# Choate v. Runion

> District Court, W.D. Arkansas · September 11, 2023

URL: https://www.frixlaw.com/law-library/cases/10012379

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** September 11, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- explaining inadmissible evidence may not be used to defeat summary judgment

## Opinion text

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

WILLIAM CLAYTON CHOATE PLAINTIFF

v. Civil No. 4:20-cv-04109-BAB

SHERIFF JACKIE RUNION;
CAPTAIN GOLDEN ADAMS;
NURSE STEPHEN KING; WARDEN
JEFFIE WALKER; DR. KEVIN MCCAIN;
and AL LANDRETH DEFENDANTS

MEMORANDUM OPINION

This is a civil rights action filed pro se by Plaintiff, William Clayton Choate, under 42
U.S.C. § 1983. On February 10, 2021, the parties consented to have the undersigned conduct all
proceedings in this case including a jury or nonjury trial and to order the entry of a final judgment
in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (ECF No. 16).
Plaintiff names as Defendants Sheriff Jackie Runion, Captain Golden Adams, Nurse
Stephen King, Warden Jeffie Walker, Dr. Kevin McCann,1 and Al Landreth. Plaintiff claims
Defendants violated his constitutional rights in both their individual capacities as well as official
capacities. Currently before the Court, is Defendants, Sheriff Jackie Runion, Captain Golden
Adams, Warden Jeffie Walker, and Al Landreth’s (hereinafter “County Defendants”) second
Motion for Summary Judgment.2 (ECF No. 176). Plaintiff has filed a Response (ECF No. 187).

1  Defendant McCann is incorrectly identified in the case caption as Dr. Kevin McCain.
2  Defendants Nurse Stephen King and Dr. Kevin McCann have filed a separate second Motion for
Summary Judgment, and that Motion was addressed by separate Opinion. (ECF No. 189).
I. FACTUAL BACKGROUND
Plaintiff is currently incarcerated in the Arkansas Department of Corrections Texarkana
Regional Correction Center in Texarkana, Arkansas. His claims in this action arose while he was
housed in the Miller County Detention Center (“MCDC”) in Texarkana, Arkansas.
At all times relevant to Plaintiff’s claims Defendant Walker was the Warden at the MCDC,

Defendant Runion was the Sheriff of Miller County, Arkansas, Defendant Adams was a Captain
at the MCDC, and Defendant Landreth was the Jail Administrator at the MCDC. (ECF No. 154,
p. 2).
On March 7, 2020, Plaintiff was booked into the custody of the MCDC. (ECF No. 176-2,
p. 1). Plaintiff was convicted on August 6, 2020, (ECF No. 1, p. 4), and later transferred to the
Arkansas Department of Corrections.
On March 23, 2020, the MCDC promulgated the Standard Operating Procedure 05.00
Pandemic and Public Health Emergency (“SOP”). The purpose of the SOP was to establish
specific MCDC pandemic and public health emergency planning, response, and operational

procedures. The SOP applied to all MCDC staff and set out guidance for: the use of Personal
Protective Equipment (“PPE”); isolation and quarantine of inmates; screening of inmates, staff,
and persons entering the MCDC; cleaning and disinfecting the MCDC; reducing the population of
the MCDC; and many other topics related to limiting the transmission of COVID-19. (ECF No.
176-1, pp. 1-9).
The SOP also enumerated Phases of response to the COVID-19 pandemic. The phases
were to be implemented depending on the status of the pandemic and the need for additional
precautionary policies and procedures. Phase One was implemented on April 30, 2020. Phase
Two was implemented on June 1, 2020. Phase One was reactivated on June 17, 2020. Phase Two
was reactivated on September 11, 2020. (ECF No. 176-1, pp. 12-17).
The MCDC had an extensive policy for isolation and quarantine of individuals showing
symptoms of COVID-19 or that tested positive for COVID-19. (ECF No. 176, p. 10). In his
Affidavit, Defendant Walker stated the MCDC did experience issues with isolation and

quarantining due to the space limitations within the MCDC. (ECF No. 176-2, p. 4). Plaintiff does
not dispute the fact that the finite space available made isolation difficult in the MCDC. (ECF No.
187, p. 5).
In Plaintiff’s current Response he disputes whether supply chain issues caused a lack of
available PPE for the MCDC. (ECF Nos. 178, p. 4; 187, p. 6). In previous responses to separate
Medical Defendants’ second Motion for Summary Judgment, Plaintiff admitted this fact. (ECF
No. 173).
The MCDC had a contract with Southern Health Partners, Inc. (“SHP”) to provide health
services to the inmates and the MCDC staff relied upon the SHP staff for all medical services.

