC during the period Plaintiff was
housed there, and (2) she was not deliberately indifferent to Plaintiff's objectively serious
medical needs because he did not suffer from any. (ECF No. 52).
The Boone County Defendants argue that the case against them should be
dismissed for the following reasons: (1) there is no proof of any personal involvement by
Sheriff Moore in any of Plaintiffs claims, (2) Defendant Day was not deliberately
indifferent to Plaintiffs medical needs; (3) Plaintiff has no constitutional right to a particular
housing assignment; (4) comments or verbal harassment do not rise to the level of a
constitutional violation; and, (5) Defendants are entitled to qualified immunity because
Plaintiff has not shown any violations of his constitutional rights. (ECF No. 54, p. 3). The
parties’ arguments on summary judgment will be addressed below.

A. Failure to Protect
Prison officials have a duty, under the Eighth Amendment, to protect prisoners
from violence at the hands of other prisoners, see Perkins v. Grimes, 161 F.3d 1127,
1129 (8th Cir. 1998); however, not “every injury suffered by one prisoner at the hands of
another . . . translates into constitutional liability for prison officials responsible for the
victims’ safety,” Farmer v. Brennan, 511 U.S. 825, 834 (1994).
To prevail on his failure-to-protect claim, Plaintiff must satisfy the following two-
pronged test: (1) show he was “incarcerated under conditions posing a substantial risk of
serious harm,” and (2) show that prison officials were “deliberately indifferent [to his]
health or safety.” See Holden v. Hirner, 663 F.3d 336, 341 (8th Cir. 2011) (internal
citations omitted). The first prong is an objective requirement designed to ensure that the
deprivation in question constitutes a violation of a constitutional right. /d. The second
prong is subjective and requires that Plaintiff show that the official or officials in question
“both knew of and disregarded ‘an excessive risk to inmate health or safety.”” /d. (quoting
Farmer, 511 U.S. at 837). “An official is deliberately indifferent if he or she actually knows
of the substantial risk and fails to respond reasonably to it.” Young v. Se/k, 508 F.3d 868,
873 (8th Cir. 2007). Negligence alone is insufficient to meet the second prong; instead,
the official must “recklessly disregard a known, excessive risk of serious harm to the
inmate.” Davis v. Oregon Cnty., 607 F.3d 543, 549 (8th Cir. 2010) (internal quotation
marks and citation omitted). Furthermore, “[c]laims under the Eighth Amendment require
a compensable injury to be greater than de minimis.” Irving v. Dormire, 519 F.3d 441,
448 (8th Cir. 2008).
In Claim One, Plaintiff failed to allege that he suffered any physical injury, de
minimis or otherwise. He alleges he was having blood tests done at the time he filed the

Complaint, presumably to confirm that he had been exposed to a Staph infection while
residing at the BCDC. In his deposition some months later, however, Plaintiff admitted
that his blood test results “happily, were negative.” (ECF No. 56-5, p. 30). He did not
contract a Staph infection or other illness as a result of the alleged exposure to Staph in
the BCDC. He therefore failed to allege a viable failure-to-protect claim, and Claim One
must be dismissed.
B. Denial of Medical Care
The Eighth Amendment's prohibition on cruel and unusual punishment prohibits
deliberate indifference to prisoners’ serious medical needs. Luckert v. Dodge Cnty., 684
F.3d 808, 817 (8th Cir. 2012). The deliberate indifference standard includes “both an
objective and a subjective component: ‘The [Plaintiff] must demonstrate (1) that [he]
suffered [from] objectively serious medical needs and (2) that the prison officials actually
knew of but deliberately disregarded those needs.” Jolly v. Knudsen, 205 F.3d 1094,
1096 (8th Cir. 2000) (quoting Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997)).
To show that he suffered from an objectively serious medical need, Plaintiff must
show that he was “diagnosed by a physician as requiring treatment” or had an injury “that
is so obvious that even a layperson would easily recognize the necessity for a doctor's
attention.” Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (internal quotations
and citations omitted). For the subjective prong of deliberate indifference, “the prisoner
must show more than negligence, more even than gross negligence, and mere
disagreement with treatment decisions does not give rise to the level of a constitutional
violation.” Popoalii v. Corr. Med. Servs, 512 F.3d 488, 499 (8th Cir. 2008) (internal citation
omitted).

Here, Plaintiff failed to provide any evidence that he suffered from an objectively
serious physical medical need during his incarceration at the BCDC. Even accepting as
true that a fellow inmate in his pod had a Staph infection, Plaintiff admits that he did not
get sick. And even though Plaintiff claims that Defendant Day denied him mental health
care, Plaintiff failed to provide any evidence that he suffered from an objectively serious
mental health condition for which treatment was necessary. Plaintiff's medical screening
form at booking indicates that he denied having any mental health issues. (ECF No. 56-
4, p. 2). Further, at his deposition, Plaintiff testified he had mental health and memory
problems that were “maybe stress-related.” (ECF No. 56-5, p. 14). But later in the
deposition, Plaintiff clarified that he had “slow cognitive processing and trouble
concentrating.” (ECF No. 56-5, p. 18). Plaintiff could not identify any treatment he had
sought to address any of these alleged mental health conditions. (ECF No. 56-5, p. 19).
Furthermore, he testified that he had never been diagnosed with, or treated for, any
mental health issues prior to coming to the BCDC, nor was any such diagnosis or
treatment rendered after he was released from the BCDC. (ECF No. 56-5, pp. 14-15, 28-
29). Because there are no genuine, material disputes of fact with respect to Plaintiff's
claim as to the denial of medical care, Claims Two and Three will be dismissed.
C. Retaliation
Plaintiff alleges in Claim Four that his transfer from the BCDC to the ADC was in
retaliation for filing grievances and civil lawsuits. He claims he was transferred to the ADC
in an effort to chill his speech and in violation of his First Amendment rights. “To prevail
on a § 1983 claim for retaliation in violation of the First Amendment, [a Plaintiff] must
demonstrate (1) that he engaged in a protected activity; (2) that the government official
took adverse action against him that would chill a person of ordinary firmness from

continuing in the activity; and (3) that the adverse action was motivated at least in part by
the exercise of the protected activity.” Santiago v. Blair, 707 F.3d 984, 991 (8th Cir. 2013)
(citing Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004)).
“In a retaliatory transfer case, the burden is on the prisoner to prove that but for an
unconstitutional, retaliatory motive the transfer would have not occurred.” Sisneros v.
Nix, 95 F.3d 749, 752 (8th Cir. 1996) (internal quotation omitted). “Even if retaliation was
one factor in the decision to transfer [an inmate],” the inmate must show that his transfer
would not have occurred “but for” the retaliation. Beaulieu v. Ludeman, 690 F.3d 1017,
1026 (8th Cir. 2012); Webb v. Hedrick, 409 F. App’x 33, 35 (8th Cir. 2010) (unpublished).
Plaintiff's Claim Four centers on his interpretation of the Arkansas Parole Board's
disposition of his Parole Revocation Hearing. Plaintiff filed a copy of the Parole Board's
written report in the record. See ECF No. 21, p. 5. The report states: “Offender is to
remain in custody for ninety (90) days contingent upon good behavior and an approved
parole plan. Failure to comply will result in transfer to the ADC for the recommended time
period mentioned below.” /d. Plaintiff interprets this statement to mean that the Parole
Board sentenced him to 90 days in the BCDC, and ordered that he was not to be
transferred to the ADC unless he failed to demonstrate “good behavior.”
At some point during his 90-day sentence, however, Plaintiff was indeed
transferred from the BCDC to the ADC. He claims that there was no legitimate reason to
transfer him, and that BCDC officials did so in order to retaliate against him for filing
administrative grievances and civil lawsuits.
Boone County Defendants respond that the BCDC only housed Plaintiff at the
direction of the ADC. (ECF No. 55, p. 11). Plaintiff was adjudicated guilty of violating his

parole on October 17, 2016, and he was sentenced to 90 days in custody. According to
the Parole Board disposition report, Plaintiff was specifically ordered to be placed “in the
custody of the Arkansas Department of Correction” for his term of incarceration. (ECF
No. 21, p. 5). Although Plaintiff began his period of incarceration at the BCDC, he
remained in the official custody of the ADC during that entire time, and he therefore had
no particular right to resist transfer to the ADC.

