Blankenship v. Gentry

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

ROY GLENN BLANKENSHIP PLAINTIFF

v. Civil No. 4:22-cv-04055-SOH-BAB

SHERIFF ROBERT GENTRY;

CHRIS WALCOTT; NURSE

TAMMY FOWLER;

TERRY HERNANDEZ; and

ANNA MEJIA DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Before the Court is Defendants’ Joint Second Motion for Summary Judgment (ECF No.

78). Plaintiff has responded. (ECF No. 83). Defendants did not reply. 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 the instant motion to the undersigned for the purpose of making a Report

and Recommendation.

For the reasons outlined below, the undersigned recommends Defendants’ Joint Motion for

Summary Judgment be granted and all of Plaintiff’s remaining claims should be dismissed with

prejudice.

I. PROCEDURAL BACKGROUND

Plaintiff is currently incarcerated in the Arkansas Division of Corrections – Cummins Unit

in Grady, Arkansas. His claims in this lawsuit stem from alleged civil rights violations which

occurred during his incarceration at the Sevier County Detention Center (“SCDC”) in DeQueen,

Arkansas. Plaintiff filed his original Complaint on June 27, 2022. (ECF No. 1).

Plaintiff names five defendants in his Complaint: Sheriff Robert Gentry; Jail Administrator

Chris Walcott; Program Coordinator Terry Hernandez; and Program Coordinator Anna Mejia

(hereinafter “County Defendants”), and Nurse Tammy Fowler. (ECF No. 1, pp. 2-3). He

originally alleged two claims, but the only surviving claim after the Defendants’ first Motions for

Summary Judgment, is a retaliation claim stated in Plaintiff’s Claim One. (ECF Nos. 72, 82).

Accordingly, the only facts and allegations the Court will include herein are those relevant to

Plaintiff’s claim of retaliation.

In Claim One, Plaintiff states the County Defendants and Defendant Fowler violated his

constitutional rights on May 25, 2022 by retaliating against him for filing a previous lawsuit. Id.at

4. Plaintiff alleges this Claim One against the County Defendants and Defendant Fowler in both

their individual and official capacities. Id.

Plaintiff seeks both compensatory and punitive damages in his Complaint. Plaintiff

specifically seeks:

I want to be compensated for my injuries, [maybe] permanent, for putting my life in

jeopardy. I want to sue them for $2,000,000 for this and for retaliating against me for suing

them. I want them to give other inmates in the future adequate medical treatment and to

be held liable if they do not.

(ECF No. 1, p. 9).

Defendants filed a Motion for leave to file a Second Motion for Summary Judgment

regarding Plaintiff’s remaining retaliation claim on January 2, 2025. (ECF No. 75). The Court

granted the requested leave and all Defendants filed the instant Joint Second Motion for Summary

Judgment and supporting documents on February 5, 2025. (ECF Nos. 78, 79, 80).

In this Second Motion, Defendants argue Plaintiff has failed to allege a cognizable claim

for retaliation because the alleged protected conduct of his prior lawsuit occurred after the alleged

adverse conduct by Defendants. (ECF No. 79, p. 3). Specifically, Defendants assert Plaintiff’s

alleged retaliation occurred before the filing of his lawsuit which is what he claims he was being

punished for filing.1 Id.

0F

On February 6, 2025, the Court directed Plaintiff to file a response to the Defendants’ Joint

Second Motion for Summary Judgment. (ECF No. 81). In this Order, Plaintiff was given specific

instructions regarding the requirements of his response pursuant to Federal Rule of Civil Procedure

56. Id.

Plaintiff filed his Response of February 24, 2025. (ECF No. 83). In this Response, Plaintiff

failed to make any arguments related to whether there are genuine issues of material fact related

to his retaliation claim. Instead, he once again makes arguments regarding the discovery process

in this case. Id. As the Court has previously addressed the parties’ discovery disputes in detail

(ECF No. 30, 34, 40, 47, 59, 68), and Plaintiff was well advised by the Court of the requirements

of his Response, (ECF No. 81), I will address Defendants Joint Second Motion for Summary

Judgment on the merits.

II. FACTUAL BACKGROUND

Plaintiff specifically alleges, in his verified Complaint2, the following in his Claim One:

1F

1 Defendants make an alternate argument of qualified immunity which the Court need not address

as explained below.

2 Because Plaintiff failed to respond to Defendants Joint Second Motion for Summary Judgment

with any substantive arguments or purported issues of fact, the Court must consider the facts set

forth in Plaintiff's verified Complaint in ruling on the Joint Second Summary Judgment Motion.

A verified complaint is the equivalent of an affidavit for summary judgment purposes. See, e.g.,

Roberson v. Hayti Police Dep't., 241 F.3d 992, 994-95 (8th Cir. 2001). As the Court in Roberson

pointed out, “[a]lthough a party may not generally rest on his pleadings to create a fact issue

sufficient to survive summary judgment, the facts alleged in a verified complaint need not be

repeated in a responsive affidavit to survive the summary judgment motion. Id. The Court will

“piece[ ] together [Plaintiff's] version of the facts from the verified complaint....” McClanahan v.

Young, No. 4:13-cv-04140, 2016 WL 520983, *1 (D.S.D. Feb. 5, 2016). Those portions of the

Defendants' statement of material facts that do not conflict with [Plaintiff's verified Amended

Complaint] are deemed admitted.” (Id.). The Court will also rely upon Plaintiff’s sworn testimony

in his deposition provided by Defendants as an exhibit to their Motion. (ECF No. 80-1).

This was my grievance on May 25, 2022 stating, I’ve had stomach problems ever since the

Sheriff, Jail admin and all the staff including Nurse Tammy Fowler cause me to get Covid

by locking me and several other people down with positive Covid inmates. I have really

bad stomach pains and trouble digesting food now and have lost almost 20lbs since Feb.

2022. I was eventually given a special diet tray because of significant weight loss until

Sheriff Gentry, Chris Wolcott, Jerry Hernandez, and Anna Mejia said they wasn’t going to

cater to me and took my diet trays. So I told them I would greive it, because they were Dr.

prescribed ever since they intentionally gave me Covid by locking me down with pos.

testing Covid inmates SO they made me see the Dr. for the first time since I been here in

over a yr and he told me he was taking my diet trays because Gentry, & Walcott said I

couldn’t have them unless I had previous records of my stomach problems which I don’t

because my stomach problems started here after I was given Covid19. I also asked the Dr.

to run some test or something and was denied. So I filed this grievance and Anna Mejia

resolved it and didn’t escalate it so I asked her why and she said I had already got a 1983

form filed and I couldn’t file another one or receive one ‘Per Chris Wolcott’ Jail add. That

if I wanted a 1983 form then I would have to go through the courts and just add it to my

other grievances and I told her that wasnt right I had to file separate for different grievances

and was denied again. I feel like I’m being retaliated against for the previous lawsuit I

have on them.

(ECF No. 1, pp. 4-5) (errors in original). For his official capacity component of Claim One,

Plaintiff claims he was retaliated against for filing grievances. (ECF No. 1, p. 5).

In his verified Complaint, Plaintiff also stated he was exposed to COVID-19 in February

2022. (ECF No. 1, p. 6). In his deposition, Plaintiff testifies he was on his special diet tray from

February to May 2022 and then taken off. (ECF No. 80-1, pp. 33, 35, 48). In his verified

Complaint, Plaintiff states he filed his grievance on May 22, 2025. (ECF No. 1, p. 4). Plaintiff

also listed in his verified Complaint his previous lawsuit as Civil No. 4:22-cv-04047-SOH-BAB.

(ECF No. 1, p. 10).

III. 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. "A case founded

on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. at 610.

“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).

Under § 1983, a defendant may be sued in either his personal capacity, or in his official

capacity, or claims may be stated against a defendant in both his personal and his official

capacities. The type of conduct that is actionable and the type of defense available depend on

whether the claim is asserted against a defendant in his official or individual capacity. See Gorman

v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted). “Claims against

individuals in their official capacities are equivalent to claims against the entity for which they

work; they require proof that a policy or custom of the entity violated the plaintiff’s rights, and the

only type of immunity available is one belonging to the entity itself.” Id. Personal capacity claims

“are those which allege personal liability for individual actions by officials in the course of their

duties; these claims do not require proof of any policy and qualified immunity may be raised as a

defense” to these individual capacity claims. Id. To state a claim under 42 U.S.C. § 1983, Plaintiff

must allege that the defendant acted under color of state law, and that the actor violated a right,

privilege, or immunity secured by the Constitution. West v. Atkins, 487 U.S. 42, 48 (1988);

Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999).

IV. DISCUSSION

Defendants interpret Plaintiff’s retaliation claim to be that the Defendants purposefully

gave him COVID-19 and denied him his special diet tray because he filed his first lawsuit. (ECF

No. 79). In his Complaint Plaintiff claims he was retaliated against for both filing grievances and

filing his previous lawsuit. (ECF No. 1, pp. 4-5). Plaintiff, however, did not dispute Defendants

interpretation of his retaliation claim in his Response. (ECF No. 83). Furthermore, under either

interpretation, Plaintiff’s claim for retaliation fails as a matter of law.

“To prevail on a § 1983 claim for retaliation in violation of the First Amendment, [a

Plaintiff] must demonstrate (1) that he engaged in a protected activity; (2) that the government

official took adverse action against him that would chill a person of ordinary firmness from

continuing in the activity; and (3) that the adverse action was motivated at least in part by the

exercise of the protected activity.” Santiago, 707 F.3d at 991 (citing Revels v. Vincenz, 382 F.3d

870, 876 (8th Cir. 2004)).

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) (citation omitted); Madewell v. Roberts, 909

F.2d 1203, 1206 (8th Cir. 1990) (same). “Indeed, the retaliatory conduct does not itself need to be

a constitutional violation in order to be actionable.” Id. See also Dixon v. Brown, 38 F.3d 379, 380

(8th Cir. 1994) (“[W]hen retaliatory conduct is involved, there is no independent injury

requirement.”).

Here, Plaintiff cannot “show that the protected activity was a ‘but-for-cause’ of the adverse

actions, meaning that the adverse action against [him] would not have been taken absent a

retaliatory motive.” De Rossitte v. Correct Care Sols., LLC., 22 F.4th 796, 804 (8th Cir. 2022).

Whether the protected action was filing the May grievances or filing his first lawsuit, both

protected actions occurred after the complained of retaliatory actions—denial of diet tray and

exposure to COVID-19. Plaintiff filed his first lawsuit (hereinafter “Blankenship I”) on June 1,

2022, and it was served on the Sheriff of Sevier County on or about July 5, 2022. See Blankenship

v. Gentry et al., Civil No. 4:22-cv-04047-BAB-SOH, ECF. Nos. 1, 13 (W.D. Ark. June 1, 2022).

Plaintiff filed his grievances regarding the diet tray on May 22, 2025. (ECF No. 1, p. 4). Plaintiff

claims he was exposed to COVID-19 prior to both of these protected actions—in February 2022.

(ECF No. 1, p. 6). Additionally, Plaintiff was denied his diet tray before May 22, 2025 when he

filed his grievances regarding the matter. (ECF No. 1, p. 4-5).

It is impossible to show Plaintiff’s protected actions, whether it was filing a grievance or

filing a lawsuit, motivated Defendants’ conduct toward Plaintiff when Defendants’ conduct

occurred prior to Plaintiff’s protected actions. See De Rossitte v. Correct Care Sols., LLC., 22

F.4th 796, 804 (8th Cir. 2022). Accordingly, Plaintiff’s retaliation claim must fail as a matter of law.

Since Plaintiff has failed to state any individual claim against any Defendant regarding his

retaliation claim, he cannot maintain an official capacity claim against any Defendant or the

Defendants’ employers. See Morris v. Cradduck, 954 F.3d 1055, 1060 (8th Cir. 2020) Sanders v.

City of Minneapolis, Minn., 474 F.3d 523, 527 (8th Cir. 2007) (citing City of Los Angeles v. Heller,

475 U.S. 796, 799 (1986)). Furthermore, “[c]laims against individuals in their official capacities

are equivalent to claims against the entity for which they work; they require proof that a policy or

custom of the entity violated the plaintiff’s rights, and the only type of immunity available is one

belonging to the entity itself.” Id. Plaintiff did not cite or claim any policies or procedures of

Sevier County or Turn Key Health Clinics, LLC (Defendant Fowler’s employer) that violated his

constitutional rights.

V. CONCLUSION

For the foregoing reasons, I recommend Defendants’ Joint Second Motion for Summary

Judgment (ECF No. 78) be GRANTED and all claims, both individual and official capacity,

related to retaliation be DISMISSED with prejudice.

Referral Status: The referral in this matter should be terminated with the filing of this

Report and Recommendation.

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 10th day of July 2025.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE