# Guirlando v. Mitcham

> District Court, W.D. Arkansas · August 24, 2021

URL: https://www.frixlaw.com/law-library/cases/10632192

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** August 24, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10632192

## How later opinions describe it (automated extraction)

- holding in the face of medical records indicating treatment was provided and physician affidavits indicating treatment was adequate, a plaintiff may not create a question of fact simply by alleging he did not feel the treatment was adequate.
- holding an inmate bears a heavy evidentiary burden in establishing a prima facie retaliation case

## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION

MARCO GUIRLANDO PLAINTIFF

v. Civil No. 1:20-cv-01007

SHERIFF RICKY ROBERTS; CAPTAIN DEFENDANTS
RICHARD MITCHAM; LT. KEVIN
PENDLETON; LT. PAUL KUGLER;
LT. BILLY PERRY; SGT JOHN WARD;
SGT. JEDIDIAH COTTON; DR. DEANNA
HOPSON; and NURSE SHERIE RICE

REPORT AND RECOMMENDATION
Before the Court is a Motion for Summary Judgment filed by Defendants Roberts,
Mitcham, Pendleton, Kugler, Cotton and Rice. (ECF No. 73).1 Pursuant to the provisions of 28
U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, Chief United States District
Judge, referred this case to the undersigned for the purpose of making a Report and
Recommendation.
I. BACKGROUND
A. Procedural Background
Plaintiff is currently incarcerated in the Federal Detention Center in Miami, Florida. His
claims in this lawsuit arise from his incarceration in the Union County Detention Center (“UCDC”)
in 2019 and 2020. Plaintiff filed his initial Complaint on March 12, 2020. (ECF No. 1). The
following day, the Court ordered Plaintiff to file an Amended Complaint to state his claims against

1 Defendant Dr. Deanna Hopson also filed a Motion for Summary Judgment. (ECF No. 70). On July 8, 2021, the
Court entered a Report and Recommendation recommending Defendant Hopson’s motion be granted dismissing all
claims against her. (ECF No. 89). On August 5, 2021, the Honorable Susan O. Hickey, Chief United States District
J udge, adopted the Report and Recommendation in toto. (ECF No. 90).
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each Defendant with factual specificity on the Court’s approved § 1983 form. (ECF No. 5). On
April 29, 2020, Plaintiff filed an Amended Complaint. (ECF No. 20). On May 13, 2020, Plaintiff’s
application to proceed in forma pauperis was granted. (ECF No. 25). On May 27, 2020, Plaintiff
filed a Second Amended Complaint. (ECF No. 27).
On July 21, 2020, attorney Richard E. Worsham entered his appearance on behalf of
Plaintiff. (ECF No. 40). On November 20, 2020, counsel for Plaintiff filed an Amended
Complaint naming the following individuals as Defendants: Sheriff Ricky Roberts, Captain
Richard Mitcham, Lieutenant Kevin Pendleton, Lieutenant Paul Kugler, Lieutenant Billy Perry,
Sergeant John Ward, Sergeant Jedidiah Cotton, Dr. Deanna Hopson, and Nurse Sherie Rice.2 (ECF
No. 60).3 Plaintiff is suing Defendants in their individual and official capacities and is seeking

compensatory and punitive damages. Id. at p. 12.
Specifically, Plaintiff states he was subjected to numerous incidents of abuse and
unjustified punishments at the hands of Defendants and “a list of incidents includes, but is not
limited to:”
a. Defendant Richard Mitcham leaked grievances made by Plaintiff to staff
members of the correctional facility and to inmates, which lead to assaults
by inmates upon Plaintiff and abuse by correctional officers;
b. Defendants, Lt. Billy Perry, Sgt. Ward and Sgt. Jedidiah Cotton subjected
Plaintiff to mental abuse and physical abuse;
c. Defendant Lt. Kevin Pendleton subjected Plaintiff to mental abuse;
d. Defendant Lt. Kevin Pendleton withheld mail directed to Plaintiff;
e. Defendant Sgt. Jedidiah Cotton sexually assaulted Plaintiff and turned off
his body camera to prevent any recording of the poor medical treatment
Plaintiff was receiving from the medical staff;
f. Defendants Sheriff Ricky Roberts, Captain Richard Mitcham, Lt. Kevin

2 Neither Lieutenant Billy Perry nor Sergeant John Ward were ever served with process in this lawsuit.
Consequently, Plaintiff’s claims against these Defendants are not properly before the Court and should be dismissed.
3 “It is well-established that an amended complaint supercedes an original complaint and renders the original
complaint without legal effect.” In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000). Thus, the
Amended Complaint (ECF No. 60) filed on November 20, 2020, is the operative pleading in this case.
2
Pendleton, Lt. Paul Kugler, Lt. Billy Perry, Sgt. Ward and Sgt. Jedidiah
Cotton placed Plaintiff in the detention area colloquially referred to by staff
and officers as ‘the hole’ as punishment for instigating a fight, even though
he was attacked by another inmate for being an alleged informant;
g. Defendants Sheriff Ricky Roberts, Captain Mitcham, Kt. Kevin Pendleton,
Lt. Paul Kugler, Lt. Billy Perry, Sgt. Ward and Sgt. Jedidiah Cotton ignored
Plaintiff’s request for medical treatment about an injury to his hand for a
week;
h. Defendants Sheriff Ricky Roberts, Captain Richard Mitcham, Lt. Kevin
Pendleton, Lt. Paul Kugler, Lt. Billy Perry, Sgt. Ward and Sgt. Jedidiah
Cotton placed Plaintiff in solitary confinement for 20 days without
justification;
i. Defendants Sheriff Ricky Roberts, Captain Richard Mitcham, Lt. Kevin
Pendleton, Lt. Paul Kugler, Officer Lt. Billy Perry, Sgt. Ward and Sgt.
Jedidiah Cotton placed Plaintiff in the ‘intake pod’ which is used to
quarantine new inmates to determine if they have the COVID-19 virus;
j. Defendant Nurse Sherie Rice initially improperly wrapped Plaintiff’s injured
hand and did not check on the status of the injury while Plaintiff was in
solitary confinement;
k. Defendant Sgt. John Ward assaulted Plaintiff while taking him to solitary
confinement and made threats to Plaintiff;
l. Defendant Lt. Kevin Pendleton encouraged other inmates to retaliate against
Plaintiff for his grievances;
m. Defendant Lt. Kevin Pendleton watched other inmates steal Plaintiff’s
possessions and took no action against the inmates or to prevent the actions
of the other inmates;
n. Defendant Lt. Kevin Pendleton informed other inmates that Plaintiff was
filing grievances against them;
o. Defendants Cpt. Richard Mitcham, Lt. Kevin Pendleton, Lt. Paul Kugler,
and Lt. Billy Perry labeled Plaintiff as an informant;
p. Defendants Cpt. Richard Mitcham, Lt. Kevin Pendleton, Lt. Paul Kugler,
and Sgt. Jedidiah Cotton retaliated against Plaintiff for filing grievances;
q. Defendants Cpt. Richard Mitcham, Lt. Kevin Pendleton, Lt. Paul Kugler,
and Lt. Billy Perry refused to act upon any grievances filed by Plaintiff;
r. Defendants Cpt. Richard Mitcham, Lt. Kevin Pendleton, and Lt. Paul Kugler
refused to take action against any inmate for stealing Plaintiff’s property or
any action to stop said stealing;
s. Defendants Sheriff Ricky Roberts, Cpt. Richard Mitcham, Lt. Kevin
Pendleton, and Lt. Paul Kugler were aware of the abuse and mistreatment of
Plaintiff by the officers and inmates at the Union County Jail a/k/a Union
County Detention Center and took no action to stop said abuse and
mistreatment. In fact, Defendants, Sheriff Ricky Roberts, Cpt. Richard
Mitcham, Lt. Kevin Pendleton, and Lt. Paul Kugler encouraged said abuse
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and mistreatment;
t. Defendant Dr. Deanna Hopson refused to provide necessary medical
treatment to Plaintiff;
u. Defendant Dr. Deanna Hopson refused to place Plaintiff’s hand in a cast,
allow Plaintiff to see as specialist, or provide any follow-up therapy;
v. Defendant Dr. Deanna Hopson refused to follow the proper sanitary protocol
as it pertains to changing the wrap on Plaintiff’s hand;
w. Defendant Nurse Sherie Rice refused to provide necessary medical treatment
to Plaintiff;
x. Defendant Nurse Sherie Rice refused to place Plaintiff’s hand in a cast, allow
Plaintiff to see a specialist, or provide any follow-up therapy;
y. Defendant Nurse Sherie Rice refused to follow the proper sanitary protocol
as it pertains to changing the wrap on Plaintiff’s hand;
z. Defendants Sheriff Ricky Roberts, Cpt. Richard Mitcham, Lt. Kevin
Pendleton, and Lt. Paul Kugler, refused to follow proper procedure in the
imposition of punishment of Plaintiff;
aa. Defendants Sheriff Ricky Roberts, Cpt. Richard Mitcham, Lt. Kevin
Pendleton, and Lt. Paul Kugler refused to follow the directives of the
Arkansas Department of health regarding the reduction of the spread of
COVID-19 in correctional facilities issued on April 15, 2020.

(ECF No. 60, pp. 3-6).
In Count I, Plaintiff claims Defendants were aware of Plaintiff’s serious medical condition
“but deliberately disregarded it”. (ECF No. 60, p. 7-9). In Count II, Plaintiff alleges Defendants
“subjected Plaintiff to physical, mental, and sexual abuse in violation of Plaintiff’s constitutional
rights.” Id. at p. 9. In Count III, Plaintiff alleges Defendants “refused to follow the directive of
the Arkansas Department of Health”, issued on April 15, 2020, to reduce the spread of COVID-19
in correctional facilities”. Id. at p. 10.
Plaintiff also asserts a breach of contract claim under state law in Count IV against
Defendant Rice. (ECF No. 60, pp. 11-12). He claims she has a contract of employment with
Union County to provide medical care and treatment for inmates in the UCDC and Plaintiff was a
third-party beneficiary to that contract. Plaintiff alleges Defendant Rice breached her duty to
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provide medical care and treatment to him. Id. at p. 12.
On March 18, 2021, Defendants Cotton, Kugler, Mitcham, Pendleton, Rice and Roberts
filed their Motion for Summary Judgment. (ECF No. 73). They argue the motion should be
granted because: 1) Defendants are entitled to qualified immunity; 2) Defendants were not
deliberately indifferent to Plaintiff’s medical needs; 3) there is no evidence Plaintiff suffered any
physical, mental, or sexual abuse as a result of the actions, or inactions, of Defendants; 4) none of
the Defendants were deliberately indifferent to any “excessive or substantial” risk of Covid-19
with respect to Plaintiff; 5) Defendant Rice did not breach any contract to provide medical care to

Plaintiff; and 6) there is no proof of any unconstitutional county policy or custom of Union County
which was the “moving force” behind any alleged violation of Plaintiff’s rights. (ECF No. 75).
In support of the motion, Defendants submitted a Statement of Facts (ECF No. 74), a Brief (ECF
No. 75), Plaintiff’s Deposition Transcript (ECF No. 74-1), and affidavits from Defendants Cotton
(ECF No. 74-2), Roberts (ECF No. 74-3), Rice (ECF No. 74-4), Mitcham (ECF No. 74-5), and
Kugler (ECF No. 74-6).
On April 29, 2021, Plaintiff filed a Response to the motion for summary judgment. (ECF
No. 83). He also filed disputed Statements of Fact (ECF No. 85), and a Brief in Support of his
Response. (ECF No. 87). Plaintiff argues Defendants are not entitled to summary judgment
because he filed numerous grievances against Defendants which should be viewed in the light most

favorable to Plaintiff regarding his claims and Plaintiff testified in his deposition concerning the
various incidents supporting his claims. Id. at pp. 4-7. Plaintiff argues there are material issues
of fact in dispute and summary judgment is improper. Id. at p. 7.
B. Factual Background

5
In February of 2019, Plaintiff was arrested and incarcerated in the UCDC where he
remained until September of 2019, when he was transferred to several other jails in Texas,
Oklahoma, and Colorado. (ECF No. 74-1, p. 29). In January of 2020, Plaintiff was again
incarcerated in the UCDC where he remained until September 2020, when he was transferred to
the Ouachita County Jail in Camden, Arkansas. Id.
Plaintiff initially sought medical treatment on April 3, 2019, following an altercation with
another inmate named Moffett, and presented with bruising and swelling on the palm and top of
his right hand. (ECF No. 70-1, p. 3). That same day Dr. Hopson referred Plaintiff to SAMA
Healthcare Services for an x-ray, which showed a slightly impacted fracture to the head and neck

of Plaintiff’s second metacarpal. Id. at pp. 3, 12. In response, she prescribed Plaintiff Ibuprofen
and Acetaminophen, and ordered that Plaintiff’s hand be wrapped with soft roll in his palm,
keeping the fingers cupped. Id. at p. 3. The following day, after consulting with an orthopedist,
Dr. Hopson also ordered Plaintiff’s fingers be buddy taped together by the UCDC’s medical staff
daily. Id. While there were multiple instances where Plaintiff refused to allow fresh wrapping to
be applied, or otherwise removed his tape against medical orders, by and large the wrapping was
changed as ordered. Id. at pp. 5, 6, 10, 11, 20, 21, 22. Dr. Hopson also met with Plaintiff and
reviewed his x-rays with him, noted he was doing well with buddy taping his fingers, and that his
bruises and swelling were resolving. Id. at p. 4.
Dr. Hopson reevaluated Plaintiff’s finger at least six (6) times and ordered another set of
x-rays six weeks after the injury occurred. (ECF No. 70-1, pp. 4-8). On June 14, 2019, Dr. Hopson
ordered the nurses to discontinue buddy wrapping Plaintiff’s hand and ordered Plaintiff to start to

work his knuckles. Id. at p. 11. Dr. Hopson ordered Plaintiff not to do pushups or put pressure on

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his hand. Id. When Nurse Kasie Sanford relayed the order to Plaintiff, he reported he had done
pushups earlier and his hand was sore. Id.
Dr. Hopson reevaluated Plaintiff on March 16, 2020, because Plaintiff complained of nerve
pain. Plaintiff requested to see a specialist for his hand and stated he wanted surgery. (ECF No.
70-1, p. 25). Dr. Hopson determined there was no need for an x-ray because Plaintiff’s bones were
all stable. Id. She offered Plaintiff Tylenol or Ibuprofen, but Plaintiff refused. Id. Dr. Hopson
also explained to Plaintiff that he had full range of motion and there was no need to see a surgeon.
Id.
Dr. Hopson treated Plaintiff again on March 30, 2020, because Plaintiff complained of pain

in his right index finger. (ECF No. 70-1, pp. 26, 34). Plaintiff stated he wanted to get the opinion
of another doctor and insisted on seeing a surgeon. Id. Dr. Hopson explained to Plaintiff that he
had full function and range of motion, so she was not aware of any surgeon that would consider
looking at a hand or finger in the good condition his hand was in. Id. She informed Plaintiff he
should continue with hand squeezing exercises to strengthen his right hand. Id.
According to the affidavit of Defendant Rice, she is a nurse employed at the UCDC. She
states she has never had a contract with Union County. In addition, she testified she always
followed the instructions of Dr. Hopson each time she wrapped Plaintiff’s hand following his
finger fracture. (ECF No. 74-4, pp. 1-2). She testified she was not the only nurse to change
Plaintiff’s wrap and she does not recall ever wrapping Plaintiff’s hand (or anyone else’s) into a
fist. Instead, she states she only remembers performing “buddy wraps” on Plaintiff. Id. On May
24, 2019, while Defendant Rice was cutting Plaintiff’s hand wrap off, she “nicked his finger”.

According to her sworn testimony, it was not a deep cut and it took her a second to find it because

7
it was such a small “nick”. Defendant Rice states the incident was unintentional. (ECF No. 74-4,
p. 2).
Defendant Rice further testified that referral to other physicians for x-rays or other imaging
tests, for physical therapy, for surgery or casting, and/or the assignment of exercises, is entirely
the physician’s – not the nurse’s – decision. (ECF No. 74-4, p. 2). She also states all of Plaintiff’s
requests were relayed to Dr. Hopson by her, but the decision was Dr. Hopson’s to make, in her
discretion. She also testified she could not make those decisions, as they are beyond her scope of
practice/licensure as a nurse in the State of Arkansas. Id. Defendant Rice also testified that each
time Plaintiff requested to see Dr. Hopson, an appointment was promptly made for him. Id.

Defendant Roberts is the Sheriff of Union County and as part of his many responsibilities
he manages the UCDC. (ECF No. 74-3, p. 1). According to his affidavit, he does not recall ever
speaking or interacting with Plaintiff in any way during his 2019-2020 incarceration at the UCDC
- or any other time. He also states he occasionally responds to complaints, grievances, and/or
letters directed to him from detainees and/or their families or counsel and he did so in Plaintiff’s
case toward the end of his incarceration. Id. at p. 2.
According to his affidavit, Defendant Roberts delegates responsibility for most day-to-day
activities in the jail to subordinate officers through a chain of command. Those officers are
expected to perform those tasks pursuant to the policies he has implemented for the department.
This chain of command, in addition to other mechanisms like camera systems, post-incident
investigations, and other mechanisms, also provides for the comprehensive supervision of the
UCDC’s employees. (ECF No. 74-3, p. 1). Defendant Roberts testified the UCDC’s staff is

trained under a comprehensive training system that meets or exceeds the requirement of state law.

8
This training includes jail standards training, medical and emergency response training, and
training in the policies of the UCDC. Id. at p. 2. Defendant Roberts testified during Plaintiff’s
2019-2020 incarceration, Union County had appropriate policies in place to address detainees’
issues relating to Covid-19, medical procedures, disciplinary rights, grievances, use of force, and
“Cell and/ or Pod Requirements”. Id. at pp. 42- 56.
According to the affidavit of Defendant Mitcham – the Jail Administrator for the UCDC,
neither he nor anyone at the UCDC deleted or destroyed any of Plaintiff’s grievances. He states it
is impossible because the grievances are stored on a secure off-site server at City TeleCoin – the
vendor for the UCDC’s kiosks and tablets. (ECF No. 74-5, p. 6). Defendant Mitcham testified he

and the supervisory staff responded to Plaintiff’s grievances and requests (as they did with all
detainees) to correct or solve problems he reported. (ECF No. 74-5, p. 2).
Defendant Mitcham also testified he never engaged in any abuse of Plaintiff – physical,
mental, or otherwise – and never witnessed any of the UCDC staff engaging in any abuse. (ECF
No. 74-5, p. 7). Defendant Mitcham testified neither he nor Defendant Pendleton or any other
member of the UCDC staff or any Defendant ever “leaked” grievances, or the fact Plaintiff was
filing grievances, to any of the other inmates nor did they “label” Plaintiff as an informant or
“snitch”. (ECF No. 74-5, p. 1). He also states Plaintiff’s fight with another inmate named Moffett
on April 2, 2020, involved the alleged stealing of each other’s personal items, and had nothing to
do with any inmates’ belief that Plaintiff was filing grievances or was an informant. Defendant
Mitcham testified the argument between Plaintiff and Moffett was not made known to anyone on
the UCDC staff until well after the fight occurred. (ECF No. 74-5, p. 2). Defendant Mitcham also

testified he never called Plaintiff anything other than his name. (ECF No. 74-5, p. 5).

