Solomon v. Campbell

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

CLIFTON ORLANDO SOLOMON PLAINTIFF

v. Civil No. 4:18-cv-04001

OFFICER CAMPBELL, Miller County

Detention Center (“MCDC”); SERGEANT

SANDERS, MCDC; WARDEN WALKER,

MCDC; SERGEANT GRIFFIE, MCDC; and

OFFICER HENSLEY, MCDC DEFENDANTS

MEMORANDUM OPINION

This is a civil rights action filed pro se by Plaintiff, Clifton Orlando Solomon, under 42

U.S.C. § 1983. Before the Court is a Motion for Summary Judgment filed by Plaintiff (ECF No.

77) and a Motion for Summary Judgment filed by Defendants. (ECF No. 83). Plaintiff and

Defendants have filed Responses (ECF Nos. 88, 90). Defendants have filed a Reply to Plaintiff’s

Response. (ECF No. 94). The Court finds this matter ripe for consideration.

I. BACKROUND

Plaintiff is currently incarcerated in the Arkansas Department of Correction—Ester Unit.

His claims in this action arise from alleged incidents that occurred between December 2017 and

April 2018, while he was incarcerated in the Miller County Detention Center (“MCDC”) as a pre-

trial detainee. (ECF No. 1, p. 3). Viewed in the light most favorable to Plaintiff, the relevant facts

are as follows.

Plaintiff was booked into the custody of the MCDC on November 24, 2017. (ECF No. 85-

2, p. 1). Between December 6 and December 22, 2017, Plaintiff submitted five grievances

complaining that Officer Campbell made a verbal threat against him on December 5, 2017, when

Officer Campbell stated that he “would get [Plaintiff] when [Plaintiff] get out.” (ECF No. 85, pp.

1-3). Because of this threat, Plaintiff feared for his life and wanted to file criminal charges against

Officer Campbell. Id. On December 8, 2017, Corporal Richard Henderson submitted a

Supervisor Statement regarding the incident. (ECF No. 85-5, p. 1). This report stated in part that

Officer Campbell reported “multiple inmates were making comments to him like (you may not

always be an officer) or (bet you wouldn’t act so tuff if I saw you in the world) so Officer Campbell

said he responded with (that is fine I’ll see you on the outside some time).” Id. On December 29,

2017, Jeffie Walker, the Warden at the MCDC, officially reprimanded Officer Campbell because

of his “use of offensive words or actions” toward Plaintiff. (ECF No. 85-2, p. 2).

On January 31, 2018, Plaintiff was moved to the recreation yard, along with the other

inmates housed in Max D (general population), because Max D had been cleaned with bleach and

the inmates claimed the smell was too strong. According to the affidavit of Warden Walker,

Plaintiff began using loud and disrespectful language towards her in the recreation yard. (ECF

No. 85-7, p. 1). Because Plaintiff was so disruptive, Warden Walker determined there was a safety

and security risk that the other inmates could be incited by Plaintiff’s actions. She then moved

Plaintiff to Max E and placed him in administrative segregation for a “cooling down period.” Id.

Plaintiff did not receive notice of any disciplinary charges against him after he was moved to Max

E. Plaintiff was returned to general population on February 7, 2018. Id. During the seven days

Plaintiff was in Max E, he was allowed out of his cell for one hour each day. He was also provided

access to the shower, phone, and kiosk. (ECF No. 94-2).

On or about March 18, 2018, Defendant Walker opened a piece of Plaintiff’s legal mail

outside of his presence. (ECF No. 85-7, p. 2). Once Plaintiff noticed that his legal mail had been

opened, he questioned MCDC officials about who was responsible. Warden Walker met with

Plaintiff on March 20, 2018 and explained she had opened the mail by mistake but did not view

the contents of the mail. (ECF No. 85-7, p. 2).

On April 17, 2018, Officer Hensley submitted a report regarding an incident involving

Plaintiff which states in relevant part:

On said date and time, I noticed an extra tray become missing on the tray cart after

chow. I then reviewed the cameras and noticed Inmate Clifton Solomon come back

around the end of the line and grab another tray. I then wet to Max Delta in an

attempt to move Solomon to a lock-down cell pending disciplinary. After multiple

orders, Solomon continued to demand ‘rank’ and it wasn’t until other officers

arrived that Solomon finally grabbed his belongings and was escorted to Max Echo.

