# Conn v. Helder

> District Court, W.D. Arkansas · May 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10632160

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** May 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

MICHAEL LEE CONN PLAINTIFF

v. Civil No. 5:20-CV-05008

SHERIFF TIM HELDER and DEFENDANTS
MAJOR RANDELL DENZER

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action provisionally filed pursuant to 42 U.S.C. § 1983. Pursuant to
the provisions of 28 U.S.C. § 636(b)(1) and (3) (2011), the Honorable Timothy L. Brooks, United
States District Judge, referred this case to the undersigned for the purpose of making a Report and
Recommendation. Currently before the Court is Defendants’ Motion for Summary Judgment.
(ECF No. 17).
I. BACKGROUND
Plaintiff is currently incarcerated in the Arkansas Division of Correction1 Varner Unit, but
his claims center on his time in the Washington County Detention Center (“WCDC”). Plaintiff
filed his Complaint on January 7, 2020. (ECF No. 1). He filed a Motion to Amend on January
14, 2020, which was granted the next day. (ECF Nos. 8, 9). Plaintiff filed his Amended Complaint
on January 22, 2020. (ECF No. 10). For his first claim, Plaintiff alleges that from September 4,
2019, through December 29, 2020, Defendants subjected him to unsafe and unsanitary living
conditions in WCDC. Specifically, he alleges that toilet leaks and broken sinks were not repaired,
there was no cold drinking water, and the ventilation systems were broken. (Id. at 4-5). Later in

1 The Arkansas Department of Correction was reorganized in 2019 to become the Arkansas Department of Corrections.
The new Department is a Cabinet level department within the Arkansas State Government which includes the Division
of Correction and the Division of Community Correction.
his Complaint he alleges that he was “forced to live with no cold drinking water, forced to walk in
human urine and waste and sleep in water from sweating walls due to no working ventilation
systems during certain time and to use toilets that back flow and hold human waste.” (Id. at 8).
For his second claim, Plaintiff alleges that WCDC was overcrowded from September 4, 2019,
through the date he filed his Complaint. (Id. at 6). This overcrowding forced him and other
inmates to sleep on the floor. (Id.).
Plaintiff proceeds against Defendants for all claims in both their official and individual

capacities. (Id. at 5, 6). He seeks compensatory and punitive damages. (Id. at 8).
Defendants filed their Motion for Summary Judgment on October 7, 2020. (ECF No. 17).
On October 8, 2020, the Court entered an Order directing Plaintiff to file his Summary Judgment
Response. (ECF No. 20). Plaintiff filed a Motion for Extension on October 16, 2020, which was
granted on October 20, 2020. (ECF Nos. 21, 22). Plaintiff filed his Response on November 12,
2020. (ECF Nos. 23, 24).
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, Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986), 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).
“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 issue of material fact exists.” National Bank of Commerce v. Dow Chemical 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.” National 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. ANALYSIS
Defendants argue that summary judgment in their favor is appropriate because: (1) Plaintiff
failed to file any grievances concerning black mold,2 that he was forced to sleep on the floor for
months, or that he was forced to sleep in water; (2) there is no proof of personal involvement by
either of the named Defendants; (3) Defendants did not subject Plaintiff to any unconstitutional
conditions of confinement; (4) negligence does not rise to the level of a constitutional violation;
(5) Defendants are entitled to qualified immunity; and, (6) there is no basis for official
capacity/county liability. (ECF No. 18).
In his Response, Plaintiff argues that he exhausted all grievance procedures on the kiosk
grievance system to the best of his abilities, and references the copies of his grievances submitted

by Defendants with their motion. (ECF No. 23 at 2). Plaintiff then points to the large number of
maintenance tickets for his cell block, F-Block in B-Pod. (Id. at 3). He further argues that the
contents of the logs and maintenance tickets confirm his complaints about the existence of the
maintenance issues. (Id. at 4-17). Plaintiff then argues that the maintenance issues violated the
written policies of the facility. (Id. at 10-13). Plaintiff does not dispute that the allegations of his

