Dunahue v. Reed

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

REGINALD DUNAHUE PLAINTIFF

ADC #106911

V. Case No. 4:22-CV-00710-BRW-BBM

AUNDREA CULCLAGER, Warden, Cummins

Unit, ADC; KENNETH STARKS, Captain,

Cummins Unit, ADC; and KENNY BOLDEN,

Deputy Warden, Cummins Unit, ADC DEFENDANTS

RECOMMENDED DISPOSITION

The following Recommended Disposition (“Recommendation”) has been sent to

United States District Judge Billy Roy Wilson. You may file written objections to all or

part of this Recommendation. If you do so, those objections must: (1) specifically explain

the factual and/or legal basis for your objection; and (2) be received by the Clerk of this

Court within fourteen (14) days of the date of this Recommendation. If you do not file

objections, Judge Wilson may adopt this Recommendation without independently

reviewing all of the evidence in the record. By not objecting, you may waive the right to

appeal questions of fact.

I. INTRODUCTION

On August 8, 2022, Plaintiff Reginald Dunahue (“Dunahue”), then incarcerated at

the Tucker Max Unit of the Arkansas Division of Correction (“ADC”), filed a pro se

Complaint pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights

while he was incarcerated at the ADC’s Cummins Unit. (Doc. 2) .1 After the Court screened

Dunahue’s Complaint in accordance with the Prison Litigation Reform Act (“PLRA”) and

granted Defendants’ Motion for Partial Summary Judgment on the issue of exhaustion,

Dunahue was allowed to proceed on failure-to-protect claims against then Warden Aundrea

Culclager (“Culclager”), then Captain Kenneth Starks (“Starks”), and then Deputy Warden

Kenny Bolden (“Bolden”) (collectively, “Defendants”), stemming from his “forced”

placement in a restrictive-housing cell with another inmate, who allegedly attacked and

attempted to rape Dunahue, (Docs. 14–15, 38, 40).

On August 12, 2024, Dunahue filed a Motion for Summary Judgment and a “Brief

in Support of Motion for Summary Judgment with Statements of Genuine Issue of Material

Facts & Statement of Disputed Facts, Incorporated.” (Docs. 45–46).2 Defendants filed a

Response to Dunahue’s Motion for Summary Judgment. (Doc. 58).

On September 11, 2024, Defendants filed a Motion for Summary Judgment, a Brief

in Support, and a Statement of Facts. (Docs. 55–57). In response, Dunahue filed a

Statement of Disputed Facts,3 (Doc. 68), and later filed responses to Defendants’ Motion

for Summary Judgment and Statement of Facts, (Docs. 69, 71, 73, 79). Defendants filed a

Reply, (Doc. 75), and the issues are joined and ready for consideration.

1 Dunahue filed what was docketed as a “Supplemental Complaint,” consisting of three affidavits

discussing incidents that have no relation to this lawsuit. (Doc. 12).

2 Dunahue’s Statement of Facts, as required by Local Rule 56.1(a), is embedded within his Brief in

Support of his Motion for Summary Judgment. See (Doc. 46 at 13–16).

3 Dunahue’s initial response consists of a series of affidavits and a marked up copy of Defendants’

Brief in Support of their Motion for Summary Judgment. See (Doc. 68).

For the reasons discussed below, the Court recommends that Dunahue’s Motion for

Summary Judgment, (Doc. 45), be denied; Defendants’ Motion for Summary Judgment,

(Doc. 55), be granted; Dunahue’s official-capacity claims be dismissed without prejudice;

and Dunahue’s failure-to-protect claims be dismissed with prejudice.

II. FACTUAL BACKGROUND4

All parties agree that Dunahue was transferred from the ADC’s East Arkansas

Regional Unit to the Cummins Unit in late 2019.5 (Doc. 2 at 6, ¶ 3; Doc. 57 at 3, ¶ 13). On

November 22, 2019, Dunahue was placed in restrictive housing. (Doc. 2 at 6, ¶ 5; Doc. 57

at 3, ¶¶ 12, 14). While in restrictive housing, Dunahue shared a cell with inmate Tony

Harper (“Inmate Harper”). (Doc. 2 at 6, ¶ 5). On the evening of December 2, 2019, and

into the morning of December 3, 2019, while housed together, Dunahue and Inmate Harper

had an altercation. (Doc. 2 at 7, ¶ 8; 57 at 4–5, ¶ 27). Non-party Corporal Jessica Mickel

(“Cpl. Mickel”) witnessed the altercation and “pepper-maced” both Dunahue and Inmate

Harper when they failed to heed her orders to release each other. (Doc. 2 at 6, ¶ 7; Doc. 57

at 5, ¶ 30).

4 The sources for these facts are Dunahue’s verified Complaint (Doc. 2); Dunahue’s Deposition,

(Doc. 81-1); Affidavits from Deputy Director of Health Aundrea Culclager, (Doc. 57-1), Deputy Warden

Kennie Bolden, (Doc. 57-2), and Captain Kenneth Starks (Doc. 57-3); Dunahue’s Motion to Amend, (Doc.

31); Dunahue’s Motion for Summary Judgment and attached documentation, (Doc. 45–46); Defendants’

Motion for Summary Judgment, (Doc. 55); Defendants’ Statement of Disputed Material Facts (Doc. 57);

Internal Affairs Investigation Reports, (Doc. 60); Dunahue’s Responses, (Docs. 68–69, 71, 73, 79); and

Dunahue’s Reply (Doc. 78).

5 Dunahue alleges that “Brickey’s prison warden Lay shipped [Dunahue] to Cummins” on October

28, 2019. (Doc. 2 at 6, ¶ 3). Conversely, Dunahue also alleges, “Lay sent me to Cummins on 11-22-2019

& ADC records reflect[] that.” Id. at 10, ¶ 21. Defendants provided documentation that Dunahue was

transferred on November 22, 2019. (Doc. 57-4 at 3).

Almost everything else is disputed. Dunahue alleges that Inmate Harper was a “300

pound homosexual, illegal drug user who was supposed to be isolated from me.” (Doc. 46

at 2). Dunahue claims that Inmate Harper assaulted every inmate that had ever been housed

with him. (Doc. 69 at 5) (“Every inmate Defendants placed in Cummins Unit #311 with

I/M Tony Harper,[] before I was forced into #311 with him,[] Harper assaulted them.”).

Dunahue also alleges that Inmate Harper “was violent[,] dangerous[, and] had a reputation

of sexual[ly] assaulting inmates [and] being in possession of deadly weapons and illegal

guns.” (Doc. 68 at 1). Thus, Dunahue argues that Defendants “were aware of facts from

which the inference could be drawn that [Inmate Harper] would beat or rape me.”6 (Doc.

46 at 5). Dunahue asserts that Inmate Harper was a known “serial sex offender” who “did

illegal drugs, assaulted inmates often, and would try to rape me.” Id. at 12. Further,

Dunahue alleges that Inmate Harper “was supposed to be in a cell by himself.” (Doc. 2 at

6, ¶ 5); see also (Doc. 46 at 20–21, 47, 59, 68, 73, 81) (arguing that those in restrictive

housing should be housed in one-man cells).

Despite Inmate Harper’s reputation, Dunahue claims that Culclager, Starks, and

now-terminated defendant Lt. Avery, forced him into the cell with Inmate Harper. (Doc. 2

at 6, ¶ 5). Specifically, Dunahue alleges that Culclager was responsible for allowing him

to be housed in the cell with Inmate Harper, (Doc. 46 at 15); Bolden and Starks voted that

6 To support his argument that Defendants were actually aware of the danger posed by placing

Dunahue in a cell with Inmate Harper, Dunahue cites to several grievances and documents that are dated

after the December 2, 2019 altercation. See (Doc. 46 at 5) (citing to Doc. 31 at 18–88). In one grievance,

Grievance CU-19-01428, Dunahue alleges that “Serg. James” and “Capt. Starks” were aware he would be

in danger when they placed him in the cell on November 22, 2019, but provides no facts to support that

allegation. (Doc. 31 at 23).

Dunahue be assigned to the same cell as Inmate Harper, id., (Doc. 81-1 at 25:6–17); and

Starks commanded Avery to place Dunahue in the cell with Inmate Harper, (Doc. 46 at 15;

Doc. 81-1 at 27:4–12). Dunahue maintains that, while he was housed with Inmate Harper,

Culclager and Bolden “turn[ed] a blind eye” to Harper’s drug use. (Doc. 2 at 7, ¶ 8).

With regard to the assault, Dunahue claims that, beginning on December 2, 2019,

at around 11 p.m., Inmate Harper began “smoking meth.” (Doc. 2 at 6, ¶ 7). Once he was

“high,” Inmate Harper “tried to rape [Dunahue].” Id. Dunahue contends that Inmate Harper

then “beat” Dunahue for “20 or 30 minutes” and “tried to break [Dunahue’s] left leg.” Id.

As a result, Dunahue claims he suffered a “busted nose” that bled “profusely” and a sore

body that lasted three weeks. Id.; (Doc. 46 at 3). Dunahue later contends that he attempted

to file an emergency grievance prior to the altercation, but his attempt was ignored by non-

parties Cpl. Mickel and Sgt. James. (Doc. 31 at 5; 27-3 at 1–2).

Conversely, as a preliminary matter, Defendants attest that, while there are a

multitude of two-man cells in restrictive housing at the Cummins Unit, there are only 10

one-man cells. (Doc. 57 at 2, ¶ 6). Those 10 cells are reserved for inmates that “throw

bodily fluids or excrement.” Id. at ¶ 7. Both Dunahue’s and Inmate Harper’s files were

reviewed prior to assigning them to the same cell. (Doc. 57 at 3, ¶ 16). According to

Defendants, neither appeared on the other’s “enemy list,” and there was no evidence that

they would be a danger to each other. (Doc. 57-1 at 1, ¶ 5; Doc. 57-2 at 1, ¶ 7; Doc. 57-3

at 2, ¶ 8). Culclager and Starks testified that Inmate Harper was not a violent inmate. (Doc.

57-1 at 1–2, ¶¶ 5–7; Doc. 57-3 at 2, ¶¶ 6, 8). Culclager attested that Inmate Harper was not

in restrictive housing for a violent offense; he was placed there because he possessed a

weapon—sharpened wood Inmate Harper claimed he kept for “cutting vegetables.” (Doc.

57-1 at 1–2 at ¶ 7). Starks testified that Inmate Harper was an “older inmate” with health

issues that was never a problem in restrictive housing prior to the December 2, 2019

altercation. (Doc. 57-3 at 2, ¶ 6). Starks also testified that he was never made aware of

Inmate Harper using any drugs prior to the December 2, 2019 altercation. Id. at ¶ 10.

Defendants attached as sealed exhibits the internal affairs investigation reports

regarding the December 2, 2019 altercation.7 (Docs. 60-1–60-2). Cpl. Mickels alleged that

she was making rounds when she found Dunahue and Inmate Harper, “striking each other

with closed fists inside their cell.” (Doc. 60-1 at 32). Cpl. Mickels ordered both parties to

stop; when they failed to do so, she used O.C. spray and successfully stopped the

altercation. Id. At that point, Dunahue and Inmate Harper were separated and received

medical attention. Inmate Harper was noted to have a “[s]wollen nose from being hit in his

face by inmate.” (Doc. 60-1 at 21). Likewise, Dunahue had a roughly “5 cm round

red/purple bruise [with] moderate swelling to [left] side collarbone,” and the skin was not

broken. Id. at 22. A dentist confirmed that the bruise on Dunahue was a bite mark that did

not break the skin. (Doc. 60-2 at 20). After both parties were removed from the cell, the

cell was searched; no contraband or weapons were found. (Doc. 60-1 at 7).

After the altercation, Dunahue denied that he needed to be seen by mental health

services and reported that Inmate Harper “attempted to rape me.” (Doc. 60-1 at 22; Doc.

7 These sealed reports are docketed in a single file; however, to avoid confusion, the court will refer

to them as “60-1” for the report titled, “Internal Affairs Investigation 19-2032R Use of Force (Document),”

and “60-2” for the report titled, “Internal Affairs Investigation 19-2034R Inmate on Inmate Sexual

Harassment (Document).”

60-2 at 19). Inmate Harper denied the allegations and claimed that “Dunahue is lying on

me. These are the types of games this inmate plays at every unit he goes to.” (Doc. 60-2 at

18). Inmate Harper was a Level 1-C inmate—considered “good”—at the time of the 2019

altercation. (Doc. 57-1 at 1–2, ¶ 7). Incident report logs from the Cummins Unit regarding

Inmate Harper show no prior allegations of sexual or physical assault against any inmate.

(Doc. 60-2 at 22–24). Inmate Harper does have, however, two reported incidents of

indecent exposure from 2013 and two positive drug tests from 2011 and 2018, respectively.

Id. at 22–23.

On the other hand, between January 5, 2015, and December 2, 2019, Dunahue was

suspected of committing sexual misconduct against staff and/or another inmate on 12

occasions; he was allegedly the victim of sexual misconduct on 26 occasions; and he

witnessed alleged sexual misconduct on four occasions. (Doc. 60-2 at 40–44). Furthermore,

Branham, Cpl. Mickel, and Sgt. James all testified that Dunahue never spoke with them

about an emergency grievance on the day of the altercation, nor did Dunahue bring any

complaints about Inmate Harper to their attention. (Doc. 60-2 at 31, 33, 35).

Dunahue requests punitive damages and injunctive relief. In particular, Dunahue

requests the closure of Cummins’ punitive isolation unit, (Doc. 2 at 23), and “somebody .

. . tear[ing] down Cummins’s Punitive & Admin. Segregation,” id. at 24.

III. DISCUSSION

A. Standard of Review

Summary judgment is appropriate when the record, viewed in a light most favorable

to the nonmoving party, demonstrates that there is no genuine dispute as to any material

fact, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P.

