Parks v. Oklahoma County

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ALLEN ALEXANDER PARKS, )

)

Plaintiff, )

)

v. ) Case No. CIV-18-968-D

)

OKLAHOMA COUNTY SHERIFF )

P.D. TAYLOR, et al., )

)

Defendants. )

O R D E R

This matter comes before the Court for review of the Report and Recommendation

[Doc. No. 50] issued by United States Magistrate Judge Shon T. Erwin pursuant to 28

U.S.C. § 636(b)(1)(B) and (C). This prisoner case under 42 U.S.C. § 1983 has been

referred to Judge Erwin for appropriate proceedings, and the R&R recommends granting

motions to dismiss filed by Defendants P.D. Taylor and Keith Jackson for failure to state

a § 1983 claim, and granting in part and denying in part similar motions filed by Defendants

Tiffany Carter and Christopher Hendershott.1 Defendants Carter and Hendershott have

filed timely Objections [Doc. Nos. 62, 63].

1 The Court previously adopted an R&R issued upon initial screening of the Complaint,

and ordered a dismissal without prejudice of Plaintiff’s action against Oklahoma County and a

dismissal with prejudice of Plaintiff’s official-capacity action and his action against the Oklahoma

County Sheriff’s Department and Oklahoma County Detention Center. See 1/17/19 Order [Doc.

No. 11]. The case remains under referral to Judge Erwin for proceedings on Plaintiff’s claims

against nine individual defendants; only the specific issues addressed by the pending R&R and

objections thereto are addressed in this Order.

After receiving two extensions of time, Plaintiff has filed a voluminous Objection

[Doc. No. 76] with attachments totaling 269 pages, accompanied by a motion to file an

oversized brief [Doc. No. 75]; he has filed additional motions to supplement and cure

deficiencies in his filings [Doc. Nos. 77, 78, 86], such as to add a table of authorities.

Plaintiff has also filed motions to supplement his Objection with additional materials [Doc.

Nos. 82, 87, 89, and 91], two of which exceed 400 pages, primarily based on proposed

amended pleadings.2 In addition, Plaintiff has filed motions for additional time and to file

an oversized response brief [Doc. Nos. 73, 80] to Defendants’ Objections to the R&R and,

without authorization, an untimely and voluminous response [Doc. No. 81] (77-page brief

with 294 pages of attachments).3 To the extent Plaintiff’s filings present new materials,

such as proposed amendments to his Complaint, the Court declines to consider them. See

Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time

in objections to the magistrate judge’s recommendation are deemed waived.”); see also

Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010); Vue v. Henke, 746 F.

App’x 780, 783 (10th Cir. 2018) (unpublished).

2 Within the original deadline to object to the R&R and repeatedly thereafter, Plaintiff has

filed motions to amend his pleading [Doc. Nos. 54, 55, 60, 65], motions to amend or supplement

those motions and respond to Defendants’ objection to those motions [Doc. Nos. 83, 84, 85, 88,

90, 92], and an unauthorized Amended Complaint [Doc. No. 53]. These motions exceed the scope

of this Order, which addresses only Judge Erwin’s R&R and pending motions to dismiss the

original Complaint. The form and substance of Plaintiffs’ requests to amend his pleading and to

add defendants, as well as Plaintiff’s case against nonmoving defendants named in his original

Complaint, remain for consideration by Judge Erwin.

3 A response to another party’s objection is due within 14 days after service. See Fed. R.

Civ. P. 72(b)(2).

Further, the Court finds that Plaintiff has frustrated an orderly resolution of the

issues addressed in the R&R by filling the case file with over a thousand pages of largely

extraneous materials when the primary issue presented is the sufficiency of the Complaint

to state a plausible § 1983 claim against four defendants. Because Plaintiff’s papers are

largely inapposite or unhelpful, the Court denies his motions to exceed the page limits of

LCvR7.1(e) and to amend or supplement his Objection, motions to file a belated, oversized

response to Defendants’ Objections, and motions to amend or supplement that response.

Only Defendants’ Objections to the R&R and specific issues distilled from Plaintiff’s

timely Objection [Doc. No. 76] will be considered.

The Court must make a de novo determination of portions of the Report to which a

specific objection is made, and may accept, modify, or reject the recommended decision.

See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The parties have waived all objections

to some portions of the R&R, including Judge Erwin’s summary of Plaintiff’s claims and

factual allegations. See R&R at 2-6. This introductory part of the R&R is adopted as

though fully set forth herein.

Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this action

to recover damages for alleged violations of his constitutional rights during his pretrial

confinement in the Oklahoma County Detention Center.4 The Complaint lists the

following claims: Count I, Plaintiff was exposed to raw sewage from a toilet overflow

4 Plaintiff complains about jail conditions and events in late 2017 and early 2018.

Plaintiff’s pretrial detention ended later; he was convicted of state charges in May 2018 and

sentenced in June 2018. See State v. Parks, No. CF-2016-7670 (Okla. Cty., Okla.), aff’d, No. F-

2018-628 (Okla. Crim. App. Jan. 16, 2020) (summary opinion).

incident affecting his cell, which he was not allowed to leave for a four-day period nor to

clean for even longer; Count II, he experienced excessive cell lockdowns that lacked a

penological justification; and Count III, a guard used excessive force against him.

As to Sheriff Taylor individually, Judge Erwin finds that Plaintiff has failed to allege

facts to show Sheriff Taylor’s personal participation in or supervisory responsibility for the

unsanitary conditions alleged in Count I. Judge Erwin further finds that Sheriff Taylor,

and all other Defendants, are entitled to qualified immunity from liability on the claim of

excessive lockdowns in Count II. Therefore, Judge Erwin recommends that the action

against Sheriff Taylor should be dismissed without prejudice.5

As to Lieutenant Carter, Judge Erwin finds that Plaintiff sufficiently alleges she

personally participated in his exposure to unsanitary conditions in Count I because he states

that Lt. Carter refused to provide him with cleaning supplies for at least two weeks

following the toilet overflow incident. As discussed infra, Judge Erwin rejects Lt. Carter’s

argument that she is entitled to dismissal of Count I because Plaintiff fails to allege

sufficient facts to show she acted with deliberate indifference to his health and safety. Like

all defendants, Judge Erwin finds that Lt. Carter is entitled to qualified immunity on the

excessive lockdown claim in Count II and recommends that this part of her Motion should

be granted.6

5 Count III is not asserted against Sheriff Taylor.

6 Count III is not asserted against Lt. Carter.

As to Lieutenant Hendershott, Judge Erwin finds that Plaintiff presents factual

allegations that sufficiently state an excessive force claim against Lt. Hendershott, even

though he is not specifically named in Count III. However, Lt. Hendershott is entitled to

qualified immunity on the excessive lockdown claim in Count II, and thus Judge Erwin

recommends that this part of his Motion should be granted.7

Finally, Judge Erwin finds that the Complaint does not state a claim against

Corporal Jackson because Plaintiff alleges only that Cpl. Jackson denied him (and other

inmates in his cell tier) recreation time on a single day, and in any event, Cpl. Jackson is

entitled to qualified immunity on the claim in Count II.

I. Lieutenant Carter’s Objection

Lt. Carter first objects to Judge Erwin’s finding regarding the standard of liability

applicable to Count I. Based on recent legal developments regarding the constitutional

rights of pretrial detainees under the Due Process Clause of the Fourteenth Amendment,

Judge Erwin concludes that an objective standard recognized by the Supreme Court for

excessive force claims in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), should govern

liability under Count I. Judge Erwin reaches this conclusion based on Colbruno v. Kessler,

928 F.3d 1155 (10th Cir. 2019), which he views as signaling that the Tenth Circuit has

“join[ed] the Second, Seventh, and Ninth Circuits in determining that the Kingsley standard

should apply to due process claims brought by pretrial detainees.” See R&R at 11 (footnote

omitted).

7 Count I is not asserted against Lt. Hendershott.

Lt. Carter contends this conclusion is simply wrong, citing recent cases in which the

Tenth Circuit has acknowledged a circuit split “on whether Kingsley alters the standard for

conditions of confinement . . . claims brought by pretrial detainees” and has declined to

“resolve this question for our circuit.” Burke v. Regalado, 935 F.3d 960, 991 n.9 (10th Cir.

