Scharnhorst v. Cantrell

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

JOHN WILLIAM SCHARNHORST, III PLAINTIFF

V. CASE NO. 5:22-CV-5138

MAJOR RANDALL DENZER; LT. KEVIN EAST;

LT. NOLAN AKE; LT. AMANDA ARNOLD; and

SHERIFF JAY CANTRELL DEFENDANTS

OPINION AND ORDER

This is a civil rights action filed by pro se Plaintiff John William Scharnhorst, III,

pursuant to 42 U.S.C. § 1983. On December 12, 2023, the Honorable Christy Comstock,

United States Magistrate Judge for the Western District of Arkansas, issued a Report and

Recommendation (“R&R”) (Doc. 103) regarding Defendants’ Motion for Summary

Judgment (Doc. 89). The R&R recommends dismissing all claims and defendants except

for the individual and official capacity claims against Defendants Ake, Denzer, and

Cantrell. These three Defendants filed Objections (Doc. 107) to the R&R on February 8,

2024.

Mr. Scharnhorst’s claims arise from his pretrial detainment at the Washington

County Detention Center (“WCDC”) from approximately December 2021 until July 2022.

He alleges that: (1) Defendants Ake and East violated his constitutional rights by denying

his requests for literature, news, and religious materials; (2) Defendants Denzer, Cantrell,

and East refused to modify the WCDC’s unconstitutional policy denying inmates

meaningful access to literature, news, and religious materials; and (3) Defendants Ake

and Arnold violated his constitutional rights by failing to provide access to the local

newspaper on a consistent basis or implement a procedure to ensure consistent access.

The Court has performed a de novo of the record, paying particular attention to

those portions of the R&R that drew objection. See 28 U.S.C. § 636(b)(1). Defendant Ake

contends he is entitled to summary judgment in his official capacity and qualified immunity

in his individual capacity with respect to Mr. Scharnhorst’s claims requesting access to

literature, news, and religious materials at the WCDC. Defendants Denzer and Cantrell

similarly maintain they are entitled to summary judgment in their official capacities and

qualified immunity in their individual capacities with respect to Mr. Scharnhorst’s claims

related to the WCDC’s policy of prohibiting inmates from ordering their own copies of

literature, newspapers, and religious materials.

I. OBJECTIONS

A. Objection 1: Access to Literature

Defendants object to the R&R’s finding that there is a genuine, material dispute of

fact about whether inmates like Mr. Scharnhorst have “alternative means” to assert their

First Amendment right to access literature, given the WCDC’s policy that prohibits

inmates from receiving literature from family and friends. (Doc. 103, p. 15). Defendants

assert that Mr. Scharnhorst may access literature through electronic tablets made

available to inmates for free. These tablets (of unspecified number) may be checked out

for fifteen minutes every three hours, for a maximum of one hour per day.1 Defendants

criticize Mr. Scharnhorst for failing to meet his “burden” of showing “how many titles are

1 Defendants do not argue in their objections that the jail’s book cart affords a viable

“alternative means” for inmates to access literature, including religious texts. They focus

only on the tablets. The summary judgment record indicates that is because the book cart

has not traveled from pod to pod since sometime in 2020 (the height of the COVID-19

pandemic). Further, there appears to be little dispute that jail staff are generally unfamiliar

with the book cart—to the extent it still exists and contains books.

available on the tablets, the quantity of such materials, or any information about what

titles he sought but was precluded from reviewing allegedly due to such alleged limited

titles.” (Doc. 107, p. 9). But the number and variety of titles available on the tablets is

somewhat beside the point; as the R&R made clear, the real question is not the contents

of the tablets but “the opportunity” to access them. (Doc. 103, p. 17) (emphasis in original).

There is a genuine, material dispute of fact as to whether inmates can meaningfully

access any literature at all, given the lack of a functioning book cart, the jail’s ban on

outside donations of books, and strict limitations on inmate access to electronic tablets,

i.e., “fifteen minutes on a tablet every three hours, . . . where the tablet must invariably be

shared with an unknown number of other detainees.” (Doc. 103, p. 18).2 The first objection

is therefore OVERRULED.