9
Defendant Mitcham testified Plaintiff was placed in one of the one-man booking cells by
himself for a short period of time because, when he left the UCDC and then returned, he had to go
through quarantine with other incoming detainees pursuant to the UCDC’s Covid-19 protocols.
(ECF No. 74-5, p. 5). In addition, Defendant Mitcham testified to his knowledge Plaintiff never
contracted the virus. He states the UCDC has only had two cases of Covid-19 since the beginning
of the pandemic through the date of his affidavit – March 18, 2021. Id. at pp. 5-6. He goes on to
state Defendant Roberts adopted and implemented robust policies to fight the spread of Covid-19
in the UCDC and these policies were put in effect early in the pandemic. Id. at p. 7. Defendant
Mitcham testified Plaintiff was given a Covid-19 test at the UCDC, but the health unit courier

damaged the vials. When Plaintiff was asked to retake the Covid-19 test, he refused. Plaintiff
stated he only wanted a saliva test, but those tests were not available to the UCDC. (ECF No. 74-
5, p. 6).
According to Defendant Roberts affidavit, on April 30, 2020, several jail officers entered
C Pod where Plaintiff was housed and told the inmates to rack up to their cells and get on their
bunks because they needed to escort the nurse in to speak with one of the inmates. Plaintiff refused
to comply, despite repeated orders, until an officer approached and made him retreat to his bunk.
(ECF No. 74-3, p. 35). The video of the incident confirms no Defendant abused Plaintiff in any
way during the cell-to-cell transfer on April 30, 2020. (Video Filed Conventionally on April 5,
2021).
Defendant Cotton is a Sergeant at the UCDC. According to his affidavit, Defendant Cotton
was not involved with the medical care or Covid-19 allegations made by Plaintiff in his Amended

Complaint. (ECF No. 74-2, p. 1). He also states he did not physically, mentally, or sexually abuse

10
Plaintiff. Id. at p. 2.
Defendant Cotton testified on or about the morning of May 20, 2020, he reported to nursing
to see if Plaintiff was finished cleaning himself up to the point where he could be seen by the nurse.
(ECF No. 74-2, p. 2). Defendant Cotton and two other officers (neither of which is a named
Defendant in this lawsuit) went to the shower and found Plaintiff dressed in a uniform laying on a
dry area of the shower room floor with a rolled up towel under his head. Id. Defendant Cotton
states he began to ask Plaintiff if he was “ok” and asked what happened. He states Plaintiff could
not or would not respond and Defendant Cotton could not tell if he was experiencing an altered
state of consciousness, was engaging in passive resistance (where an inmate goes limp and won’t

respond to frustrate the efforts of the staff), or if something else – or a combination of the two –
was happening. Id.
Defendant Cotton goes on to state he and one of the other officers stood Plaintiff up to
evaluate him, by lifting under his armpits. Standing him up took only a second or two and
Defendant Cotton states he did not touch or grope Plaintiff’s genitals, buttocks, or anything else at
any time during the encounter, or at any other time. (ECF No. 74-2, p. 2). After lifting Plaintiff
to his feet, Defendant Cotton states Plaintiff muttered something he couldn’t make out, and they
assisted him to the exam room in the nursing station which is only about 10 to 15 feet from the
shower room. Once in the exam room, one of the other officers and Defendant Cotton stayed with
Plaintiff. At that time, Defendant Cotton states Plaintiff laid on the floor in the exam room instead
of getting in the wheelchair that was provided for him. Id. at p. 3. Defendant Cotton also testified
the nurse then questioned Plaintiff about what was going on and he stated he had passed out. Id.

The video of the incident does not show any groping or anything else that could be construed as a

11
sexual assault or other abuse by Defendant Cotton. (Video Filed Conventionally on April 5, 2021).
According to Defendant Mitcham’s affidavit, on one occasion, Plaintiff complained about
having commissary items stolen by a fellow inmate after he left several of them laid out on one of
the picnic tables while he went into his cell. Defendant Pendleton dealt with the problem, watching
the video of the theft, but he couldn’t identify the offending inmate (they all wear the same
uniform, and they all know where the cameras are and avoid showing their faces when engaging
in misconduct). Defendant Pendleton explained this to Plaintiff and replaced the item taken with
one from stock. (ECF No. 74-5, p. 2).
Defendant Paul Kugler is a Lieutenant at the UCDC. According to his affidavit, he was

not involved with the medical care or Covid-19 allegations in Plaintiff’s Amended Complaint.
(ECF No. 74-6, p. 1). He also testified he never abused Plaintiff in any way and certainly did not
engage in any physical, mental, or sexual abuse of Plaintiff. Id. at p. 2. Defendant Kugler states
he never called Plaintiff a “snitch” and never heard any other member of the UCDC’s staff use any
such labels toward Plaintiff. (ECF No. 74-6, p. 2).
Defendant Kugler testified after Plaintiff and Moffett fought on April 2, 2019, both were
administratively segregated until disciplinary hearings could be held. (ECF No. 74-3, pp. 26).
After the disciplinary hearing was conducted, Plaintiff was placed in disciplinary segregation. He
appealed that determination and Defendant Kugler handled the appeal. Defendant Kugler was not
involved in the matter prior to handling the appeal. Defendant Kugler determined the jail’s hearing
policies were not followed and he spoke with Plaintiff at that time and released him from
disciplinary segregation. (ECF No. 74-6, p. 2).

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C. UCDC’s Policies
1. Covid-19 Policies and Procedures
On March 13, 2020, Defendant Roberts sent a notice to “All Law Enforcement Agencies in
Union County” concerning the UCDC’s procedures regarding Covid-19. (ECF No. 74-1, p. 42).
He states:
With the recent concern regarding the spreading of the Coronavirus (COVID-19)
we must take a proactive approach in keeping this virus from spreading, in and
throughout, our detention facility. We are currently screening each inmate for fever
over 100 degrees, cough and shortness of breath, and other symptoms that may be
related to the virus. Should we encounter an inmate with these symptoms, we will
place the inmate in isolation and begin treatment.

However, we must also be proactive in the approach of accepting new arrestees
coming into our facility. This is where we need cooperation with your agency in
helping us keep this virus from getting into our facility. We have set up the
following procedure with regard to arrestees entering the facility: 1) the officer and
arrestee will be met at the sally port door prior to being allowed entry; 2) One of
our staff will check the arrestee for fever and any signs of coughing or having
problems with shortness of breath; 3) should the arrestee not have any of these
symptoms then the arrestee will be allowed into the facility.

If the arrestee has one of more of these symptoms, the arrestee will not be allowed
to enter our facility until he/she has been medically cleared from a medical
institution. We respectfully request, that until the threat of the Coronavirus
subsides, your officers use other alternative (i.e. citations to appear) for
misdemeanor and nonviolent felony arrest instead of bringing said arrestees to our
facility. We apologize for any inconvenience this may cause your agency. We feel
these steps must be taken for the safety of those who are being housed in our
facility.

As soon as the threat of this virus spreading subsides, we will resume accepting
inmates as we have before this potential breakout occurred. Should you have any
questions or concerns please contact me at…

Id.

On March 26, 2020, Defendant Roberts wrote a “MEMO” stating in part:
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In response to the current Coronavirus Pandemic (COVID-19), the Union County
Criminal Justice Facility [UCDC], has made the following changes to non-
employee visits to better protect the safety of all persons while in this facility:

Attorney Visits – will be conducted through the glass in the old visitation room
Pastor Visits – will be conducted through the glass in the old visitation room
Investigator Interviews (Sheriff’s Office & Police Department) – will be conducted
through the glass in the old visitation room
Probation and parole Visits and Hearings – will be conducted through the glass in
the old visitation room
DHS Visits – will be conducted through the glass in the old visitation room
Religious Programs – suspended
Hannah program Classes – suspended
SARHC Evaluations – will be conducted through TeleMed only (by pre-set
appointment)
390 Visitation and Furloughs – suspended by order of Arkansas Department of
Corrections
Doctor Call – will remain as normal on Monday
All visitations will return to normal rules and regulations once approved by the
appropriate agencies.

(ECF No. 74-3, p. 43).

On April 6, 2020, Defendant Roberts sent out a memorandum to “All employees” regarding
Covid-19 which states:
According to the CDC the next two weeks are critical in the fight against COVID-
19. They are recommending those who must go out in public wear some type of
mask covering your nose and mouth.

Over this past week many law enforcement officers around this country have
contracted the virus and several have died from it. Most contracted the virus from
community contacts while preforming [sic] their duties.

Therefore, I highly encourage you to wear a mask when coming in contact with
the general public. We must do our part to keep ourselves safe from the virus.
Please wear some type of mask to protect yourself, your family and your law
enforcement family.

It is my prayer this pandemic will be over soon and we can all get back to business
as usual…

14
(ECF No. 74-3, p. 44).

That same day, Defendant Mitcham sent a “MEMO” to “All Jail Personnel” regarding
“Masks/Face Covering” which states, “All Jail personnel have been issued masks/face covering.
Effective immediately, these masks/face coverings are to be worn whenever you encounter a
Detainee. This goes for during the Booking process, passing meal trays, passing commissary,
passing State Issue and any other contact with Detainees. Signs have been posted around the Jail
to remind you to have the mask/face covering on. (ECF No. 74-3, p. 45).
In addition, on April 6, 2020, Defendant Mitcham sent a “MEMO” to “All Jail Personnel”
regarding Uniforms and Personal Property. (ECF No. 74-3, p. 46). The memo states:
From this day forward until the COVID-19 threat is lifted, we will be following
these set of guidelines pertaining to Employee Uniforms:

 Wear street clothes and shoes to work
 Bring two sets of uniforms (First Day Only)
 Put a clean uniform on in the locker room (A locker has been assigned to each
Employee)
 At the end of shift, leave your uniform, with your name inside the waist band, and
shoes inside your locker and change back into the street clothes your wore to work
 Uniforms will then be washed and ironed each day and hung up in the Laundry
Room
 Repeat each day you work

No backpacks or any other personal items will be brought inside the Jail. Any
Backpacks, bags or other personal items can be left inside your locker.

Id.
On April 22, 2020, Defendant Roberts sent a letter to Jennifer Eley at the South Arkansas
Regional Health Center, in El Dorado, Arkansas. The letter states:
This letter is a follow up of our phone conversation we had this afternoon. As you
are aware we have had to change the one-on-one contact with the inmates during
this pandemic. With that said there are only two ways in which contact with
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inmates can occur, (1) visitation through a glass divider using a phone to
communicate, or (2) through the Telemedicine system we have in place.

Although we can accommodate you or your staff in either of these two ways, we
would prefer the use the Telemedicine system for such screenings of our inmates.
This can be accomplished by notifying our Nursing staff of a screening appointment
and we will have the inmate available at the given date and time. This will save
SARHC staff time and will lower the number of individuals coming in contact with
UCSO staff…

(ECF No. 74-3, p. 47).

On April 23, 2020, Defendant Roberts put in writing the following Covid-19 Emergency
Response Policy and Procedure for the UCDC:
 In the event a member of the UCSO Detention Facility should show signs and/or
symptoms of the virus, the employee should immediately be sent home for a
period of 14 days and may only return after he/she are symptom free (i.e. no
signs of fever; not coughing)
 Should there become a shortage of Detention Officers on a shift that can’t report
for work, overtime will be authorized for officers filling in for shortage of staff.
 All Detention Officers will wear masks while at work.
 The mask must be worn covering both your nose and mouth. Do not touch the
front of the mask when removing the mask. Cloth masks shall be washed daily.
 Wash or sanitize your hands prior to putting on gloves. When removing gloves
turn each glove inside out not touching the outside of the glove. Dispose of
them properly and wash or sanitize your hands.
 WASH YOUR HANDS OFTEN!
 Should an inmate show symptoms of COVID-19 immediately give the inmate
a mask and isolate them from the rest of the general jail population.
 When dealing with an inmate with symptoms of the virus, staff shall dress out
with full personal protection equipment before coming in contact with inmate.
 Detention Officers shall notify the nursing staff, and the jail administrator, as
soon as possible when an inmate shows any symptoms of the virus. Medical
staff will notify the Department of Health and coordinate the testing process of
the inmate.
 Medical staff: co-pays for inmate’s medical care for COVID-19 symptoms will
be waived.
 All cells and pods shall be cleaned and disinfected at a minimum of three (3)
times a week. These practices shall be through using cleaning supplies which
kills germs.
16
 Detention Officers are to log when cells and pods are cleaned noting the date
and times and the supervisor who over seen the cleaning.

(ECF No. 74-3, p. 48).

2. UCDC Detainee Medical Procedures
The UCDC also has detainee medical procedures in place. (ECF No. 74-3, p. 50). The
relevant portions of this procedure include the following:
 Doctor visits are one time a week.
 It is mandatory for sick call request forms be filled out completely prior to
seeing a doctor or nurse. (Do not use grievances)
 No Detainees shall be denied necessary health care because of inability to pay.
 All sick call request forms should be turned in by 0800 to be seen by Nurse or
Doctor. This does not apply to emergency situations.
 Pill call will be at 9:30 am AND 6:00PM (+ OR -) 1 hour. Detainees are
required to walk to the food ports, receive medication, and swallow it in the
view of the issuing officer. No hoarding of medication is allowed. Detainee
will initial MARS sheet in the appropriate box.
 Emergency issues: No Detainee will be refused medical screening.
 Violations of this policy may result in disciplinary action under UCSO
disciplinary rules for Detainees.

Id.

3. UCDC Detainee Disciplinary Rights
The UCDC also has procedures in place to inform detainees of their rights in connection
with any disciplinary hearing. (ECF No. 74-3, p. 51). The policy provides before a hearing
can begin, an accused detainee “must acknowledge that they are familiar with their rights”
which include the following:
 The right to present evidence and witnesses on their behalf and to request
cross examination of the accuser, provided such requests are relevant, not
repetitious, not unduly burdensome to the facility, or unduly hazardous to
staff or detainee safety. The hearing office has the option of stipulation
expected testimony from witnesses. The accusing employee must be
17
summoned when the report is based solely on information from confidential
informants.
 The right to not be compelled to incriminate himself/herself.
 The right to a written summary of the evidence and reasons for the
judgement, including reasons for the sentence imposed, when the accused
plead not guilty and was found guilty.
 The right to appeal.
 The right to a hearing 72 hours after placement in administrative
segregation, official holidays, weekends, genuine emergencies, or good
faith efforts by the administration to provide a timely hearing are the only
exceptions.
 The right to an unbiased hearing. Any hearing officer directly involved in
the incident, who is biased for or against the accused.
 The right to be given a written copy of the disciplinary report at least 24
hours before the hearing begins which describes the charges against the
detainee (unless waived by him/her).

Id.

4. UCDC Grievance Procedure
The purpose of the grievance policy at the UCDC is to establish a procedure through which
a detainee may seek formal review of a complaint which relates to any aspect of his detention if
less formal procedures have not resolved the matter. (ECF No. 74-3, p. 52). The procedure states:
All detainees housed within the confines of the Union County Sheriff’s Office
Detention Center may request a grievance to situation arising from policies,
conditions, or events within the jail. All detainees, regardless of their impairment,
or handicap, shall be entitled to invoke this grievance procedure.

Detainees should always try to resolve their problems within the jail informally,
before initiating the grievance process. This informal resolution may be by talking
to any staff member. If a detainee is unable to resolve his/her problems or obtain
relief in this fashion, he/she may initiate the formal process.

If a grievance is unclear or the volume of attached material is too great, it may be
rejected and returned to the detainee with a request for clarity o r summarization on
one additional page.

Reprisals: No action shall be taken against anyone for the good faith use of or good
faith participation in the grievance procedure.
18
The prohibition against reprisals should not be construed to prohibit discipline of
detainees who do not use the system in good faith. Those who file grievances that
are frivolous or deliberately malicious may be disciplined under the appropriate
rule violation described in the UCSO disciplinary rules for detainees.

Id.

5. UCDC Cell and Pod Policy

The UCDC also has the following cell and pod requirements in place which are provided to all
detainees:
 Pods will be issued cleaning supplies no less than 5 days per week. All cleaning
supplies will be returned, hoarding spray bottles, brushes, or any type of cleaner
will be a violation of this policy.
 Cells and day rooms will be clean and free from clutter. Each detainee is
responsible for his/her assigned cell.
 Clothes lines are prohibited.
 Lights and windows shall be free from coverings.
 The hoarding of unauthorized items is prohibited.
 The construction of or possession of hobbycraft and items not being used for
the purpose for which they were intended is prohibited.
 Detainees will be dressed in jail uniforms in all pod day rooms during the hours
of 0800 to 2230. (Lights on) during prevailing circumstances (laundry)
(walking to or from shower) detainees will be covered.
 Misdemeanor Pod (O-Pod) will be fully dressed in jail uniforms during entire
lights on period / or covered in bunk. (0800 to 2230)
 Detainees in Misdemeanor Pod ((-Pod) shall not cluster around windows nor
beat or tap on glass.
 Detainees shall not misuse housing intercoms, emergency, or applicable
information only. (Do not interfere with 911 or Sheriff Office Operations)
 All detainees shall be clothed or covered while at food ports.
 Detainees are only allowed in cells to which they are assigned.
 Behavior that is loud, disruptive, or causes a disturbance is prohibited.
 Detainees using the kiosk during visitation shall be free from disturbing noise
and behavior. (Near or background)
 Violation of this policy will result in disciplinary action under UCSO
disciplinary rules for detainees.

(ECF No. 74-3, p. 53).
19
6. UCDC Use of Force Policy

The UCDC also has an extensive policy governing the use of force employed by their
officers. (ECF No. 74-3, p. 55-56). The policy establishes the types and degrees of force which
may be used to overcome a level of resistance, to control persons who are in custody and/or to
prevent escape and to accomplish lawful objectives. The policy clearly states UCDC employees
will only use the type and degree of force which is reasonable and necessary based on the
circumstances. The policy includes the following Use of Force Continuum:
 Level 1 – Command Presence – An officer’s presence and identification of authority.
 Level 2 – Verbal direction – Verbal Directions or voice commands.
 Level 3 – Aerosol spray weapons that contain OC or OC/CS, including the JPX 450.
 Level 4 – Soft Hand Techniques: Takedown and/or Control Techniques; and Electronic
Control Devices (TASER).
 Level 5 – Intermediate Weapons – SIM’s; Expandable ASP Baton; Riot-Baton; Flashlight;
and hand deployed specialty impact munitions may be used on non-lethal areas of the body.
 Level 6 – Deadly Force – Use of Firearms or other weapons in a reasonable manner and in
accordance with Department policy and state law.

Id. The policy states employees shall escalate or de-escalate their use of force in direct response
to the other person’s actions. They are also discouraged from using vascular neck restraints or
similar weaponless control techniques which have a potential for serious injury.
D. Plaintiff’s Deposition Testimony
On November 20, 2020, Plaintiff testified under oath at his deposition. (ECF No. 74-1, pp.
1-222). Plaintiff states he submitted approximately two-hundred twenty-nine (229) grievances
using the UCDC’s kiosk or tablets during his incarceration at the UCDC in 2019 and 2020. Id. at
p. 17. He alleges Defendant Mitcham “would sometimes suspend the grievances, suspend the
ability to write them…” Id. He states towards the end of his time at the UCDC, “all of the
responses were resolved without an appeal even though they were not resolved, and I did in fact
20
appeal them.” Id. at p. 18. Plaintiff acknowledged he sometimes would get other inmates to help
him “count” responses to his grievances. Id. at p. 19. He also states while he was in the medical
unit, he was only permitted to submit grievances on paper. Id. at 20.
Plaintiff says he wrote a grievance asking for the cameras to be reviewed after another
inmate stole some food items from him and Defendant Pendleton told him, “That it is my fault,
essentially, or something along that lines.” (ECF No. 74-1, p. 27). Plaintiff goes on to say
Defendant Pendleton “…did nothing to tell the person to give the items back…later came into the
pod in front of other inmates while I am there and kind of reprimanded me for writing a grievance,
essentially, I think the jail jargon is a snitch…told me to stop writing grievances…” Id. Plaintiff

states after Defendant Pendleton told inmates he was writing grievances against them, he was
attacked by inmate Moffett. Id. at p. 28. Plaintiff does acknowledge Defendant Pendleton brought
him another item of food “as a sort of way to compensate” for what was taken from me. Id. at p.
29.
Plaintiff testified after the guards found out about his fight with his cellmate Moffett, they
put both in isolation. “They then – they attempt to conduct some type of disciplinary hearing,
although they violated their own policy. And the verdict imposed by the pseudo court in which
they had was overturned. They violated many of their own policies, and Lieutenant Kugler later
came in and apologized for their poor handling of the quasi court …” (ECF No. 74-1, pp. 34-35).
Plaintiff also testified right before the altercation with Moffett, Moffett made “… hectoring
threats. I know he brought up the grievances and about what I was writing and the information
divulged to him by Pendleton, and then he just – swung on me.” (ECF No. 74-1, p. 36).

Plaintiff testified when Defendant Mitcham would answer some of his grievances “he

21
would somehow leak the information to everyone of the staff, all the employees.” (ECF No. 74-
1, p. 39).
Plaintiff states Defendant Rice “had a tendency to harass me and just single me out. She
claims I am violating some rule, which is later shown to not exist in the policy. But she accuses
me of standing or existing.” (ECF No. 74-1, p. 41).
Plaintiff testified Defendant Cotton touched and “groped” him in the shower on one
occasion. (ECF No. 74-1, p. 44). He also states Defendant Cotton took pictures of him, watched
him, “moved [his] finger across [his] neck horizontally as to indicate some type of death threat”,
and called him all types of homophobic slurs. (ECF No. 74-1, p. 45).

Plaintiff testified Defendant Pendleton gave him a “quasi-disciplinary hearing in which he
manages to violate almost all of their policies, rules. He does not allow me to call
witnesses…question the nurse…present certain evidence…question the officer which accused
me…” (ECF No. 74-1, p. 46). “So Pendleton then gives me the guilty verdict of a month of
solitary confinement, suspends all of my commissary, suspends my privileges…” for not doing
what Defendant Rice told him to do. Id. at 47. After this Plaintiff states he went on a hunger
strike. Id. at p. 49.
Plaintiff testified he was taken to the shower after vomiting and having diarrhea and he
turns on the water and tries to shower. (ECF No. 74-1, p. 55). “I eventually sat down in the corner
[after the shower], because everything was just flashing, and I lay down, and I lost
consciousness…I remember being awakened by the voice of Jebediah Cotton…he is commanding
me to do something…he then starts grabbing me, touching me…I feel both hands just groping my

buttocks region, my genital region. He is pulling me up.” Id. at p. 56. “Then he drags me – I am

22
later told this by other guards, which gave me an account of what happened, because I was only
semi-conscious during all of this…I did have clothes on…I was just drug down the hallway until
I got in to the medical room.” Id. My “uniform just ripping onto my genital regions, because I
am just being gripped from the back as if to cause an extreme wedgie…” Id. Plaintiff also states
when he was being lifted by Cotton and another guard, his eyes were not open “if they were it was
hazy. The event itself is a nebulous occurrence. I got most of the information from the guards and
then from the video camera to know exactly what happened.” (ECF No. 74-1, p. 156).
Plaintiff testified an inmate named McDonald kept threatening him, would take Plaintiff’s
things and “he would mention that he heard what Mitcham told him about me. He heard how I am

the guy that snitches on people and writes grievances, and he just kept mentioning all the things
Mitcham had told him and what other guards had told him.” (ECF No. 74-1, p. 59). He states
McDonald pushed him down on the bed on one occasion. Id.
Plaintiff states the “retaliation” against him worsened after he filed this lawsuit. (ECF No.
74-1, p. 62).
Plaintiff testified Defendant Cotton mentally abused him when he “threatened to deprive
me of all of my rights based on arbitrary rules in which he is making up on the spot…taking
pictures of me, fondling my socks, my undergarments.” (ECF No. 74-1, pp. 73-74). Plaintiff states
when he asked for an explanation of this Defendant Cotton stated, “these things are blocking the
camera”. Id. at p. 74.
Plaintiff testified “the actual reason as told by many of the other guards is that Mitcham
wants to isolate me. He wants to keep me from other inmates, and he wants to put me around

dangerous inmates so that I could be hurt…” (ECF No. 74-1, p. 77).

23
After his time in O Pod, Plaintiff testified Defendant Mitcham “put me in the hole…He
kept me there for two weeks because I complained.” (ECF No. 74-1, p. 81). Plaintiff goes on to
state Defendant Mitcham’s justification for this move was “Well, Covid says we have to have you
in here for two weeks even though I wasn’t around anyone that had Covid.” Id.
Plaintiff testified “there would be times in which I would send things [mail] out, and they
would never be sent. Pendleton was the one which I handed them to. And so I would never get
mail back from – or I would never get confirmation that the person I sent the mail had received
the mail. And so I don’t know what factors transpired after I handed the mail to him.” (ECF No.
74-1, p. 83). When asked if there were any mail items sent to him that were not either scanned

into the system or put in his property, Plaintiff states, “I only know of the kind of braggadocious
remarks that I received from certain officers. I even had officers…tell me how guards like
Pendleton would get mail and laugh or withhold the mail.” (ECF No. 74-1, pp. 84-85). He states
his mother told him she had sent him mail and he never received it. In addition, Plaintiff states
mail supposedly sent by a lawyer – not Plaintiff’s attorney – was never received by him. Id. at p.
85. He also states he sent mail out to his federal criminal lawyers that they said they never received.
Id. at 86. Plaintiff did acknowledge that the United States Postal Service is not “infallible”. Id. at
p. 87.
Plaintiff testified after his hand was injured in the altercation with Moffett, all the nurses
did was wrap it. (ECF No. 74-1, p. 97). He also states, “I believe the nurse realized she was not
following the doctor’s orders and had been…wrapping my finger the wrong way, and so they
started wrapping it a different way. Id. at p. 95. He also testified whenever the nurses would wrap

his hand they would use tape and cotton, then leave it for a week, all the while he was taking

24
showers and his hand was getting wet. Id. He states he was telling guards, “Hey, I am pretty sure
fungus growing on this is not probably up to standard medical treatment…they would just
disregard that…[and] say, we will tell the nurse. The nurse says she will get to it when she can.”
Id.
Plaintiff states Defendant Rice came close to lacerating his skin with scissors when she
was removing his wrap. (ECF No. 74-1, p. 98). He states he asked her to remove the wrap the
way the other nurse did because it was less painful and safer. Plaintiff testified “so she keeps using
the scissor method until one day she is, I think, intentionally being careless, because this – within
the first few days of me – or you can tell she is not an amicable type of person, at least, she

particularly pretended to no like me.” Id. at p. 99. “For whatever reason, she buries the scissors
into my right finger cutting deep into my skin, nearly hitting bone.” He states he believes the
officer with him turned off his body camera and they quickly tried to clean up the blood. Id. at p.
100.
As for Plaintiff’s claims that Defendants Roberts, Mitcham, Pendlton, Kugler, and Cotton
placed him in solitary confinement for twenty (20) days without justification, Plaintiff testified
this was not the incident he previously referred to which occurred after his fight with inmate
Moffett. (ECF No. 74-1, p. 103). Instead, he states this was another incident where they put him
in solitary confinement based on Defendant Rice’s accusation “for my crime of standing”. Id.
Plaintiff acknowledged the instruction given to him by Defendant Rice was to “rack up”. (ECF
No. 74-1, p. 105).
When asked if he was placed in solitary confinement for 20 days following the hearing for

disobeying the order to rack up, Plaintiff states “No. My appeal listed two – there was two main

25
problems in my appeal: one, it took a linguistic angle that an order can’t be followed if the words
can’t be understood, and, also their esoteric terms weren’t some type of explanation….during my
hearing…I even called in witnesses…I was being placed there because I had a lawsuit
harassment.” Id. p. 112. When asked what he was told as the reason he was being placed in
segregation, he testified “…I think it was something like defiance”. Id. Plaintiff also stated
“…there was no justification, because it is not a rule. That rule does not exist. It is made up…”
Id.
When asked to explain his claim that Defendants Roberts, Mitcham, Pendleton, Kugler,
and Cotton “placed Plaintiff in the intake pod which is used to quarantine new inmates to determine

if they have COVID-19 virus”, Plaintiff testified Defendants put him in the pod with all the new
people from the streets …who are not being tested, who are not being screened for COVID and
them placing them in my immediate proximity without any type of remedies or address to what
social distancing…the face mask, which we weren’t provided, hand sanitizers. So I think being
exposed to a deadly pandemic is a – got to be some type of a violation.” (ECF No. 74-1, p. 113).
Plaintiff testified he was tested for Covid once, but the “test didn’t work”. Plaintiff also stated he
had never tested positive for Covid-19. Id. at p. 114.
When asked if he had any knowledge of anyone in the intake pod with him who was Covid-
19 positive, Plaintiff replied, “One person told me that, yes, they had the COVID and asked to be
tested, and the jail would not test them.” (ECF No. 74-1, pp. 115-116). When he was asked who
that person was, “I don’t’ know these people’s names. I have them written in grievances.” Id. at
p. 116.

When asked how Defendants retaliated against him for filing grievances Plaintiff replied,

26
“…By placing me in solitary confinement, by denying my access to the phones, withholding my
mail, threatening me verbally, threatening me through grievances, being subjected to harsher
treatment, being the victim of a spontaneous rule creation…being harassed on a daily
basis…having responses given to me, like, I hope he dies in prison or I hope he stays here for
another 2006 years by Sherie Rice.” (ECF No. 74-1, pp. 125-126). “…And each grievance seemed
to bring about a more heat from the officers in which I grieved about.” Id. at p. 126. Plaintiff
testified he continued to file grievance after grievance even though several Defendants refused to
act on them and retaliated against him for filing the grievances because he wanted to “document
the abuse”. (ECF No. 74-1, p. 131).

Plaintiff testified he believes Defendant Mitcham did not send his grievances on to the
Sheriff – Defendant Roberts. (ECF No. 74-1, p. 137). He also states he does not know whether
his grievances were forwarded to Defendants Roberts, Pendleton, or Kugler. Id. at pp. 137-138.
Plaintiff testified he has three primary complaints about Defendant Rice. (ECF No. 74-1,
p. 143). He states “she just refuses to allow me to see any chiropractor or even get x-rays or have
an MRI” for his lower back, refused to let him see a physical therapist about restoring mobility to
his hand, and did not allow him to have “some type of reconstructive surgery on my hand…or
maybe a cast to be put on…” Id. Plaintiff goes on to state Dr. Hopson told him she didn’t believe
the treatments or his requests were necessary. Id. at p. 144.
Plaintiff testified after his fight with inmate Moffett he was placed in solitary “greater than
a week, but less than two weeks. Because I was pulled out by Lieutenant Kugler, which told me
very apologetically and very kindly, I should add, that they made a genuine mistake that I was not

supposed to be in solitary, certainly not for defending myself.” He went on to state Defendant

27
Kugler “nullified my sentence, and he allowed me to go back in population”. (ECF No. 74-1, p.
207).
Plaintiff testified that the UCDC’s “sick bay is just another solitary confinement closer to
the nurse.” (ECF No. 74-1, p. 208).
II. LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the nonmoving party, the record “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Once

a party moving for summary judgment has made a sufficient showing, the burden rests with the
non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine
issue of material fact exists.” Nat’l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir.
1999).
The non-moving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must show there is sufficient
evidence to support a jury verdict in their favor.” Nat’l Bank, 165 F.3d at 607 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case founded on speculation or suspicion is
insufficient to survive a motion for summary judgment.” Id. (citing Metge v. Baehler, 762 F.2d

621, 625 (8th Cir. 1985)). “When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007).

28
In addition, “Liability under section 1983 requires a causal link to, and direct responsibility
for, the deprivation of rights. To establish personal liability on the part of a defendant, [the
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) (citation and internal quotation marks omitted).
Moreover, a party may not rely solely on inadmissible hearsay in opposing a motion for
summary judgment. Brewster v. U.S., 860 F. Supp. 1377 (S.D. Iowa 1994). The Eighth Circuit
has repeatedly held that a plaintiff’s own self-serving statements are insufficient to defeat a

properly supported motion for summary judgment. Bacon v. Hennepin County Med. Ctr., 550
F.3d 711, 716 (8th Cir. 2008); Gipson v. Dassault Falcon Jet Corp., 983 F.3d 377, 382 (8th Cir.
2020).
III. DISCUSSION
A. Defendants Perry and Ward
As an initial matter, neither Defendant Perry nor Ward were ever served with process in this
lawsuit. Accordingly, I recommend they be terminated as Defendants and Plaintiff’s claims
against them be dismissed without prejudice.
B. Count I – Medical Need
Plaintiff alleges Defendants were deliberately indifferent to his serious medical needs
during his incarceration in the UCDC during 2019 and 2020. Plaintiff was a pretrial detainee at

the time his claims arose and therefore his claims are analyzed under the Fourteenth Amendment’s
Due Process Clause. Bell v. Wolfish, 441 U.S. 520 (1979). The Eighth Circuit has held under the
Fourteenth Amendment, pretrial detainees are entitled to at least as great protection as that afforded

29
to convicted prisoners under the Eighth Amendment. Owens v. Scott Cnty Jail, 328 F.3d 1026,
1027 (8th Cir. 2003) (per curiam). The Eighth Amendment prohibition of cruel and unusual
punishment prohibits deliberate indifference to the serious medical needs of prisoners. Luckert v.
Dodge Cnty., 684 F.3d 808, 817 (8th Cir. 2012).
“Because society does not expect that prisoners will have unqualified access to health care,
deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those
needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992). “[T]he failure to treat a medical
condition does not constitute punishment within the meaning of the Eighth Amendment unless
prison officials knew that the condition created an excessive risk to the inmate’s health and then
failed to act on that knowledge.” Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996). “As long as this

threshold is not crossed, inmates have no constitutional right to receive a particular or requested
course of treatment, and prison doctors remain free to exercise their independent medical
judgment.” Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997) (citing Long, 86 F.3d at
765).
The deliberate indifference standard includes “both an objective and a subjective
component: ‘The [Plaintiff] must demonstrate (1) that [he] suffered [from] objectively serious
medical needs and (2) that the prison officials actually knew of but deliberately disregarded those
needs.’” Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting Dulany, 132 F.3d at
1239). To show he suffered from an objectively serious medical need, Plaintiff must show he “has
been diagnosed by a physician as requiring treatment” or has an injury “that is so obvious that even
a layperson would easily recognize the necessity for a doctor’s attention.” Schaub v. VonWald,

638 F.3d 905, 914 (8th Cir. 2011) (internal quotations and citations omitted). To establish the

30
subjective prong of deliberate indifference, “the prisoner must show more than negligence, more
even than gross negligence, and mere disagreement with treatment decisions does not give rise to
the level of a constitutional violation.” Popoalii v. Correctional Medical Services, 512 F.3d 488,
499 (8th Cir. 2008) (internal quotation marks and citations omitted).
Here Plaintiff was diagnosed by a physician as having a fracture of his right index finger
and therefore, his injury is a serious medical condition. Accordingly, the only issue is whether
Defendants were deliberately indifferent to Plaintiff’s injured hand.
1. Defendants Roberts, Mitcham, Pendleton, Kugler and Cotton
First, Plaintiff’s allegation that Defendants Roberts, Mitcham, Pendleton, Kugler and

Cotton “ignored” his requests for medical treatment of his hand for a week after he injured his
hand in a fight with another inmate is not supported by the summary judgment record. Other than
his conclusory allegation, Plaintiff has not provided any summary judgment evidence that any of
these Defendants were involved in his medical care, interfered with his ability to receive care, or
delayed medical care in any way. When asked in his deposition how these Defendants ignored his
requests, Plaintiff responded by admitting he was taken to the hospital the day after he fractured
his finger where an x-ray was performed. (ECF No. 74-1, pp. 94-95). Accordingly, I recommend
Defendants Roberts, Mitcham, Pendleton, Kugler, and Cotton be granted summary judgment on
Plaintiff’s claims they denied him medical care.
2. Defendant Rice
Plaintiff alleges Defendant Rice denied him medical care when she: 1) initially improperly
wrapped Plaintiff’s injured hand and did not check on the status of the injury while Plaintiff was

in solitary confinement; 2) refused to provide necessary medical treatment to Plaintiff; 3) refused

31
to place Plaintiff’s hand in a cast, allow Plaintiff to see a specialist, or provide any follow-up
therapy; and 4) refused to follow the proper sanitary protocol when she changed the wrap on
Plaintiff’s hand.
Plaintiff’s allegations against Defendant Rice do not rise to the level of deliberate
indifferent. Courts “hesitate to find an [E]ighth [A]mendment violation when a prison inmate has
received medical care.” Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990). Here, the summary
judgment record contains approximately 43 pages of medical records documenting Plaintiff’s
medical care and treatment during his time in the UCDC in 2019 and 2020. In addition, Defendant
Rice states in an affidavit that she followed Dr. Hopson’s instructions in wrapping Plaintiff’s hand

and she did not intentionally injure Plaintiff’s finger when she was cutting off the wrap. (ECF No.
74-4, p. 2). Moreover, she testified she could not make any decisions related to whether Plaintiff
received various medical treatments including surgery or casts on his hand. Id.
Although Plaintiff disputes the adequacy of his medical care from Defendant Rice, he has
not provided any summary judgment evidence which gives rise to a genuine issue of fact. See
Delaney, 132 F.3d at 1240 (holding in the face of medical records indicating treatment was
provided and physician affidavits indicating treatment was adequate, a plaintiff may not create a
question of fact simply by alleging he did not feel the treatment was adequate.) The Eighth Circuit
has “repeatedly held that a prisoner’s mere difference of opinion over matters of expert medical
judgment or a course of medical treatment fail to rise to the level of a constitutional violation.”
Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990) (prisoner’s disagreements on location of
rehabilitation for burn injuries, amounts of pain medication, and frequency of bandage changes

failed to state deliberate indifference).

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Finally, Plaintiff testified during his deposition that Defendant Rice “intentionally being
careless…buries the scissors into my right finger cutting deep into my skin, nearly hitting the
bone.” (ECF No. 74-1, p. 99). First, Defendant Rice submitted an affidavit stating she did not
intend to cut Plaintiff’s finger. Second, Plaintiff describes her actions as “careless”, which is the
textbook definition of negligence which, as previously stated, is not actionable under §1983. In
addition, there are no medical records to show the wound ever became infected or interfered with
the healing of his fractured finger due to her alleged refusal to follow the proper sanitary protocol
when she changed the wrap on Plaintiff’s hand.
Accordingly, I recommend Defendant Rice be granted summary judgment on Plaintiff’s

claims she denied him adequate medical care.
C. Count II – Inmate Abuse
In Count II, Plaintiff generally alleges Defendants Roberts, Mitcham, Pendleton, Kugler,
Cotton and Rice subjected him to physical, mental, and sexual abuse in violation of Plaintiff’s
constitutional rights. The allegations include verbal/mental abuse, refusal to act or respond to
grievances, unjustified discipline and punishment, physical abuse, sexual abuse, interference with
mail, retaliation for filing grievances, and failing to take action against another inmate who stole
some of Plaintiff’s possessions.
1. Verbal/Mental Abuse
Plaintiff alleges Defendants verbally abused and harassed him on several occasions. The

law is clear, “verbal threats do not constitute a constitutional violation.” Martin v. Sargent, 780
F.2d 1334, 1339 (8th Cir. 1985). Similarly, taunts, name calling, and the use of offensive language
does not state a claim of constitutional dimension. McDowell v. Jones, 990 F.2d 433, 434 (8th Cir.

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1993) (inmate’ s claims of general harassment and of verbal harassment were not actionable under
§ 1983); O’ Donnell v. Thomas, 826 F.2d 788, 790 (8th Cir. 1987) (verbal threats and abuse by jail
official did not rise to the level of a constitutional violation).
Accordingly, the Court recommends Defendants be granted summary judgment on all of
Plaintiff’s claims based on verbal and mental abuse or harassment.
2. Refusal to act or respond to grievances
Plaintiff alleges his constitutional rights were violated when Defendants ignored or refused

to respond to his grievances about jail conditions. The law is clear that inmates do not have a
constitutionally protected right to a grievance procedure. Lomholt v. Holder, 287 F.3d 683, 684
(8th Cir. 2002) (citing Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)). Therefore, a prison
official’s failure to respond to or process an inmate’s grievances, without more, is not actionable
under § 1983. Id. Accordingly, Plaintiff’s claims relating to Defendants’ responses, or lack
thereof, to his grievances fail as a matter of law. Accordingly, I recommend Defendants be granted
summary judgment on this claim.
3. Unjustified discipline and punishment
Plaintiff alleges Defendants Roberts, Mitcham Pendleton, Kugler and Cotton placed

Plaintiff in the “hole” without justification for instigating a fight when Plaintiff was attacked by
another inmate. Plaintiff also claims on another occasion he was placed in solitary confinement
for twenty (20) days without justification after he was falsely charged with “defiance”. He also
alleges Defendants failed to follow their own procedures when conducting a hearing in connection
with one of the charges.

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Plaintiff’s claims that Defendants filed false or unjustified charges against him fails to state
a constitutional claim. See Daniels v. Ferguson, 2008 WL 698485, *9 (W.D. Ark. March 13,
2008) (“To the extent Daniels contends his Due Process rights were violated because the
disciplinary charges were fabricated or the events simply never occurred, courts have held that a
prisoner enjoys no constitutional guarantee to be free from false charges that may lead to
punishment.”) (citing Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir. 1986) and Glick v. Sargent,
696 F.2d 413, 414 (8th Cir. 1983).4 In addition, the law is clear that “an internal jail policy or
procedure does not create a constitutional right, nor does a correctional officer’s failure to follow

such regulation rise to the level of a § 1983 claim.” Brown v. Boone Cnty., No. 5:13-cv-03065-
TLB, 2014 WL 4405433, at *5 (W.D. ark. Sept. 5, 2014) (citing Kennedy v. Blankenship, 100 F.3d
640, 643 (8th Cir. 1996)).
Accordingly, the Court recommends Defendants be granted summary judgment on
Plaintiff’s claims he was unjustifiably placed in segregation based on false charges.
4. Physical and Sexual Abuse
Plaintiff alleges Defendant Cotton subjected him to physical and sexual abuse when he was
dragged from the shower area to the medical unit on one occasion after he passed out. Under the
8th Amendment, prison officials are prohibited from using excessive physical force against

prisoners. Farmer v. Brennan, 511 U.S. 825 (1994); Hudson v. McMillian, 503 U.S. 1, 6-7 (1992).
In addition, sexual abuse or harassment of an inmate can violate the Eighth Amendment if the
alleged abuse or harassment caused “pain” and, “as a subjective matter, . . . the prison official in

4 The Court notes Plaintiff did not make any allegations in the Amended Complaint concerning a violation of his due
p rocess rights or any conditions of confinement during the time he was placed in segregation.
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question acted with a sufficiently culpable state of mind.” See Berry v. Oswalt, 143 F.3d 1127,
1131-33 (8th Cir. 1998) (repeated non-routine pat-downs and subsequent rape of female inmate
by male prison guard violated Eighth Amendment).
Here, there is no admissible summary judgment evidence to support Plaintiff allegations
that Defendant Cotton abused him physically or sexually. Plaintiff admits in his deposition he
“lost consciousness”, but felt “hands just groping my buttocks region, my genital region. He is
pulling me up. Then he drags me…” (ECF No. 74-1, p. 156). Plaintiff then states, I am later told
this by other guards, which gave me an account of what happened, because I was only semi-

conscious during all of this…I did have clothes on…my uniform just ripping onto my genital
region…to cause an extreme wedgie…I got most of this from the guards and then from the video
camera to know exactly what happened.” Id. As previously stated, what the other guards
allegedly told Plaintiff is inadmissible hearsay. In addition, Defendant Cotton submitted an
affidavit stating he never physically or sexually abused Plaintiff and the video footage confirms
his verified statements.
Accordingly, the Court recommends Defendant Cotton be granted summary judgment on
Plaintiff’s claims of physical and sexual abuse.
5. Interference with mail

Plaintiff alleges Defendant Pendleton “withheld mail directed to Plaintiff”. (ECF No. 60,
p. 3). In his deposition, Plaintiff described the mail as correspondence with his mother and an
attorney who was not representing him. Plaintiff’s claim based on alleged interference with his
mail fails as a matter of law for two reasons. First, Plaintiff’s only testimony to support this claim

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is based on hearsay statements from unidentified inmates and his mother. As previously stated,
such statements are not admissible to create an issue of fact on summary judgment.
Second, even if there was evidence Defendant Pendleton interfered with the mail described
by Plaintiff, his claim would still fail. It is settled law that “privileged prisoner mail, that is mail
to and from an inmate’s attorney and identified as such, may not be opened for inspections for
contraband except in the presence of the prisoner.” Beaulieu v. Ludeman, 690 F.3d 1017, 1037
(8th Cir. 2012). Here, Plaintiff does not claim Defendant Pendleton opened or interfered with his
“privileged” legal mail. Accordingly, the Court recommends Defendant Pendleton be granted

summary judgment on Plaintiff’s claim that he interfered with his mail.
6. Retaliation
Plaintiff alleges Defendants Mitcham, Pendleton, Kugler, and Cotton retaliated against him
for filing multiple grievances by labelling him as a “snitch” or “informant”, telling inmates
Plaintiff was filing grievances, and encouraging inmates to retaliate against him.
The filing of a prison grievance, like the filing of an inmate lawsuit, is protected First
Amendment activity. Dixon v. Brown, 38 F.3d 379 (8th Cir. 1994). In general, “[c]onduct that
retaliates against the exercise of a constitutionally protected right is actionable, even if the conduct
would have been proper if motivated by a different reason.” Cody v. Weber, 256 F.3d 764, 771

(8th Cir. 2001) (citing Madewell v. Roberts, 909 F.2d 1203, 1206 (8th Cir. 1990)). The retaliatory
conduct itself need not be a constitutional violation in order to be actionable. Additionally, there
is no independent injury requirement when retaliatory conduct is involved. See Dixon, 38 F.3d at
380.