2019) (internal quotation omitted); see also McCowan v. Morales, 945 F.3d 1276, 1291

n.12 (10th Cir. 2019) (declining to decide whether Kingsley affected a pretrial detainee’s

medical care claim); Perry v. Durborow, 892 F.3d 1116, 1122 n.1 (10th Cir. 2018) (same,

regarding supervisory liability claim). The Court finds persuasive Lt. Carter’s argument

that the Tenth Circuit has not decided whether Kingsley’s objective reasonableness

standard should apply to a pretrial detainee’s conditions-of-confinement claim and that,

absent a Tenth Circuit decision, this Court should continue to apply existing precedent.

This approach has been adopted by other district courts in this circuit. See Bush v. Bowling,

Case No. 19-CV-098-GHK-FHM, 2020 WL 265201, *3 (N.D. Okla. Jan. 17, 2020) (citing

cases).

In numerous unpublished opinions issued after Kingsley and Colbruno, the Tenth

Circuit has continued to apply the Eighth Amendment standard to pretrial detainees’ claims

regarding their conditions of confinement. Earlier this month, the Tenth Circuit stated in

the case of a detainee in the Oklahoma County jail:

“A prison official’s ‘deliberate indifference’ to a substantial risk of

serious harm to an inmate violates the Eighth Amendment.” Farmer v.

Brennan, 511 U.S. 825, 828 (1994). Because [plaintiff’s] claims arose when

he was a pretrial detainee, the Due Process Clause of the Fourteenth

Amendment governs. See Burke v. Regalado, 935 F.3d 960, 991 (10th Cir.

2019). “In evaluating such Fourteenth Amendment claims, we apply an

analysis identical to that applied in Eighth Amendment cases.” Id. (internal

quotation marks omitted).

The “[d]eliberate indifference [standard] has objective and subjective

components.” Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006).

“The objective component of deliberate indifference is met if the harm

suffered rises to a level sufficiently serious to be cognizable under the Cruel

and Unusual Punishment Clause.” Burke, 935 F.3d at 992 (internal quotation

marks omitted). For the subjective component, the plaintiff must “show the

official knows of and disregards an excessive risk to inmate health or safety.”

Id. (citation and internal quotation marks omitted).

Turner v. Okla. Cty. Bd. of Cty. Comm’rs., No. 19-6092, 2020 WL 995729, *2 (10th Cir.

Mar. 2, 2020) (unpublished).

Applying this standard to Plaintiff’s claim against Lt. Carter in Count I, the question

becomes whether the alleged facts satisfy the subjective component of Plaintiff’s claim,

that is, whether he has sufficiently alleged that Lt. Carter denied him cleaning supplies after

the toilet overflow incident knowing of, but disregarding, an excessive risk to his health.

The full extent of Plaintiff’s allegations regarding Lt. Carter with regard to Count I are

statements that she (and other jail employees) “refused to simply provide . . . inmates within

Pod 4-A proper chemical cleaning supplies” to clean the inside of their cells after the

November 17, 2017 sewage incident, that the inmates did not receive cleaning supplies for

at least two weeks (at the earliest), and that Plaintiff developed a serious staph infection in

a wound on his ankle as a result of being exposed to raw sewage. See Compl., Decl. C

[Doc. No. 1-3] at 6-7 (emphasis omitted). These allegations do not explain what, if

anything, Lt. Carter knew about the incident and its impact on Plaintiff’s cell, what

responsibility she had for ameliorating the problem, or what control she had over inmates’

access to cleaning supplies. In short, Plaintiff has not pleaded sufficient facts to show that

Lt. Carter was deliberately indifferent to an unsanitary condition in Plaintiff’s cell, and

therefore, has failed to state a plausible § 1983 claim against Lt. Carter in Count I.8

For these reasons, the Court finds that Lt. Carter’s Motion should be granted in its

entirety and Plaintiff’s § 1983 action against her should be dismissed without prejudice.

II. Lieutenant Hendershott’s Objection

Lt. Hendershott objects to Judge Erwin’s alleged advocacy on Plaintiff’s behalf, by

adding Lt. Hendershott as a defendant in Count III even though Plaintiff clearly stated that

only Lieutenant Neal was sued in Count III and by identifying from Plaintiff’s factual

allegations a possible excessive force claim against Lt. Hendershott that Plaintiff did not

assert in the Complaint. Lt. Hendershott also contends the alleged facts on which Judge

Erwin relies are insufficient to state a § 1983 claim or overcome his qualified immunity.