Once in Max Echo and a supervisor present, Solomon continued ignoring lawful

orders to get into his cell and demand a higher supervisor. Solomon finally

complied after a show of force with OC Spray…I also wrote Solomon up for lying

due to the fact that he stated I told him he could have the tray when in fact I did not.

(ECF No. 85-5, p. 8). On April 23, 2018, Plaintiff was served with a Discipline Procedure and

Notice Form, based on the incident involving Plaintiff and Defendant Hensley. (ECF No. 85-5, p.

9). On April 26, 2018, a hearing was held and the charges against Plaintiff were dismissed by the

MCDC’s Disciplinary Committee. Plaintiff declined to call witnesses during the hearing but

submitted a statement in support of his position. (ECF No. 85-5, pp. 10-11).

The MCDC’s policy and procedure manual regarding disciplinary action for in-house

violations by inmates provides in relevant part:

2. Any violation of the rules and regulations that the deputy deems warrants more

than a verbal reprimand, will be documented on an Inmate Disciplinary Action

Form to generate disciplinary action against an inmate.

3. The Inmate Disciplinary Action Form shall have the inmate’s name, CCN

number, offense that occurred in detail, and deputy signature.

4. Along with the Inmate Disciplinary Action Form, an incident report shall be

generated and forwarded to the shift supervisor for a hearing.

5. Shift supervisor will forward the disciplinary action form, incident form and

action taken to the Lieutenant for review and final disposition within twenty-four

(24) hours of the incident.

6. The Detention Administrator or designee will then review all disciplinary action

taken . . . .

(ECF No. 85-6, pp. 9-10).

Plaintiff filed his Complaint on January 4, 2018, naming Captain Adams, Officer

Campbell, Corporal Henderson, Sheriff Jackie Runion, Sergeant Sanders and Warden Walker as

Defendants. (ECF No. 1). He alleges Defendant Campbell violated his civil rights when he made

a verbal threat against him stating “he was going to get me when I got out as well as he stated: I

put that on my kids.” Id. at p. 4. Plaintiff also claims that Defendants violated his constitutional

rights because they did not file or assist Plaintiff in filing criminal charges against Defendant

Campbell for verbally threatening Plaintiff.

On March 19, 2018, Plaintiff supplemented his Complaint adding Sergeant Griffie as a

Defendant and again naming Warden Walker as a Defendant. In the Supplement Plaintiff alleges

his constitutional rights were violated when he was placed in lockdown from January 31, 2018,

until February 7, 2018, without receiving a disciplinary report or hearing. (ECF No. 17).

On April 2, 2018, Plaintiff supplemented his Complaint alleging Defendant Walker

violated his civil rights when she opened his legal mail when he was not present. (ECF No. 22).

On May 10, 2018, Plaintiff’s supplemented his Complaint alleging Defendant Hensley

violated his constitutional right to due process when he:

. . . made other false statement in disciplinary report. Officer Hensley put me in

disciplinary segregation on 4-17-18 which is an improper procedure and a violation

of due process due to the fact that I have been in Max-E and my privileges of

visitation and commissary were taken by Officer Hensley not the disciplinary

committee, this also is an improper procedure. Disciplinary segregation may only

occur after finding of a violation at an impartial hearing. At this time to days date

is 4-23-18 and I have not been to a disciplinary hearing.

(ECF No. 35, p. 22).

On June 13, 2018, Plaintiff filed a fifth motion to supplement his Complaint asserting a

claim for retaliation against Defendants Walker and Griffie. (ECF No. 59). Plaintiff alleges these

Defendants placed him in disciplinary segregation on January 31, 2018, in retaliation for Plaintiff’s

filing of the instant lawsuit against Defendant Campbell. On July 3, 2018, the Court granted

Plaintiff’s motion to supplement his Complaint. (ECF No. 68).

Plaintiff is suing Defendants in their official and individual capacities and seeks

compensatory and punitive damages. He also states, “I wish to have Officer Campbell removed

from the Miller County Staff as well as his job.” (ECF No. 1, p. 7).

On October 12, 2018, Plaintiff filed a Motion for Summary Judgment arguing he is entitled

to judgment on his claims as a matter of law against Defendants Campbell, Walker, Griffie and

Hensley.1 (ECF No. 77). On October 29, 2018, Defendants filed their Motion for Summary

Judgment arguing they are entitled to summary judgment because: 1) verbal threats made by

Defendant Campbell are not actionable under § 1983; 2) there is no constitutional right to press

criminal charges; 3) there was no improper search or seizure of Plaintiff’s legal mail; 4) Plaintiff

was afforded his right to due process; 5) Plaintiff has not alleged that he suffered any physical

injury as required for recovery of damages under 42 U.S.C. § 1997e(e); 6) Defendants did not

retaliate against Plaintiff; 7) Defendants are entitled to qualified immunity; and 8) there is no basis

for official capacity liability.

II. LEGAL STANDARD

Summary judgment is appropriate if, after viewing the facts and all reasonable inferences

in the light most favorable to the nonmoving party, 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); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Once

1 All claims against Defendants Adams, Runion and Henderson were dismissed on June 27, 2018. (ECF No. 65).

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’l Bank of Comm. 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’l 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.” Id. (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).

III. DISCUSSION

A. Verbal Threats

Plaintiff alleges Defendant Campbell violated his constitutional rights on December 5,

2017, when he verbally threatened Plaintiff by stating that he would “get” Plaintiff when he got

out and stating that Plaintiff “put that on [his] kids.” (ECF No. 1).

“Verbal threats do not constitute a constitutional violation.” Martin v. Sargent, 780 F.2d

1334, 1339 (8th Cir. 1985). Similarly, taunts, name calling, and the use of offensive language does

not state a claim of constitutional dimension. McDowell v. Jones, 990 F.2d 433, 434 (8th Cir.

1993) (inmate’s claims of general harassment and of verbal harassment were not actionable under

§ 1983); O’Donnell v. Thomas, 826 F.2d 788, 790 (8th Cir. 1987) (verbal threats and abuse by jail

official did not rise to the level of a constitutional violation). Accordingly, Defendants are entitled

to summary judgment on Plaintiff’s claim relating to the verbal threat made by Defendant

Campbell.2

B. Failure to Institute Criminal Charges

Plaintiff alleges Defendant Walker violated his civil rights when she failed to assist

Plaintiff in filing criminal charges against Defendant Campbell. This claim is without merit.

The law is clear that victims of a crime lack any legal right to compel criminal prosecution

or institute criminal prosecution. See Hurst v. Hurst, No. 5:14-cv-05270-TLB, 2014 WL 5018827,

at *2 (W.D. Ark. September 17, 2014) (citing Diamond v. Charles, 476 U.S. 54, 64-65 (1986));

Frison v. Zebro, 339 F.3d 994, 998-1000 (8th Cir 2003) (rejecting a § 1983 claim based on police

officers’ violation of a criminal statute); In re Kaminski, 960 F.2d 1062, 1064 (D.C. Cir. 1992)

(private party lacks judicially cognizable interest in prosecution of another person). In addition,

there is no constitutional right to have law enforcement officials investigate a reported crime. See

Sheets v. Mullins, 287 F.3d 581 (6th Cir. 2002) (no due process or equal protection violation by

sheriff’s department sergeant in responding to a call reporting domestic violence). “The Due

Process Clause of the Fourteenth Amendment does not impose upon the state an affirmative duty

to protect its citizens [against illegal private acts], but rather, places limitations on affirmative state

action that denies life, liberty, or property without due process of law.” Kallstrom v. City of

Columbus, 136 F.3d 1055, 1065 (6th Cir. 1998) (citing DeShaney v. Winnebago County Dep’t of

Social Servs., 489 U.S. 189, 195 (1989)).

2 Plaintiff also argues his rights were violated because Defendant Campbell was reprimanded for behavior which

violated an MCDC policy. “[A]n internal jail policy or procedure does not create a constitutional right, nor does a

correctional official’s failure to follow such regulation rise to the level of a § 1983 claim.” Brown v. Boone Cnty., No.

5:13-cv-03065-TLB, 2014 WL 4405433, at *5 (W.D. Ark. Sept. 5, 2014) (citing Kennedy v. Blankenship, 100 F.3d

640, 643 (8th Cir. 1996)).

Accordingly, Defendants are entitled to summary judgment on this claim.

C. Opening of Plaintiff’s Legal Mail

Plaintiff alleges Defendant Walker violated his constitutional rights when she opened his

legal mail on one occasion when he was not present. This claim fails as a matter of law.

In Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997), the Eighth Circuit made clear

that it had “never held or suggested that an isolated, inadvertent instance of opening incoming

confidential mail will support a § 1983 damage action. . . . [A]n isolated incident, without any

evidence of improper motive or resulting interference with [the inmate’s] right to counsel or access

to courts, does not give rise to a constitutional violation.” Further, the seizure of a prisoner’s legal

papers by prison officials does not violate due process unless the seizure caused prejudice to the

prisoner in a legal proceeding. Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006).

Here, Plaintiff alleged a single incident where his legal mail was opened when Plaintiff

was not present. Defendant Walker submitted an affidavit stating she accidentally opened the

item, did not view the contents of the envelope, and informed Plaintiff of the mistake. (ECF No.

85-7, p. 2). In addition, Plaintiff has not alleged that he suffered prejudice in any legal proceeding

from the opening of his mail. Accordingly, Defendants are entitled to summary judgment on this

claim.

D. Due Process

Plaintiff claims he was denied procedural due process on two separate occasions when he

was moved from Max D, the general population unit, to Max E, the unit used for administrative

and punitive segregation. The first incident occurred on January 31, 2018, when Plaintiff was

placed in segregation for seven days without receiving notice of a disciplinary violation or a

hearing. The second incident occurred on April 17, 2018, when Plaintiff was put in punitive

segregation for disciplinary charges that were dismissed at a hearing held on April 26, 2018.

“In order to prevail on a Fourteenth Amendment due process claim, [the plaintiff] must

first demonstrate that he was deprived of life, liberty, or property by government action.” Phillips

v. Norris, 320 F.3d 844, 846 (8th Cir. 2003). When deciding whether an individual was afforded

procedural due process a court employs a two-step analysis. See Kentucky Dept. of Corrections v.

Thompson, 490 U.S. 454 (1989). First, the Court must determine whether the individual holds a

protected liberty or property interest. Id. If the Court finds a protected interest, the question

becomes whether the state provided sufficient due process prior to depriving that individual of the

protected interest. Id.

“To prevail on such a claim based on prison housing, an inmate must show that the

segregation created an ‘atypical and significant hardship on [him] in relation to the ordinary

incidents of prison life’ to demonstrate that his liberty interest was curtailed.” Rahman X v.

Morgan, 300 F.3d 970, 973 (8th Cir. 2002) (quoting Sandin v. Conner, 515 U.S. 472,484 (1995)).

An inmate’s liberty interests are limited to the nature of confinement and do not extend to

procedural rules imposed by the state. See Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir.

1996) (“If [the plaintiff] has a liberty interest, it is an interest in the nature of his confinement, not

an interest in the procedures by which the state believes it can best determine how he should be

confined.”); see also Swenson v. Trickey, 995 F.2d 132, 134 (8th Cir. 1993) (holding that

“[p]rocedural guidelines, such as a mandatory hearing, are not enough to create a liberty interest”).

1. January 31, 2018 segregation

The record reflects that Plaintiff was placed in the Max E area of the MCDC on January

31, 2018 after Plaintiff began speaking loudly and using disrespectful language towards Defendant

Walker in the recreation yard. According to the affidavit of Defendant Walker, Plaintiff became

so disruptive that she determined it was a safety and security risk and that other inmates might

possibly be incited by Plaintiff’s actions. Plaintiff remained in Max E until February 7, 2018,

when he was returned to the general population. During the seven days he was in Max E, Plaintiff

was permitted to be out of his cell for one hour each day. He was also allowed to shower, make

phone calls, and use the kiosk.

The Court finds Plaintiff has failed to establish that any liberty interest was curtailed which

would necessitate procedural due process while he was placed in segregation between January 31,

2018 and February 7, 2018. As previously stated, a prisoner has a liberty interest in freedom from

restraints that impose atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life. Here, the short amount of time Plaintiff spent in segregation combined

with the conditions of his confinement (an hour out of his cell each day, shower usage, access to

the phone and kiosk) demonstrate he was not subjected to any significant hardship as compared to

ordinary prison life. The Eighth Circuit has held that much longer periods in administrative

segregation than that experienced by Plaintiff, with loss of privileges, does not implicate a liberty

interest triggering due process protections. See Orr v. Larkins, 610 F.3d 1032, 1034 (8th Cir.

2010) (inmate was not deprived of liberty interest during nine months in administrative

segregation); Rahman X, 300 F.3d at 974 (inmate’s placement in administrative segregation for

twenty-six months without a disciplinary charge or conviction and during which inmate could not

watch television in his cell did not “demonstrate that his liberty interest was curtailed”); and

Furlough v. Brandon, 2009 WL 4898418 (E.D. Ark. Dec. 15, 2009) (inmate plaintiff failed to state

a due process claim after being assigned to administrative segregation for nearly nine months). Cf.

