Emery v. Helder

lN THE UN|TED STATES DlSTR|CT COURT

WESTERN DlSTR|CT OF ARKANSAS

FAYETTEV|LLE DlVlSlON

JASON DUANE EMERY

V. CASE NO.: 5:16-CV-05193

SHER|FF HELDER, Washington

County, Arkansas; MAJOR DENZER;

L|EUTENANT FOSTER; SERGEANT

STANTON; SERGEANT MORSE;

SERGEANT ARNOLD; ARAMARK

CORRECT|ONAL SERV|CES, LLC;

TOMMY ROARK; T|NA WEBB;

_JESS|E ENGLAND; CORPORAL CARLA

ClNK; BlLLY WlLLlS; CHARLES

DOM|NGUEZ; R. WALKER; DR. KARAS;

NURSE LANDON HARR|S; CORPORAL

CAUDLE; CORPORAL WORKMAN;

NURSE KR|STEN NlCHOLS; CORPORAL

MULVANEY; DEPUTY J. VELASCO;

L|EUTENANT REESER; and

SERGEANT AKE

MEMORANDUM OP|N|ON AND ORDER

PLAlNTlFF

DEFENDANTS

This is a civil rights action in Which Plaintiff Jason Duane Emery is proceeding pro

se and in forma pauperis Plaintiff is currently incarcerated in the Wrightsville Unit of the

Arkansas Department of Correction (“ADC”). At all times relevant to this Complaint, he

Was incarcerated in the Washington County Detention Center (“WCDC”).

Plaintiff contends his constitutional rights Were violated at the WCDC in the following

Ways: (1) he Was not provided With an adequate diet, and the method in Which the jail

transported the food to the prisoners Was substandard; (2) the commissary charged

exorbitant prices; (3) he Was denied access to the courts; (4) the grievance procedure Was

inadequate; (5) he Was denied'access to newspapers or other media containing |ocal,

state, or World neWs; (6) the classification system denied him Equal Protection; and (7) he

was denied adequate medical care. Plaintiff also brings a supplemental state law claim

under the Arkansas Deceptive Trade Practices Act (“ADTPA”) based on the operation of '

the commissary.1

The case is before the Court on two motions for summary judgment. The first'is a

l\/lotion for Summary Judgment filed on behalf of Aramark Correctional Services, LLC

(“Aramark”), and its employees, Tommy Roark, Tina Webb, Jessie England, and Carla

Cink (col|ectively, the “Aramark Defendants”). See Doc. 88. P|aintiff filed a Response in

opposition to this l\/|otion. See Doc. 125. The second l\/|otion for Summary Judgment was

filed on behalf of Sheriff Helder, l\/|ajor Denzer, Lieutenant Foster, Sergeant Stanton,

Sergeant l\/|orse, Sergeant Arnold, R. Walker, Dr. Karas, Nurse Landon Harris, Corporal

Caudle, Corporal Workman, Nurse Kristen Nichols, Corporal Mulvaney, DeputyJ. Velasco,

Lieutenant Reeser, and Sergeant Ake (col|ectively, the “Washington County Defendants”).2

See Doc. 97. Plaintiff also filed a Response to the second l\/|otion for Summary Judgment.

See Doc. 122. For the reasons explained herein, the Aramark Defendants’ l\/|otion is

1 ln his brief in support of his response, Plaintiff indicates he desires to dismiss the

following claims: (1) his claims based on alleged violations of his rights by the use of, and

positioning of, a video visitation system; (2) alleged violations of the Health insurance

Portability and Accountability Act (“HlPPA”); (3) alleged violations of his rights by the mail

system utilized at thejai|; and (4) alleged “risk of harm” claims. (Doc. 123, pp. 5-6, 8, 12).

The "risk of harm" claims include: being housed in a cell without an intercom; removal of

the non-slip or skid strip from the stairs; the failure to paint the strips caution yellow or

orange; the failure to correct the over-spray of the shower or to use a wet floor sign; and

the use of transport vans without safety equipment. ld.; see also Amended Complaint

(Doc. 38). These claims wi|| therefore not be addressed

2 Defendants Reeser and Ake were added to the case after the Washington County

Defendants filed their l\/|otion for Summary Judgment. However, these two Defendants

simplyjoined in the original l\/|otion and advised the Court that they did not need time to file

a supplement See Doc. 110.

GRANTED, and the Washington County Defendants’ l\/lotion is GRANTED |N PART AND

DEN|ED |N.PART.

l. BACKGROUND

Plaintiff was booked into the WCDC on June 24, 2016. (Doc. 99-2, p. 1). |At that

time, he was 6'1" and weighed 242 pounds. ld. at 2. According to the intake sheet, he

stated that he was currently taking the blood pressure medications Amlodipine, l\/|inoxidil,

and Lisinopri|, as well as a pain medication called Tramadol. ld. He did not have the

medications with him at the time of booking. He further reported that the last time he was

seen by a doctor was in Eureka Springs approximately two months prior. Plaintiff also

alleged that he had suffered past injuries to his neck, back, knee, and shoulder. Also at

the time of booking, he admitted to being addicted to methamphetamine and using the

drug daily. (Doc. 99-3, p. 2).

Once incarcerated at the WCDC, Plaintiff began receiving regular meals, three times

per day. “Arkansas Jail Standards, Section 11-1001, require the minimum daily calorie

level for sedentary inmates shall be 2300 calories and the minimum calories for active

inmates shall be 2700 calories.” (Doc. 99-1, p. 3); see also Doc.100-1, p. 1. Aramark

contracts with Washington County to provide all food and commissary services at the

WCDC. No WCDC employee “is qualified to manage the caloric values of the menu

plans.” (Doc. 99-1, p. 3). Further, Aramark is_not required to consultanyWCDC employee

in the planning or preparation of the meals served in the WCDC.

Defendants Tommy Roark, Tina Webb, Jessie England, and Carla Cink are

Aramark employees who were assigned to work at the WCDC during the relevant time.

The Aramark dietician responsible forthe inmate menu was Kate Crowley, l\/lPH, RD, LDN.

She has a master’s degree in public health, and she is both a registered dietician and a

licensed dietician/nutritionist. (Doc. 90¥2, p. 1). According to Crowley, the menu at the

WCDC is periodically reviewedto ensure that all meals are nutritionally balanced and meet

caloric requirements sufficient to sustain good health. The menu is also approved by

Washington County.

Crowley affirms that the regular inmate menu meets the guidelines of the American

Correctional Association and the Food and Nutrition Board of the institute of l\/ledicine,

National Academy of Sciences, dietary guidelines for adults aged 19 to 50. See id. at 2.

She maintains that the meals served each day total approximately 3000 calories, which

exceeds the current daily recommended intake for an adult aged 19 to 50. According to

Crowley, all meals served to Plaintiff were in compliance with the 28-day meal plan

approved at the WCDC. /d. at pp. 3, 5. The WCDC follows the meal plan without regard

to when commissary orders are placed or delivered. l\/loreover, Crowley claims that when

setting, reviewing, or approving the menu at the WCDC, she is unaware of which days, if

any, that commissary orders are placed or delivered. ld. at 3. Aramark employees

oversee the preparation of meals at the WCDC, and specific utensils are used to ensure

that a full serving of each food item is easily and precisely measured. See Doc. 90-2 at

2.

Defendant Carla Cink is Food Service Director for Aramark. She manages the

kitchen and inmate meals at the WCDC. Cink asserts in her affidavit that all meals served

to Plaintiff were in accordance with official Aramark policy which required that the meals

be prepared pursuant to the guidelines established by the dietician. See Doc. 90-3, p. 1.

The WCDC makes a daily request for a specific number of each type of mea|, such as a

regular meal, a vegetarian, or a diabetic meal. ld. at 2. Cink further affirms that Aramark's

services are subject to the oversight of the Criminal Detention Facilities Review Committee

of the Arkansas Department of Finance and Administration. ld.

Plaintiff’s Complaint includes allegations about the inadequacy of the food served

at the WCDC. He testified in his deposition that he weighed 244 pounds3 when booked

into the WCDC on June 24, 2016. See Doc. 90-1,'p. 9. He asserted that approximately

a month and a half later, he was down to 234 pounds,4 and he also believed he had lost

muscle mass.5 ld. at 9-10. He stated during his deposition on August 19, 2016, that his

weight had been measured the previous day, and he had weighed 234 pounds. ld. at 9.

Priorto his incarceration, Plaintiff believed he was eating more than 3,000 calories per day.

ld. at 21. ln his opinion, 2,500 calories per day is the “minimum . . . for a person to

survive.” ld.

Plaintiff also testified in his deposition that on commissary-order days, inmates

usually received less food on their meal trays_for example, just one sandwich instead of

3 As noted above, the booking records indicate his weight was 242 pounds. (Doc. 99-2,

pp. 1-2). '

4 l\/ladison County booking records dated July 11, 2016, list Plaintiff's weight as 245

pounds. (Doc. 99-2 at 1_7). '

5 Subsequent to the filing of this case, Plaintiff continued to complain about weight loss.

(Doc. 90-4). For examp|e, on October 8, 2016, Plaintiff stated in a grievance to WCDC

officials that he had “lost over 30 lbs in 3 months.” ld. ln his Amended Complaint filed on

October13, 2016, he alleged he had lost overtwenty-five pounds while atthe WCDC. See

Doc. 38, p. 3.

two. /d. at 10. Plaintiff believed that WCDC/Aramark placed less food on the trays

intentionally, in orderto induce inmates to order more commissary products. /d. lnmates

were permitted to orderfrom the commissary only one day per week, usually on Saturdays,

and inmates would receive their commissary orders on Mondays. /d. Plaintiff testified that

he would typically order ramen noodles from the commissary because they “had some type

of substance” to them. /d. at 14.

Plaintiff contends the Aramark and Washington` County Defendants violated the

ADTPA based on the high prices they charged for commissary items. He believes

Defendants engage in price gouging. He also contends the food portions at the ADC are

“much larger’ than at the WCDC. /d. According to Plaintiff, the inmates at the WCDC

were constantly hungry or “starving at all times, because we are not fed good.” (Doc. 90-1,

p. ‘l‘l); see also Doc.. 99-5, p. 20. Plaintiff testified that being hungry causes one to be

more irritable and aggressive and that hunger was “the worst torture a person can go

through in most cases.” (Doc. 90-1, p. 16).

He agreed that WCDC inmates receive three meals a day, with a typical breakfast

consisting.of a biscuit and gravy, oatmeal or grits, eggs, and milk or juice. /d. at 11.

Plaintiff described a typical lunch tray as consisting of two sandwiches, some iceberg

lettuce and cake or a cookie. He described dinner trays as typically including some rice

or “meat-type deal,” iceberg lettuc_e, a vegetable such as carrots or green beans, and cake

or a cookie. ld. at 12. But on commissary-order days, Plaintiff testified that the dinner tray

was usually missing one item-typically the vegetable. /d.

Aside from his complaints about the amount of food served, Plaintiff also takes issue

with how the food trays were transported from the kitchen to the pods for service. Once

the meals are prepared, they are transported by trustees to the pods and then served.

(Doc. 90-3, p. 2). l\/leals are served in covered trays, stacked in an interlocking fashion on

a rolling cart. (Doc. 90-2, p. 2). Plaintiff believes the food should be transported in a “hot

box” instead, so that the meals stay warmer. He filed grievances on'several occasions,

complaining that the food trays were placed in the hallways between the pods and then left

there for sometimes more than an hour before service. He contends that this food-service

procedure is unsanitary and unsafe for the inmates.

Turning to Plaintiff’s official-capacityclaims, he believes that since Sheriff Helder

was in charge of the facility, he had the ability to step in and order that detainees be

provided with more food. Plaintiff admits that he never spoke with Sheriff Helder about the

food, though. According to Sheriff Helder’s affidavit, he relies upon his “chain of command”

to administer the various operations of the jail, pursuant to the WCDC’s implemented

policies and procedures. See Doc. 99-8, p. 1. Sheriff Helder indicates that, generally, he

is “not personally involved unless the problem is systemic or not capable of resolution by

[his] staff.” ld. at 1-2. With respect to Plaintiff, Sheriff Helder is not particularly surprised

that he had no personal knowledge of any of the incidents Plaintiff complained of in this

case, since “Pla-intiff’s allegations deal with day to day decisions and operations in the

Detention Center,” and Sheriff Helder is not personally involved in those decisions. ld. at

2.

Plaintiff also admits that he never spoke directly with l\/|ajor Denzer, the Jail

Administrator, with regard to his requests and grievances_though Plaintiff did address at

least some of those written requests and grievances directly to l\/lajor Denzer. l\/lajor

7

Denzer confirms in his affidavit that the “Detention Division operates in a chain of

command whereby most direct contact with detainees occurs with pod deputies who are

tasked with carrying out the routine, day to day operations such as meal delivery, safety

functions during transport or medication distribution, or oversight of daily clean up of the

facility.” (Doc. 99-9, p. 1). The deputies are supervised by a number of persons, including

a corporal, sergeant, and one or more lieutenants. l\/lajor Denzerfurther maintains that he

is not involved in routine aspects of daily operation of the jai|, and he was not familiar with

Plaintiff before he filed the instant case. ld. at 2.

As for Sergeants l\/lorse, Fu|ler, Stanton, and Arnold, as well as Lieutenant Foster,

they are the WCDC staff members who usually responded in writing to Plaintiff’s requests

and grievances With that said, however, Plaintiff admits that these officers never spoke

to him in person about his grievances about food quantity or quality, and they were never

present when Plaintiff was served his meals. See Doc. 90-1, p. 12.

l\/loving on, Plaintiff’s next claim is that he was denied adequate access to a law

library. He testified that the WCDC requires inmates to obtain a court order to be

transported to a library off site, as the facility does not have its own |ibrary. ln one of his

grievances, Plaintiff indicated that he could not obtain a “court order for such a thing

because l couldn[']t talk to [the] judge or public defender at my court hearing. l\/ly requests

to both offices have gone ignored for a month.” (Doc. 99-5, p. 21 ). He was told by WCDC

officials that a court order was necessary to be transported off site, and that he was free

to request legal assistance by filling out a form that could be faxed to the public defenders'

office. ld. Plaintiff believed that the public defender could not help him with his civil rights

cases or with filing a motion under Rule 37 of the Arkansas Rules of Criminal Procedure

8

for ineffective assistance of counsel_particularly when Plaintiff was making the argument

that a public defender had provided him ineffective assistance. ld.

Plaintiff’s next claim concerns the amount of paper he was given at the WCDC.

When Plaintiff would ask for pieces of paper and envelopes for his legal materials, he was

told he had to choose between using the paper for legal work and writing letters home.

Plaintifftestified in his deposition that he ran out of paperwhen doing his legal work. (Doc.

90-1, pp. 24-25). He borrowed paper from other inmates. ld. He claims that he did not

know anything about.deadlines in his various cases and was not “made aware” of any

deadlines he had missed. ld. at 26. Further, he contends that a civil rights case he filed

in this District, Emery v. Hyslip, 5:16-CV-05277, was ultimately dismissed because of his

lack of knowledge of the law and his lack of resources to pursue claims against certain

types of defendants. He believes that his lack of access to legal resources also hampered

his ability to address a child custody case he had pending against him, and a civil forfeiture

complaint. See Doc. 123, p. 8.

With respect to the WCDC’s policy on providing paper, Corporal Mulvaney affirms

that inmates are provided with “paper, a pencil, and two free envelopes perweek. . . and

that “[n]on-indigent inmates may purchase additional writing materials and postage paid

envelopes from commissary.” (Doc. 9~9-1, p. 5). According to the WCDC inmate

handbook, detainees are provided “postage, envelopes, and paperfor communication with

the courts, and two envelopes and ten sheets of paper per week for correspondence of a

personal nature.” (Doc. 101-1, p. 23).

Plaintiff next maintains that the grievance procedure was inadequate First, he

a

contends his rights were violated by the limit placed on the number ofgrievances/requests

a detainee could have “open” on the kiosk at any one time. (Doc. 99-5, p. 18). He argues

that his access to the grievance system was being hindered by jail staff not closing his

previous grievances.' ld. He believes some grievances were left open for days, and

because of this, jail staff were “blocking my access to the courts and my right to due

process.” ld. Next,\he contends that he received inadequate or no responses to some of

his grievances. He believed that appealing grievances was useless, and that grievances

were not passed up the chain of command, as he expected them to be.

The WCDC grievance policy provides that “[a] grievance shall be made by utilizing

the kiosk provided in the cellblock.” (Doc. 100-1, p. 9). According to Corporal Mulvaney,

the “kiosk system allows a detainee to have up to three open matters at once.” (Doc. 99-1,

p. 4). Corporal l\/lulvaney explains in his affidavit that “[t]his is because of the limitations

on the system and to prevent abuse by detainees.” ld. However, he notes that detainees

“have regular contact with deputies” and if the “detainee had too many open matters in the

electronic system, the detainee may address the problem to a Deputy directly.” ld.

Further, if the kiosk is “down or unavailable,” paper grievances are available. ld. at 4-5.6

Plaintiff’s next claim is that he was being denied newspapers, mag-azines, and

meaningful access to news media while in the WCDC. He claims that WCDC staff played

the radio, but the broadcast was either music or “campaign radio” with no local, state, or

world news. (Doc. 90-1, p. 29). Plaintiff indicated that the radio stations only played

6 The inmate handbook indicates that written requests are to be submitted to a floor

deputy, and grievances are to be submitted in a written statement to a shift supervisor.

(Doc. 101-1, pp. 30-31). The kiosk system is not mentioned in the inmate handbook.