The Court is not persuaded that Judge Erwin’s reading of Plaintiff’s prolix and

disjointed pro se Complaint crosses the line from liberal construction to unwarranted

advocacy. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

2005). Plaintiff’s pleading consists of a prisoner civil rights complaint form and eleven

attached declarations (“A” through “J”) that Judge Erwin has considered together. The

8 One could reasonably question whether, even utilizing a lesser standard required by

Kingsley, Plaintiff’s factual allegations are sufficient to state a plausible claim against Lt. Carter.

Circuits that interpret Kingsley as requiring an objective standard for a pretrial detainee’s claim

have adopted an “objectively reckless disregard” standard. See Estate of Vallina v. Cty. of Teller

Sheriff’s Office, 757 F. App’x 643, 647 (10th Cir. 2018) (discussing Second, Seventh, and Ninth

Circuit cases). To show that Lt. Carter acted with reckless disregard of a risk to Plaintiff’s health

by failing to provide cleaning supplies, Plaintiff would still need to allege some facts regarding

Lt. Carter’s knowledge of and responsibility for the problem.

Tenth Circuit requires in the case of a pro se litigant that “if the court can reasonably read

the pleadings to state a valid claim on which the plaintiff could prevail, it should do so

despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal

theories, his poor syntax and sentence construction, or his unfamiliarity with pleading

requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Judge Erwin

applies those instructions to Plaintiff’s Complaint in precisely the way suggested by

Lt. Hendershott in arguing his Motion. See Mot. Dismiss [Doc. No. 24] at 13-14.9 Thus,

the Court finds that Judge Erwin has acted within his discretion.10

Upon de novo consideration of the sufficiency of Plaintiff’s factual allegations to

state an excessive force claim against Lt. Hendershott, however, the Court reaches a

conclusion different from Judge Erwin. To state a § 1983 claim, “a pretrial detainee must

show only that the force purposely or knowingly used against him was objectively

unreasonable.” Kingsley, 135 S. Ct. at 2473. “[O]bjective reasonableness turns on the

facts and circumstances of each particular case,” and appropriate considerations include:

“the relationship between the need for the use of force and the amount of force used; the

extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the

9 As argued by Lt. Hendershott: “[I]t is unclear if Plaintiff’s excessive force claim is

directed at Defendant Hendershott. . . . However, in Declaration F, Parks mentions Defendant

Hendershott and claims that Defendant Hendershott used excessive force when Parks was moved

to administrative segregation. [ECF 1-6, at p. 7]. To the extent that Plaintiff seeks to hold

Defendant Hendershott personally liable for use of excessive force, his claim fails.” Id.

10 A liberal reading of Count III is plainly required because, in addition to alleging an

incident of excessive force by Lt. Neal, Plaintiff frames his claim as one for a violation of the

Eighth Amendment, which clearly is not the applicable standard following Kingsley. See Compl.,

Decl. I [Doc. No. 1-9] at 2.

amount of force; the severity of the security problem at issue; the threat reasonably

perceived by the officer; and whether the plaintiff was actively resisting.” Id. (internal

quotation omitted).

Judge Erwin finds that certain factual allegations in Plaintiff’s Declaration F, when

viewed objectively, state a plausible claim against Lt. Hendershott for using excessive

force against Plaintiff on February 28, 2018. See R&R at 22. Read in context, Plaintiff

describes an incident in which Lt. Hendershott and three other officers forcibly removed

Plaintiff from Pod 4-A and took him to an administrative segregation unit on the twelfth

floor. When placing Plaintiff in his new cell on the twelfth floor, Lt. Hendershott allegedly

committed an “unwarranted” use of force by “unjustly shoving [Plaintiff’s] face into a

concrete wall and bending [his] wrist and hand into his forearm without any just cause, and

only upon Hendershot’s sadistic malicious whim.” See Compl., Decl. F [Doc. No. 1-6]

at 6-7. Lt. Hendershott allegedly told Plaintiff the move and the use of force were to “teach

[him] a lesson for submitting so many grievances.” Id. at 7.