56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Anderson v. Liberty Lobby

Inc., 477 U.S. 242, 249–50 (1986). The moving party bears the initial burden of

demonstrating the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323.

Thereafter, the nonmoving party must present specific facts demonstrating that there is a

material dispute for trial by citing to particular parts of materials in the record, “including

depositions, documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials[.]” See FED. R. CIV. P. 56(c); Torgerson v. City

of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc).

In responding to a motion for summary judgment, the nonmoving party may not

rely on allegations or denials but must demonstrate the existence of specific facts that create

a genuine issue for trial. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The

nonmoving party’s allegations must be supported by sufficient probative evidence that

would permit a finding in his favor on more than mere speculation, conjecture, or fantasy.

Id. (citations omitted). A dispute is genuine if the evidence is such that it could cause a

reasonable jury to return a verdict for either party; a fact is material if its resolution affects

the outcome of the case. Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir.

2012). Disputes that are not genuine or that are about facts that are not material will not

preclude summary judgment. Sitzes v. City of W. Memphis, Ark., 606 F.3d 461, 465 (8th

Cir. 2010).

B. Dunahue’s Motion for Summary Judgment (Doc. 45)

Dunahue filed a Motion for Summary Judgment, alleging that Defendants are not

entitled to qualified or sovereign immunity; consequently, the case should proceed to trial.

(Doc. 45). Specifically, Dunahue argues: (1) Defendants “wilfully [sic] put me in the

position to get sexually assaulted, beat [u]p and [s]eriously injured in a cell by an inmate

the defendants deemed to be a threat to other inmates’ safety,” (Doc. 46 at 1); (2)

Defendants were notified of the substantial risk of harm he faced, id. at 5; and (3)

Defendants are not entitled to sovereign or qualified immunity, id. at 13. Dunahue argues

that these “genuine issue[s] of material fact” entitle him to a trial. Id. at 11.

Attached to Dunahue’s Brief in Support are approximately 77 pages of documents,

all of which are already part of the case record. (Doc. 46 at 17–94). Defendants’ Response

and Brief in Support effectively reiterate the arguments made in support of their Motion

for Summary Judgment, (Doc. 55). (Doc. 58 at 2, ¶ 6).8

C. Defendants’ Motion for Summary Judgment (Doc. 55)

In their Motion for Summary Judgment, Defendants argue that: (1) sovereign

immunity bars Dunahue’s claims for monetary relief from Defendants in their official

capacities; and (2) Dunahue cannot establish that Defendants violated his constitutional

rights; therefore, qualified immunity protects Defendants from Dunahue’s claims against

them in their individual capacities. (Doc. 55). Specifically, Defendants claim they are

entitled to qualified immunity, as they had “no knowledge of any substantial risk of harm

8 Defendants also argue that Dunahue failed to submit a Statement of Facts, as required by Local

Rule 56.1. (Doc. 58 at 2). The Court notes, however, that Dunahue’s Statement of Facts was embedded

within his Brief in Support. (Doc. 46 at 8–16).

to plaintiff, and they were not deliberately indifferent towards plaintiff’s needs.” Id. at 1–

2, ¶ 4.

Dunahue filed a Response in the form of 39 pages of affidavits and marked-up

copies of Defendants’ prior pleadings, arguing that Defendants were aware that Inmate

Harper: (1) routinely used and was found in possession of illegal drugs, (Doc. 69 at 7); (2)

had sexually assaulted other inmates on “several occasions,” id.; and (3) had previously

been found in possession of a knife, id. at 11.

The Court will address Dunahue’s official-capacity claims first before turning to

Dunahue’s individual-capacity claims.

1. Dunahue’s Official-Capacity Claims

For the following reasons, the Court recommends that Dunahue’s official-capacity

claims be dismissed without prejudice. In particular, Dunahue’s official-capacity claims

for monetary damages are barred by sovereign immunity, and Dunahue’s official-capacity

claims for injunctive relief should be denied as moot. As a result, the Court recommends

that Dunahue’s Motion for Summary Judgment, (Doc. 45), be denied, and Defendants’

Motion for Summary Judgment, (Doc. 55), be granted on Dunahue’s official-capacity

claims.

a. Monetary Damages

While Dunahue’s Complaint requests monetary damages, (Doc. 2 at 24), in response

to Defendants’ Motion for Summary Judgment, Dunahue alleges that “[m]y official

capacity claims against A. Culclager and K. Bolden are brought for the purpose of

obtaining injunctive relief only.” (Doc. 69 at 3). Regardless, Dunahue’s official-capacity

claims against Defendants are the equivalent of claims against the State of Arkansas;

consequently, Dunahue’s official-capacity claims for monetary damages are barred by the

Eleventh Amendment. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Kruger

v. Nebraska, 820 F.3d 295, 301(8th Cir. 2016). Defendants are state officials, and the State

of Arkansas has not waived its Eleventh Amendment immunity. Burk v. Beene, 948 F.2d

489, 493-94 (8th Cir. 1991). Therefore, any claim for monetary damages against

Defendants in their official capacity should be dismissed without prejudice. See Rupp v.