2 It does not appear that Plaintiff made any allegations concerning black mold in his Amended Complaint. Black mold
will, therefore, not be discussed further.
Complaint center on his time in F-Block, that he was transferred to F-Block on September 21,
2019, or that he was transferred out of F-Block on January 9, 2020. (ECF No. 19 at 1 ¶ 3; ECF
No. 24 at 1 ¶ 3). He does not dispute that the total amount of time he spent in F-Block was three
or four months. (ECF No. 19 at 7 ¶ 38; ECF No. 24 at 6 ¶ 38).
A. Failure to File Grievances
A review of Plaintiff’s WCDC grievances indicates he filed no grievances concerning his
sleeping conditions. (ECF No. 19-3). The Prison Litigation Reform Act (“PLRA”) mandates
exhaustion of available administrative remedies before an inmate files suit. Section 1997e(a) of

the PLRA provides: “[n]o action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.” 42 U.S. C.
§ 1997e(a). Here, Plaintiff failed to file any grievances concerning claims that he was forced to
sleep on the floor for long periods due to overcrowding, or that he was forced to sleep in wet
conditions. As he failed to exhaust any grievances on these issues prior to filing this case, his
claims on these issues must be dismissed pursuant to the PLRA.
B. Lack of Personal Involvement
Plaintiff did file grievances concerning the functioning of the toilets, sinks, and ventilation
system in F-Block. (ECF No. 19-3). Based on the summary judgment record, however, it appears

that he sued the named Defendants because they held supervisory roles at WCDC.
A claim of deprivation of a constitutional right cannot be based on a respondeat superior
theory of liability. See Monell v. Department of Social Services, 436 U.S. 654, 694 (1978). “[A]
supervisor is not vicariously liable under 42 U.S.C. § 1983 for an employee’s unconstitutional
activity.” White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994); see also Keeper v. King, 130 F.3d
1309, 1314 (8th Cir. 1997) (“general responsibility for supervising the operations of a prison is
insufficient to establish the personal involvement required to support liability”). “Liability under
section 1983 requires a causal link to, and direct responsibility for, the deprivation of rights. To
establish personal liability of the supervisory defendants, [Plaintiff] must allege specific facts of
personal involvement in, or direct responsibility for, a deprivation of his constitutional rights.”
Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007) (quoting Mayorga v. Missouri, 442
F.3d 1128, 1132 (8th Cir. 2006)); see also Kulow v. Nix, 28 F.3d 855, 859 (8th Cir. 1994) (“if any
claim of medical indifference . . . is to succeed, it must be brought against the individual directly

responsible for [Plaintiff’s] medical care.”).
In his deposition, Plaintiff testified that he never spoke with Sheriff Helder concerning the
conditions of confinement in the facility, and, in fact had never met him. (ECF No. 19-10 at 47-
48). He testified that “with him being the sheriff of the place . . . you know, being in charge of the
operations, I would just think they would have knowledge of what was going on . . .” (Id. at 48).
Plaintiff further testified that he had no evidence that the sheriff was aware of his complaints. (Id.
at 49). Regarding Major Denzer, he believed Denzer had been in F-block twice. (Id. at 50). One
of those times was in late November or early December, and Plaintiff believed Denzer came to
verify that the sinks were not working. (Id. at 52). The buttons on the sinks were replaced after
that visit, and the sinks became fully operational sometime between mid-December and the first

week of January. Plaintiff was informed by the maintenance person, Sam Caudle, that they had to
order and wait for parts. (Id. at 35, 52). Plaintiff testified that Denzer was there a second time
with a group of other “bigwigs” while they were trying to fix the sinks, he believed sometime in
mid-December though the first week of January; it was shortly before he signed his plea agreement
and was transferred to the ADC in January. (Id. at 35, 48, 50). Plaintiff believed this group of
people included news people who were videoing the conditions in the facility. (Id. at 51). Plaintiff
testified that inmates typically did not see anyone of higher rank than a sergeant in the cell blocks,
but majors, captains, and lieutenants all came with the news people on that day. Plaintiff did not
speak with Major Denzer concerning his complaints, and to his knowledge, Denzer had never seen
his grievances. (Id. at 50-51). Plaintiff testified that he sued Major Denzer because “he’s the
major, so he’s in charge of the operations at the jail and he’s been in and out of there enough to
see that people are overcrowded and sleeping on floors and pretty much just stacked on top of each
other. . .” (Id. at 64). He testified that all repairs were done though a “chain of command.” (Id.
at 53). The best way to get a repair completed was to file a grievance, because requests to floor

