Richardson v. Payne

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

ANGELA SCHUNCEY RICHARDSON PLAINTIFF

ADC #712575

v. No: 4:22-cv-00160-LPR-PSH

JOHN HERRINGTON DEFENDANT

PROPOSED FINDINGS AND RECOMMENDATION

INSTRUCTIONS

The following Recommendation has been sent to United States District Judge

Lee P. Rudofsky. 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 this Recommendation. By not objecting, you

may waive the right to appeal questions of fact.

DISPOSITION

I. Introduction

Before the Court is a motion for summary judgment, brief in support, and

statement of undisputed material facts filed by defendant Deputy Warden John

Herrington (Doc. Nos. 57-59). The subject of this motion is the only remaining

claim in this case – a claim that Herrington retaliated against plaintiff Angela

Shuncey Richardson, an inmate at the Arkansas Division of Corrections’ McPherson

Unit, after Richardson filed a grievance against him on December 10, 2019.

Richardson claims that in retaliation for the filing of the grievance, Herrington wrote

a false disciplinary against her on December 18, 2019. Richardson has filed a

response to the motion (Doc. No. 61) and a response to Herrington’s statement of

facts (Doc. No. 62). For the reasons described herein, the undersigned recommends

that Herrington’s motion for summary judgment be granted.

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is

proper if “the movant shows that there is no genuine dispute as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV.

P. 56(a); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for

summary judgment, the court must view the evidence in a light most favorable to

the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir.

2002). The nonmoving party may not rely on allegations or denials, but instead 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). An assertion that a fact cannot be disputed or is genuinely disputed must

be supported by materials in the record such as “depositions, documents,

electronically stored information, affidavits or declarations, stipulations (including

those made for purposes of the motion only), admissions, interrogatory answers, or

other materials . . .”. FED. R. CIV. P. 56(c)(1)(A). A party may also show that a fact

is disputed or undisputed by “showing that the materials cited do not establish the

absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). 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 West Memphis, Ark., 606 F.3d 461, 465 (8th

Cir. 2010).

III. Facts

The Grievance.

Richardson filed a grievance against Herrington on December 10, 2019

related to an incident that took place two days earlier. In the grievance, number

MCP19-01358, Richardson complains about an incident that took place on

December 8, 2019 involving non-parties Chaplain Lang and inmate A. Williams.1

She claims that Williams masturbated onto a chapstick and gave it to her, telling her

to apply it to her lips. Richardson states that Chaplain Lang, purportedly made aware

of Williams’ behavior, failed to report Williams’ behavior. As a result, she spoke to

Herrington “in regards to Chaplin Lang untruthfulness and failed to report her/clerk

mentor … Williams….” Richardson essentially grieves that Herrington ignored her

report and failed to take any action. See Doc. No. 28 at 16; Richardson Deposition

at 5:20-25 – 6:1-16. The warden responded to this grievance on January 13, 2020,

stating that a thorough investigation of the grievance uncovered no evidence to

support Richardson’s claims. On January 23, 2020, the deputy director concurred

with the warden’s decision, found the claim without merit, and denied the appeal.

Doc. No. 28 at 16.

The Disciplinary.

On December 18, 2019, eight days after Richardson filed her grievance

against Herrington, Herrington wrote a disciplinary charging her with lying to a staff

member, including omissions and providing misinformation, in violation of code 13-

1 Richardson and Williams were involved with the PAL (Principal Applications of

Life) faith-based program at McPherson, Williams as a mentor. Doc. No. 57-3 at 8:13-17,

11:12-12:15. Chaplain Lang was involved in leading the program. Richardson alleges that

Williams was Lang’s assistant. Richardson claims that she and Williams were in a

relationship, and she also believed that Williams and Lang were having an inappropriate

relationship. Doc. No. 57-3 at 5:11-18, 11:3-11.

2. The disciplinary was unrelated to the December 8, 2019 incident Richardson

grieved about in MCP19-01358, but involved the same players. The incident giving

rise to the disciplinary arose from an investigation that began on November 7, 2019.

On that date, Chaplain Lang, by email, reported to Linda Louis that Richardson told

her she kissed inmate Williams in Williams’ room “on a Sunday morning.” Chaplain

Lang’s report stated that Richardson did not provide a date that this allegedly took

place. Doc. No. 57-1, PREA Incident Packet, at 9. Louis forwarded the email to

PREA investigator Qushawana Stinnett, stating “I just checked my email. Get this

investigated. Thanks.” Id. Lt. Stinnett commenced a PREA (Prison Rape Elimination

Act) investigation, and it appears that the investigation centered on the alleged

sexual misconduct having taken place on November 3, 2019, the Sunday before

Richardson reported the incident.2

a. PREA Investigation

Richardson was interviewed during the investigation and wrote a statement

saying, “No comment. I was not in the kissing on Sunday 11/3/2019 kissing

[Williams]. View camera footage.” Doc. No. 57-1 at 11; Richardson Deposition at

10:1-12. Despite being questioned about her reported contact with Williams on

2 Lang’s report that the incident happened on “a Sunday” was apparently interpreted

to mean that the incident took place on “the Sunday” prior to the incident and not on an

unknown Sunday. November 3 was the Sunday before November 7, 2019. Despite

Richardson’s speculation, there is no evidence before the Court that Herrington was

initially responsible for making that determination. See Doc. No. 57-3 at 11.

November 3, Richardson appeared to deny that the incident took place. She did not

clarify that it took place as she had reported, but on a different date, nor did she

provide an alternative date on which this activity allegedly occurred during the

investigation. Richardson claims she reported to Lang that the incident took place in

August. Doc. No. 57-3 at 13. Lang’s email does not include that information.

As part of the PREA investigation, Williams also gave a statement. She denied

any sexual contact with Richardson, reporting that Richardson had threatened “to

take me down” and to “report PREA on me and her or me and Chaplin Lang.” Doc.

No. 57-1 at 3. Williams stated she began to distance herself from Richardson after

Richardson reported a PREA incident against another inmate involved in the PAL

program. Williams claimed that her “distancing herself” from Richardson upset

Richardson, leading to several arguments and Richardson’s threats against her. She

stated that the day after Richardson threatened to take her down, Richardson reported

the alleged sexual contact with Williams to Lang, which resulted in the PREA

investigation. Id. at 3-4.

The PREA investigation also included a video review for the date of

November 3, 2019, between 8:00 AM to 3:00 PM. No sexual activity between

Richardson and Williams was observed. Doc. No. 57-1 at 8. PREA investigator Lt.

Stinnett found insufficient evidence of sexual misconduct based on witness

statements and review of camera footage. Id. at 3-4. The PREA reports document

the names of the investigators. See Doc. No. 57-1 at 1-11. Herrington is not

identified as one of them. The findings of the PREA investigation were, however,

reported to Herrington for further review. Id. at 4 (“I Lt Qushawana Stinnett am

referring this Investigation to John Herrington for further review.”)

On November 18, 2019, Herrington received the PREA investigation report

and reported and forwarded the findings to Warden Bradley. Id. at 2. He requested

an Internal Affairs review. Id. at 2. He also stated “I do believe that inmate A.

Richardson 712575 told Chaplain Lang the story of kissing inmate Williams in order

to get inmate Williams involved in a PREA incident to get her fired from her mentor

position.” Id. On that same day, Warden Bradley ordered an investigation from

Internal Affairs. Id. at 1.

b. Internal Affairs Investigation

Internal Affairs Investigator Susan Townsend conducted the IA investigation.

She documented that Herrington referred the incident to IA on December 9, 2019.

Doc. No. 57-2 at 5. In her report to IA Administrator Raymond Naylor on December

12, 2019, Townsend stated that a staff member received information that Richardson

reported she had kissed Williams and signed out of the PALS program; and that Lt.

Stinnett conducted a PREA investigation, which included reviewing camera footage

and interviewing inmates, and found no evidence to support that Richardson kissed

Williams. In her findings, Townsend stated:

I find this incident does not meet the criteria for PREA. Inmate

Richardson made an allegation that she kissed inmate Williams. During

the unit investigation she wrote in her statement, no comment and then

stated she did not kiss inmate Williams. Staff reviewed video and found

no evidence to support that inmate Richardson kissed inmate Williams.

I concur with Lieutenant Stinnett that there is no evidence to support

inmate Richardson kissed inmate Williams.

Id. at 5-6. IA Administrator Naylor forwarded the IA report to Warden Bradley on

December 12, 2019. Four days later, Bradley found Richardson’s claim to be

unfounded and documented that “[d]isciplinary action to be taken against Inmate

Richardson for lying to staff.” Id. at 3. There is no evidence before the Court that

Herrington had any involvement in the IA investigation.

c. The Disciplinary charge and hearing

On December 18, 2019, after Warden Bradley directed disciplinary action to

be taken against Richardson, Herrington issued a disciplinary charging her with

lying to a staff member, including omissions and providing misinformation. Id. at 7.

During her disciplinary hearing on December 27, 2019, Richardson testified

as follows: “I signed out of PAL in November. We did kiss on 8/25/19 and not on

11/03/19. I gave her the month. I was not trying to get her fired.” Doc. No. 28 at 21.

Richardson was found guilty at the disciplinary hearing by Hearing Officer Terrie

Banister. Id. This was the first time that Richardson explained that she did kiss

Williams but on a different date than the one investigated. In her deposition,

Richardson stated that Herrington was not present during her disciplinary hearing.

Doc. No. 57-3 at 16.

On January 17, 2020, Richardson’s disciplinary conviction was overturned by

Warden Bradley. Doc. No. 2 at 37. The reason stated for the reversal was: “New

information has been obtained.” Id.; Richardson Deposition at 17:1-10. Neither

Richardson nor Herrington know why the disciplinary was overturned. See

Richardson Deposition at 23-24; Herrington Declaration at 2.

In his declaration, Herrington asserts he did not file a false disciplinary; he

was working from the best information available at the time it was issued, as

gathered during the investigations; and that if the kiss happened on another date,

Richardson should not have withheld that information from investigators. Doc. No.

58-4 at 2. He also denies issuing the disciplinary in retaliation for the grievance

Richardson filed against him. Id. at 3.

IV. Analysis

Herrington asserts that he is entitled to qualified immunity with respect to

Richardson’s claim. Qualified immunity protects government officials from liability

for damages “insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person [in their positions] would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is a

question of law and is appropriately resolved on summary judgment. McClendon v.

Story County Sheriff’s Office, 403 F.3d 510, 515 (8th Cir. 2005); Mitchell v. Forsyth,

472 U.S. 511, 526 (1985). To determine whether a defendant is entitled to qualified

immunity, the Court must consider two questions: (1) do the facts alleged by plaintiff

establish a violation of a constitutional or statutory right; and (2) if so, was that right

clearly established at the time of the defendant’s alleged misconduct. Wright v.

United States, 813 F.3d 689, 695 (8th Cir. 2015). Courts may exercise “their sound

discretion in deciding which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances of the particular case at hand.”

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

To succeed on a § 1983 retaliation claim, a plaintiff must prove: (1) that she

engaged in a protected activity; (2) that the government official took adverse action

against her that would chill a person of ordinary firmness from continuing the

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

of the protected activity. See Gonzalez v. Bendt, 971 F.3d 742, 745 (8th Cir. 2020);

Spencer v. Jackson Cnty., 738 F.3d 907, 911 (8th Cir. 2013). Speculative and

conclusory, or de minimis allegations cannot support a retaliation claim. See

Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996) (per curiam).

A plaintiff must prove a causal connection between the constitutionally

protected activity and the adverse action. Revels v. Vincenz, 382 F.3d 870, 876 (8th

Cir. 2004). Temporal proximity between a protected activity and an adverse action

“is relevant but not dispositive.” Wilson v. Northcutt, 441 F.3d 586, 592 (8th Cir.

2006) (citing Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999)).

To succeed on a retaliation claim, a plaintiff must provide affirmative evidence of a

retaliatory motive. See Haynes v. Stephenson, 588 F.3d 1152, 1157 (8th Cir. 2009);

see also Wilson, 441 F.3d at 592 (“[Plaintiff’s] belief that [defendant] acted from a

retaliatory motive is insufficient.”).

Here, it is undisputed that Richardson engaged in a protected activity by filing

a grievance on December 10, 2019. 3 It is also undisputed that Herrington initiated

a disciplinary on December 18, 2019 at the direction of Warden Bradley that resulted

in adverse action against Richardson, although that disciplinary was overturned 21

days later.4 So the question before the Court is whether there is a causal connection

between Richardson’s filing of a grievance against Herrington on December 10,

2019 and Herrington’s issuance of a disciplinary on December 18, 2019. And what

affirmative evidence of a retaliatory motive has Richardson offered in her response

to the summary judgment motion? For the reasons set forth below, the Court finds

3 Retaliation for the use of a prison grievance procedure is actionable. See Orebaugh

v. Caspari, 910 F.2d 526, 528 (8th Cir. 1990) (per curiam) (otherwise proper acts are

actionable under § 1983 if done in retaliation for grievances filed under established prison

grievance procedure).

4 The Court does not address whether the adverse action would chill a person of

ordinary firmness from continuing the activity, because it finds no causal connection

between the filing of the grievance and issuance of disciplinary.

that Richardson has failed to establish evidence of a retaliatory motive or a causal

connection between the filing of the grievance and the disciplinary.

The Court first notes that the eight days between the filing of the grievance

and the issuance of the disciplinary establishes temporal proximity. And while this

is relevant, it is not dispositive, and is only considered as one of a number of facts

that the Court has considered in this recommendation.

As evidence of Herrington’s retaliatory motive, Richardson points to her

belief that Herrington “created a date to make plaintiff to look as if she lied” during

the PREA investigation. Doc. No. 62 at 3. As a reminder, the PREA investigation

began on November 7, 2019, when Richardson reported to Lang that she kissed

Williams on a Sunday. Richardson asserts that she did not know the date of the

alleged kiss with Williams when she reported to Lang on November 7 that she had

kissed Williams, and if she had known the date, she would have reported it to the

PREA investigators. Id. It is clear that the PREA investigators believed Richardson’s

email to Lang indicated the kiss happened on the Sunday before she reported it, as

opposed to some unknown Sunday. And in Richardson’s PREA interview, she

denied the kiss and did not clarify that there was actually a kiss but it did not occur

on November 3. Thus, the PREA investigation focused on whether Richardson

actually kissed Williams on November 3, 2019, the Sunday before she reported the

kiss to Lang. Despite Richardson’s allegations, there is no evidence that Herrington

was responsible for “making up” the date that the alleged kiss took place in an effort

to make her look like a liar so she could later be disciplined. And there is no evidence

of record documenting that Herrington was involved in the PREA investigation.

In addition, Richardson’s claim that Herrington made up the date of the

alleged kiss fails to establish a retaliatory motive for another reason. The PREA

investigation finding Richardson’s claim of improper sexual contact unfounded was

completed November 18, 2019. Herrington was notified of the PREA finding on

that date, and concluded that Richardson had lied in making the sexual misconduct

claim. Assuming Herrington “made up” the date of the alleged sexual contact as part

of the PREA investigation, he would have done so between November 7, when the

contact was reported, and November 18, when the PREA investigation concluded.

And his actions would have been taken before Richardson filed the December 8

grievance against him. Thus, Herrington could not have made up the date of the

alleged sexual contact to influence the PREA investigation with a retaliatory motive

because Richardson’s grievance had not yet been filed. Richardson has therefore not

established any causal connection between Herrington’s alleged efforts to influence

the PREA investigation that resulted in the disciplinary and her December 8

grievance, and her retaliation claim fails for that reason. See Haynes v. Stephenson,

588 F.3d at 1157.5

Richardson also claims that Herrington had knowledge on or around

November 8, 2019 that Williams had confessed to kissing Richardson during a PAL

class. Doc. No. 62 at 4. She suggests that even though Herrington knew that her

report of sexual contact was true because of this, he still took action to influence the

PREA investigation to make it appear that she provided a false claim. First,

Richardson offers no evidence to support this claim. Second, even if Herrington took

such action, it happened before Richardson filed her grievance against him and

therefore could not have been taken to retaliate against her for filing the grievance.

Richardson also offers as evidence of retaliatory motive a claim that

Herrington said “I got you” to her after she filed her grievance. Doc. No. 62 at 4.

Even assuming this is true, it does not change the Court’s analysis that the actions

Richardson claims were retaliatory took place before her grievance was filed.

5 See also Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir.2005) (“A

plaintiff may not merely point to unsupported self-serving allegations, but must

substantiate allegations with sufficient probative evidence that would permit a finding in

the plaintiff’s favor.”).

In addition, Richardson’s retaliatory discipline claim fails, as a matter of law,

if there is “some evidence the inmate actually committed a rule violation.” Hartsfield

v. Nichols, 511 F.3d 826, 829 (8th Cir. 2008). United States Magistrate Judge Joe

Volpe has explained:

Importantly, a “report from a correctional officer, even if disputed by

the inmate and supported by no other evidence, legally suffices as some

evidence upon which to base a prison disciplinary violation, if the

violation is found by an impartial decision maker.” [Hartsfield v.

Nichols] . . . In other words, a disciplinary decision made by an

impartial decision maker and supported by some evidence “essentially

checkmates” a retaliation claim. Henderson v. Baird, 29 F.3d 464, 469

(8th Cir. 1994); see also Sanders [v. Hobbs], 773 F.3d [186] at 190 [8th

Cir. 2014].

Brown’el v. White Cnty. Sheriff’s Dep’t, No. 4:24-CV-00081-LPR-JJV, 2024 WL

3352928, at *2 (E.D. Ark. Apr. 4, 2024), report and recommendation adopted, No.

4:24-CV-00081-LPR-JJV, 2024 WL 3345499 (E.D. Ark. July 9, 2024).

In this case, Herrington did not make the final decision to discipline

Richardson for her report about kissing Williams. Rather, Warden Bradley found

that disciplinary action was warranted following the PREA investigation and the

Internal Affairs review, both of which were ordered by Bradley. See Doc. No. 57-1

at 3. The PREA investigator, Lt. Stinnett, found no evidence to support

Richardson’s claim of sexual contact. The IA reviewer, Townsend, found the same.

Those findings were based in part on Williams’ denial of any sexual contact, and on

Richardson’s denial of such contact on November 3, 2019 and decision not to clarify

to the investigators that the alleged contact happened on a different date.

Richardson’s disciplinary hearing was the first time she claimed that the contact took

place on a different date. And after hearing Richardson’s testimony and considering

the findings of the PREA and JA investigations which included the statement of

Williams denying any contact, the disciplinary officer found Richardson guilty.

Doc. No. 28 at 21. Even though her disciplinary conviction was later reversed, an

impartial factfinder found there was some evidence to support the charge when it

was brought.° And the Court concurs that there was some evidence to support the

finding.

V. Conclusion

For the reasons stated herein, the undersigned recommends that Herrington’s

motion for summary judgment (Doc. No. 57) be granted and Richardson’s claims be

dismissed with prejudice. There was no constitutional violation, and Herrington 1s

entitled to qualified immunity.

DATED this 2nd day of September, 2025.

OATES IS EDS

6 See Moots v. Lombardi, 453 F.3d 1020, 1023 (8th Cir. 2006) (“The fact that the

conduct violation was later expunged does not mean that there was not some evidence for

its imposition.”); see also Robinson v. King, No. 4:05CV702-DJS, 2006 WL 1026882, at

*4 (E.D. Mo. Apr. 18, 2006) (holding that some evidence of plaintiff’s violations negated

his retaliation claim and noting that those violations were dismissed nine days later).