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To prevail on his retaliation claim, Plaintiff must demonstrate: (1) he engaged in protected
activity; (2) Defendants responded with adverse action that would “‘chill a person of ordinary
firmness’ from continuing in the activity;” and (3) the adverse action was motivated at least in part
by exercise of the protected action. See L.L. Nelson Enterprise Inc. v. County of St. Louis, Mo.,
673 F.3d 799, 807-8 (8th Cir. 2012) (quoting Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004)).
First, there is no question Plaintiff engaged in a protected activity when he submitted
medical requests and grievances. However, as to the second part of this analysis, the fact Plaintiff
continued to file over a hundred grievances (229 in total) after Defendants allegedly retaliated

against him demonstrates their conduct did not “chill” Plaintiff from continuing in the protected
activity. In addition, Plaintiff has not presented any admissible summary judgment evidence to
support his actual retaliation claims. See Meuir v. Greene County Jail Emples., 487 F.3d 1115,
1119 (8th Cir. 2007) (“Merely alleging that an act was retaliatory is insufficient.”). Instead,
Plaintiff again relies on hearsay statements from inmates to support his claim.
Considering the summary judgment record, Plaintiff has failed to establish he actually
suffered any adverse action. See Murphy v. Mo. Dept. of Corr., 769 F.2d 502, 503 n. 1 (8th Cir.
1985) (holding an inmate bears a heavy evidentiary burden in establishing a prima facie retaliation
case). Accordingly, Plaintiff’s claims for retaliation fail as a matter of law and the Court

recommends Defendants be granted summary.
7. Failure to take action against inmate who stole Plaintiff’s property
Plaintiff alleges Defendants Mitcham, Pendleton, and Kugler refused to take action against
an inmate for stealing Plaintiff’s property “or any action to stop said stealing”. This claim is
without merit.

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The law is clear that victims of a crime lack any legal right to compel criminal prosecution
or institute criminal prosecution. See Hurst v. Hurst, No. 5:14-cv-05270-TLB, 2014 WL 5018827,
at *2 (W.D. Ark. September 17, 2014), citing Diamond v. Charles, 476 U.S. 54, 64-65 (1986);
Frison v. Zebro, 339 F.3d 994, 998-1000 (8th Cir 2003 (rejecting a § 1983 claim based on the
violation of a criminal statute; In re Kaminski, 960 F.2d 1062, 1064 (D.C. Cir. 1992) (private party
lacks judicially cognizable interest in prosecution of another person). In addition, there is no
constitutional right to have law enforcement officials investigate a reported crime. See Sheets v.
Mullins, 287 F.3d 581 (6th Cir. 2002) (no due process or equal protection violation by sheriff’s
department sergeant in responding to a call reporting domestic violence).

Moreover, the summary judgment record shows neither Defendant Mitcham nor Kugler
were involved in the incident where an inmate stole some of Plaintiff’s commissary items. Instead,
Defendant Pendleton attempted to identify the inmate who took the items but was unable to do so
and he replaced the item that was stolen with something similar from the commissary stock.
Accordingly, the Court recommends Defendants Mitcham, Pendleton and Kugler be granted
summary judgment based on their alleged failure to prevent or take action against another inmate
for stealing Plaintiff’s property.
D. Count III – Failure to Follow Covid-19 Directives
In Count III, Plaintiff generally alleges Defendants violated his constitutional rights when
they failed to follow the directive issued by the Arkansas Department of Health on April 15, 2020,
to reduce the spread of Covid-19 in prisons.

First, there is no summary judgment evidence indicating any Defendant other than
Defendant Roberts had any responsibility, control, or personal involvement in how the UCDC

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responded to the Arkansas Department of Health’s directive. Second, the summary judgment
record demonstrates Defendant Roberts began implementing policies and protocols in March of
2020 – before the Arkansas Department of Health even issued its directive - to protect not only the
UCDC’s detainees but also the staff in response to the threat of the Covid-19 virus. Moreover, all
the video submitted by Defendants shows officers wearing masks and gloves.
Finally, the summary judgment record confirms Plaintiff never tested positive for Covid-
19 and he was placed in a one-man booking cell (by himself) for a short period because after he
was transferred out of the UCDC, he had to go through quarantine with other incoming detainees

in accordance with the UCDC’s Covid protocols. Finally, the only two confirmed cases of Covid-
19 in the UCDC occurred when Plaintiff was not incarcerated there. (ECF No. 74-5, pp. 5-6).
Accordingly, the Court recommends Defendants be granted summary judgment on
Plaintiff’s claim they failed to follow Covid-19 Directives issued by the Arkansas Department of
Health.
E. Count IV – Breach of Contract
Plaintiff alleges under state law Defendant Rice had a contract of employment with Union
County to provide medical care and treatment to Plaintiff while he was incarcerated in the UCDC.
Plaintiff goes to claim, as a beneficiary of that contract she had a duty to provide medical care and

treatment to him. Plaintiff alleges she breached this duty, and he has incurred damages.
The Court’s subject matter jurisdiction in this action is premised on the existence of a
federal claims – namely, the alleged deliberate indifference to Plaintiff’s medical needs, inmate
abuse, and failure to comply with directives to limit the spread of Covid-19. Jurisdiction over the
state breach of contract claim, or one for medical malpractice, exists solely by virtue of the

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supplemental jurisdiction statute, 28 U.S.C. § 1367, which provides jurisdiction over state law
claims forming part of the same “case or controversy” as federal claims.
The exercise of supplemental jurisdiction is discretionary, and where all federal claims
have been dismissed prior to trial, the factors to be considered in deciding whether to exercise such
jurisdiction – judicial economy, convenience, fairness, comity, and predominance of state issues
– typically go against doing so. Johnson v. City of Shorewood, Minn., 360 F.3d 810, 819 (8th Cir.
2004) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Accord, e.g., United
Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are

dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims
should be dismissed as well.”).
Accordingly, I recommend the Court decline to exercise supplemental jurisdiction over
Plaintiff’s state law claims against Defendant Rice for breach of contract/medical malpractice and
dismiss the claims without prejudice. See 28 U.S.C. § 1367(c)(3) (recognizing a district court
“may decline to exercise supplemental jurisdiction over a claim” if “the district court has dismissed
all claims over which it has original jurisdiction”).
F. Official Capacity Claims
Plaintiff also sues Defendants in their official capacity. Official capacity claims are

“functionally equivalent to a suit against the employing governmental entity.” Veatch v. Bartels
Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). In this case, Plaintiff’s official capacity
claims against Defendants are treated as claims against Union County. See Murray v. Lene, 595
F.3d 868, 873 (8th Cir. 2010).

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“[I]t is well established that a municipality [or county] cannot be held liable on a
respondeat superior theory, that is, solely because it employs a tortfeasor.” Atkinson v. City of
Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). To establish Union County’s liability
under section 1983, “plaintiff must show that a constitutional violation was committed pursuant to
an official custom, policy, or practice of the governmental entity.” Moyle v. Anderson, 571 F.3d
814, 817 (8th Cir. 2009) (citation omitted). To establish the existence of an unconstitutional
policy, Plaintiff must point to “a deliberate choice of a guiding principle or procedure made by the
municipal official who has final authority regarding such matters.” Mettler v. Whitledge, 165 F.3d

1197, 1204 (8th Cir. 1999).
Here, Plaintiff has failed to produce any summary judgment evidence of a policy or custom
of Union County that contributed to the alleged violation of Plaintiff’s constitutional rights.
Instead, the record confirms Union County had policies in place to protect the rights of inmates
regarding medical care, inmate abuse, and Covid-19.
Accordingly, Plaintiff’s claims against Defendants in their official capacities fail as a
matter of law and I recommend they be granted summary judgment on those claims. 5
V. CONCLUSION
For the reasons stated above, I recommend Defendants’ Motion for Summary Judgment
(ECF No. 73) be GRANTED. I also recommend Plaintiff’s individual and official capacity claims

in Counts I, II, and III against all Defendants be DISMISSED WITH PREJUDICE and

5 Because there was no violation of Plaintiff’s constitutional rights, it is unnecessary for the Court to address the
i ssue of qualified immunity.
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Plaintiff’s state law claim for breach of contract against Defendant Rice in Count IV be
DISMISSED WITHOUT PREJUDICE.
I also recommend Lt. Billy Perry and Sgt. John Ward be TERMINATED as
Defendants because they were never served with process in this case.
The parties have fourteen 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 24th day of August 2021.
/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/10632192. Public record. Not legal advice.