Williams v. Hobbs, 662 F.3d 994, 998 (8th Cir 2011) (concluding that 12-year confinement in

administrative segregation triggered a liberty interest entitled to due process protection).

For these reasons, Defendants are entitled to summary judgment on Plaintiff’s due process

claim based on the segregation from January 31, 2018 until February 7, 2018.

2. April 17, 2018 Punitive Segregation

On April 17, 2018, Defendant Hensley accused Plaintiff of stealing a food tray. Plaintiff

was placed in Max E pending the discipline charges against him. On April 23, 2018, Plaintiff was

served with an MCDC Discipline Procedure and Notice form based on the theft allegations. On

April 26, 2018, Plaintiff’s charges were dismissed by the MCDC’s Disciplinary Committee after

the hearing officer considered all available evidence. Plaintiff claims his rights were violated

because there was a delay from the time he was put in punitive segregation and when he received

a hearing on the charges. He also claims that the dismissal of the charges against him prove

Defendant Hensley filed false charges against him which violated his constitutional rights.

First, Plaintiff has not described any conditions of his confinement during the nine (9) days

he was in punitive segregation before his hearing to demonstrate he was subjected to a dramatic

departure from the basic conditions of his confinement. Simply being placed in disciplinary

segregation is not an “atypical and significant hardship . . . in relation to the ordinary incidents of

prison life,” Sandin, 515 U.S. at 484, and thus is not the type of deprivation that creates a protected

liberty interest. See Phillips, 320 F.3d at 847 (“We have consistently held that a demotion to

segregation, even without cause, is not itself an atypical and significant hardship.”). Therefore,

Plaintiff has failed to identify any liberty interest that would require procedural due process.

Even if Plaintiff’s placement in punitive segregation for nine days infringed upon

Plaintiff’s liberty interests, the Court finds that Plaintiff was provided procedural due process in

connection with his disciplinary confinement. Once an inmate has shown he has a viable liberty

interest, correctional facilities must follow certain procedures to conduct an impartial due process

hearing on a disciplinary matter. Wolff v. McDonnell, 418 U.S. 539 (1974)). These procedures

include written notice of the charges, a brief period to prepare, a written statement of the evidence

relied on and reasons for the disciplinary action, and the ability for the inmate to call witnesses

and present documentary evidence. Id.; see also Dible v. Scholl, 506 F.3d 1106, 1110 (8th Cir.

2007).

In addition, there is no requirement under the Constitution or federal law that an inmate

must receive a disciplinary hearing within a specified period. Shannon v. Fabian, Civil No. 09-

03422, 2010 WL 1960181, at *5 (D. Minn. Mar. 8, 2010), adopted by Shannon v. Fabien, Civil

No. 09-3422, at *1 (D. Minn. May 17, 2010). The Eighth Circuit has held that procedural due

process requires that hearings must be held within a reasonable time after a prisoner is placed in

detention. See Swenson, 995 F.2d at 134 (citing Hewitt v. Helms, 459 U.S. 460, 472 (1983)). A

fifteen-day delay between the time an inmate was placed in segregation and afforded a hearing has

been held to be reasonable. See Hayes v. Lockhart, 754 F.2d 281, 283 (8th Cir. 1985).

In this case, Plaintiff was given sufficient notice of his upcoming hearing, an opportunity

to call witnesses (which he declined), and an opportunity provide a statement (which he did). The

disciplinary committee dismissed the charges against Plaintiff nine days after he was placed in

segregation and immediately returned him to general population.3

Finally, Plaintiff’s claim that Defendant Hensley filed “false” charges against him fails to

3Although Defendants failed to abide by their own procedure of providing inmates charged with a disciplinary

infraction with a hearing within forty-eight (48) hours of the incident, a state’s failure to follow its own procedural

rules does not create a federal due process violation. See Diaab v. Terry, 221 F.3d 1341 (8th Cir. 2000) (citing

Kennedy, 100 F.3d at 643 and Sandin, 515 U.S. at 486).

state a constitutional claim. See Daniels v. Ferguson, 2008 WL 698485, *9 (W.D. Ark. March 13,

2008) (“To the extent Daniels contends his Due Process rights were violated because the

disciplinary charges were fabricated or the events simply never occurred, courts have held that a

prisoner enjoys no constitutional guarantee to be free from false charges that may lead to

punishment.”) (citing Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir. 1986) and Glick v. Sargent,

696 F.2d 413, 414 (8th Cir. 1983)).

For these reasons, Defendants are entitled to summary judgment on Plaintiff’s due process

claims arising from punitive segregation in April 2018.