Stripped of conclusory statements that the use of force was unwarranted or

unjustified, or that it was done maliciously and sadistically, the Court finds that Plaintiff

provides insufficient factual allegations to assess the objective reasonableness of

Lt. Hendershott’s conduct.11 Although Plaintiff describes circumstances where there was

11 In Routt v. Howard, 764 F. App’x 762 (10th Cir. 2019) (unpublished), the court of

appeals considered somewhat similar allegations by a pretrial detainee regarding rough treatment

in the Tulsa County jail. The court concluded: “It is not objectively unreasonable for a jail officer

to hold a detainee’s arm and push him, even awkwardly, through a jail hallway.” Id. at 766. The

court rejected arguments that the force “was used maliciously and sadistically” as conclusory

statements that were not sufficient to state a plausible claim. See Routt, 764 F. App’x at 767.

no apparent need to use force and no active resistance, he provides no factual basis to gauge

the amount of force used (to shove him and bend his wrist), nor he does claim to have

suffered any injury. A jail prisoner cannot recover damages under § 1983 without a

physical injury. See 42 U.S.C. § 1997e(e). In short, the Court finds that Plaintiff has failed

to state a § 1983 claim of an excessive use of force against Lt. Hendershott, particularly in

light of his defense of qualified immunity.12

For these reasons, the Court finds that Lt. Hendershott’s Motion should be granted

in its entirety and Plaintiff’s § 1983 action against him should be dismissed without

prejudice.

III. Plaintiff’s Objection

Plaintiff does not disagree with Judge Erwin’s findings and conclusions regarding

Counts I and III. The singular focus of his Objection is the sufficiency of, and supervisory

liability for, the claim regarding out-of-cell time in Count II. See Pl.’s Obj. [Doc. No. 76].

Regarding Judge Erwin’s finding that Defendants are entitled to qualified immunity from

liability on Count II, Plaintiff asserts that the law was clearly established in November

2017 that pretrial detainees were entitled to a certain amount of time outside their cells for

exercise or recreation. Relying on Housley v. Dodson, 41 F.3d 597 (10th Cir. 1994), and

12 In Routt, the court of appeals considered three incidents of alleged excessive force and

found as to some allegations that the detainee failed to state an objectively unreasonable use of

force and, as to others (such as “slinging Mr. Routt into his cell causing injury”), that the detainee

had failed to overcome the officer’s qualified immunity by “provid[ing] precedent that squarely

governs these alleged facts.” See Routt, 764 F. App’x at 767. Precedent involving similar

circumstances is required because cases that “lay out excessive force principles at only a general

level” do not “create clearly established law outside an obvious case.” White v. Pauly, 137 S. Ct.

548, 552 (2017) (per curiam) (internal quotation omitted).

cases cited therein, Plaintiff asserts that federal courts have recognized a constitutional

right of inmates to receive at least five hours per week of out-of-cell exercise or recreation,

in addition to constitutionally required activities like showers and law library access,

particularly (according to Plaintiff) when the inmates are confined for 90 days to 18 months

in small, overcrowded spaces like his jail cell. Plaintiff asserts that his factual allegations

show he received a fraction of the required amount of recreation time due to understaffing

of the jail, specifically, a lack of guards on weekdays after 5:00 p.m. and on weekends, for

which Sheriff Taylor, Lt. Carter, and Lt. Hendershott were directly responsible.

Upon de novo consideration of the issue of Defendants’ qualified immunity from

liability for the conduct alleged in Count II, the Court fully concurs in Judge Erwin’s

conclusion that the contours of a pretrial detainee’s constitutional right to out-of-cell time

are not clearly established. See R&R at 19. This is true regardless of what constitutional

standard governs a pretrial detainee’s conditions-of-confinement claim, discussed supra.

“[W]hen a defendant raises a qualified immunity defense in a Rule 12(b)(6) motion,

the court must dismiss the action unless the plaintiff shows that (1) the defendant violated

a statutory or constitutional right, and (2) the right was clearly established at the time of

the violation.” A.N. ex rel. Ponder v. Syling, 928 F.3d 1191, 1196 (10th Cir. 2019) (internal

quotation marks omitted).13 Courts “may decide which of these two prongs to address first,

13 Qualified immunity also applies to supervisory liability in § 1983 cases. See Perry v.

Durborow, 892 F.3d 1116, 1123, 1127 (10th Cir. 2018) (holding defendant was entitled to

qualified immunity for claims based on his supervisory conduct).

and need not address both.” Estate of Redd ex rel. Redd v. Love, 848 F.3d 899, 906 (10th

Cir. 2017); see Pearson v. Callahan, 555 U.S. 223, 236 (2009).

“The law is clearly established when a Supreme Court or Tenth Circuit decision is

on point, or if the clearly established weight of authority from other courts shows that the

right must be as plaintiff maintains.” Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th

Cir. 2017). “The precedent is considered on point if it involves materially similar conduct

or applies with obvious clarity to the conduct at issue.” Lowe v. Raemisch, 864 F.3d 1205,

1208 (10th Cir. 2017) (internal quotation and emphasis omitted); accord Apodaca, 864

F.3d at 1076. “The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier v Katz, 533 U.S. 194, 202 (2001),

modified on other grounds by Pearson v. Callahan, 555 U.S. 223, 240-43 (2009).

“Qualified immunity protects all officials except those who are ‘plainly incompetent or

those who knowingly violate the law.’” Apodaca, 864 F.3d at 1076 (quoting White v.

Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)).

Plaintiff’s reliance on Housley to establish that pretrial detainees have a right to

exercise or recreation time outside their cells for at least five hours per week, is misplaced.

There, a jail inmate alleged “that he was allowed only thirty minutes of out-of-cell exercise

during a three-month period,” and the Tenth Circuit found that his allegations stated a

§ 1983 claim against the county sheriff. Housley, 41 F.3d at 598. Although the court of

appeals expressed agreement with a view that “a failure to provide inmates (confined for

more than a very short period) with the opportunity for at least five hours a week of exercise

outside the cell raises serious constitutional questions,” the court did not attempt to set a

precise standard for “delineating what constitutes constitutionally sufficient opportunities

for exercise.” Id. at 599 (internal quotation omitted). Instead, the Tenth Circuit expressly

recognized in Housley that an adequate opportunity for exercise “will depend on the

circumstances of each case, including the physical characteristics of the cell and jail and

the average length of stay of the inmates.” Id.

In the years since Housley was decided, the Tenth Circuit has revisited the question

of out-of-cell or outside exercise on multiple occasions, but none of those cases announced

a bright-line rule or involved materially similar circumstances that would provide clear

guidance for this case. See, e.g., Apodaca, 864 F.3d at 1078 (holding prison officials were

entitled to qualified immunity in action involving 11-month ban on outdoor exercise);

Lowe, 864 F.3d at 1211 (same, where prison inmate alleged deprivation of outdoor exercise

for two years and one month); Ajaj v. United States, 293 F. App’x 575, 584 (10th Cir. 2008)

(unpublished) (holding prison inmate failed to state § 1983 claim by alleging he was denied

outdoor recreation for one year); Fogle v. Pierson, 435 F.3d 1252, 1260 (10th Cir. 2006)

(holding prison inmate stated § 1983 claim by alleging he was denied all outdoor exercise

for three years); Perkins v. Kan. Dep’t Corr., 165 F.3d 803, 810 (10th Cir. 1999) (holding

prison inmate stated § 1983 claim by alleging he was denied outdoor exercise for more

than nine months). The Court, like Judge Erwin, is aware of no case law holding that jail

officials are constitutionally required to provide pretrial detainees with a minimum of five

hours per week of out-of-cell recreation time, as argued by Plaintiff.

For these reasons, the Court finds that Defendants are entitled to qualified immunity

from individual liability on Plaintiff's claim of excessive in-cell time alleged in Count II

of the Complaint. Therefore, the Court finds that the Motions of Sheriff Taylor, Lt. Carter,

and Lt. Hendershott should be granted and the claim asserted against them in Count II

should be dismissed.

IT IS THEREFORE ORDERED that the Report and Recommendation [Doc.

No. 50] is ADOPTED in part, as set forth herein. All pending Motions to Dismiss [Doc.

Nos. 22, 23, 24 and 44] are GRANTED. Plaintiff's action against Defendants P.D. Taylor,

Tiffany Carter, Christopher Hendershott, and Keith Jackson is DISMISSED without

prejudice. The case remains under referral to Judge Erwin for further proceedings.

IT IS SO ORDERED this 17" day of March, 2020.

Md, Q.

Q: uae

\

TIMOTHY D. DeGIUSTI

Chief United States District Judge

15