B. Objection 2: Access to Religious Materials

Defendants’ second objection is to the R&R’s finding of a genuine, material

dispute of fact surrounding whether the WCDC makes religious materials available to

WCDC detainees. The R&R concludes that regardless of whether the WCDC’s policy

requires clergy to provide religious materials directly to inmates or to WCDC staff to give

2 As for Defendants’ argument that inmates like Mr. Scharnhorst could purchase a “Gold

Pass” to acquire more time on the tablets, the R&R notes that a “Gold Pass” allows the

inmate one uninterrupted one-hour session on the tablet; however:

There is nothing in the record about the cost of the “Gold Pass,” whether

there is a limit on the number of “Gold Passes” an inmate is authorized to

purchase each day, or whether inmates can purchase a “Gold Pass” to

extend an uninterrupted 1-hour session for multiple consecutive 1-hour

sessions (in effect allowing certain inmates to “monopolize” tablets).

(Doc. 103, p. 17 n.9). Accordingly, genuine, material disputes of fact exist as to whether

the purchase of a “Gold Pass” allows an inmate a viable alternative means of accessing

any literature, including religious materials, at the WCDC.

to inmates, factual disputes preclude a finding that either policy is reasonable under the

Turner test. See Turner v. Safley, 482 U.S. 78, 90–91 (1987).

The Turner test was created by the Supreme Court to help courts determine

whether a jail or prison policy infringes on the First Amendment rights of inmates, as well

as those seeking to communicate with them. There are four factors to consider:

(1) whether a valid rational connection exists between the prison regulation

and the legitimate governmental interest put forward to justify it;

(2) whether there are alternative means of exercising the right that remain

open;

(3) the impact accommodation of the asserted constitutional right will have

on guards and other inmates, and on the allocation of prison resources

generally; and

(4) whether there are ready alternatives to the policy.

Id.

Defendants argue in their objections that if jailers like Defendant Ake failed to pass

on religious materials to inmates on occasion, such failures were merely negligent and,

thus, not actionable under § 1983. But Defendant Ake insists that when he deprives

inmates of religious materials, he is doing so according to WCDC policy. Moreover, there

are facts in the summary judgment record to suggest that Mr. Scharnhorst and other

detainees at the WCDC cannot obtain access to any religious materials at all, per the

jail’s policy and consistent with the interpretation of the policy by Defendant Ake and

others.

For example, Defendant Ake insists that Bibles are available on the book cart, but

he also agrees that the book cart has not moved from pod to pod since sometime in 2020.

Mr. Scharnhorst asserts that his jailers refuse to deliver hard copies of religious materials

that the chaplains provide him, and the Court credits this assertion as true on summary

judgment. In response, Defendants provide no proof that he has received the materials

or explain why he is not permitted to receive them. It appears that the only approved way

for detainees to access religious materials at the WCDC—since hard copies are

apparently not an option—is by viewing materials that have been uploaded to kiosks or

electronic tablets. Still, the R&R points out that genuine, material disputes of fact remain

as to how many tablets there are and whether the WCDC’s policies limiting access to

these devices mean they are not viable alternatives to hard-copy sources. Defendants’

second objection is OVERRULED.

C. Objection 3: Access to News

The R&R concludes the jury should decide whether Mr. Scharnhorst was

effectively denied his First Amendment right to access the news while incarcerated at the

WCDC—and Defendants disagree, claiming there is no genuine, material dispute of fact

about these issues. According to Defendants, even if they were to credit Mr.

Scharnhorst’s recordkeeping and assume he could not access the daily newspaper on

the kiosk or tablets for twenty-seven days over the course of eight months, they believe

that sort of deprivation is so negligible that it would not violate the Constitution as a matter

of law. Tellingly, they do not point to any law to support that position.

The Court agrees with the R&R that it is for the jury to decide not only how many

times Mr. Scharnhorst was denied access to the news but whether that number was

merely de minimis. Certainly, a missed upload here or there would not be actionable. See

Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997) (“[A]n isolated incident, without any

evidence of improper motive . . . does not give rise to a constitutional violation”); Sizemore

v. Williford, 829 F.2d 608, 610 (7th Cir. 1987) (“[M]erely alleging an isolated delay or some

other relatively short-term, non-content-based disruption in the delivery of inmate ready

material will not support . . . a cause of action grounded upon the First Amendment.”). But

Mr. Scharnhorst alleges serial deprivations, amounting to nearly a month’s worth of lost

access to any news, with no particular justification by his jailers. An inmate has a First

Amendment right to access the news, as the Seventh Circuit explained succinctly in

Sizemore, 829 F.2d at 610:

Allegations of a continuing pattern of disregard for a prisoner's First

Amendment right to read and to receive all but the most inflammatory and

provocative publications (in addition to publications withheld as punishment

after due process) are substantially, and we think constitutionally, different

from lawsuits alleging First Amendment violations on the basis of isolated

instances of loss or theft of an inmate's reading materials.

The Court’s review of the summary judgment record indicates there is no dispute

that only some housing units at the WCDC have access to television news3 and that the

WCDC bans the introduction of paper copies of the newspaper (or any other periodical

news source, as far as the Court can tell). Further, “there is no admissible evidence in the

summary judgment record suggesting that WCDC inmates are permitted to obtain the

newspaper directly from the publisher or some other source.” (Doc. 103, p. 30). That

means there is at least a genuine, material dispute of fact as to whether Mr. Scharnhorst’s

sole source of news was that which his jailers chose to upload on the kiosks or tablets. It

is therefore appropriate for the jury to decide how many times the news was not made

3 Mr. Scharnhorst alleges that his unit was not one of them during the relevant time period.

available, the contexts of those deprivations, and whether, individually or cumulatively,

such deprivations violated Mr. Scharnhorst’s First Amendment rights. The third objection

is OVERRULED.

D. Objection 4: Qualified Immunity

The last objection concerns the denial of qualified immunity to Defendants Ake,

Denzer, and Cantrell. There are two prongs to the qualified immunity analysis: (1) a

violation of a plaintiff’s constitutional right by an official acting under color of law and (2)

a legal showing that the right was so clearly established at the time that any reasonable

official would have known his actions were unlawful. Pearson v. Callahan, 555 U.S. 223,

232 (2009). Defendants disagree with the Magistrate Judge that there are genuine,

material disputes of fact to indicate they violated Mr. Scharnhorst’s First Amendment

rights. Aside from the particular fact objections they make, addressed supra, they do not

address the first prong of the analysis. They focus instead on whether there is any

factually analogous caselaw to indicate that Defendants’ conduct, if proven true, violated

Mr. Scharnhorst’s clearly established rights.

A supervisor may be held individually liable under § 1983 “if he directly participated

in the constitutional violation, or if his failure to supervise the offending actor caused the

deprivation.” Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997) (quoting Tilson v.

Forrest City Police Dep’t, 28 F.3d 802, 806 (8th Cir. 1994)). Under the “failure to train or

supervise” theory, the supervisor is “entitled to qualified immunity unless plaintiff proves

that [he] (1) received notice of a pattern of unconstitutional acts committed by a

subordinate, and (2) was deliberately indifferent to or authorized those acts.” Davis v.

Buchanan Cnty., 11 F.4th 604, 624 (8th Cir. 2021) (quoting S.M. v. Krigbaum, 808 F.3d

335, 340 (8th Cir. 2015)).

The R&R explains that during the relevant time frame, Defendant Ake, a WCDC

supervisor, was directly involved in overseeing the implementation of WCDC policies

related to Mr. Scharnhorst’s and other detainees’ access to books and literature, religious

materials, and the daily newspaper. Indeed, Defendant Ake personally reviewed and, in

many cases, responded to Mr. Scharnhorst’s grievances about his lack of access to these

materials. Defendants Denzer and Cantrell are accused of enforcing the WCDC’s policy

that effects a de facto ban on inmate access to newspapers, magazines, books, and

religious materials. Defendants present no facts to counter Mr. Scharnhorst’s assertion

that they enforced such a policy. See Doc. 91. Accordingly, a jury could find that they

were directly involved in enforcement.

A reasonable fact finder could conclude that the WCDC’s policies amount to a de

facto ban on books, religious materials, and the daily news—in violation of Mr.

Scharnhorst’s First Amendment rights—due to the jail’s: (1) restrictive policies on outside

book donations, (2) lack of access to the (inoperative) book cart, (3) prohibitions on inmate

purchases of hard copy or digital books or newspaper subscriptions, (4) prohibitions on

staff delivering reading material to inmates (including religious materials provided by

clergy), and (5) strict limitations on accessing kiosks and tablets—which contain

essentially the only reading material in the facility.

As to whether a reasonable officer would have recognized that the WCDC’s

policies on inmate access to these reading materials violated the First Amendment, the

Court agrees with the R&R that the right was clearly established. “The Supreme Court

has twice warned that ‘a de facto permanent ban’ on inmate access to communications

with outsiders would present a serious constitutional issue.” Human Rights Defense

Center v. Baxter Cnty. Ark., 999 F.3d 1160, 1165 (8th Cir. 2021) (citing Beard v. Banks,

548 U.S. 521, 535 (2006), and Overton v. Bazzetta, 539 U.S. 126, 134 (2003)). “[P]ersons

who are incarcerated do not forfeit First Amendment protection of their rights to freedom

of speech and religion at the prison gate.” Id. (citing Bell v. Wolfish, 441 U.S. 520, 545

(1979)). And the Turner factors, which courts use to determine the constitutionality of a

jail’s policy that restricts inmates’ First Amendment rights, have been well known since

1987. 482 U.S. at 89–90. Since genuine, material disputes of fact preclude the Court from

concluding, as a matter of law, that the WCDC’s relevant policies are reasonable under

Turner, qualified immunity is unavailable to Defendants Ake, Denzer, and Cantrell. The

fourth objection is OVERRULED.

II. CONCLUSION

IT IS ORDERED that Defendants’ Objections (Doc. 107) are OVERRULED and

the R&R (Doc. 103) is ADOPTED IN ITS ENTIRETY. The Motion for Summary Judgment

(Doc. 89) is GRANTED IN PART AND DENIED IN PART as follows:

(1) Defendants’ Motion for Summary Judgment is GRANTED with respect to

Plaintiff’s individual capacity claims against Defendants East and Arnold;

(2) Defendants’ Motion for Summary Judgment is GRANTED with respect to

Plaintiff’s individual capacity claim against Defendant Ake for allegedly failing to

consistently provide the local newspaper or to implement a procedure to ensure that the

newspaper be provided on a consistent basis and organized fashion despite numerous

requests and grievances;

(3) Defendants’ Motion for Summary Judgment is DENIED with respect to

Plaintiff's individual and official capacity claims against Defendant Ake for denying

Plaintiff's requests for books and literature, religious materials, and the daily newspaper;

and

(4) Defendants’ Motion for Summary Judgment is DENIED with respect to

Plaintiff's individual and official capacity claims against Defendants Denzer and Cantrell

for enforcing a policy which prevents WCDC inmates from ordering books and literature,

religious materials, and the daily newspaper.

Accordingly, Plaintiff's official capacity claims against Defendants East and Arnold

are DISMISSED, and the Clerk of Court is DIRECTED to terminate them as parties to this

action.

A final scheduling order will issue setting this matter for a jury trial.

IT IS SO ORDERED on this 20" day of March, 2024.

UNITED STATES DISTRICT JUDGE

10