10

political news concerning the 2016 Presidential race, and this news was meaningless to

him as he could not vote in the election anyway. (Doc. 99-5, p. 22). He claimed he had

not seen or heard “anything about l`ocal, state, country, or world news since” he had been

at the WCDC. /d. He noted that other detainees in the WCDC, including trustees and

inmates in the work-release pod, were allowed to view the news on television. /d. He also

claimed that other county jails and the ADC allow inmates to read newspapers /d. He

maintains that when'he complained about the lack of news at the WCDC, he was told that

the facility had been assured by its legal advisor that the “decision to discontinue

newspapers in this facility and only use XM Radio7 as its news source for its detainees . . .

[was] within the law and [did] not violate anyone's rights.” /d.

Corporal Mulvaney responds in his affidavit that the WCDC “provides a subscription

to several satellite radio stations which are played during daytime hours and which are

intermittently changed.” (Doc. 99-1, p. 6). He maintains that these radio stations “provide

discussions of news topics and various viewpoints.” He agrees, however, that the WCDC

discontinued the'practice of providing newspapers to the general p.opulation, allegedly

“[b]ecause of constant problems with damage caused by inmates hoarding newspapers,

fighting over them, or using newspapers to c|og toilets and start fires . . . /d.

Plaintiff’s next claim concerns the housing classification he was assigned at the

WCDC. Plaintiff testified that he was housed on “A side” with all the violent offenders,

even though he had never been charged with a violent offense. (Doc. 90-1, p. 32).

7 The summaryjudgment record contains no further information on what stations or news

programs were broadcast in the WCDC at the relevant time period, orthe content of those

programs.

11

Although he did- not report any threats to his safety, Plaintiff indicated he had asked to be

moved “many times to B side where l feel like l'm supposed to be at because l'm not a

violent offender.” ld. at 33. While he could not point toany specific incident, Plaintiff

indicated he was sure he had been threatened at some point by other inmates. ld. He

testified that “tensions are high in these pods at all times . . . ld.

Plaintiff also testified that he felt that A side was the “punishment pod,” since

inmates on B side were allowed access to their personal property and were able to get on

their bunks during the day, but A side inmates were denied such privileges. Plaintiff does

not know who determined his classification, but he pointed out that he had never had a

disciplinary incident at the jail or been involved in any sort of altercation. ld. at 34. On July

11, 2016, when Plaintiff requested in a written grievance to know his “custody score” and

complained that he wished to be housed in “B side,” Corporal Caudle’s written response

was that Plaintiff had been assigned to A side because he was a “medium or maximum,”

and that “points don't matter.” (Doc.99-5,p.13).‘ When Plaintiff continued to question his

classification status, he was in formed in writing on July 13, 2016, by Lieutenant Foster,

that designations were based on:

an objective classification system which is in accordance with our policy and

procedure which is in compliance with State and Federal Law. You initial

classification is based upon you[r] criminal history and your curent criminal

charge and a few other factors. Because of the classification system you

have the opportunity to potentially improve your classification based upon

your behavior while in this facility.

ld. at 15.

Plaintiff was, in fact, involved in a physical altercation with other inmates on August

20, 2016, after which he was charged with “behavior which is aggressive or disruptive to

12

the facility” and “provoking or agitating a fight.” See Doc. 102-10. ln the written

description of the incident, it appears Plaintiff was involved in a fight with four other

inmates. Two of the inmates received injuries that required treatment at the nurses’

station, but Plaintiff was not among the injured. Just prior to this fight, on February 16,

2016, his status had been officially changed to “minimum” security. See Doc. 1012-7`, p. 1.

He believes prior to February 16, he was misclassified as a “medium” or “high” security

inmate and assigned to A side.

According to Corporal l\/lulvaney’s affidavit supplied in response to Plaintiff’s

contentions, the inmate classification system “considers factors such as a detainee's

criminal history and pending charges and provides a guideline for placement of the

detainee.” (Doc. 99-1z p.`5). The staff also considers whether there is “available space”

and whether “any persons . . . are known as a threat to orthreatened by the detainee . . .

ld. Corporal l\/lulvaney indicates that A side is generally reserved for detainees on

administrative or disciplinary segregation or those classified as "high or medium-high risk

inmates.” ld. at 6. He explains that B side is generally reserved for “low to low-medium

risk inmates” and trustees. ld.

Plaintiff’s next claim is that he was denied adequate medical care while in the

WCDC. According to WCDC policy, emergency medical services are available 24 hours

a day. (Doc. 99-1, p. 2). “Officers are trained to respond to medical emergencies and

may provide temporary lifesaving care while [emergency medical services] or other medical

personnel are in route.” ld. Since January 1, 2016, Dr. Karas has served as the jail’s

doctor, and Karas Correctional Health has provided all medical care pursuant to a contract

13

with Washington County. ld. at 3. Detainees are instructed to submit medical complaints

via an electronic kiosk, and the requests are then reviewed by the medical staff. According

to Corporal l\/lulvaney, the WCDC’s policy is that “[a]ll matters of judgment regarding health

services are made within the sole province of the contract medical staff,” and “[a]ll

decisions regarding medications, medical testing, or medical treatment are left to the

professional medical judgment of the physician at the detention facility.” (Doc. 99-1, p. 3)

(emphasis omitted). n

Plaintiff claims that Dr. Karas and his medical staff provided substandard medical

care with respect to Plaintiff’s withdrawal and detoxification from methamphetamine, which

occurred when he first arrived at the WCDC. Plaintiff also takes issue with the way the

medical Defendants administered his blood pressure medications Plaintiff claims he was

diagnosed with high blood pressure during a prior|incarceration in the ADC. Following his

release, he visited a private doctor and was placed on the drug Amlodipine. He testified

in his deposition that he continued having problems with blood pressure, and his doctor

increased his dosage of Amlodipine and added a prescription forthe drug Lisinopril. After

that, his private doctor added the drug l\/linoxidil, as Plaintiff’s blood pressure was still high.

Plaintiff testified that for his first week or week-and-a-half at the WCDC, he was not given

any blood pressure medication. See Doc. 90-1, p. 40. He contends that he provided

medical staff with the name of his pharmacy so that they could verify the blood pressure

medications he was taking. ld. at 41.

According to jail medical records, medical staff did verify Plaintiff’s prescriptions for

Amlodipine, Lisinopril, and l\/linoxidil on June 24, 2016_the day he was booked into the

jail. Plaintiff’s private physician, Dr. House, had prescribed all three medications, and

14

Plaintiff last filled them on June 8, 2016. (Doc. 99-3, p. 5). Plaintiff was then approved by

the jail doctor to receive both Amlodipine and Lisinopril on June 24, and Plaintiff started

receiving them on June 25, 2016. /d. at 8-10. The medication administration records

indicate Plaintiffwas first given Amlodipine and Lisinopril on June 25, 2016. /d. at 57. The

records further indicate that he refused these medications on June 28, June 29-30, July

6-7, July13, and July 28, 2016. /d. at 54-56. ln addition to Amlodipine and Lisinopril, on

July 8, 2016, Plaintiff began receiving Naproxen, an anti-inflammatory painkiller, and on

July 27, 2016, he began receiving a nightly dose of l\/le|atonin. ld. at 8, 53.

Plaintiffdisputes that he was given his blood pressure medication beginning on June

25, despite what the medical logs indicate. See Doc. 90-1, p. 42. He claims instead that

he had to “argue every day” with the nursing staff for the first week to week-and-a-half he

was incarcerated at the WCDC in order to receive his pills. /d. He further claims that he

did not refuse medication on the dates indicated in the logs, but that his medication was

often not on the pill cart. /d. at 41 , 44. Plaintiff stated that on one occasion, a nurse, whose

name he does not recall, indicated that she knew Plaintiff had not been refusing his

medication and that he should file a grievance /d. at 41. Plaintiff testified that after this

interaction with the nurse, he had no further problems getting his blood pressure

medication. /d. at 44.

Jail medical records confirm that on June 24, 2016, the day Plaintiff was booked,

he submitted a sick-call request regardi~ng, among other things, not having received his

blood pressure medications yet. (Doc. 99-3, p. 10). He was added to the sick-call list on

June 27, 2016. /d. But on June 28, 2016, medical staff made a notation in the logs that

15

Plaintiff would not being seen during sick call that day because the medications he

requested were “on med oart.” ld.

As for his complaint about inadequate medical care given during his detoxification

from methamphetamine Plaintifftestified he was addicted to methamphetamine and would

also take Hydrocodone or Percocet. He confirmed that when he was booked into the

WCDC, he had been on methamphetamine and opiates for about a year and a half, and

that this long period of addiction made his detox period worse than on previous occasions

He testified that he began sweating, felt sick, vomited, had diarrhea, did not feel like eating,

was delirious a fewtimes, hallucinated a couple oftimes, and felt hisjoints had “locked up.”

(Doc. 90-1, pp. 45-46, 52). He also told staff that he felt like he was dying and would often

sleep on the concrete floor of the pod area, having been administered the drug Naproxen

for the “shakes and pain.” ld. at 42. instead of being locked out of his jail cell, he would

have preferred to stay in his cell while going through detox so he could “rest and sleep and

get [his] strength back up.” ld. at 50.

Jail medical records indicate that Plaintiff was placed on a “detox screen” for five

days beginning on June 24, 2016. (Doc. 99-3, p. 9). On June 24, Plaintiff submitted a sick

call request complaining that he had neck, back, knee, and shoulder problems, and that

he wanted to be able to lie down when he was hurting. ld. at 10. He said he had so many

injury issues that “there is no way l can sit at a table or stand around all day.” ld. He did

not mention in the grievance any problems associated with detoxifying from

methamphetamine

Plaintiff also testified that he had contact with medical staff twice a day during pill

16

call. During th'ose times, the nurse would merely ask what his symptoms were. Plaintiff

felt he should have also been seen by a doctor and had his blood pressure checked on a

regular basis. However, he testified that as of the date of his deposition, August 19, 2016,

he felt he was getting “better medical care” (Doc. 90-1, p. 53).

ll. LEGAL`STANDARD

The Court “shali grant summary judgment if the movant 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). “[A] genuine issue of material fact exists if: (1) there is a

dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the

dispute is genuine that is, a reasonable jury could return a verdict for either party.” RSB/

Aerospace, /nc. v. Afli/iated FM /ns Co., 49 F.3d 399, 401 (8th Cir. 1995). The moving

party has the burden of showing the absence of a genuine issue of material fact and that

they are entitled tojudgment as a matter of law, but the nonmoving party may not rest upon

mere denials or allegations in the pleadings and must set forth specific facts to raise a

genuine issue for trial. See Anderson v. Liberty Lobby, /nc., 477 U.S. 242, 256 (1986);

Ce/otex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The Court must view all evidence and

inferences in a light most favorable to the nonmoving party. See McC/eary v. Re/iaStar Life

/ns Co., 682 F.3d 1116, 1119 (8th Cir. 2012). However, “[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 summaryjudgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

17

|ll. DISCUSSION

Section 1983 provides a federal cause of action for the deprivation, under color of

law, of a citizen's "rights, privileges, or immunities secured by the Constitution and laws"

of the United States. in order to state a claim under 42 U.S.C. § 1983, plaintiff must allege

that the defendant acted under color of state law and that he violated a right secured by

the Constitution. West v. Atk/'ns, 487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007,

1009 (8th Cir.1999). The deprivation must be intentional; mere negligence will not suffice

to state a claim for deprivation of a constitutional right under § 1983. Dan/'els v. l/l/i///'ams,

474 U.S. 327 (1986); Davldson v. Cannon, 474 U.S. 344 (1986).

A. Aramark Defendants’ Motion for Summary Judgment (Doc. 88)

The Aramark Defendants present the following arguments in favor of theirSummary

Judgment Motion: (1) Plaintiff’s claims concerning extortionistic pricing at the commissary

fail as a matter of law; (2) the ADTPA does not apply to detainees in a county detention

center; (3) Plaintiff's claim regarding the failure to use a heated cart or “hot box” to serve

food is barred by the physical injury requirement of the Prison Litigation Reform Act

(“PLRA”); (4) Plaintiff’s claims regarding the adequacy of the diet fail; and v(5) Plaintiff’s

claims under § 1983 fail because Aramark did not act under color of state law.

1. inflated or Exorbitant Commissary Prices

There is no constitutional right to access to a commissary. Tokar v. Armontrout, 97

F.3d 1078, 1083 (8th Cir. 1996). Nor is there a constitutional right to purchase items at`

the price it would cost to obtain the items in the free world. See DeBrew v. Atwood, 792

F.3d 118, 129 (D.C. Cir. 2015) (noting that Eighth Amendment “does not guarantee the

18

right of an inmate to purchase a good or service at a particular price”) (citation omitted);

Thus, even if Plaintiff was charged exorbitant amounts for commissary items, no

constitutional claim is stated.

The Aramark Defendants are entitled to summary judgment on this c,laim.

2. ADTPA Claim

Plaintiff argues thatAramark, in conjunction with the WCDC, is violating the ADTPA,

Ark. Code Ann. .§ 4-88-101 et seq., by serving smaller food portions to inmates on

commissary-order days in orderto drive up commissary sales and profits Plaintiff alleges

that hungry detainees are forced to purchase commissary items or starve. Specifically,

Plaintiff maintains that Aramark engages in a deceptive trade practice by “[k]nowingly

taking advantage of a consumer who is reasonably unable to protect his or her interest

because of: (A) Physical lnfirmity; (B) lgnorance; (C) llliteracy; (D) inability to understand

the language of the agreement; or (E) A similar factor.” Ark. Code Ann. § 4-88-

107(a)(8)(A)-(E). Plaintiff contends prisoners are at a particular disadvantage and easily

taken advantage of since they have no other means of obtaining these products

Aramark asserts that it is unaware of any authority applying the ADTPA to a claim

by a detainee ata county detention center. l\/loreover, it notes the ADTPA excepts actions

or transactions that are governed by state agencies Ark. Code Ann. § 4-88-101.

Specifically, the ADTPA exempts:

Actions or transactions permitted under laws administered by the insurance

Commissioner, the Securities Commissioner, the State Highway

Commission, the Bank Commissioner, or other regulatory body or officer

acting under statutory authority of this state or the United States, unless a

director of these divisions specifically requests the Attorney General to

implement the powers of this chapter.

19

Ark. Code Ann. § 4-88-101(3). Aramark further asserts that its services at the WCDC are

subject to the oversight of, and operate under laws administered by, the Criminal Detention

Facilities Review Committee of the Arkansas Department of Finance and Administration.r

Recently, this Court was faced with a virtually identical ADTPA claim in Avery v.

Helder, et a/., Case No. 5:16-cv-05169. There, the Court declined to retain supplemental

jurisdiction over the ADTPA claim, finding that it presented a novel or complex issue of

state |aw. See 28 U.S.C. § 1367(c)(1) (court may decline to exercise supplemental

jurisdiction over a claim where a novel or complex issue of state law is presented). inv

doing so, the Court noted that both the application of the ADTPA to prisoners and the

possible application of the exemption were questions not addressed by the Arkansas

courts. Further, a survey of state courts indicated that few, if any, courts have addressed

this particular issue. See Avery v. Helder, et a/., Case No. 5:16-cv-05169, Doc.154,

adopted as to ADTPA claim in 2017 WL 4163663, at *10 (W.D. Ark. Sept. 20, 2017).

The Court believes the same course of action should be taken in this case and

therefore declines to exercise'supplemental jurisdiction over the ADTPA ciaim.

3. Adequacy of Diet and Food Handling

“[W]hen the State takes a person into its custody and holds him there against his

wi|i, the Constitution imposes upon it a corresponding duty to assume some responsibility

for his safety and general well-being.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 851

(1998) (citation omitted). The Constitution does not mandate comfortable prisons, but

neither does it permit inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994).

.The Eighth Amendment's prohibition against cruel and unusual punishment is

20

violated if an inmate is not provided with meals adequate to maintain his health. See, eg.,

Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996); Campbel/ v. Cauthron, 623 F.2d 503,

508 (8th Cir. 1980) (prisoners are guaranteed a reasonably adequate diet). “The

deprivation offood constitutes cruel and unusual punishmentonly if it denies a prisonerthe

‘minimal civilized measure of life’s necessities.”’ Ta/ib v. Gilley, 138 F.3d 211, 214 n.3 (5th

Cir. 1998) (expressing doubt that Talib, who missed about fifty meals in five months and `

lost fifteen pounds, met this threshold) (quoting Wilson v. Seiter, 501 U.S. 294, 298

(1991)). “Whether the deprivation of food falls below this threshold depends on the

amount and duration of the deprivation.” Green v. Ferrell, 801 F.2d'765, 770 (5th Cir.

1986).

An Eighth Amendment claim has both an objective and subjective component.

Farmer, 511 U.S. at 834. The objective component “tests whether, viewed objectively, the

deprivation of rights was sufficiently serious.” irving v. Dormire, 511 9 F.3d 441 , 446 (8th Cir.

2008). The subjective component “requires that the inmate prove that the prison officials

had a ‘sufficiently culpable state of mind.”’ ld. (quoting Farmer, 511 U.S. at 834). in claims

involving allegations of an inadequate diet, the subjective component requires the plaintiff

to show that the defendants_were deliberately indifferent to his dietary needs Wishon v.

Gammon, 978 F.2d 446, 449 (8th Cir. 1992). The availability of supplementary-food

through commissary purchases “must not be considered part of the jail diet for purposes

of determining its constitutionality because some of the inmates have no money to

v purchase these items. l\/ioreover, the state is under a duty to provide an adequate diet for

all inmates.” Campbe/l, 623 F.2d at 508 n.5.

21

The summaryjudgment record, when viewed in the light most favorable to Plaintiff,

shows that he was 6'1" and 242 pounds when he was booked into the jail on June 24,

2016 (Doc. 99-2, p. 1); 245 pounds when he was booked at the l\/ladison County Sheriff's

Office on July11, 2016, id. at 17; 234 pounds on August 18, 2016 (Doc. 90-1, p. 9); 215.5

pounds on September 16, 2016 (Doc. 99-3, p. 34); and 214 pounds on November18, 2016

(Doc. 99-3, p. 41 ). Plaintiff believes he lost even more weight after that and contends that

he weighed 206 pounds when he transferred from theWCDC to the ADC. (Doc. 123, p.

4). Although the exact date of transfer is not noted in the record, Plaintiff filed a notice of

change of address with the Court on January 9, 2017, advising that he was now housed

at the ADC.

in total, Plaintiff has alleged a 36-pound weight loss over the course of

approximately six months.' While the Constitution certainly does not permit the

“incremental starvation” of inmates, George v. Kir)g, 837 F.2d 705, 707 (5th Cir. 1988), it

is also true that the weight loss must be considered in context. See, eg., Giddings v.

Cradduck, 2017 WL 2791 345, at *6 (W.D. Ark. June 6, 2017)(loss of 70 pounds over a few

days short of one year insufficient to create genuine issue of material fact where Plaintiff

was obese both when he entered the detention center and when he was released),

adopted by 201 7 WL 2799297, at *1 (W.D. Ark. June 27, 2017); Whitr)ey v. Morse, 2016

WL 908268, *7-8 (W.D. Ark. Feb. 4, 2016) (loss of 23 pounds over a six-month period,_

where plaintiff still weighed more than recommended weight for his height, insufficient to

show Eighth Amendment violation in the absence of evidence that plaintiff became ill,

suffered any other adverse physical effects, or was denied nutritionally and calorically

22

adequate diet), adopted by 2016 WL 894695, at *1 (W.D. Ark. l\/larch 8, 2016), aff'd on

appea/, 698 Fed. Appx. 319 (8th Cir. 2017) (per curiam); Ah/ers v. Kaskiw, 2014 WL

4184752, at *9 (N.D.N.Y. Aug. 21', 2014) (loss of 66 pounds over more than four years

deemed a “gradual transformation`from obesity to a healthy body weight” and “[did] not

satisfy the objective prong of the deliberate indifference standard”); Evans v. A/bany Cnty.

Corr. Facility, 2009 WL 1401645, at *10 (N.D.N.Y. l\/lay14, 2009) (even assuming plaintiff

lost 30 pounds and experienced dizziness and headaches over a four-month period, no

evidence existed to support Eighth Amendment violation).

Plaintiff asserts that Karas medical staff recognized that there were problems with

the WCDC’s meal plan because Plaintiff was prescribed prenatal vitamins at some point.

(Doc. 123, p. 5). However, there are many reasons why an individual would take, or need

to take, vitamin or mineral supplements Without more, the mere fact that Plaintiff was

prescribed prenatal vitamins during his incarceration does not create a genuine, material

dispute of fact as to whether his diet was so insufficient that it rose to an Eighth

Amendment violation.

The Court is similarly unconvinced that Plaintiff was wrongly denied a special diet

or larger portions of food. The summaryjudgment record establishes that the authority to

order changes to a prisoner's diet was vested in 'the medical care provider, and not in

Aramark. As the Aramark Defendants accurately point out by referencing the Body l\/lass

index (“BMl”), Plaintiff was obese when he entered the WCDC and still oven/veight when

he was released to the ADC. Plaintiff criticizes the use of the Bl\/ll to determine whether

or not he was oven/veight. He contends it does not adequately consider factors such as

23

bodytype, and he describes himselfas having had a “muscular build” when he first entered

WCDC custody. While the National institute of Health recognizes that the Bl\/ll index “may

overestimate body fat in athletes and others who have a muscular build,” the Bl\/li index is

still utilized by both the National institute of Health and the l\/layo Clinic as a “useful

measure of oven/veight and obesity.” https://www.nhlbi.nih.gov/health/educationai/

lose_wt/risk.htm (accessed January 11, 2018); see also https://www.mayoclinic.org/

diseases-conditions/obesity/symptoms-causes/syc-20375742 (accessed January 11,

2018). According to the Bl\/ll index, Plaintiff at 242 pounds had a Bl\/ll of 32, and at 206

pounds had a Bl\/ll of 27. A Bl\/ll of 30 or above is considered obese and a Bl\/li of 25 to

29.9 is considered oven/veight. See https://www.nhlbi.nih.gov/health/educational/lose_wt/

risk.htm (accessed January 11, 2018).

According to the NlH, “[w]eight can be lost at a rate of 1 to 2 lb/week with a calorie

deficit of 500 to 1,000 kcal/day.” See https://www.nhlbi.nih.gov/health-pro/guidelines/

current/obesity-guidelines/e_textbook/txgd/4311.htm (accessed January 11, 2018). ln

attaining a healthy weight, the NlH recommends a weight loss of “1 to 2 lb/week for a

period of 6 months.” ld. Given Plaintiff's testimony that he ate a minimum of 3,000

calories a day prior to his incarceration, his weight loss of 36 pounds over approximately

six months does not suggest the existence of`a genuine issue of material fact as to the

whether the diet Plaintiff received was so inadequate that it violated the Eighth

Amendment. '

The claim also merits dismissal because Plaintiff has failed to establish any

genuine material dispute of fact as to the “subjective component” of the claim, in that he

24

has presented no evidence to show that prison officials were deliberately indifferent to his

dietary needs. As previously mentioned, he was fed a 3,000 calorie-a-day diet, as ali

inmates were and he does not allege that he was given less food than other inmates, or

that he was intentionally deprived of normal food portions

Turning now to Plaintiff's claim concerning food service in the pods, his contention

that the food should have been kept in a “hot box” rather than on flat carts is clearly

inadequate to establish an Eighth Amendment violation. Plaintiff alleges that occasionally

there was a delay in food service when the trays of food were left in the hallways between

pods priorto distribution, Plaintiff has not alleged thatthese delays impacted the nutritional

value of the food or caused the food to be spoiled or inedible. Clearly, this practice by the

jail did not result in Plaintiff being deprived of the “minimal civilized measure of iife’s

necessities.” Wi/son, 501 U.S. at 298. For these reasons, The Aramark Defendants are

entitled to summaryjudgment on this claim.8

B. Washington County Defendants’ Motion for Summary Judgment (Doc. 97)

The Washington County Defendants move for summaryjudgment on the following

grounds: (1 ) there is no proof of any personal involvement on the part ofSheriff Helder or

i\/lajor Denzer in any of Plaintiff’s claims; (2) Plaintiff was not denied adequate nutrition; (3)v

Plaintiff has no right to a grievance process; (4) there was no violation of the ADTPA; (5)

Plaintiff was not entitled to particular housing or a particular classification; (6) Plaintiff was

8 The Aramark Defendants also present the argument that they did not act under color of

law. Having granted them summary judgment on Plaintiff’s federal law claims, it is

unnecessary for the Court to address this issue However, in previous cases, the Court

has rejected this particular argument. See e.g., Whitney v. Morse, 2014 WL 7339140, at

*4 (W.D. Ark. Dec. 23, 2014).

25

not denied access to the courts; (7) Plaintiff was not denied access to media; (8)the Karas

Defendants were not deliberately indifferent to Plaintiff's serious medical needs; (9)

Defendants are entitled to qualified immunity; and (1 0*) there is no basis for official-capacity

liability.

1. Personal involvement of Sheriff Helder and Randall Denzer

Plaintiff contends Sheriff Helder and l\/lajor Denzer are liable for constitutional

violations because they had the authority at any time to step in and put an end to the

violations According to Plaintiff, Helder and Denzer created the jail’s policies and

procedures and had “total control overthe W.C.D.C. and issues within.” (Doc. 123, p. 2).

Plaintiff suggests that thejail is the “equivalent of their ‘company,”’ id. at 3, and that Plaintiff

specifically asked that his grievances be sent up the chain of command. For their part,

Helder and Denzer argue that Plaintiff has failed to prove or even adequately allege that

they had any personal involvement in the alleged violations of his constitutional rights.

A claim regarding the deprivation of a constitutional right cannot be based on a

respondeat superior theory of liability. See Mone// v. Dep’t of Soc. Servs, 436 U.S. 654,

694 (1978). “[A] supervisor is not vicariously liable under 42 U.S.C. § 1983 for an

employee’sunconstitutional activity.” White v. Ho/mes, 21 F.3d 277, 280 (8th Cir. 1994);

see also Whitson v. Stone Cnty. Jai/, 602 F.3d 920, 928 (8th Cir. 2010) (“in a § 1983 case

an official is only liable for his own misconduct and is not accountable for the misdeeds of

his agents under a theory such as respondeat superior or supervisor liabi'lity.”)' (internal

quotations omitted); Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) (finding that

“general responsibility for supervising the operations of a prison is insufficient to establish

26

the personal involvement required to support iiability”).

“Liability under section 1983 requires a causal link to, and direct responsibility for,

the deprivation of rights. To establish personal liability of the supervisory defendant,'

[Plaintiff] must allege specific facts of personal involvement in, or direct responsibility for,

a deprivation of his constitutional rights.” Clemmons v. Armontrout, 477 F.3d 962, 967 (8th

Cir. 2007) (quoting Mayorga v. Mo., 442 F.3d 1128, 1132 (8th Cir. 2006)). Here Plaintiff

has not alleged that vSheriff Helder or l\/lajor Denzer was personally involved in any of the

alleged unconstitutional conduct he complains of~with the exception of Plaintiff’s First

Amendment claim concerning access to news and other media. ln particular, Plaintiff

relies on a respondeat superior theory of liability that imputes knowledge of his dietary,

medical, and housing claims to Helder and Denzer simply because they are in charge of

the WCDC. Plaintiff does not allege that he communicated with either Sheriff Helder or

l\/lajor Denzer about his diet, medical care or housing, and Plaintiff does not offer any

evidence that either Defendant actually made decisions about his diet, medical care or

housing.

However, with respect to Plaintiff’s First Amendment claim, there appears to be

evidence that both Helder and Denzer were personally involved in the decision to deny

inmates_-including Plaintiff_-access to ' newspapers or magazines ,in the general

population area of the jail. There remains a genuine material question of fact as to

whetherthe satellite radio stationsthat were played in the general population area provided

an adequate source of news, sufficient to pass constitutional muster. Accordingly, Sheriff

Helder and l\/lajor Denzer are entitled to summary judgment on all individual-capacity

27

claims, except for Plaintiff’s First Amendment claim;

2. Adequate Nutrition

'The Court has already addressed this claim in connection with the Aramark

Defendants The Washington County Defendants are also entitled to summaryjudgment

on this claim for the same reasons discussed above

3. Grievance Process

Plaintiff contends the grievance procedure is flawed in a number of ways including

that thejail provides inadequate responses fails to investigate issues raised in grievances

fails to pass grievances up the chain of command, and leaves grievances open for such

long periods of time that inmates are prevented from submitting new electronic grievances

Plaintiff also argues that the Washington County Defendants are liable as to all aspects

of his Complaint by virtue of their failure to adequately investigate and address the issues

raised in his written grievances

in response the Washington County Defendants point out that Plaintiff received

written responses to his multiple grievances, and he even appealed certain grievances

They also argue correctly, that there is no constitutionally protected right to a grievance

procedure See e.g., Lombo/t v. Ho/der, 287 F.3d 683, 684 (8th Cir. 2002) (denial of

grievances does not state a substantive constitutional claim),' see also Ashann-Ra v.

Commonwea/th of Va., 112 F. Supp. 2d 559, 569 (W.D. Va. 2000). Even though the

Washington County Defendants put a grievance procedure in place “no constitutional right

was violated by the defendants’ failure if any, to process all of the grievances [Plaintiff]

submitted for consideration.” Buck/ey v. Bar/ow, 997 F.2d 494, 495 (8th Cir. 1993).

28

Further, “[w]hen the claim underlying the administrative grievances involves a constitutional

right, the prisoner's right to petition the government for redress is the right of access to the

courts, which is not compromised by the prison's refusal to entertain his grievance” F/ick

v. A/ba, 932 F.2d 728, 729 (8th Cir. 1991). 1

Plaintiff has not identified a federal constitutional right that he was deprived of

because of the alleged inadequacies in the grievance procedure He makes no argument

that he was treated differently from other similarly situated prisoners, orthat his grievances

were ignored because he was exercising his constitutional rights Further, he does not

contend that his ability to exercise any specific constitutional right was chilled due to the

responses_or iackthereof_to his written grievances Forthese reasons, the Washington

County Defendants are entitled to summary judgment on this claim.

4. ADTPA 0laim

As explained above the Court has declined to retain supplemental jurisdiction over

this claim.

5. Housing Misclassification

Plaintiff contends that he was wrongly assigned to live on the A side of the jail with

the violent offenders despite the fact that he had no conviction or charges for violent

crimes He claims that because he was housed in A side he was forced to detox on a

concrete floor instead of a bunk, since A side inmates are not permitted to access their

bunks during the day. Further, due to the violent nature of the detainees in A side Plaintiff

claims he was involved in numerous altercations and sustained injuries as a result. He

believes he should have been housed in B side with other non-violent offenders He also

29

argues that B side inmates had significantly more rights and freedoms than A side inmates

Because he was placed wrongly in A side he was treated differently than other similarly

situated inmates

The Washington County Defendants explain in their briefing on summaryjudgment

that the classification system at the WCDC considers a number of factors, including the

inmate’s criminal history, current charges, in-jail behavior, available space and threats

made by or against other inmates Defendants claim it is possible for a detainee to be

classified one way during one period of incarceration, and a different`way during a

subsequent period of incarceration. inmates may be re-classified depending on the

resolution of charges pending against them, or because of additional information that the

jail receives regarding their charges

The Washington County Defendants deny that Plaintiff's rights were violated by the

way he was classified. First, they-point out that a prisoner has no constitutional right to a

particular ciassification. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976). Thus, when a

claim “merely reflect[s] an administrative classification issue . . . the inquiry of the federal

courts into prison management must be limited to the issue of whether a particular system

violated any prohibitions of the Constitution.” Peck v. Hoff, 660 F.2d 371, 373 (8th Cir.

1981).

To establish an Equal Protection claim, Plaintiff must demonstrate that he was

treated differently than other similarly situated inmates`based on a suspect classification

or a fundamental right. Pate/ v. U.S. Bureau of Prisons, 515 F.3d 807, 815-16 (8th Cir.

2008). "[T]he initial inquiry in analyzing an equal protection claim is to determine whether

a person is similarly situated to those persons who allegedly receive favorable treatment."

30

United States v. Whiton, 48 F.3d 356, 358 (8th Cir. 1995).

in examining the summaryjudgment record in the light most favorable to Plaintiff,

the Court finds that he has failed to raise a genuine material dispute of fact, suitable for

trial, that he was similarly situated to those inmates housed on the B side Plaintiff merely

alleges he had not committed any violent offenses priorto his initial classification. He does

not address any of the otherfactors that are utilized in the classification process Further,

there is no suggestion in the record that Plaintiff's housing classification was based on a

suspect classification or a fundamental right. Plaintiff has not alleged that his classification

as a violent offender was based on an unconstitutional reason, such as retaliation forthe

exercise of a First Amendment right. The fact that Plaintiff was later reclassified and

moved to another location in the jail does nothing to establish that his initial classification

violated the Constitution. Accordingly, summary judgment will be granted in the

Washington County Defendants’ favor on this claim.

6. Access to the Courts

Plaintiff contends he was denied access to a law library despite having both criminal

and civil cases pending. He asserts that he tried numerous times to obtain a court order

through the i\/ladison County Circuit Court and the Washington County Circuit Court so that

he could be transported from the jail to the library, but all requests were ignored. Further,

he claims he was told_erroneousiy-by the public defender's office that there was no law

library for detainees to use even if a court order was obtained.

The Supreme Court has held “the fundamental constitutional right of access to the

courts requires prison authorities to assist inmates in the preparation and filing of

31

meaningful legal papers by providing prisoners with adequate law libraries or adequate

assistance from persons trained in the law.” Bounds v. Sm/'th, 430 U.S. 817, 828 (1977)

Nevertheless, Bounds “did not create an abstract, freestanding right to a law library or

legal assistance.” Lewis v. Casey, 518 U.S. 343, 351 (1996). lnstead, prison officials

must provide inmates with “meaningful access to the courts,” Bounds, 430 U.S.' at 824,

and providing a law library is merely one way to comply with this obligation. See Bear

v. Fayram, 650 F.3d 1120, 1123 (8th Cir. 2011) (holding that the constitutional

requirement of access to the courts may be satisfied in a number of ways including

prison libraries, jailhouse lawyers, private lawyers on contract with the prison, or some

combination of these and other methods).

An inmate has no standing to pursue a iack-of-access claim unless he can

demonstrate that he suffered prejudice or actual injury as a result of prison officials’

conduct. See Lewis, 518 U.S. at 351-2; see also Farver v. Vilches, 155 F.3d 978, 979-

980 (8th Cir.1998) (per curiam); K/inger v. Dep't of Corr., 107 F.3d 609, 617 (8th Cir.1997)

(to prevail on access-to-courts claim, inmate must show actual injury or prejudice even if

denial of access to library is complete and systematic). Thus, “[t]o prove a violation of the

right of meaningful access to the courts, a prisoner must establish the state has not

provided an opportunity to litigate a claim challenging the prisoner's sentence or conditions

of confinement in a court of law, which resulted in actual injury, that is, the hindrance of a

nonfrivolous and arguably meritorious underlying legal claim.”’ Hartsfie'ld v; Nichols, 511

F.3d 826, 831 (8th Cir. 2008) (citations omitted).

Plaintiff claims he was harmed due to the lack of a law library at the WCDC in the

32

following ways: (1) he was unable to participate in a Department of Human Services case

regarding the custody of his son because he did not have access to “juveniie lavl/’; (2) he

was unable to fight the civil forfeiture of his vehicle; and (3) his civil rights case Emery v.'

Hys//'p, was dismissed because of his lack of legal knowledge and lack of resources The

first two cases do not involve a challenge to his sentence or his conditions of confinement

and do not fall under the protections of Lew/'s or Bounds The civil rights case he

references Emery v. Hys/ip, et a/., Case No. 5:15-cv-05277 (W.D. Ark. Dec. 7, 2016), was

dismissed because the named defendants were public defenders who were not subject to

suit under § 1983. Library access or additional resources would not have cured this

deficiency. Additionally, the case involved alleged ethical violations of the public-defender

defendants and not complaints about Plaintiff's sentence or his conditions of confinement.

Accordingly, Plaintiff has failed to show an actual injury as to this ciaim, and the

Washington County Defendants are entitled to summaryjudgment

7. Access to the Media

Plaintiff contends he was denied access to any local, state national, or world news

while confined at the WCDC. He maintains the radio stations playing in the pod were

difficult to hear, and the programming consisted only of talk radio discussing various

viewpoints. Further, he maintains thatthe alleged reason for depriving detainees of access

to newspapers is not a sufficiently valid reason, asthere are plenty ofother materials in the

pods that could be used to clog toilets, start fires cover lights or cause fights, including

letters books legal materials, mats, and clothing.

The Washington County Defendants respond that the restriction on newspapers in

33

the general population area of the jail is based on a legitimate governmental objective

They explain that the restriction was put in place because of constant problems with

damage to the facilities caused by inmates hoarding newspapers fighting over them, or

using them to clog toilets and start fire`s. in recognition of the need to provide inmates

access to a source of news or information, the WCDC subscribed to several satellite radio

stations and played those stations during the daytime hours The stations were

intermittently changed, and the Washington County Defendants represent that the

programming provided “discussions of news topics and viewpoints.” (Doc. 98, p. 25).

Supreme Court law is well established that “[p]rison walls do not form a barrier

separating prison inmates from the protections of the Constitution.” Thornburgh v. Abbott,

490 U.S. 401 , 407 (1989). “[A] prison inmate retains those FirstAmendment rights that are

not inconsistent with his status as a prisoner or with the legitimate penological objectives

of the corrections system.” Pe// v. Procunier, 417 U.S. 817, 822 (1972). Among other

things the “Constitution protects the rights to receive information and ideas.” K/eindienst

v. Mande/, 408 U.S. 753, 762 (1972).

Prison policies impinging on inmates’ First Amendment rights are valid only if they

are reasonably related to legitimate penological interests Turner v. Saf/ey, 482 U.S. 78,

89-90 (1987); Cooper v. Schriro, 189 F.3d 781, 784 (8th Cir. 1999). “[E]ven though this

court engages in a deferential review of the administrative decisions of prison authorities

the traditional deference does not mean that courts have abdicated their duty to protect

those constitutional rights that a prisoner retains." Fortner v. Thomas, 983 F.2d1024, 1029

(11th cir. 1993).

34

in determining whether a regulation or restriction is reasonable the court employs

a balancing test that considers the following: (1) whether a rational connection exists

between the regulation and a neutral, legitimate government interest; (2) whether

alternative means exist for inmates to exercise the constitutional right at issue; (3) what '

impact the accommodation of the right would have on inmates prison personnel, and

allocation of prison resources; and (4) whether obvious easy alternatives exist. Dawson

v. Scurr, 986 F.2d 257, 260 (8th Cir. 1993) (citing Turner, 482 U.S. at 89-91).

Generally, an absolute ban on inmate access to newspapers and magazines

violates the First Amendment because it is considered an exaggerated response to

legitimate penological needs Mann v. Smith, 796 F.2d 79, 82 (5th Cir. 1986).

Furthermore a number of courts have held that prisoners have a right to receive and read

newspapers See e.g, Sizemore v. Wi//iford, 829 F.2d 608, 610 (7th Cir. 1987) (absent

restrictions based on legitimate goals of oonfinement, prison inmates retain First

Amendment right to receive and read newspapers). ' Nevertheless, certain restrictions on

access to newspapers and magazines have been recognized as valid. See Beard v.

Banks, 548 U.S. 521, 530 (2006) (prison's policy of restricting access to newspapers

magazines and photographs to inmates placed in most restrictive level of prison's long-

term segregation unit wasjustified bythe need to provide particularly difficult prisoners with

increased incentives for better prison behavior, the need to minimize the amount of

property they control in their cells and the need to ensure prison safety).

Here the Washington County Defendants rely on security and safety concerns to

support their complete ban on newspapers in the jail’s general population. According to

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Plaintiff, inmates are permitted access to books letters envelopes and numerous other

materials that could also be used to clog the plumbing or start fires in other words

inmates have access to a whole host of items that would appear to present the same

security and safety concerns as access to newspapers

“Courts have recognized the tenuousness of the connection between [a prohibition

on magazines and newspapers] and fire prevention.” Spe//man v. Hopper, 95 F. Supp. 2d

1267, 1273 (l\/l.D. Ala. 1999); see also Kincaid v. Rusk, 670 F.2d 737, 744 (7th Cir. 1982)

(“[T]he total ban on newspapers was arbitrary and unjustifiable when the two hazards

allegedly caused bythe possession of newspapers_fire damage andjammed plumbing-

could as well be caused by the sort of reading material detainees were permitted to

have.”); Payne v. Whitmore, 325 F. Supp. 1191, 1193 (N.D. Cal. 1971) (“Jail cells are

already filled with an abundance of materials quite suitable forfire starting . . . ; yet no one

suggests that cells ought to be stripped of bedding, clothing, toilet paper, writing materials,

and so on.”). Here the Washington County Defendants have submitted no supporting

evidence concerning the frequency of fires or problems with clogged plumbing_either

before the newspaper ban was put in place or after it was put in place

The Court therefore finds that there are genuine issues of material fact that preclude

summaryjudgment in the Washington County Defendants’ favor on this claim. lt is clear

that Plaintiff was denied access to newspapers and magazines While the Washington

County Defendants have asserted a legitimate penological reason for denying inmates

access to these materials, they allow inmates access to other materials that create the

same hazards they seek to avoid. There is no explanation for this contradiction in the

record.

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Additionally, although Plaintiff may have had some access to the radio, there remain

questions as to the quality of the access Did Plaintiff, for example have access to state

local, national, and world news? Or did he only have access to the opinions of individuals

offering their viewpoints on issues of the day? Further, there is a material question of fact

as to whether the radio is considered a satisfactory alternative for newspapers and

magazines in the first place See e.g., Jacklovich v. Simmons 392 F.3d 420, 431 (10th

Cir. 2004) (“Concerning the inmates’ other alternative means to exercise their First

Amendment rights, we agree that the ability to listen to the radio or watch television is not

an adequate substitute for reading newspapers and magazines.”) (citations omitted).

in considering the scope of this FirstAmendment claim, the Court finds that genuine

issues of material fact exist only as to the liability of Sheriff Helder and l\/lajor Denzer. The

summaryjudgment record contains evidence that they are the only individuals who could

potentially be responsible for putting the ban in place The remaining Washington County

Defendants are therefore entitled to summaryjudgment on this claim.

8. Medical Care

Plaintiff does not dispute that all medical decisions in the WCDC are made by Dr.

Karas or his staff. Prison officials violate a prisoner's right to medical care if their conduct

amounts to “deliberate indifference to [the prisoner's] serious medical needs.” Estelle v.

Gamble, 429 U.S. 97, 108 (1976). “Deliberate indifference” on the part of prison officials

requires a “sufficiently culpable state of mind." Farmer \`/. Brennan, 511 U.S. 825, 834

(1994). "[T]he prisoner must show more than negligence more even than gross

negligence and mere disagreementwith treatment decisions does not give rise to the level

37

of a constitutional violation. Deliberate indifference is akin to criminal recklessness which

demands more than negligent misconduct.” Popoa//'i v. Corr. Med. Servs, 512 F.3d 488,

499 (8th Cir. 2008) (internal quotation marks and citations omitted).

The first medical claim Plaintiff makes concerns his diet. The Court cross-

references the previous discussion in this Opinion concerning Plaintiff’s Bl\/ll, see supra

Section lll.A.3, in which it noted that at the time Plaintiff entered WCDC custody, his Bl\/ll

of 32 was considered “obese” and his final Bl\/ll of 27 once he left the facility was still

considered “overweight.” See https://www.nhlbi.nih.gov/health/educational/lose_wt/

risk.htm (accessed January 11, 2018). Accordingly, any medical requests he might have

made for extra portions of food or a special.diet were properly denied by the medical staff.

There is no dispute that the staff monitored Plaintiff’s weight routinely, and that Plaintiff

never dropped below a medically acceptable healthy weight during his time at the WCDC.

Therefore, there is no genuine material dispute of fact that Plaintiff’s weight loss amounted

to a serious medical need, and this claim will be dismissed

Plaintiff also claims that the medical staff were deliberately indifferent to his serious

medical condition of high blood pressure when they intentionally caused delay in

administering his medication. The evidence is undisputed that the nursing staff verified his

blood pressure prescriptions on the same day he was booked in the jail, and the doctor

cleared him to begin receiving two blood pressure medications the following day. Even if

the Court assumes Plaintiff is right and there were a handful of days in which his blood

pressure medication failed to appear on the medical cart, he has failed to set forth any

facts to show that he suffered an actual injury as a result, or that the omissions were

intentional, ratherthan negligent. See Holden v. Hirner, 663 F. 3d 336, 342 (8th Cir. 2011)

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(“A prisoner alleging a delay in treatment must present verifying medical evidence that the

prison officials ignored an acute or escalating situation or that [these] delays adversely

affected his prognosis”) (internal quotation marks and.citation omitted).9 l

Plaintiff’s final medical claim concerns his detoxification from methamphetamine

The evidence is undisputed that jail and medical officials were made aware on the day of

initial booking that he had been taking methamphetamine and opioids for a long period of

time and would be detoxifying off those drugs while in the WCDC. See Doc. 99-3, p. 9.

The jail medical logs note that during the five-day detox period, Plaintiff reported shaking,

not feeling well, feeling sick to his stomach, sweating, and headaches (Doc. 99-3, pp. 56-

57). He was given Naproxen for pain. lt appears Plaintiff believes some other medical

treatment should have been prescribed while he was in detox, though the Court is unsure

what he would suggest. The fact is that he did not suffer any medically significant or long-

term injury as a result of the jail’s medical procedures surrounding his detox. Accordingly,

there is no evidence that medical personnel were deliberately indifferent to a serious

medical need related to his detoxification. Ail medical-care claims are vdismissed

9. Qualified immunity

The only substantive claims that will survive summary judgment are the individual-

9 Plaintiff also references in a Suppiement (Doc. 83, p. 1) an incident during which he was

transported to court in a different county without his blood pressure medication. He blames

Nurse R. Walker for denying his request to take his medication with him, and Sergeant

Ake who was also present, but did nothing to help Plaintiff obtain his medication. There

is nothing in the record to suggest that Sergeant Ake had the authority to countermand a

decision made by a nurse so he is not liable for this claim. As for Nurse Walker, Plaintiff

failed to present any medical evidence that he suffered a detrimental health effect as a

result of not receiving his blood pressure medication. She is also not liable forthis claim.

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and official-capacity claims against Sheriff Helder and l\/lajor Denzer, regarding Plaintiff’s

alleged denial of access to local, state and world news The Court now addresses

whether either Defendant may be entitled to qualified immunity as to one or both of the

claims against them. v 9

“Government officials performing discretionaryfunctions, generally are shielded from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” Har/ow

v. Fitzgera/d, 457 U.S. 800, 818 (1982). “The qualified immunity standard ‘gives ample

room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who

knowingly violate the law.”’ Hunter v. Bryant, 502 U.S. 224, ('1991) (quoting Malley v.

Br/'ggs, 475 U.S. 335, 343, 341 (1986)). This inquiry is normally one of pure iaw. J.H.H.

v. O'Hara, 878 F.2d 240 (8th Cir. 1989).

To survive a summaryjudgment motion on qualified immunity grounds a plaintiff

must establish there is a genuine issue of material fact as to whether the defendants

violated his clearly established constitutional rights. Habiger v. Fargo, 80 F.3d 289 (8th

Cir. 1996). As noted earlier, the Constitution “protects the rights [of inmates] to receive

information and ideas.” K/eind/'enst v. Mandel, 408 U.S. 753, 762 (1972). Absent

restrictions based on legitimate goals of confinement, prison inmates retain their First

Amendment right to read newspapers The law is clearly established that an absolute ban

on newspapers is upheld only under limited circumstances See e.g., Hutchings v. Corum,

501 F. Supp. 1276, 1299 (W.D. l\/lo. 1980) (absolute denial of access to newspapers

violates inmates’ First Amendment guarantees); Hall v. Phillips, 2005 WL 3783651, at *7

_40

(W.D. Ark. Nov. 22, 2005), adopted by 2005 WL 37989233, at *1 (W.D. Ark. Dec. 14,

2005)

As discussed above Plaintiff contends that he had no access to local, state

national, or world news while housed in the general population of the WCDC. He further

maintains that the radio stations selected by the WCDC were difficult to hear and only

provided opinion or viewpoint discussions and not news reports He has therefore alleged

a genuine issue of material fact that Sheriff Helder and Major Denzer violated a clearly

established constitutional right. Qualified immunity on Plaintiff's First Amendment news

media claim is denied.

10. Official-Capacity Liability

With respect to the official-capacity claims they are “functionally equivalent to a suit

against the employing governmental entity.” Veatch v. Barte/s Lutheran Home 627 F.3d

1254, 1257 (8th Cir. 2010). in other words, the official-capacity claims are treated as

claims against Washington County. See Murray v. Lene, 595 F.3d 868, 873 (8th Cir.

2010)

“[l]t is well established that a municipality cannot be held liable on a respondeat

superior theory, that is, solely because it employs a tortfeasor.” Atkinson v. City of

Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). To establish Washington

County’s liability under § 1983, “plaintiff must show that a constitutional violation was

committed pursuant to an official custom, policy, or practice of the governmental entity.”

Moy/e v. Anderson, 571 F.3d 814, 817 (8th Cir. 2009) (citation omitted). The applicable

law has been summarized as follows:

41

There are two basic circumstances under which municipal liability will attach:

(1) where a particular municipal policy or custom itself violates federal law,

or directs an employee to do so; and (2) where a facially lawful municipal

policy or custom was adopted with “deliberate indifference” to its known or

obvious consequences Seymour v. City of Des Moines, 519 F.3d 790, 800

(8th Cir. 2008). There need not be a finding that a municipal employee is

liable in his or her individual capacity before municipal liability can attach.

Speer v. City of Wynne 276 F.3d 980 (8th Cir. 2002); Parrish v. Luckie 963

F.2d 201, 207 (8th Cir. 1992) (“A public entity or supervisory official may be

held liable under § 1983 even though no government individuals were

personally liable.”). Where an official policy is itself unconstitutional or directs

employees to take unconstitutional action, no evidence beyond a statement

of the policy and its exercise is necessary to establish § 1983 liability. Szab/a

v. City of Brook/yn Park, 486 F.3d 385, 389-90 (8th Cir. 2007).

/d. at 817-18.

Here the only official-capacity liability claim that remains at issue concerns the

WCDC's news media policy. lt is undisputed that Plaintiff did not have access to

newspapers or other written media, and the Court has determined that a genuine material

dispute of fact exists as to whether this policy implemented by the County was

unconstitutional. With respect to Plaintiff’s other claims however, he has failed to show

the existence of any unconstitutional custom or policy. Therefore, the Washi.ngton County

Defendants are entitled to summaryjudgment on all official-capacity claims except for the

First Amendment newspaper and news media claim,.

|V. CONCLUS|ON

For the reasons stated above lT |S ORDERED that the l\/lotion for Summary

Judgment filed by the Aramark Defendants (Doc. 88) is GRANTED, All claims against

Aramark Correctional Services, LLC, Tommy Roark, Tina Webb, Jessie England, and

Carla Cink, under 42 U.S.C. § 1983, are D|SMlSSED WlTH PREJUD|CE, with the

42

exception of Plaintiff’s state law claim arising under the Arkansas Deceptive Trade

Practices Act. 28 U.S.C. § 1367(c)(1). The Court declines to retain supplemental

jurisdiction over Arkansas Deceptive Trade Practices Act claim, and it is therefore

DlSMlSSED WlTHOUT PREJUD|CE.

lT lS FURTHER ORDERED that the l\/lotion for Summary Judgment filed by the

Washington County Defendants (Doc. 97) is GRANTED lN PART AND DEN|ED lN PART.

Specifically, the l\/lotion is GRANTED with respect to the following § 1983 claims; the

inadequate diet claim; the inadequate grievance procedure claim; the housing classification

claim; the access to the courts claim; and the denial of adequate medical care claim.

These claims are DlSMlSSED WlTH PREJUD|CE. The Court declines to exercise

supplemental jurisdiction over the claim arising under the Arkansas Deceptive Trade

Practices Act, 28 U.S.C. § 1367(c)(1), and it is DlSMlSSED WlTHOUT PREJUD|CE. The

l\/lotion is DEN|ED as to Plaintiff’s First Amendment claim involving access to newspapers

and news media, against Sheriff Helder and l\/lajor Denzer in their individual and official

capacities This claim will be preserved for trial.

The Court intends to issue a final scheduling order and set a trial date in the near

future

|T lS SO ORDERED on this 5 ' day of February, 2018.

?Y€’ Li5;z/”ooks

//uNi EDétKTEs DlsTRicT JuDeE

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