Further, as correctly argued by the Boone County Defendants, inmates have no
constitutional right to be housed in a less restrictive setting. Brown v. Nix, 33 F.3d 951,
954 (8th Cir. 1994). At his deposition, Plaintiff testified that after he was transferred to
the ADC, he could not have visits from his parents three times per week, though he was

allowed this privilege at the BCDC. He complained that the “harsh” environment in the
ADC required him to “have a job.” (ECF No. 56-5, p. 56). He also objected to being
housed at the ADC with “killers, rapists, and thieves.” /d. As previously stated, Plaintiff
had no right to be housed at the BCDC instead of the ADC, as he was originally committed
to the ADC’s custody. Further, his complaints about his conditions of confinement at the
ADC do not implicate constitutional concerns. For these reasons, Plaintiff's retaliation
claim in Claim Four is dismissed.
D. Comments or Verbal Harassment - Defendant Kircher
Plaintiff also alleges in Claim Four that Defendant Kircher violated a court order by
publicly “[bringing] up old lawsuits” that Plaintiff had filed in the past against the BCDC.
(ECF No. 23, p. 2). To the extent that Kircher’s public mention of Plaintiff's lawsuits could
be construed as a “taunting” behavior or harassment, the comment does not create a
claim of constitutional dimension. McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993)

‘9

(inmate’s claims of general harassment and of verbal harassment were not actionable
under § 1983). The harassment claim against Defendant Kircher is dismissed.
E. Individual Claims - Defendant Sheriff Moore
Plaintiff alleges that Sheriff Moore failed to provide a safe, secure, and healthy
environment at the BCDC because Plaintiff was exposed to a Staph infection. As
previously explained, Plaintiff's claim regarding exposure to Staph lacks merit and will be
dismissed on summary judgment. As for Plaintiff's contention that Sheriff Moore should
be held personally liable for transferring him to the ADC, the Court held that there was
nothing illegal about this transfer. The personal-capacity claims against Sheriff Moore
are therefore dismissed. .
F. Lost Personal Property Claim - Defendant Johnson
Plaintiff's final allegation in Claim Four is that Defendant Johnson failed to protect
his unidentified personal property when Plaintiff left it behind in his jail cell. This claim is
not specific enough to create a fact issue suitable for trial, nor does not rise to the level
of a constitutional violation. Even if Plaintiff could prove that he suffered a loss of property,
and that the deprivation was the result of an intentional act, rather than an accidental or
negligent one, there are adequate post-deprivation remedies that Plaintiff could invoke to
regain the lost property. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional
deprivation of property does not violate due process when meaningful post-deprivation
remedy is available); Barnett v. Centoni, 31 F.3d 813 (9th Cir. 1994) (negligent or
intentional deprivation of prisoner's property fails to state claim under § 1983 if state has
adequate post-deprivation remedy); Elliot v. Hurst, 307 Ark. 134, 817 S.W.2d 877, 880
(1991) (cause of action for conversion lies where distinct act of dominion is exerted over

10

property in denial of owner's right). For these reasons, the allegation against Defendant
Johnson in Claim Four is also dismissed.
IV. CONCLUSION
For the reasons set forth herein, the Motion for Summary Judgment by Defendant
Nurse Woods (ECF No. 50) and the Motion for Summary Judgment by Defendants Day,
Johnson, Kircher, and Moore (ECF No. 54) are both GRANTED, and the case is
DISMISSED WITH PREJUDICE.
Judgment will be entered accordingly.
IT IS SO ORDERED on this ok. of February, 2018.

4s i
TIMOTHY. i
5 ED FATES STRICT JUDGE

1]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10008947. Public record. Not legal advice.