The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DELTA DIVISION
JARELL D. TERRY PLAINTIFF
ADC #149998
v. No. 2:22-cv-00170-LPR
DEXTER PAYNE, et al. DEFENDANTS
ORDER
The Court has reviewed the Recommended Disposition (RD) submitted by United States
Magistrate Judge Jerome T. Kearney (Doc. 109) and the Plaintiff’s Objections.1 After a de novo
review of the RD, along with careful consideration of the Objections and the entire case record,
the Court hereby approves and adopts the RD in its entirety as this Court’s findings and conclusions
in all respects—except to the extent the RD is inconsistent with the below.
With respect to Plaintiff’s request for injunctive relief, the Court entirely agrees with the
RD. With respect to the still-live conditions of confinement claims more generally, the Court has
some trepidation with fully endorsing the RD. First, if the RD is suggesting that a plaintiff must
establish that (allegedly) excessive heat caused him to actually have medical issues in addition to
putting him at a substantial risk of serious harm,2 the Court is unsure that is an accurate reading of
the caselaw. Second, and in any event, on the Court’s read of the record, a reasonable jury could
find a link between the (allegedly) excessive heat and some of Plaintiff’s medical issues.3
1 Although Plaintiff has not filed a document titled “Objections,” he has filed numerous documents—since the entry
of the RD—that are directly or indirectly related to the summary judgment issue. The Court treats each and every
post-RD filing as part of Plaintiff’s overall objection to the RD and opposition to summary judgment.
2 See Doc. 109 at 6, 12–16.
3 Certainly, as the RD fleshes out, there is a very strong case that there is no link between the (allegedly) excessive
heat and Plaintiff’s medical issues. Ninety-five out of 100 juries would probably find no link. But, on this record, the
five juries that found a link would not be unreasonable in doing so.
Despite these concerns with the RD, the Court does agree with the RD’s bottom line that
Plaintiffs still-live claims cannot survive summary judgment. In addition to agreeing with the
parts of the RD’s reasoning that are not inconsistent with the above, the Court acknowledges the
Eighth Circuit’s 2024 decision in Cody v. City of St. Louis ex rel. Medium Security Institution.’ In
Cody, the Eighth Circuit rejected the proposition that it is clearly established in our circuit that “a
violation of the Eighth Amendment . . . or of due process . . . can be established based on exposure
to excessive heat without adequate mitigating measures.”° Whether Cody is correct or not, it is
the law of this Circuit and binding on this Court.® Under Cody, even taking the most generous
view of the record theoretically possible for Plaintiff—Defendants would be entitled to qualified
immunity pursuant to the second prong of the governing qualified-immunity test.’
Accordingly, Defendants’ Motion for Summary Judgment (Doc. 91) is GRANTED.
Plaintiffs claims against Defendants Payne, Straughn, Lay, Randle, and Etherly are DISMISSED
with prejudice. This case is DISMISSED. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that an in forma pauperis appeal from this Order and the accompanying Judgment would not be
taken in good faith.
IT IS SO ORDERED this 4th day of February 2025.
SD
LEE P. RUDOFSK
UNITED STATES DISTRICT JUDGE
4103 F.4th 523 (8th Cir. 2024)
5 Id. at 533-34; see id. at 533 (“We do not agree with the district court that [a Fifth Circuit case named] Yates
established a clear rule within our circuit, and Plaintiffs point us to no other authorities on appeal.”’).
6 Cody is in some—though not complete—tension with the result reached by the Court in its Order resolving the
Motion for Judgment on the Pleadings. See Doc. 77. If this case goes to the Eighth Circuit on appeal, the Court
encourages the Eighth Circuit to look closely at Chandler v. Crosby, 379 F.3d 1278 (11th Cir. 2004), which collects
other cases on this point. This is mn addition to Yates and other Fifth Circuit cases cited by Plaintiff.
7 Plaintiff has not pointed to an Eighth Circuit case that clearly establishes the rule Cody rejected. And, although
Plaintiff has pointed to a few out-of-circuit cases, it is not clear that those cases constitute a “consensus”—at the right
level of specificity—as to the unconstitutionality of Defendants’ conduct in this case. At least, it is not clear enough
for this Court to depart from Cody.