Omaha Indian Tribe, 45 F.3d 1241, 1244 (8th Cir. 1995) (“Sovereign immunity is a

jurisdictional question”); Hart v. United States, 630 F.3d 1085, 1091 (8th Cir. 2011)

(modifying dismissal based on lack of subject-matter jurisdiction to be without prejudice).

b. Injunctive Relief

The Eleventh Amendment, however, does not bar official-capacity claims for

prospective injunctive relief. McDaniel v. Precythe, 897 F.3d 946, 951-52 (8th Cir. 2018)

(holding state officials may be sued in official capacity for prospective injunctive relief)

(citing Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)). To

qualify for prospective injunctive relief, a violation must be ongoing. See generally Martin

v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (“[A] prisoner’s claim for injunctive relief

to improve prison conditions is moot if he or she is no longer subject to those conditions.”).

Dunahue is no longer housed at the ADC’s Cummins Unit, where the alleged constitutional

violations took place, and there is no evidence or suggestion in the record that he is, or that

he is likely again to be, subjected to Defendants’ alleged unlawful actions. As such,

Dunahue’s claims for injunctive relief are moot, and Dunahue’s official-capacity claims

requesting injunctive relief fail, as well.

2. Dunahue’s Individual-Capacity Failure-to-Protect Claims

In their Motion for Summary Judgment, Defendants argue they are shielded from

liability in their individual capacities by qualified immunity, which protects officials who

act in an objectively reasonable manner. (Doc. 55 at 1–2, ¶ 4). For the reasons discussed

herein, the Court agrees and recommends that Defendants’ Motion for Summary Judgment,

(Doc. 55), be granted and Dunahue’s Motion for Summary Judgment, (Doc. 45), be denied

on Dunahue’s individual-capacity failure-to-protect claims.

Qualified immunity may protect a government official from liability when his or her

conduct does not violate “clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Thus, issues concerning qualified immunity are appropriately resolved on summary

judgment. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (holding the privilege is “an

immunity from suit rather than a mere defense to liability; and like an absolute immunity,

it is effectively lost if a case is erroneously permitted to go to trial.”) (emphasis in original).

To determine if Defendants are entitled to qualified immunity, the Court must

conduct a two-pronged inquiry into whether Dunahue has demonstrated: “(1) a deprivation

of a constitutional right, [that was] (2) . . . clearly established at the time of the deprivation.”

Robbins v. City of Des Moines, 984 F.3d 673, 678 (8th Cir. 2021). Whether qualified

immunity applies to the case at hand is a question of law, not fact, for the court to decide.

Kelsay v. Ernest, 933 F.3d 975, 981 (8th Cir. 2019); McClendon v. Story County Sheriff's

Office, 403 F.3d 510, 515 (8th Cir. 2005). Courts may “exercise their sound discretion in

deciding which of the two prongs of the qualified immunity analysis” to address first.

Pearson v. Callahan, 555 U.S. 223, 236 (2009). Defendants are entitled to qualified

immunity should either prong be decided in their favor. Watson v. Boyd, 2 F.4th 1106,

1112 (8th Cir. 2021) (citations omitted). Because the Court finds that Dunahue has not

demonstrated a deprivation of his constitutional rights, the qualified immunity analysis

begins and ends with that prong.

Dunahue’s failure-to-protect claims fall under the Eighth Amendment’s

proscription against cruel and unusual punishment. Jackson v. Everett, 140 F.3d 1149, 1151

(8th Cir. 1998); U.S. CONST. AMEND. 8. The Eighth Amendment “requires prison officials

to ‘take reasonable measures to guarantee’ inmate safety by protecting them from attacks

by other prisoners.” Young v. Selk, 508 F.3d 868, 872 (8th Cir. 2007) (quoting Farmer v.

Brennan, 511 U.S. 825, 832 (1994)). The Eighth Amendment does not attach every time

one inmate attacks another; rather, prison officials must “exhibit a deliberate or callous

indifference to an inmate’s safety.” Tucker v. Evans, 276 F.3d 999, 1001 (8th Cir. 2002)

(quoting Davidson v. Cannon, 474 U.S. 344, 347 (1986)) (cleaned up); see also Farmer,

511 U.S. at 834 (“It is not, however, every injury suffered by one prisoner at the hands of

another that translates into constitutional liability for prison officials responsible for the

victim’s safety.”).

A failure-to-protect claim has both an objective and a subjective component.

Vandevender v. Sass, 970 F.3d 972, 975–76 (8th Cir. 2020). Dunahue must first illustrate

that, objectively, there was a “substantial risk of serious harm to the inmate.” Id. Dunahue

must then show that the prison officials were deliberately indifferent to the serious risk of

harm. Id. For a defendant to be found liable, “the official must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

a. Substantial Risk of Serious Harm

Under the objective prong, Dunahue must illustrate that the underlying situation—

housing Dunahue and Inmate Harper together—“presented a substantial risk of serious

harm.” Jackson v. Everett, 140 F.3d 1149, 1151 (8th Cir. 1998). In instances where an

inmate is assaulted by an attacker who was known to be a “volatile, dangerous man” or

who “previously threatened or fought with the victim,” the substantial risk of harm is

considered “obvious.” Vandevender, 970 F.3d at 976 (citing first Young v. Selk, 508 F.3d

868, 873 (8th Cir. 2007); Newman v. Holmes, 122 F.3d 650, 651 (8th Cir. 1997) then

Everett, 140 F.3d at 1151; Prater v. Dahm, 89 F.3d 538, 540 (8th Cir. 1996); Jones v.

Wallace, 641 F. App’x 665, 666 (8th Cir. 2016)). Furthermore, if the prison determines

that individuals require isolation from other inmates, a substantial risk of harm is

presumed. See Newman, 122 F.3d at 651–53.

Inmate Harper’s “conduct . . . is the most probative evidence of the degree and type

of risk that [Dunahue] faced.” Young, 508 F.3d at 872. Inmate Harper was not known to be

violent nor volatile. (Doc. 60-2 at 47–48). Dunahue does allege, however, that, prior to the

December 2, 2019 altercation, Inmate Harper attempted to attack and rape him. (Doc. 69

at 5). Specifically, Dunahue alleges that he tried to file an emergency grievance regarding

this December 1, 2019 attack with non-Defendants Sgt. James and Cpl. Mickel. (Doc. 27-

3 at 4).; see Young, 508 F.3d at 872 (“the fact that [Plaintiff] promptly reported a threat,

asked to be moved immediately, and, when no help was forthcoming, made the same plea

the next day, may be some evidence of the existence of a risk of harm.”) (emphasis added).

All the named Defendants, however, state that they were not informed by Dunahue (or

anyone else) of any issues with Inmate Harper. (Doc. 60-2 at 31, 33, 35). Dunahue further

admits that he never informed officers of Inmate Harper’s drug use prior to the December

2, 2019 altercation. (Doc. 81-1 at 10:14); see Young, 508 F.3d at 872 (“[W]e considered a

plaintiff’s failure to express fear . . . as some evidence that a substantial risk of serious

harm did not exist.”).

The Court also notes that ADC officials do not require isolation between all

restrictive housing inmates at the Cummins Unit. (Doc. 57 at 2, ¶¶ 6–7). Isolation is

reserved for those inmates that “throw bodily fluids or excrement.” Id. at ¶ 7. Moreover,

restrictive housing is not limited to dangerous offenders. Dunahue cites ADC

Administrative Directive 19-28 (“AD 19-28”) for the notion that an inmate was required

to be a danger to others to be placed in restrictive housing. (Doc. 31 at 93). AD 19-28,

however, explicitly states that the policy is to place in restrictive housing those inmates

that require “a higher degree of physical control or who staff otherwise find necessary to

remove from the general population of the facility.”9 (Doc. 31 at 86) (emphasis added). In

fact, the “Restrictive Housing Placement Form” states that, “[a]ny placement requires a

9 The policy states later that the “Institutional Classification Committee . . . may place an inmate in

Restrictive Housing (RH) if his/her continued presence in general population poses a direct threat to the

safety of persons or a clear threat to the safe and secure operations of the facility.” (Doc. 31 at 86).

finding that this inmate’s continued presence in general population poses a serious threat

to life, property, self, staff, other inmates, or to the security of the Unit.” Id. at 94 (emphasis

added). Finally, individuals can be placed in restrictive housing due to administrative status

while they are pending trial, disciplinary court review, investigation, and/or transfer to

another unit. Id. Therefore, restrictive housing is not limited solely to individuals who are

known to be violent or a danger towards other inmates.10

Accordingly, Dunahue has failed to show that Inmate Harper constituted a

substantial risk of harm to him

b. Deliberate Indifference

Even if, however, the Court were to find that there is a genuine issue of material fact

regarding whether Inmate Harper constituted a substantial risk of harm to Dunahue,

Dunahue has failed to illustrate that Defendants were deliberately indifferent to such a risk.

Deliberate indifference is a high threshold that goes well beyond negligence or gross

negligence. Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010). To establish deliberate

indifference, there must be evidence the defendants “recognized that a substantial risk of

harm existed and knew that their conduct was inappropriate in light of that risk.” Shipp v.

Murphy, 9 F.4th 694, 703 (8th Cir. 2021) (emphasis in the original). This level of mental

culpability is “akin to criminal recklessness.” Id. To establish deliberate indifference in

failing to protect an inmate from assault by another inmate, Dunahue “‘must show that he

10 The Court notes that AD 19-38 does not require inmates to be housed separately; however, even

if the policy did require separate housing, “violations of prison policy or regulations alone are not enough

to establish deliberate indifference under the Eighth Amendment.” Vandevender, 970 F.3d at 978.

was faced with a pervasive risk of harm and that the prison officials failed to respond

reasonably to that risk.’” Vandevender, 970 F.3d at 977 (quoting Falls v. Nesbitt, 966 F.2d

375, 378 (8th Cir. 1992)). The Court of Appeals for the Eighth Circuit has stated:

a “pervasive risk of harm” may not ordinarily be shown by pointing to a

single incident or isolated incidents, but it may be established by much less

than proof of a reign of violence and terror in the particular institution. It is

enough that violence and sexual assaults occur with sufficient frequency that

prisoners are put in reasonable fear for their safety and to reasonably apprise

prison officials of the existence of the problem and the need for protective

measures.

Id. (quoting Andrews v. Siegel, 929 F.2d 1326, 1330 (8th Cir. 1991)).

Dunahue claims that Defendants were aware of Inmate Harper’s violent history.

Specifically, Dunahue alleges that, “Every inmate Defendants placed in Cummins Unit

#311 with I/M Tony Harper,[] before I was forced into #311 with him,[] Harper assaulted

them,” (Doc. 69 at 5); and that Inmate Harper “was violent[,] dangerous[, and] had a

reputation of sexual[ly] assaulting inmates [and] being in possession of deadly weapons

and illegal drugs,” (Doc. 68 at 1). In response, Defendants provided documentation that

Inmate Harper has never been charged with or convicted of sexually assaulting another

inmate. (Doc. 60-2 at 47–48). Likewise, Inmate Harper’s last positive drug test was over a

year before the December 2, 2019 altercation. (Doc. 60-2 at 47). Defendants concede,

however, that Inmate Harper was in restrictive housing for possession of a weapon;

specifically, a sharpened piece of wood that was purportedly, according to Inmate Harper,

used for cutting vegetables. (Doc. 57-1 at 1–2, ¶ 7). Importantly, in the eleven plus years

he had been in ADC custody prior to the altercation, Inmate Harper had never been charged

with or convicted of an act of violence against another inmate.11 (Doc. 60-2 at 47–49).

There is nothing in Inmate Harper’s ADC file, nor anything provided by either party, that

suggests Inmate Harper was a known danger to Dunahue when Defendants put Dunahue

and Inmate Harper together in Cell #311.

At the summary judgment phase, Dunahue must “discard the shielding cloak of

formal allegations and meet proof with proof.” Fatemi v. White, 775 F.3d 1022, 1046 (8th

Cir. 2015) (quoting Pace v. Portfolio Recovery Assoc., LLC, 512 F. App’x 643, 645 (8th

Cir. 2013) (per curiam)). Dunahue has failed to do so—Inmate Harper’s records show no

prior charges of sexual assault, no recent failed drug tests, and no acts of violence against

any other inmates.

The Court again notes that Dunahue submitted evidence regarding an emergency

grievance he attempted to file prior to the December 2, 2019 altercation. Specifically,

Dunahue alleges that, on December 2 at approximately 9:30 a.m., he attempted to file an

emergency grievance with Sgt. James, warning of the following: “I/M Tony Harper

#107334 had been beating me—Dunahue.R. on 12 01-19 & wanted to rape me.” (Doc. 27-

3 at 4). Dunahue alleges he later informed Cpl. Mickel that he had this grievance and

needed a sergeant to sign it. Id. Yet, Dunahue does not allege any facts to support that this

emergency grievance was known to Defendants prior to the altercation. In a later grievance,

wherein he discusses his attempt to file this emergency grievance, he explicitly states that

11 The only other battery or assault in Inmate Harper’s file is a “Battery of Inmate/Resident With

Serious Injury” dated July 27, 2016; however, Inmate Harper is listed as the victim, not the suspect. (Doc.

60-2 at 47).

only non-Defendants Sgt. James and Cpl. Mickel knew of the emergency grievance prior

to the altercation.12 Id. Even then, there is no evidence that either Sgt. James or Cpl. Mickel

knew the content of the grievance.13 Thus, even if the emergency grievance would have

been sufficient to put Defendants on notice, there is no evidence before the Court that

Defendants were aware of this emergency grievance prior to Dunahue’s altercation with

Inmate Harper.14

Dunahue also fails to evince that he faced a “pervasive risk of harm” by being

housed with Inmate Harper. Vandevender, 970 F.3d at 977. While a “reign of violence” is

not required to show a pervasive risk, ordinarily, a “pervasive risk of harm” may not “be

shown by pointing to a single incident or isolated incidents.” Id. (quoting Andrews l, 929

F.2d at 1330). Taking all evidence in the light most favorable to Dunahue, there is evidence

that Culclager was aware that Inmate Harper was found in possession of a weapon on

September 30, 2019, which is why he was in restrictive housing at the time of the December

2, 2019 altercation. (Doc. 60-2 at 47). Likewise, as previously stated, Inmate Harper’s ADC

file shows two incidents of “indecent exposure” over the course of one week in 2013 and

a positive drug test in 2018. Id. at 47–49. Dunahue testified, however, that he did not inform

12 Dunahue only mentions Defendants to state that Culclager and Bolden put him in danger by

housing him with Inmate Harper. Id.

13 Dunahue admits that Sgt. James “refused to read the grievance,” and Dunahue simply “told Cpl.

Mickel [he] had an Emergency Grievance” and asked him to summon a sergeant to sign it. (Doc. 27-3 at

1).

14 It is not clear from the record who decided to place Dunahue in the cell with Inmate Harper.

Compare (Doc. 2 at 6, ¶ 5) (Culclager, Starks, and now-terminated Defendant Avery) with (Doc. 2 at 7 ¶

8) (Culclager, Bolden, and now-terminated Defendant Reed). Starks testified that he did not place Dunahue

in the cell with Inmate Harper, although he did agree with the decision to do so. (Doc. 57-3 at 2, ¶7).

any officers of Inmate Harper’s alleged regular methamphetamine use, (Doc. 81-1 at

10:14), and that there were no incidents of violence involving with Inmate Harper as the

aggressor prior to December 2, 2019, id. at 11:5–25. Thus, Inmate Harper’s prior incidents

of misconduct illustrate “isolated incidents,” at best.

In sum, Dunahue has not provided any credible evidence that his altercation with

Inmate Harper was anything other than an isolated incident. In fact, there is no evidence

that Inmate Harper had ever assaulted any other inmates—either sexually or physically.

Nor is there evidence that Dunahue faced physical harm from Inmate Harper on any other

occasion, even though Dunahue and Inmate Harper were housed together for over a week

before the December 2, 2019 altercation. Furthermore, even if Dunahue did face the threat

of physical harm from Inmate Harper before the December 2, 2019 altercation, there is no

evidence that Defendants were aware of that threat. As such, even assuming Inmate Harper

was the aggressor and did attack Dunahue without provocation on the evening of December

2, 2019, Dunahue has failed to show that he faced a pervasive risk of harm from Inmate

Harper that Defendants ignored. As the Eighth Circuit has held previously, “Because

prisons are dangerous places, housing the most aggressive among us and placing violent

people in close quarters, . . . prison officials are entitled to qualified immunity from claims

arising out of a surprise attack by one inmate on another.” Vandevender, 970 F.3d at 976

(citation omitted).

Because Dunahue has not shown a deprivation of his constitutional rights,

Defendants are entitled to qualified immunity. Watson, 2 F.4th at 1112. Accordingly, the

Court recommends that Defendants’ Motion for Summary Judgment, (Doc. 55), be granted,

and Dunahue’s Motion for Summary Judgment, (Doc. 45), be denied on Dunahue’s

individual-capacity failure-to-protect claims.

IV. CONCLUSION

Based on the record before the Court, the Court recommends that: (1) Dunahue’s

official-capacity claims for monetary damages be dismissed without prejudice because

they are barred by sovereign immunity, (2) Dunahue’s official-capacity claims for

injunctive relief be dismissed without prejudice as moot, (3) and Dunahue’s individual-

capacity failure-to-protect claims be dismissed with prejudice because Defendants are

entitled to qualified immunity.

IT IS THEREFORE RECOMMENDED THAT:

1. Defendants’ Motion for Summary Judgment, (Doc. 55), be GRANTED.

2. Dunahue’s Motion for Summary Judgment, (Doc. 45), be DENIED.

3. Dunahue’s official-capacity claims be dismissed without prejudice.

4. Dunahue’s individual-capacity failure-to-protect claims be dismissed with

prejudice.

DATED this 26th day of February, 2025.

| A Unove-

UNITED STATES MAGISTRATE JUDGE

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