(ECF No. 176-2, p. 1). The parties dispute whether SHP and MCDC coordinated training for all
staff on the SOP. (ECF No. 187, pp. 4-5). Specifically, Plaintiff claims County Defendants did
not train or coordinate training on the SOP because nurses were allowed to pass medications
without gloves, and County Defendants failed to supervise MCDC staff and enforce proper use of
PPE. Id.
It is undisputed that Plaintiff exhibited symptoms of COVID-19 as early as June 22, 2020,
and his infection of COVID-19 was later confirmed by testing on July 1, 2020. (ECF No. 153).
It is also undisputed, the MCDC’s COVID-19 policies and procedures were based on the
evolving medical science as it was understood at the time. Further, Plaintiff does not dispute
Defendant Walker’s statement that the policies and procedures represented a good-faith effort to
limit the spread of the COVID-19 virus within the MCDC. (ECF Nos. 178, p. 3; 187, p. 4).
Defendant Walker testifies in his Affidavit:
As part of the MCDC [SOP], all members of the [MCDC] were trained. As the phases
changed, the staff continued to be trained on updates and the evolving science. This
included training on screening staff and inmates for symptoms of the COVID-19, for
proper wearing of PPE including masks and gloves, isolating, and social distancing.
…
If a member of the staff was not in compliance with a policy, they were verbally counseled
on the policy and procedures and shown how to be in compliance. I am not aware of any
staff member who continually and deliberately ignored the policy and procedures. MCDC
employees were provided a copy of the COVID policies and procedures. Supervisors were
explained the policies and procedures and explained them to the jail staff. At shift change,
briefings would include any changes to protocol as a result of COVID-19. Administrators,
Captains, and the Warden were available to answer questions.

All inmates were given cleaning supplies on a daily basis to allow them to clean their cells
and mats. During COVID-19, this included cleaning supplies that had bleach in them.

(ECF No. 176-2). Plaintiff disputes each of these statements by Walker in his sworn affidavit.
(ECF No. 187). Specifically, Plaintiff testifies MCDC staff stopped wearing PPE in May 2020,
inmates were not provided masks, and in June 2020 he was not provided bleach to clean his living
area. Id.
Defendant Walker also testified that all testing and contact tracing of COVID-19 was
performed by the Arkansas Department of Health (“ADH”). Plaintiff disputes this fact in his
Response here, however, in his response to separate Medical Defendants’ second Motion for
Summary Judgment, Plaintiff admits this fact. (ECF No. 173).
On December 19, 2020, a mentally ill inmate3 was moved into the Max Echo pod where
Plaintiff was housed, and this inmate was housed in that pod for over thirty days. (ECF No. 14, p.

3  While the allegedly mental ill inmate is named numerous times by Plaintiff on the record in this
matter, the Court finds it unnecessary to include his name herein. Accordingly, he will be referred
to throughout this Opinion as the “mentally ill inmate.”  The Court notes it has no evidence to
6). During this time, the mentally ill inmate banged on his cell door, screamed, and constantly
made noises. Id. He also caused his urine and feces to leak from his cell into the pod dayroom.
Id. Plaintiff was unable to sleep during the duration of the mentally ill inmate’s housing in Max
Echo pod. Id. The parties do not dispute these facts.
II. PROCEDURAL BACKROUND

Plaintiff filed his initial Complaint on December 22, 2020. (ECF No. 1). Subsequently,
Plaintiff filed three additional Motions to Supplement his Complaint. (ECF Nos. 14, 17, 18). The
Court granted these Motions to Supplement and directed the Motions be filed as Supplements on
the docket sheet. (ECF Nos. 19-21).
On October 7, 2021, Plaintiff filed an additional Motion to Supplement Complaint. (ECF
No. 77). In this Motion to Supplement, Plaintiff requested leave to supplement his complaint with

an additional claim of failure to train or supervise, and one new Defendant, SHP. Id. This Motion
was the first time Plaintiff asserted a failure to train or supervise claim in this matter. The Court
addressed this Motion to Supplement along with discovery matters at a status conference on
November 2, 2021. (ECF No. 80). On November 3, 2021, the Court entered an Order addressing
issues raised at the status conference. (ECF No. 88). In this Order, the Court granted Plaintiff
leave to supplement his Complaint by adding the claim of failure to train or supervise but denied
his addition of SHP as a Defendant. Id. However, the Court did not provide any specific direction
to the Plaintiff to file a Supplement to his Complaint, and no such filing was made. Id.
Accordingly, the Court will consider the Motion to Supplement filed on October 7, 2021 at
Document Number 77 as the Supplement to Plaintiff’s Complaint.

establish this inmate was in fact mentally ill, however, it assumes arguendo for the purposes of
this Opinion since the parties do not dispute this fact.
In this Supplement filed on October 7, 2021, Plaintiff asserts the claim presently at issue.
Plaintiff’s “Claim 8” is a failure to train or supervise claim alleged against the County Defendants.
(ECF No. 77). Plaintiff alleges County Defendants failed to train or supervise on many issues: (1)
inadequate social distancing to prevent the spread of COVID-19; (2) inadequate use of PPE to
prevent spread of COVID-19; (3) COVID-19 positive staff working with symptoms; (4)

inadequate sanitation of the MCDC to prevent the spread of COVID-19; (5) inadequate testing for
COVID-19 and contact tracing positive cases; (6) inadequate quarantining and isolating inmates
to prevent the spread of COVID-19; (7) inappropriate housing of mentally ill inmates; and (8)
banning of newspapers. (ECF No. 77, pp. 5-10).
On March 8, 2023, the County Defendants, filed their first Motion for Summary Judgment
with accompanying Brief and Statement of Facts. (ECF Nos. 118, 119, 120). On August 16, 2022,

the Court issued a Memorandum Opinion granting in part and denying in part the County
Defendants’ Motion for Summary Judgment. (ECF No. 154). However, the Court failed to
address Plaintiff’s failure to train or supervise claim against those County Defendants. Id.
On November 14, 2022, Plaintiff filed a Motion for Information/Relief. (ECF No. 160).
In this Motion, Plaintiff requested information on why his claim for failure to train or supervise
was not addressed on summary judgment. Id. The Court construed this Motion as a Motion to
Reconsider its Order on the County Defendants’ first Motion for Summary Judgment.

On December 22, 2022, the Court granted Plaintiff’s Motion for Reconsideration. In this
Order, the Court: (1) reinstated any previously dismissed County Defendants in this matter; and
(2) granted leave to the County Defendants to file a second motion for summary judgment, if they
so wished, for the specific purpose of addressing Plaintiff’s failure to train claim against them.
(ECF No. 165).
On February 20, 2023, the County Defendants filed their second Motion for Summary
Judgment, Brief in Support, and Statement of Facts. (ECF Nos. 176, 177, 178). In their second
Motion for Summary Judgment, County Defendants argue: (1) Plaintiff’s failure to train or
supervise claim should be dismissed for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6); (2) Plaintiff’s failure to train and supervise claim is moot; (3) Plaintiff has

failed to show any deliberate indifference to his health care; (4) Defendant Runion cannot be liable
based on a theory of respondeat superior; (5) Plaintiff has not met proof with proof or established
any genuine issues of material fact; and (6) if the Court finds any constitutional violations, all
County Defendants are entitled to qualified immunity on such violations. (ECF No. 177).
Plaintiff filed a Response to the County Defendants’ second Motion for Summary
Judgment with incorporated Brief in Support and a Statement of Facts. (ECF No. 187). In his

Response, Plaintiff notes he claimed that County Defendants failed to train or supervise related to
COVID-19 issues as well as his exposure to a mentally ill inmate. (ECF No. 187, p. 6). County
Defendants did not address Plaintiff’s failure to train or supervise claim relating to the mentally ill
inmate in their second Motion for Summary Judgment. Id. Plaintiff argues County Defendants
were responsible for enforcing the mentally ill inmate housing policy and procedure and their
failure to do so tacitly authorized the inappropriate placement of the mentally ill inmate in
Plaintiff’s housing pod. Id. Plaintiff goes on to argue, Defendants Runion, Walker, and Adams
are policy making officials for the MCDC and failed to meet their responsibility of enforcing,
training, or supervising regarding the COVID-19 policy and procedures. Id. at 14.

The County Defendants did not file a Reply to Plaintiff’s Response.
III. LEGAL STANDARD
As an initial matter, County Defendants argue Plaintiff has failed to state any claim upon
which relief may be granted, and his Claim 84 should be dismissed pursuant to Federal Rule of
Procedure 12(b)(6). Federal Rule of Civil Procedure 12(b)(6) is a pre-answer motion rule. Fed.
R. Civ. P. 12(b)(6); Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). Further, Rule

12(b)(6) motions are decided on the pleadings alone. Fed. R. Civ. P. 12. When matters outside
the pleadings are presented and considered by the Court, such a motion must be converted to one
for summary judgment. Hamm v. Rhone-Poulenc Rorer Pharmaceuticals, Inc., 187 F.3d 941, 948
(8th Cir. 1999). Additionally, County Defendants have titled their motion as one for summary
judgment, they have also included the legal standard for summary judgment, and they have
attached supporting evidence with matters outside the pleadings. Accordingly, the Court will
apply the legal standard of summary judgment under Federal Rule of Civil Procedure 56 and not
the standard for a motion to dismiss under Rule 12.

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
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

4 County Defendants move for Plaintiff’s Claim 7 and then, interchangeably Claim 17, to be
dismissed in their second Motion for Summary Judgment. (ECF No. 177). However, Claim 7 is
Plaintiff’s claim relating to the denial of newspapers which the Court previously addressed in its
first Opinion at Document Number 154, and there is no Claim 17 in this matter. Since the County
Defendants appropriately define Plaintiff’s claim at issue as a failure to train and supervise claim,
the Court will proceed with the assumption County Defendants made a typographical error and
intended to move for summary judgment on Plaintiff’s Claim 8—failure to train and supervise.
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. "A case founded
on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. at 610.
“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).

Under Section 1983, a defendant may be sued in either his personal capacity, or in his
official capacity, or claims may be stated against a defendant in both his personal and his official
capacities. The type of conduct that is actionable and the type of defense available depend on
whether the claim is asserted against a defendant in his official or individual capacity. See Gorman
v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted). “Claims against
individuals in their official capacities are equivalent to claims against the entity for which they
work; they require proof that a policy or custom of the entity violated the plaintiff’s rights, and the
only type of immunity available is one belonging to the entity itself.” Id. Personal capacity claims

“are those which allege personal liability for individual actions by officials in the course of their
duties; these claims do not require proof of any policy and qualified immunity may be raised as a
defense” to these individual capacity claims. Id. To state a claim under 42 U.S.C. § 1983, Plaintiff
must allege that the defendant acted under color of state law, and that the actor violated a right,
privilege, or immunity secured by the Constitution. West v. Atkins, 487 U.S. 42, 48 (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
Section 1983. See Daniels v. Williams, 474 U.S. 327 (1986); See also Davidson v. Cannon, 474
U.S. 344 (1986).

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). To
sustain an official capacity claim against such an entity a plaintiff “must show that there was a
policy, custom, or official action that inflicted an actionable injury.” Johnson v. Hamilton, 452
F.3d 967, 973 (8th Cir. 2006). Thus, Plaintiff's official capacity claims against County Defendants
are “functionally equivalent,” Veatch, 627 F.3d at 1257, to alleging their employer, Miller County,
had “a policy, custom, or [took an] official action” that deprived him of his constitutional rights,

Johnson, 452 F.3d at 973.
To establish a claim for “custom” liability, Plaintiff must demonstrate:
1) The existence of a continuing, widespread, persistent pattern of unconstitutional
misconduct by the governmental entity's employees;
2) Deliberate indifference to or tacit authorization of such conduct by the governmental
entity's policymaking officials after notice to the official of that misconduct; and
3) That Plaintiff was injured by acts pursuant to the government entity's custom, i.e., that
the custom was a moving force behind the constitutional violation.

Johnson v. Douglas Cty Medical Dept., 725 F.3d 825, p. 828 (8th Cir. 2013). “A single deviation
from a written, official policy does not prove a conflicting custom.” Id. (quoting Wedemeier v.
City of Ballwin, Mo., 931 F.2d 24, 26 (8th Cir. 1991)).
IV. DISCUSSION
The only issue before the Court is whether the County Defendants violated Plaintiff’s

constitutional rights by failing to train or supervise their subordinates. As explained above,
Plaintiff alleges this claim in his Supplement to his Complaint at Document Number 77, and
Plaintiff labels this claim as Claim 8. Plaintiff claims County Defendants failed to train and
supervise their subordinates at the MCDC in eight specific areas: (1) inadequate social distancing
to prevent the spread of COVID-19; (2) inadequate use of PPE to prevent the spread of COVID-
19; (3) COVID-19 positive staff working with symptoms; (4) inadequate sanitation of the MCDC
to prevent the spread of COVID-19; (5) inadequate testing for COVID-19 and contact tracing
positive cases; (6) inadequate quarantining and isolating inmates to prevent the spread of COVID-
19; (7) inappropriate housing of mentally ill inmates; and (8) banning of newspapers. (ECF No.

77, pp. 5-10). Plaintiff asserts this Claim 8—failure to train and supervise over all eight topics—
against all County Defendants in both their individual and official capacities.
County Defendants move for summary judgment on Plaintiff’s failure to train and
supervise claim with the following arguments: (1) Plaintiff did not allege which County
Defendants failed to train, nor how each County Defendants failed to train; (2) the County
Defendants did provide training and supervision to the MCDC employees on COVID-19
procedures and policies; (3) policy and procedures regarding COVID-19 (the SOP) were

promulgated and instituted; (4) the SOP addressed all of the COVID-19 topics complained of by
Plaintiff; (5) Plaintiff’s claims are moot; (6) Plaintiff cannot be successful in respondeat superior
claims against County Defendants; and (7) if there is any individual liability, the County
Defendants are entitled to qualified immunity from any such liability. (ECF No. 176-2).
The Court notes County Defendants only move for summary judgment on subparts 1 – 6
of Plaintiff’s Claim 8. County Defendants made many general arguments in their Brief in Support
of Summary Judgment relating to their arguments of failure to state a claim, qualified immunity,
and respondeat superior theories of liability. However, County Defendants did not submit any
factual statements, evidence, or arguments related to Plaintiff’s mentally ill inmate claim or

newspaper claim. Accordingly, the Court will not address Plaintiff’s failure to train and supervise
claim related to the mentally ill inmate and ban on newspapers under the individual capacity or
official capacity sections herein.
A. Plaintiff’s Claim 8 is ripe for consideration
Plaintiff’s failure to train and supervise claim is not moot. The Court has not previously
ruled upon this claim, and the claim is now ripe for consideration. The facts alleged occurred

while Plaintiff was housed at the MCDC. Plaintiff is not seeking injunctive relief, so his transfer
from the MCDC does not render his claim moot. The Court is able, at this time, to grant Plaintiff
relief on his injury should his claim so warrant. See Firefighters Local Union No. 1784 v. Stotts,
467 U.S. 561, 571 (1984) (“[a]s long as the parties have a concrete interest in the outcome of the
litigation, the case is not moot . . .”).
B. Respondeat superior theory of liability
County Defendants are correct that no claim of liability may rest on a respondeat superior

theory alone. Here, however, Plaintiff has alleged a failure to train and supervise claim against
County Defendants which is a viable claim of liability for supervisors. See Tilson v. Forest City
Police Dept., 28 F.3d 802, 806 (8th Cir. 1994).
C. Individual capacity claims
In cases brought under Section 1983, supervisors are not liable for constitutional violations
committed by their subordinates simply because they are their supervisors; instead, Plaintiff must
plead each County Defendant, “through [his] own individual actions,” has violated the
Constitution. Marsh v. Phelps Cty, 902 F.3d 745, 754 (8th Cir. 2018). (quoting Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009)). Supervisors are only liable for their own misconduct. Ashcroft, 556

U.S. at 677. However, a prison supervisor can be held liable for failing to train or supervise
subordinates when that failure caused the constitutional violation. Tilson, 28 F.3d at 806.
To state an individual capacity claim for failure to train or supervise there must be
allegations: (1) the supervisor knew of a pattern of unconstitutional acts committed by the
subordinate; (2) the supervisor demonstrated deliberate indifference to, or unspoken authorization
of, constitutional violations committed by subordinates; (3) the supervisor failed to take

appropriate remedial action after learning of a subordinate's misconduct; and (4) the plaintiff was
injured as a result of the failure to properly train or supervise subordinates. Otey v. Marshall, 121
F.3d 1150, 1156 (8th Cir. 1997). The standard for proving deliberate indifference is high. Even
where prison officials know of a substantial risk to inmate health or safety, they are not liable, “if
they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994).
i. Previous findings by the Court

The Court, in the first round of summary judgment motions, considered Plaintiff’s
complaint of failure to protect from COVID-19. Within the first set of claims, Plaintiff alleges
some of the same underlying acts as he alleges in his instant failure to train and supervise claim:
(1) inadequate social distancing to prevent the spread of COVID-19; (2) inadequate use of PPE to
prevent the spread of COVID-19; (3) inadequate sanitation of the MCDC to prevent the spread of
COVID-19; (4) inadequate testing for COVID-19 and contact tracing positive cases; and (5)
inadequate quarantining and isolating inmates to prevent the spread of COVID-19. In its previous
Opinion, the Court held the summary judgment record did not show a genuine dispute of material
fact as to any constitutional violations based on these same five complaints. (ECF No. 154, pp.
11-13). The Court found no constitutional violation for failure to protect Plaintiff from the spread

of COVID-19.
As explained above, the first element of a failure to train or supervise claim is: whether the
supervisor knew of a pattern of unconstitutional acts committed by their subordinates. Without an
underlying unconstitutional act by subordinates, Plaintiff cannot satisfy this first element. The
Court has considered all evidence5 produced in the instant record, in the light most favorable to
Plaintiff, and the Court is not dissuaded from its original finding. Just as in the first set of summary

judgment briefing, Plaintiff has failed to show a genuine dispute of material fact as to an underlying
constitutional violation related to: 1) inadequate social distancing to prevent the spread of COVID-
19; (2) inadequate use of PPE to prevent spread of COVID-19; (3) inadequate sanitation of the
MCDC to prevent the spread of COVID-19; (4) inadequate testing for COVID-19 and contact
tracing positive cases; and (5) inadequate quarantining and isolating inmates to prevent the spread
of COVID-19.6

5 The Court has not considered evidence from the summary judgment record which would be
inadmissible hearsay. See Shaver v. Independent State Co., 350 F.3d 716, 723 (8th Cir. 2003)
(explaining inadmissible evidence may not be used to defeat summary judgment).
6 Plaintiff has also produced conflicting testimony in the instant summary judgment record. In his
Response to the Medical Defendants’ second Motion for Summary Judgment, filed prior to the
instant Motion, Plaintiff admits: (1) the MCDC is a finite space and appropriate social distancing
was not always available; (2) testing and contact tracing of COVID-19 was the responsibility of
the ADH; (3) supply chain issues caused unavailability of PPE at times in the MCDC; and (4) the
MCDC nursing staff and MCDC corrections staff implemented extensive policies for isolation and
quarantine of individuals showing signs of COVID-19 or that tested positive for COVID-19. (ECF
As previously explained:
The Court is keenly aware of the significant health risks associated with COVID-19 and
the ease with which this disease is transmitted, especially in a prison setting.” Tate v.
Arkansas Dept. of Corr., No. 4:20-cv-0558, 2020 WL 7378805, *8 (E.D. Ark. Nov. 9,
2020). However, “[t]he prison is a finite space. It would be impossible to isolate every
inmate who is potentially infected—the prison does not have enough space to house each
such inmate in a single cell.” Kesling v. Tewalt, 476 F. Supp. 3d 1077, 1088 (D. Idaho
2020) (emphasis in original).
As judges, our conscribed role is not to assess whether [the County Defendants] could have
done more to contain the virus—no doubt they could have. Our limited role is thus to
determine whether [the County Defendants] ha[ve] made the requisite showing that [their]
efforts to combat COVID-19 satisfied the constitutionally required minimum.” Valentine
v. Collier, 978 F.3d 154, 158 (5th Cir. 2020). The Court notes while Plaintiff alleges the
County Defendants failed to comply strictly with the guidelines of the [Center of Disease
Control (“CDC”)], the failure to enact or comply with these guidelines does not equate to
the violation of the Eighth Amendment. Id. at 164 (‘The Eighth Amendment does not enact
the CDC guidelines.’). Moreover, ‘[w]hat we know about COVID-19 and the spread of
the novel coronavirus is constantly changing, as new information is released by medical
researchers, agencies, and other authorities.’ Kesling, 476 F.Supp.3d at 1087 (D. Idaho
2020).
(ECF No. 154, pp. 11-13).
Furthermore, the crux of Plaintiff’s failure to train complaints relating to subparts 1- 5 is
that County Defendants failed to follow guidelines instituted by the ADH, the CDC, or Arkansas
Jail Standards. The failure to enact or comply with guidelines or state laws and regulations does
not equate to a constitutional violation. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993);
see also Valentine v. Collier, 978 F.3d 154, 158, 164 (5th Cir. 2020).
Accordingly, there are no genuine disputes of material facts relating to whether there was
a pattern of constitutional violations known by County Defendants because Plaintiff’s has failed
to state an underlying unconstitutional act relating to: 1) inadequate social distancing to prevent

No. 173, p.1). In Plaintiff’s Response to the instant Motion, he disputes each one of these facts.
The Court is not required to adopt a version of the facts blatantly contradicted by the record. See
Scott v. Harris, 550 U.S. 372, 380 (2007).
the spread of COVID-19; (2) inadequate use of PPE to prevent spread of COVID-19; (3)
inadequate sanitation of the MCDC to prevent the spread of COVID-19; (4) inadequate testing for
COVID-19 and contact tracing positive cases; and (5) inadequate quarantining and isolating
inmates to prevent the spread of COVID-19. County Defendants are entitled to summary judgment
on the individual capacity failure to train and supervise claim regarding subparts 1 – 5.

ii. COVID-19 positive staff
The only subpart of Plaintiff’s failure to train and supervise claim not previously addressed
by the Court as an underlying constitutional violation relates to COVID-19 positive officers
allowed to work. Specifically, Plaintiff claims:

Defendants failed to follow CDC and ADH recommended guidance when COVID-19
positive staff entered the facility and subjected its population to exposure of the virus. This
happened at two times (known), June 10-20 when positive staff were allowed to enter the
facility due to improper screening of employees and July 1st – 10th when confirmed
COVID-19 officers were allowed to remain at work within the facility. Defendants (1)
failed to enforce its policy requiring screening of all employees before entry into the facility
(2) failed to train or supervise, resulting in violation of existing policy requiring no
COVID-19 positive (or experiencing symptoms) officers/staff to enter the facility.

(ECF No. 77, pp. 6-7) (errors in the original).
Plaintiff also testified in his sworn affidavit that officers which tested positive for COVID-
19 were allowed to continue working at the MCDC. (ECF No. 187, p. 70). County Defendants
admitted this fact in their Responses to Requests for Admissions which Plaintiff attached to his
Response. (ECF No. 187, p. 63). In his Request for Admissions, Plaintiff requested:
After the positive Covid-19 test results were returned around July 6th, 2020, MCDC
allowed positive Covid-19 infected correctional officers to remain at work without
participating recommended participating the 14-day isolation/self-quarantine.
Id. (errors in original). County Defendants responded: “Denied as written but admits that some
positive officers were allowed to remain at work under continuous monitoring.” Id.

County Defendants do not make a specific dispute to this subpart of Plaintiff’s failure-to-
train claim in their Motion. They do, however, argue County Defendants did in fact train MCDC
employees on the COVID-19 related policy and procedures in place. Further, County Defendants
argue they trained subordinates on the changing status of such policies as the information available
changed and the science evolved. (ECF No. 177, pp. 10-11). Furthermore, County Defendants
did submit policy and procedure regarding screening of staff members to the summary judgment
record.

In order to establish a failure to train claim, Plaintiff must show: (1) County Defendants
knew of a pattern of COVID-19 positive staff continuing to come into the MCDC to work and that
this violated Plaintiff’s constitutional rights; (2) County Defendants demonstrated deliberate
indifference, or unspoken authorization, to this violation by failing to train and supervise the
violators; (3) County Defendants failed to remedy this violation; and (4) Plaintiff was injured as a
result of the failure to properly train or supervise subordinates regarding working while positive
with COVID-19. See Otey v. Marshall, 121 F.3d 1150, 1156 (8th Cir. 1997).

The County Defendants’ admission that some COVID-19 positive staff members were
allowed to work despite policy and procedure to the contrary, satisfies many of the elements of
Plaintiff’s failure to train or supervise claim. First, County Defendants’ admission proves their
knowledge of the underlying action, and it also proves they allowed it to continue without a
remedy. The Court must now determine: (1) whether such an allowance was a constitutional
violation through deliberate indifference to the risk of infecting Plaintiff with COVID-19; and (2)
whether that deliberate indifference caused Plaintiff’s injury—his infection with COVID-19. See
Otey, 121 F.3d at 1156.

The Court need not determine here whether County Defendants failure to train was
deliberately indifferent to Plaintiff because there is no genuine issue of material fact as to whether
the County Defendants’ actions caused Plaintiff’s injury. It is undisputed that Plaintiff exhibited
symptoms of COVID-19 as early as June 22, 2020, and his infection of COVID-19 was later
confirmed by testing on July 1, 2020. (ECF No. 153). County Defendants’ allowance of COVID-
19 positive staff to work at the MCDC after July 6, 2020 could not have caused Plaintiff’s injury
as he was already infected prior to the complained of action. Accordingly, the final element of
Plaintiff’s failure to train claim is not satisfied, and the claim must fail as a matter of law.
D. Official capacity

Plaintiff also alleges his Claim 8 against County Defendants in their official capacities. As
previously noted, “[c]laims against individuals in their official capacities are equivalent to claims
against the entity for which they work…” Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998).
Here, this means Plaintiff’s official capacity failure to train claim against the County Defendants
is essentially a claim against their employer—Miller County. To be successful on such a claim,
Plaintiff will need to show Miller County itself caused the constitutional violation. See Elder-
Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006). However, as the Court has determined
Plaintiff failed to prove a cognizable failure to train or supervise claim against County Defendants
in their individual capacities on subparts 1-6, there can be no official capacity claim on those same
subparts. See McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005) (The Eighth Circuit

has consistently recognized without an underlying substantive constitutional violation against a
defendant in their individual capacity, a Plaintiff cannot be successful on an official capacity claim
against that defendant’s employer). Stated another way, as the Court has found County Defendants
did not violate Plaintiff’s constitutional rights through a failure to train or supervise on subparts 1
– 6, Miller County, as County Defendants’ employer, cannot be liable for any failure to train claim
on subparts 1-6.

Accordingly, County Defendants are entitled to summary judgment on Plaintiff’s official
capacity claim for failure to train and supervise related to: (1) inadequate social distancing to
prevent the spread of COVID-19; (2) inadequate use of PPE to prevent the spread of COVID-19;
(3) COVID-19 positive staff working with symptoms; (4) inadequate sanitation of the MCDC to
prevent the spread of COVID-19; (5) inadequate testing for COVID-19 and contact tracing positive
cases; and (6) inadequate quarantining and isolating inmates to prevent the spread of COVID-19.

As stated with the individual claims, County Defendants did not move for summary
judgment on Plaintiff’s official capacity claims related to the mentally ill inmate or the ban on
newspapers. Therefore, those official capacity claims shall survive.
V. CONCLUSION

For the reasons stated above, I recommend the County Defendants’ Second Motion for
Summary Judgment (ECF No. 176) be GRANTED, and Plaintiff’s failure to train or supervise
claim against County Defendants in their individual and official capacities regarding (1)
inadequate social distancing to prevent the spread of COVID-19; (2) inadequate use of PPE to
prevent the spread of COVID-19; (3) COVID-19 positive staff working with symptoms; (4)
inadequate sanitation of the MCDC to prevent the spread of COVID-19; (5) inadequate testing for
COVID-19 and contact tracing positive cases; (6) inadequate quarantining and isolating inmates

to prevent the spread of COVID-19, be DISMISSED WITH PREJUDICE. However, Plaintiff’s
failure to train or supervise claim relating to: (7) the inappropriate housing of mentally ill inmates;
and (8) the banning of newspapers, shall remain for further litigation.

After all four Motions for Summary Judgment have been addressed, the following claims
and Defendants remain for further litigation:
(1) Individual capacity claim regarding the improper placement of the mentally ill inmate
causing excessive noise against Defendant Walker (Plaintiff’s Claim 5);
(2) Individual and official capacity claim for the failure to train or supervise regarding the
placement of mentally ill inmates against all County Defendants (Plaintiff’s Claim 8);

(3) Individual and official capacity claim for the failure to train or supervise regarding the
ban on newspapers against all County Defendants (Plaintiff’s Claim 8);
(4) Official capacity claim regarding the improper placement of the mentally ill inmate
causing excessive noise against all County Defendants (Plaintiff’s Claim 5); and
(5) Official capacity claim regarding the ban on newspapers against all County Defendants
(Plaintiff’s Claim 7).
IT IS SO ORDERED this 11th day of September 2023.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10012379. Public record. Not legal advice.