E. Retaliation

Plaintiff alleges Defendant Walker and Defendant Griffie retaliated against him for filing

the instant lawsuit against Defendant Campbell when she placed him in segregation on January

31, 2018. 4 Generally, “[c]onduct that retaliates against the exercise of a constitutionally protected

right is actionable, even if the conduct would have been proper if motivated by a different reason.”

Cody v. Weber, 256 F.3d 764, 771 (8th Cir. 2001) (citing Madewell v. Roberts, 909 F.2d 1203,

1206 (8th Cir. 1990)). The retaliatory conduct itself need not be a constitutional violation to be

actionable. Additionally, there is no independent injury requirement when retaliatory conduct is

involved. See Dixon v. Brown, 38 F.3d 379, 380 (8th Cir. 1994). To prevail on his retaliation

claim, Plaintiff must demonstrate: (1) he engaged in protected activity; (2) Defendants responded

with adverse action that would “‘chill a person of ordinary firmness’ from continuing in the

activity;” and (3) the adverse action was motivated at least in part by exercise of the protected

4 In his Response to Defendant’s Motion for Summary Judgment, Plaintiff states that Defendant Hensley retaliated

against him when he filed false charges against him in April 2018. (ECF No. 90, p. 5). This claim is not properly

before the Court because it was made for the first time in his response.

action. See L.L. Nelson Enterprise Inc. v. County of St. Louis, Mo., 673 F.3d 799, 807-8 (8th Cir.

2012) (quoting Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004)).

There is no question that Plaintiff engaged in protected First Amendment activity when he

filed this lawsuit. See Lewis v. Jacks, 486 F.3d 1025 (8th Cir. 2007). However, the Court finds

Plaintiff has not presented any evidence to demonstrate that Defendant Walker’s action of placing

Plaintiff in segregation on January 31, 2018, was motivated by the filing of the instant lawsuit

against Defendant Campbell. There is no evidence that Defendants Walker or Griffie knew about

the present lawsuit before the summons were issued on February 2, 2018, a few days after Plaintiff

was placed in segregation. (ECF Nos. 11, 12). In addition, Defendant Walker’s affidavit states

Plaintiff was placed into administrative segregation because Plaintiff was being disrespectful and

disruptive, and she believed his conduct created a safety concern because it could incite the other

inmates. (ECF No. 85-7, p. 1). Accordingly, Defendant Walker and Defendant Griffie are entitled

to summary judgment on Plaintiff’s claim of retaliation.

F. Official Capacity Claims

Plaintiff also sued Defendants in their official capacity. Official capacity claims are

“functionally equivalent to a suit against the employing governmental entity.” Veatch v. Bartels

Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). In this case, Plaintiff’s official capacity

claims against Defendants are treated as claims against Miller County. See Murray v. Lene, 595

F.3d 868, 873 (8th Cir. 2010).

“[I]t is well established that a municipality [or county] 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 Miller County’s liability

under section 1983, “plaintiff must show that a constitutional violation was committed pursuant to

an official custom, policy, or practice of the governmental entity.” Moyle v. Anderson, 571 F.3d

814, 817 (8th Cir. 2009) (citation omitted). Here, Plaintiff has failed to produce any summary

judgment evidence of a policy or custom of Miller County that contributed to the alleged violation

of Plaintiff’s constitutional rights. Accordingly, Plaintiff’s claims against Defendants in their

official capacity fail as a matter of law.5

IV. CONCLUSION

For the reasons stated above, Plaintiff’s Motion for Summary Judgment (ECF No. 77) is

DENIED and Defendants’ Motion for Summary Judgment (ECF No. 83) is GRANTED.

Plaintiff’s claims against all Defendants are DISMISSED WITH PREJUDICE. A judgment of

even date shall issue.

IT IS SO ORDERED, this 26th day of February, 2019.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge

5 Because there was no violation of Plaintiff’s constitutional rights, it is unnecessary for the Court to address the

issue of qualified immunity.