Powell v. Rogers

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

TERENCE C. POWELL PLAINTIFF

v. Civil No. 2:20-cv-02133

DEPUTY SAMMY ROGERS and DEFENDANTS

OFFICER JUDKINS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action 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 P. K. Holmes, III, 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. 19).

I. BACKGROUND

Plaintiff filed his Complaint on August 3, 2020 (ECF No. 1), along with his application to

proceed in forma pauperis (ECF No. 2). Plaintiff was granted leave to proceed in forma pauperis

pursuant to the Prison Litigation Reform Act (“PLRA”). (ECF No 3). Plaintiff is currently

incarcerated at the Arkansas Division of Correction (“ADC”), Cummins Unit. (ECF No. 18). The

incidents in question allegedly occurred at the Sebastian County Detention Center (“SCDC”) on

or about July 12, 2020, where Plaintiff was being held as a pretrial detainee. (ECF No. 1). Plaintiff

alleges that on July 12, 2020, his right to practice his religion was violated and excessive force

was used against him in his cell. (Id., pp. 4-5). Specifically, Plaintiff alleges that Defendant

Rogers and Deputy Blythe1 threw several of his religious books out of his cell and only gave him

1 Plaintiff did not name Deputy Blythe as a Defendant in his complaint. (ECF No. 1 at 2-3).

back two books by Mark Cahill. (Id., p. 5). He further alleges that on the same day, Defendant

Judkins tazed him while he was face down on the ground with his hands in handcuffs behind his

back. (Id.). He alleges the prongs from the Tazer went into his back. (Id.).

Plaintiff proceeds against both Defendants in their official and individual capacity. (ECF

No. 1, pp. 4, 5). Plaintiff seeks compensatory damages and punitive damages. (Id. at 8). The

compensatory damages sought are either replacement books or monetary compensation for them.

Plaintiff also feels as though he should be compensated for the pain and suffering he endured

during the excessive force. (Id.).

Defendants filed a motion for Summary Judgment on January 22, 2021. (ECF No. 19).

On January 25, 2021, the Court entered an order directing Plaintiff to file a response to the motion.

(ECF No. 22). Plaintiff filed his Response on February 8, 2021. (ECF No. 23). He filed his

Statement of Facts on February 26, 2021. (ECF No. 25).

Defendants argue that summary judgment in their favor is appropriate because: (1) Plaintiff

was not prohibited from exercising a sincerely held religious belief; (2) Plaintiff does not have a

claim for the deprivation of personal property; (3) Plaintiff was not subjected to excessive force;

and (4) Defendants are entitled to qualified immunity. (ECF No. 20).

Defendants’ Version of the Events

On July 11, 2020,2 Deputy Blythe was conducting cell “shakedowns.” (ECF No. 21, p. 1).

While he was doing so, Plaintiff started yelling that “he was ready for me to pop his door and if I

did that, he was going to throw juice at me and then rush me.” (Id.). Blythe called for additional

deputies and once they were in place called for the door to be opened. (Id.).

2 Contrary to Plaintiff’s allegations that the events occurred on July 12, 2020, Deputy Blythe’s report states that the

events occurred on July 11, 2020.

In an incident report, Deputy Blythe reported that once the cell door was open Defendant

Judkins instructed Plaintiff to get on his knees and Plaintiff complied. (ECF No. 21, p. 1).

Defendant Rogers then stepped in to apply handcuffs, but Plaintiff resisted giving up his hands for

the cuffs to be applied. (Id.). Defendant Judkins pulled the taser out and gave Plaintiff the

command to give up his hands, but Plaintiff did not comply so the taser was deployed to gain

control of Plaintiff’s hands. (Id.). The shakedown was then completed, and medical assistance

was offered but declined by Plaintiff. (Id.).

Defendant Judkins’s incident report stated that Plaintiff complied with his initial order to

get on his knees, but Plaintiff resisted when Defendant Rogers ordered him to give up his hands to

be handcuffed. (ECF No. 21, pp. 1-2). Defendant Judkins then gave a verbal order to give up his

hands and stop fighting or he would be tased. (Id.). Plaintiff refused and tried to roll off his

stomach towards Judkins, so Judkins deployed the taser into the upper left shoulder area of

Plaintiffs back, which then allowed Defendant Rogers to apply the handcuffs. (Id. at 2). Incident

reports written by Defendant Rogers and Deputy Torres are consistent with Defendant Judkins’s

and Deputy Blythe’s reports. (Id., pp. 2-3).