deputies were frequently not successful. (Id.) Then Corporal Mulvaney would respond to the
grievances. (Id. at 53-54). Typically, the grievance would result in someone coming to look at
the issue within a week or two; the response was generally not immediate. (Id. at 54-55). A repair
issue was more likely to be addressed if multiple inmates filed grievances. (Id. at 55). He was not
certain of the process after Corporal Mulvaney addressed the grievance. (Id. at 54).
In his affidavit, Sheriff Helder stated that he relied on a chain of command to supervise the
employees of the sheriff’s department. He is not personally involved in the maintenance and
upkeep of the facility unless a problem is systemic or not capable of resolution by his staff. (ECF
No. 19-11 at 1). He was neither aware of nor involved in the maintenance issues or housing issues
referenced in Plaintiff’s Complaint until he was served with the lawsuit. (Id. at 2). While he was

generally aware of over-population in the jail during late 2019 and early 2020, he was not familiar
with either Plaintiff or his claims. (Id.).
Major Denzer, in his affidavit, stated that he is the highest-ranking officer under the Sheriff
and Chief deputy, and as such, relied upon a chain of command to administer the various operations
of WCDC. (ECF No. 19-12 at 1). Problems are handled by those below him in the chain of
command. Issues are not brought to his attention unless they cannot be solved by those employees
who normally handle the issue. (Id.). He was not personally involved with the maintenance issues
referenced in Plaintiff complaint until he was served with the lawsuit. (Id.). Because Plaintiff’s
allegations deal with plumbing and air issues, such issues would have been a routine part of the
operation of the facility and would not have been brought to his attention. (Id. at 2). Due to the
age and constant use of the facility, WCDC employs maintenance personnel capable of addressing
normal issues. (Id.). He does not review the maintenance log unless he is made aware of a problem
that creates a danger to detainees or staff. (Id.). While he was generally aware of over-population
in the jail during late 2019 and early 2020, he was not familiar with either Plaintiff or his claims.

(Id.).
In his affidavit, Sam Caudle, WCDC maintenance employee, handled the issues concerning
the toilets and sinks in F-Block. (ECF No. 19-13 at 1). He acknowledged that there have been
instances where the walls and floors “sweat,” but this is not caused by a failure of the ventilation
system. Instead, it occurs when the walls or floors are cooler than the air in the room, causing
condensation. (Id.). This situation is temporary, and towels and blankets are used to absorb the
condensation. (Id.). He has never ignored a repair ticket when it comes to his attention, and does
everything possible to ensure that repairs are done in a timely manner. (Id.). He did not consult
with either Sheriff Helder or Major Denzer concerning any of the repair issues noted in Plaintiff’s
Complaint. (Id.).

Thus, based on the summary judgment record, neither of the named Defendants were
personally aware of or involved in Plaintiff’s allegations of maintenance issues concerning the
sinks, toilets, and ventilation systems.
C. No Unconstitutional Conditions of Confinement
To the extent Plaintiff’s allegation that Major Denzer examined the sinks in F-Block to
confirm a repair issue could be construed as a form of limited personal involvement, nothing
alleged by Plaintiff concerning the malfunctioning sinks rises to the level of a constitutional
violation.
“[W]hen the State takes a person into its custody and holds him there against his will, the
Constitution imposes upon it a corresponding duty to assume some responsibility for his safety
and general well-being.” County of Sacramento v. Lewis, 523 U.S. 833 (1998) (citation omitted).
The Eighth Amendment to the United States Constitution prohibits the imposition of cruel and
unusual punishment. U.S. Const. amend. VIII. Detention centers must provide pretrial detainees

with “reasonably adequate sanitation, personal hygiene, and laundry privileges . . .” Beaulieu v.
Ludeman, 690 F.3d 1017, 1045 (8th Cir. 2012) (quoting Howard v. Adkison, 887 F.2d 134, 137
(8th Cir. 1989)). The Eighth Amendment also prohibits punishments that deprive inmates of the
minimal civilized measure of life’s necessities. Smith v. Copeland, 87 F.3d 265, 268 (8th Cir.
1996); see also Hall v. Dalton, 34 F.3d 648, 650 (8th Cir. 1994) (“[I]n this circuit, the standards
applied to Eighth Amendment and Fourteenth Amendment claims have been the same.”).
As with all Eighth Amendment claims, a prisoner must suffer some actual injury to receive
compensation, and the injury must be greater than de minimis. Irving v. Dormire, 519 F.3d 441,
448 (8th Cir. 2008).
Plaintiff’s allegation that cold drinking water was not always available in F-Block due to

repair issues with the sinks does not rise to the level of a constitutional claim. Access to a sufficient
quality and quantity of water for drinking and basic personal hygiene is, of course, a minimal life
necessity. See e.g., Scott v. Carpenter, 24 F. App’x 645, 647 (8th Cir. 2001) (unpublished) (no
disagreement that basic personal hygiene falls within the minimal civilized measure of life’s
necessities); Spires v. Paul, 581 F. App’x 786, 792-94 (11th Cir. 2014) (housing an inmate in a
cell without potable water for several days and forcing him to drink from the toilet to survive stated
an Eighth Amendment violation). But “[n]othing in the Constitution requires that each prisoner
be provided with clean, cold, warm, or any other form of running water in his cell . . .” Jelinek v.
Roth, 33 F.3d 56, *2 (7th Cir. 1994) (unpublished) (plumbing in cell that produced only water
contaminated with rust that was undrinkable and unsuitable for bathing does not implicate the
Eighth Amendment); see also, Smith v. Copeland, 892 F.Supp. 1218, 1230 (E.D. Mo. 1995)
(turning off water in a cell except for brief periods to flush the toilet, and providing drinking water
with each meal did “not deprive plaintiff of minimally necessary drinking water or hygienic
requirements”), aff’d, 87 F.3d 265 (8th Cir. 1996); Narducci v. Fields, 62 F.3d 1428 (10th Cir.

1995) (unpublished) (“a lack of light, a lack of running water, poor cell ventilation, and placement
in an individual cage for outdoor exercise” did not rise to level of constitutional violation); Downs
v. Carter, 2016 WL 1660491, *8 (N.D. Illinois) (“There is no constitutional right to water on
demand.”).
Plaintiff does not allege he was denied sufficient water to drink or that he was denied the
opportunity for basic personal hygiene. Instead, he alleges only that cold drinking water was not
always available in F-Block. Plaintiff clarified the situation in his deposition, stating that there
were four sinks in the pod. One sink worked normally, two were nonfunctional, and one ran
constantly with lukewarm water. (ECF No. 19-10 at 34). After one repair attempt, all four sinks
were nonfunctional for two to four days. (Id. at 34, 39). During those days, Plaintiff was provided

with Kool-Aid with his meals. (Id. at 36). The showers were always functional. (Id. at 36-37).
Plaintiff further testified that he suffered no injury due to any issue with the sinks. (Id. at 36).
Thus, Plaintiff’s allegation that he was denied cold drinking water on demand in his pod for a few
days does not rise to the level of a constitutional violation.
D. Official Capacity Claims
Finally, Plaintiff asserts an official capacity claim against both Defendants. An official
capacity claim is considered a claim against the employing governmental entity, here, Washington
County. Crawford v. Van Buren Cnty., 678 F.3d 666, 669 (8th Cir. 2012). “Section 1983 liability
for a constitutional violation may attach to a municipality if the violation resulted from (1) an
‘official municipal policy,’ (2) an unofficial ‘custom,’ or (3) a deliberately indifferent failure to
train or supervise.” Corwin v. City of Independence, Mo., 829 F.3d 695, 699 (8th Cir. 2016)
(citations omitted).
Plaintiff does not contend any of the WCDC policies were unconstitutional. Instead, in his
Summary Judgment Response and in his deposition, he states that Defendants violated WCDC

policies concerning inmate living conditions. (ECF No. 19-10 at 56; ECF No. 23 at 10-13). A
violation of policy allegation cannot support an official capacity claim. See Monell v. Department
of Soc. Srvs., 436 U.S. 659, 690-91 (1978) (violation must result from the governmental entity’s
custom or policy).
IV. CONCLUSION
Accordingly, it is recommended that Defendants’ Motion for Summary Judgment (ECF
No. 17) be GRANTED, and Plaintiff’s Complaint be DISMISSED WITH PREJUDICE.
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The parties are

reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 3rd day of May 2021.
/s/ Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632160. Public record. Not legal advice.