Regarding Plaintiff’s claims about his religious texts, Plaintiff’s intake form indicates that

when arrested and booked he had on him only shoes, belt, coat, earbuds, and two debit cards. (ECF

No. 21-2). Defendant Rogers only reported removing extra linens in his incident report. (ECF

No. 21 at 2).

Plaintiff’s Version of the Events

Plaintiff alleges that while he laid on the ground in his cell, face down on his stomach, with

his hands cuffed behind his back, he was tased by Defendant Judkins. (ECF No. 1, p. 5). He

alleges that the prongs of the taser went in his back. (Id.). In a request report, Plaintiff mentioned

that there was a knee on his back, which he believed to belong to Defendant Rogers, and he insists

that he was tased after he was handcuffed. (ECF No. 1, p. 8; ECF No. 25, p. 1). Plaintiff has only

brought claims against two people, but he alleges that there were seven deputies present when he

was tased by Defendant Judkins. (ECF No. 23, p. 3).

Plaintiff also alleges that his First Amendment right to practice his religion was violated

when Defendant Rogers threw several of his religious books out of his cell during the cell check.

In his grievance report, Plaintiff states that Deputy Blythe returned to him some books by Mark

Cahill, “Ten Questions from the King” and “One Thing You Can’t do in Heaven.” (ECF No. 21-

3, p. 1). In his Response to the Motion for Summary Judgment, Plaintiff states that the books

returned were fiction. (ECF No. 23, p. 2). Plaintiff also alleges that Blythe told him he placed the

other books in the vestibule. (ECF No. 21-3). He claims these missing books are called “The

Watchman,” “The Fundamentals of Tawhide,” “What Jesus Really Said,” two books from the “left

behind series,” and a Bible. (Id.).

Plaintiff is a Sunni Muslim and claims that he got his religious material from, “Jedideus

Kursch,” the Imam leader. (ECF No. 23, p. 2). He claims that to properly exercise his religion,

his religious material must have a Hadith or a Sunnah, a Quran and “What Jesus Really Said.”

(Id.). Plaintiff explains that the Hadith or Sunnah is “basically a doctrine” that explains the Quran

and keeps the Quaran from being altered. (Id.).

Video Camera Evidence

The video camera footage from the time of the incident does not show what happened in

the Plaintiff’s cell, but it does capture the actions of Deputy Blythe both before and after the

incident, as well as the actions of the additional deputies who did not enter Plaintiff’s cell. (Exhibit

A-5, filed conventionally on January 25, 2021). The video starts at timestamp 15:45:00. The

video shows Deputy Blythe entering and exiting multiple cells holding a clear plastic bag that

contains articles taken while conducting “shakedowns.” He approaches Plaintiff’s cell at 15:51:00

but does not open the door. Additional deputies arrive at 15:52:00, but one leaves and returns at

15:55:09 holding what appears to be a holster and then hands it to one of the deputies who puts it

on. They then position themselves around the door.

The door is opened at 15:56:00 and two deputies enter the cell from the right, one deputy

enters from the left, and the four remaining officers stand outside the cell looking in. At 15:57:18

linens are removed and placed on the ground in the walkway behind the officers. 15:57:59 the

officers standing around the cell door are seen kicking/sliding items across the floor to the pile on

the walkway. At 15:58:25 a couple of items are tossed from the cell. 15:59:40 one of the officers

outside the cell walks over to the pile bends over and picks up a couple items and appears to hand

them to another officer outside the cell. Then at 16:00:30 the officer the items were handed to sets

them back down in the pile.

All officers exit the cell at 16:04:08. The door is closed, and all officers disperse. At

16:09:20 Deputy Blythe is seen walking back up to tier 2 with an empty plastic bag and filling it

with the things removed from Plaintiff’s cell. At 16:10:20 he appears to walk over to Plaintiff’s

cell and talk to him briefly, he then slides two items (presumably books), under Plaintiff’s door.

He then proceeds to continue picking up the confiscated items. At 16:11:55 he tosses something

down in front of Plaintiff’s door, and Plaintiff presumably pulls it under the door. At 16:13:25

Deputy Blythe walks away from Plaintiff’s cell holding a plastic bag filled with items and has his

arms full of what appear to be books, but this is not entirely clear.

II. LEGAL STANDARD

Summary judgment is appropriate if, after viewing the facts and all reasonable inferences

in the light most favorable to the non-moving 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

A. Religious Freedom Claim

Prisoners retain their constitutional rights, but limitations may be placed on the exercise of

those rights considering the needs of the penal system. Murphy v. Missouri Dep’t of Corr., 372

F.3d 979, 982 (8th Cir. 2004). “To be protected by the free exercise clause of the first amendment,

or by RLUIPA, beliefs must meet two requirements: (1) they must be religious, (2) and they must

be sincerely held . . . one must be specific as to what [his] religious belief is and why [he] thinks

it is being violated.” Holloway v. Pigman, 844 F.2d 365, 367 (8th Cir. 1989). Generally, courts

are reluctant to find beliefs insincere on summary judgment. Murphy, 372 F.3d at 983. “The free

exercise right is limited insofar as a prisoner’s adherence to religious practices may be regulated

by prison authorities, so long as such regulations are ‘reasonably related to legitimate penological

interests.’” Murphy v. Carroll, 202 F. Supp. 2d 421, 424 (D. Md. 2002) (quoting Turner v. Safely,

482 U.S. 78, 89 (1987); O’Lone v. Shabazz, 482 U.S. 342, 348–349 (1987); Cruz v. Beto, 405 U.S.

319, 321-22 (1972). Plaintiff claims that his right to religious freedom was violated when multiple

religious books were removed from his cell and only a couple of books were returned.

First, we must consider whether the challenged governmental action “infringes upon a

sincerely held religious belief, then we must apply the Turner factors to determine if the regulation

restricting the religious practice is reasonably related to legitimate penological objectives.

Murphy, 372 F.3d at 983 (quoting Hamilton v. Schrino, 74 F.3d 1545, 1550 (8th Cir. 1996)); and

O’Lone, 482 U.S. at 353. The four Turner factors include: whether there is a valid rational

connection between the prison regulation and the government interest justifying it; whether there

is an alternative means available to the prison inmates to exercise the right; whether an

accommodation would have a significant ripple effect on the guards, other inmates, and prison

resources; and, whether there is an alternative that fully accommodates the prisoner at de minimis

cost to valid penological interests. Turner, 382 U.S. at 89-91.

Defendants argue that Plaintiff has failed to show that the government’s action of

confiscating all but two of his religious texts has infringed upon his sincerely held religious belief.

(ECF No. 20, pp. 5-7). They further argue that there is a legitimate penological need to conduct

cell searches. (Id., p. 6). In his Response to the Motion for Summary Judgment, Plaintiff states

that he is a Sunni Muslim and that the Hadith or Sunnah, the Quran, and “What Jesus Really Said,”

are the only books that help [him] exercise [his] religion.” (ECF No. 23, p. 2). Plaintiff alleges

that both his “Bible/Quran” and “What Jesus Really Said” were taken on July 11, 2020, and that

he was left with “Ten Questions From the King” and “One Thing You Can’t do in Heaven.” (ECF

No. 21-3). Defendants agree that Plaintiff’s interest in reading religious material is a sincerely

held religious belief, but they disagree that Defendant Roger’s actions and detention center

regulations restricted his sincerely held religious belief. They focus on the legitimate need for cell

searches; however, the confiscation rather than the search is the issue, and Defendants have not

claimed any penological interest in confiscating the books. Plaintiff claims that the two books

returned to him were fiction and not the material he needed to exercise his beliefs. Defendants

have provided no summary judgment evidence to the contrary. The video confirms both that

multiple books were taken from Plaintiff’s cell, and that some books were returned to him.

Viewing the facts most favorably to Plaintiff, there is a genuine question of material fact as to

whether the books returned were religious material and whether the other books’ confiscation was

justified.

1. Qualified Immunity Defense

The standard for religious freedom is clearly established. There are two prongs to a

qualified immunity analysis. Jones v. McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012). A court

must determine whether a constitutional right has been violated and whether that right had been

clearly established at the time of the alleged violation. Id. Defendants claim in their Motion for

Summary Judgment that Plaintiff failed to meet the first prong, that a constitutional right had been

violated, therefore they are entitled to the protection of qualified immunity. However, construing

all facts in the light most favorable to the plaintiff, if the religious texts taken by Defendants were

his Quran/Bible or other basic religious materials and the ones returned were fiction and not helpful

in practicing his religion, the unjustified confiscation would be a constitutional violation. The next

question is whether the right had been clearly established at the time of the alleged violation. In

deciding the qualified immunity question, the Court should “ask whether the agents acted

reasonably under settled law in the circumstances, not whether another reasonable or more

reasonable interpretation of the events can be construed.” Hunter v. Bryant, 502 U.S. 224, 228

(1991).

Here, at the time of the incident it was established law that a prisoner has the right to

practice his religion, and that includes reading and having access to religious material. It is also

established that any restriction must be reasonably related to a penological interest. Again,

construing the facts in Plaintiff’s favor, Defendant Rogers removed basic religious materials

without any penological justification. Since there exists a question of material fact whether a

constitutional violation occurred when Plaintiff’s religious texts were confiscated, and the

standards governing a free exercise claim are clear, Defendant Rogers is not entitled to summary

judgment based on qualified immunity at this time.

2. Official Capacity Claim

A county is liable only for constitutional violations caused by the local government’s

official policy. Official policy includes written policy, custom (unwritten policy), and the conduct

of a policymaker. Monell v. Department of Social Services, 436 U.S. 658 (1978). A county or

other local government is liable under § 1983 only when “execution of a government policy or

custom . . . inflicts the injury.” Id. at 694.

The written policy of SCDC states that an “inmate will have the freedom to exercise their

religious beliefs, subject only to those limitations necessary to maintain the security and order of

the facility.” (ECF No. 21-7, p. 4). Decisions which have an adverse effect on an inmate must be

rationally related to the effectuation of order and security within the jail. “Inmates will be afforded

the opportunity to possess religious study materials for the purpose of practicing their faith. The

jail administrator will be responsible for approving the possession of these materials as long as

they do not threaten the security or order of the facility.” (Id., p. 13). These guidelines establish

reasonable restrictions on the practice of religion that are allowable under the First Amendment.

The SCDC’s policies only allow for restrictions on access to religious materials when security and

order of the facility requires it.

Defendants have not asserted any security interest furthered by their confiscation, so their

actions may not comply with SCDC’s policy. A violation of policy, however, 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). It is concerning that after

reviewing the grievance filed by Plaintiff the reviewing officers did not remedy the situation, but

Plaintiff has not asserted that this reflects a custom of the detention center. Further, Plaintiff has

not alleged that there was a custom in place that authorized the Defendant’s actions, and a single

incident cannot establish a custom contradictory to written policy. See Johnson v. Douglas County

Med. Dept., 725 F.3d 825, 828 (8th Cir. 2013) (multiple incidents involving a single plaintiff can

establish the existence of a custom conflicting with written policy).

Instead, Plaintiff simply says he wants to sue “whatever governmental entity that created

the custom or policy that gave him the right to throw my Bible/Quran and other religious books in

the trash.” (ECF No. 1). Even when construing the facts in Plaintiff’s favor, there is no genuine

question of material fact as to whether a custom was in place which directed or authorized

Defendant Rogers’ actions. Plaintiff’s injury was not caused by SCDC policy, nor has Plaintiff

alleged any custom that caused his injury. Defendant Rogers is entitled to summary judgment as

a matter of law on the official capacity claim.

B. Deprivation of Personal Property

Plaintiff has failed to state a cognizable claim under § 1983 for the alleged confiscation of

his religious books during the cell search. See Clark v. Kansas City Mo. Sch. Dist., 375 F.3d 698,

793 (8th Cir. 2004) (no cause of action for the taking of personal property as long as the state

provides an adequate post-deprivation remedy). Even if the deprivation of his property was

intentional, there is no Due Process violation when the state has provided Plaintiff with adequate

post-deprivation remedies. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional

deprivation of property does not violate due process when meaningful post-deprivation remedy is

available). Arkansas provides the post-deprivation remedy of conversion for the recovery of

personal property. See Elliot v. Hurst, 817 S.W.2d 877, 880 (1991) (cause of action for conversion

lies where distinct act of dominion is exerted over property in denial of owner’s right).

Accordingly, because Plaintiff could seek redress in Arkansas state courts to recover his lost

property, he has no plausible claim pursuant to § 1983 in this regard. Summary judgment as a

matter of law is, therefore, appropriate for this claim.

C. Excessive Force Claim

The law is clear that a pretrial detainee cannot be punished. See e.g., Bell v. Wolfish, 441

U.S. 520, 535 (1979). “However, not every disability imposed during pretrial detention amounts

to ‘punishment’ in the constitutional sense.” Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996).

The Supreme Court held that a pretrial detainee need only show that a Defendant’s use of force

was objectively unreasonable to prevail on an excessive force claim. Kingsley v. Hendrickson,

576 U.S. 389, 397 (2015). The objective reasonableness of a use of force “turns on the ‘facts and

circumstances of each particular case.’” Id. (quoting Graham v. Connor, 490 U.S. 386, 396

(1989)). The determination should be made from the perspective of a reasonable officer on the

scene. A court must also account for the “legitimate interests that stem from [the government’s]

need to manage the facility in which the individual is detained,” appropriately deferring to

“policies and practices that in th[e] judgment” of jail officials “are needed to preserve internal

order and discipline and to maintain institutional security.” Id. (quoting Bell, 441 U.S. at 540).

In determining whether a given use of force was reasonable or excessive, the Supreme

Court said the following may bear on the issue: the relationship between the need for the use of

force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the

officer to temper or to limit the amount of force; the severity of the security problem at issue; the

threat reasonably perceived by the officer; and whether the plaintiff was actively resisting. Id.

The Court noted that the list was not exclusive but instead only illustrated the “types of objective

circumstances potentially relevant to a determination of excessive force.” Id.

With respect to the use of tasers, the Eighth Circuit has found that “prisoners have a clearly

established right to be free from a Taser shock or its equivalent in the absence of a security threat.”

Brown v. City of Golden Valley, 574 F.3d 491, 500 (8th Cir. 2009) (Eighth Amendment case); see

also Walton v. Dawson, 752 F.3d 1109, 1116-17 (8th Cir. 2014) (“the Fourteenth Amendment

gives state pretrial detainees . . . rights which are at least as great as the Eighth Amendment

protections available to a convicted prisoner”) (quotation marks and citation omitted). The Eighth

Circuit noted that a review of the case law “revealed that the use of force was justified when there

was a concern for the safety of the institution, the jailers, and the inmates.” Id.

We must view the facts in the light most favorable to Plaintiff in determining if there is any

genuine dispute of a material fact. The facts presented by the parties differ only on the issue of

whether Plaintiff was actively resisting handcuffs when he was tased. Plaintiff claims that he was

face down on the ground with his hands cuffed behind his back when Defendant Judkins tased

him. He neither affirms nor denies whether he had threatened to “rush” Deputy Blythe as he was

doing “shakedowns.” The video evidence does not show when Plaintiff was tased – whether before

or after he was handcuffed. If Plaintiff’s version of events is taken as true, there would be an

unnecessary, excessive, and punitive use of force. The use of a taser would be objectively

unreasonable in the circumstances if Plaintiff posed no reasonable threat to officer safety or jail

security. When deciding whether a use of force is excessive or reasonable, the Court should

consider the relationship between the need for force and the amount of force used; the extent of

the injury; any effort made by the officer(s) to limit the force used; the severity of security problem;

the threat reasonably perceived; and whether the inmate was actively resisting. Here, the evidence

does not establish the existence of a security problem; there were seven deputies present, three of

whom are seen on camera simply observing. There is one inmate out in the pod who appears to

pay no attention to what is happening and instead seems to be watching a tv while the situation

unfolds. According to detention center policy, a taser should only be used if an individual is

exhibiting behavior that presents an imminent risk of serious physical injury to themselves or

others, and the taser will only be applied the number of times necessary to remove that threat of

injury to self or others. Here, the taser was only deployed once.

Defendants claim that the video confirms their version of events because Deputy Blythe

can be seen conducting cell shakedowns without issue until reaching Plaintiff’s cell and then

calling for additional deputies. This may confirm the first part of the incident, but it does not

confirm when Plaintiff was tased. The undisputed facts indicate that while conducting cell

shakedowns, Deputy Blythe called for assistance to handle Plaintiff’s shakedown, and that

Defendant Judkins tased Plaintiff and Defendant Rogers handcuffed him at some point. The

critical question concerns the timing of these events. Weighing the credibility of the parties’

different accounts of these events is a job for the jury. A genuine issue of material fact exists as

to whether Plaintiff was face down on the floor and handcuffed when he was tased.

1. Qualified Immunity Defense

For one to be liable in their individual capacity they must have notice that their actions

violate an individual’s right. First, the Court must determine whether the facts demonstrate a

deprivation of a constitutional right. Second, the Court must then consider whether the implicated

right was clearly established at the time of the deprivation. Jones v. McNeese, 675 F.3d at 1161.

To do this, the Court must examine the information possessed by the governmental official accused

of wrongdoing to determine whether, given the facts known to the official at the time, a reasonable

government official would have known that his actions violated the law. Id. The question is

whether the law at the time of the events in question gave the officer fair warning that this conduct

was unconstitutional. Id. Whether the facts demonstrate a deprivation of a constitutional right

cannot be conclusively answered at this time, so qualified immunity turns on whether the law gave

the officer a fair warning that this conduct was unconstitutional.

Kingsley established the objectively reasonable standard for excessive force against pre-

trial detainees, and Bell establishes that pre-trial detainees cannot be punished. These standards

were in place at the time of the incident; therefore, Defendant Judkins had notice that any force

used must be reasonable in relation to the threat perceived. If Defendant Judkins is found to have

violated Plaintiff’s constitutional right, then he is not entitled to qualified immunity. Since there

is a genuine question of material fact regarding whether a constitutional violation occurred, and

the standards governing excessive force are clear, Defendant Judkins is not entitled to summary

judgment based on qualified immunity.

2. Official Capacity

A county is liable only for constitutional violations caused by the local government’s

official policy. Official policy includes written policy, custom (unwritten policy), and the conduct

of a policymaker. Monell v. Department of Social Services, 436 U.S. 658 (1978). A county or

other local government is liable under § 1983 only when “execution of a government policy or

custom . . . inflicts the injury.” (Id. at 694). Plaintiff describes the policy or custom that he believes

caused the violation of his constitutional rights as, “I want to assert whatever custom or policy that

gave him or made him think he had the right to attack me while I was unarmed and cuffed with

his Taser.” (ECF No. 1, p. 6). Here, there are SCDC guidelines given to deputies regarding how

to properly handle a situation that warrants force and when force is warranted:

“D. In situations where immediate physical harm does not appear to be

imminent, jail deputies will initiate the following alternatives prior to using force

on any inmate:

1.) Verbally address the inmate and attempt to persuade him/her to stop the

behavior;

2.) Request assistance from either jail deputies, or the supervisor on duty

who by virtue of their presence, may persuade the inmate to stop his/her

behavior; and,

3.) Verbally advise the inmate as to the consequences that will occur if

he/she does not stop the behavior.”

(ECF No. 21-7, p. 7). If a situation warrants the use of force to restrain an inmate and stop him/her

from inducing physical harm on another deputy, inmate, or self, then jail deputies may use physical

holds and take down techniques to gain control of an inmate. (Id.) Here, it is unknown if there

was a “take down” technique that Defendant Rogers or Defendant Judkins could have used before

using a Taser on Plaintiff. But the existence of additional possible takedown techniques is not

dispositive because “tasing an inmate . . . who is under control is not permitted,” and here the

critical issue turns on whether or not Plaintiff was under control at the time of tasing. (Id., p. 8).

Taking Plaintiff’s version of events as true, Defendant Judkins did not follow SCDC policy

and, therefore, Sebastian County policy did not direct or authorize his actions. SCDC only

authorizes the use of Tasers when there is a serious threat of injury, and only after other take-down

and warning steps are first taken. These standards are consistent with the constitutional

requirement that force only be used against pre-trial detainees when threats are present. Therefore,

the SCDC’s policies are not the cause of Plaintiff’s injuries, and Plaintiff has not alleged any other

custom of SCDC which violated his rights. There is no genuine question of material fact on this

issue, and Defendant Judkins is entitled to summary judgment as a matter of law on the Plaintiff’s

excessive force official capacity claim.

IV. CONCLUSION

Accordingly, it is recommended that Defendants’ Motion for Summary Judgment (ECF

No. 19) be GRANTED IN PART and DENIED IN PART.

Summary Judgment should be GRANTED regarding Plaintiff’s free exercise of religion

claim against Defendant, Sammy Rogers, in his official capacity.

Summary Judgment should be DENIED regarding Plaintiff’s free exercise religion claim

against Defendant, Sammy Rogers, in his individual capacity.

Summary Judgment should be GRANTED regarding Plaintiff’s excessive force claim

against Defendant, Officer Judkins, in his official capacity.

Summary Judgment should be DENIED regarding Plaintiff’s excessive force claim against

Defendant, Officer Judkins, in his individual capacity.

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 22nd day of July 2021.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE