The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
ROGER D. HARRIS, JR. PLAINTIFF
v. Civil No. 4:25-cv-04012-SOH-SGS
SERGEANT ROYCE BENNETT DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action originally filed pro se by Plaintiff, Roger D. Harris, under 42
U.S.C. § 1983. Currently before the Court is Defendant’s Motion for Summary Judgment. (ECF
No. 27). Plaintiff responded. (ECF No. 35). Defendant replied. (ECF No. 36). Pursuant to the
provisions of 28 U.S.C. § 636(b)(1) and (3) (2011) the Honorable Susan O. Hickey, United States
District Judge, referred this case to the undersigned for the purpose of making a Report and
Recommendation. The Court finds the matter ripe for consideration and RECOMMENDS
Defendant’s Motion for Summary Judgment be GRANTED and Plaintiff’s claims be
DISMISSED WITH PREJUDICE for the reasons explained below.
I. PROCEDURAL BACKGROUND
Plaintiff filed his original Complaint on February 14, 2025, along with a Motion to Proceed
in forma pauperis (“IFP”). (ECF Nos. 1-2). The Court granted Plaintiff IFP status on the same
day. (ECF No. 3). On February 25, 2026. the Court entered an Order severing Plaintiff’s claims
from his original Complaint and ordering an Amended Complaint with only Plaintiff’s claims
against the instant Defendant, Sergeant Royce Bennett. (ECF No. 6). Plaintiff filed said Amended
Complaint on March 19, 2025. (ECF No. 8).
In his Amended Complaint, Plaintiff alleges Defendant Bennett, a correctional officer at
the Lafayette County Detention Center (“LCDC”), violated his constitutional rights on November
6, 2024 by: (1) failing to protect his sexual rights; and (2) retaliating against him. (ECF No. 8, p.
4). Specifically, Plaintiff alleges:
[Defendant] was and is going around the jail telling inmates he caught myself and
another inmate on video doing sexual act! Which is not true! [Defendant Bennett]
said since I have a lawsuit against him last year 2024. He’s going to [scandalize]
my name and my sex life to anyone who know me or not. I feel real disrespected
by [Defendant]! He still comes to me making comments about my sexual life. Said
Harris you don’t have enough soap on your body when I was in the shower and he
was looking at me laughing. Now the rumor is all in this jail and in the streets,
saying I am gay! I feel violated.
(ECF No. 8, pp. 4-5) (errors in original). Plaintiff also alleges an official capacity claim against
Lafayette County stating: “All defendants acted under color of law and violated my sexual rights
to be free. And retaliation to protect deliberate indifference to a serious failure to protect my sexual
rights!” Id. at 5. For relief, Plaintiff seeks compensatory and punitive damages. Id. at 9.
Defendant filed his Motion for Summary Judgment on December 12, 2025, along with a
Brief in Support and Statement of Undisputed Facts. (ECF Nos. 27-29). In his Motion, Defendant
argues: (1) Plaintiff’s claim of retaliation fails as a matter of law; (2) Defendant is entitled to
qualified immunity; and (3) there is no basis for Plaintiff’s official capacity claim because there is
no unconstitutional policy in Lafayette County regarding Plaintiff’s allegations. (ECF No. 27).
On December 15, 2026, the Court ordered Plaintiff to respond to Defendant’s Motion for
Summary Judgment. (ECF No. 30). In this Order, Plaintiff was specifically advised he could not
rely on allegations in his complaint but instead must submit evidence “such as records, affidavits,
discovery response, or other documents, opposing the facts asserted by the defendants and setting
out specific facts to support your claims.” Id. Plaintiff was also specifically advised: written
statements must be in the form of affidavits and an affidavit is a sworn statement based on personal
knowledge setting forth facts relevant to his claims and must be either: “(a) sworn and subscribed
to by a notary public or (b) signed under penalty of perjury.” Id.
Plaintiff filed his Response on February 4, 2026, in a single notarized document. (ECF
No. 35). While Plaintiff did not title this document as disputed facts, he did enumerate multiple
factual allegations by Defendant that he disputes. Plaintiff relied on summary judgment exhibits
produced by Defendant to support his factual disputes, and all factual disputes are clearly
enumerated in the Factual Background section below. Plaintiff also argues that Jail Administrator
Rami Cox’s responses to his grievances prove his claim of retaliation. Id.
Plaintiff also offered many arguments related to factual allegations and claims he did not
assert in his Amended Complaint. The Court will not consider such allegations made in a response
to summary judgment for the first time.1
Defendant filed his Reply on February 10, 2026. (ECF No. 36). Defendant argues Plaintiff
cannot raise claims for the first time in his Response. Also, Defendant disputes Plaintiff’s
argument that Administrator Cox’s responses to his grievances prove any wrongdoing by
Defendant. Id. Finally, Defendant argues Plaintiff did not meet proof with proof but merely
regurgitated his allegations from his Amended Complaint in his Response. Id.
1 Plaintiff did not assert any cruel and unusual punishment Eighth Amendment claims
(other than sexual harassment) or Equal Protection Claims in his Amended Complaint. (ECF No.
8). Further, Plaintiff did not allege any retaliation claims based on denial of dental care, tampering
with his food, or through attacks of other inmates. (ECF No. 8). The Court will not consider new
claims for the first time in response to Defendant’s Motion for Summary Judgment. See N. State
Power Co. v. Fed. Transit Admin., 358 F.3d 1050, 1057 (8th Cir. 2004) (“Thus, while we recognize
that the pleading requirements under the Federal Rules are relatively permissive, they do not entitle
parties to manufacture claims, which were not pled, late into the litigation for the purpose of
avoiding summary judgment.”).
Finally, on April 6, 2026, Plaintiff filed a document the Court interpreted as a Supplement
to his Response. (ECF No. 41). Plaintiff again raised claims not asserted in his Amended
Complaint, and argued he has met proof with proof by relying on Administrator Cox’s responses
to his grievances. Also, he argues Defendant has not put forth any evidence that he did not retaliate
against Plaintiff or make sexual comments to him. Id.
II. FACTUAL BACKROUND2
Plaintiff was booked into the LCDC on December 6, 2023, and released from LCDC
custody on March 24, 2025. (ECF No. 29-2). Plaintiff is currently an inmate of Arkansas Division
of Corrections at the Wrightsville Unit in Wrightsville, Arkansas.
It is undisputed that Plaintiff filed a previous Section 1983 Civil Rights action against
Defendant on June 4, 2024. See Harris v. Burns, et al., Civil Case No. 4:24-cv-04060-SOH. This
case was dismissed for failure to exhaust administrative remedies on May 6, 2025. Id. Plaintiff
then filed the instant action on February 14, 2025. Harris v. Bennett, Civil Case No. 4:25-cv-
04012. The Court severed Plaintiff’s Complaint in the instant case and opened a separate case on
February 25, 2025, for his claims against LCDC Jail Administrator Rami Cox. Harris v. Cox,
Civil Case No. 4:25-cv-04015-SOH-SGS. Plaintiff is currently prosecuting this instant case along
with the separate case against Administrator Cox.
2 Defendant submitted for the Court’s review, on the summary judgment record, the Affidavit of
the LCDC Jail Administrator, Rami Cox as records custodian; Plaintiff’s Booking Sheet;
Plaintiff’s Grievances; Plaintiff’s Deposition; and Defendant’s Affidavit. (ECF Nos. 29-1 – 29-
5). Jail Administrator Rami Cox testified in her Affidavit on the summary judgment record, that
she is the custodian of records at the LCDC and all documents produced on this summary judgment
record are true and correct copies of Plaintiff’s LCDC jail file kept in the ordinary course of
business at the LCDC. (ECF No. 29-1). Plaintiff did not submit any additional exhibits to the
summary judgment record.
Plaintiff testified in his deposition that once he filed the June 4, 2024 lawsuit naming
Defendant in his failure to protect claim, Defendant began telling other inmates “he was going to
scandalize [Plaintiff’s] name because [Plaintiff] had a lawsuit against him.” (ECF No. 29-4, p.
13). Plaintiff went on to testify that Defendant “then went around to the other inmates saying I
was doing sexual things with the other inmates; which it wasn’t true.” Id. Plaintiff also testified
that Defendant told another inmate named Timothy that since Plaintiff filed a lawsuit on him, he
was “out to retaliate.” Id. at 15. Finally, Plaintiff testified Defendant specifically told Inmates,
Sivilis, Glenn, Willis and Blocker that Plaintiff was caught on video with Inmate Brown engaging
in sexual acts. Id. at 36-37.
In a seemingly contradictory version of events, Plaintiff also testified that another inmate,
Raymond Anderson, inadvertently started the rumors that Plaintiff and Inmate Brown had a sexual
relationship. (ECF No. 29-4, pp. 22-23, 29). Plaintiff most notably testified that the statements of
Inmate Anderson set all his troubles into motion in April 2024. Id. at 29. According to Plaintiff,
Defendant heard the rumor that Inmate Anderson started and then used that against Plaintiff. Id.
at 31.
On November 6, 2024, Plaintiff filed a Grievance stating:
I HAVE BEEN TOLD BY 4 PEOPLE JAILOR BENNETT IS GOING AROUND
TELLING OR TOLD THEM I HAVE BEEN SEEN ON VIDEO BROWN
GIVING ME ORRIL SEX. THAT’S WHY HE MOVED ME OVER HERE IN A
POD. THAT’S NOT TRUE AND IT’S NOT RIGHT TO SACNDLIEISED MY
NAME OR MY SEX LIFE TO ANYONE…!!!! I WAS MOVED OVER HERE
TO A POD BECAUSE OVER IN D POD THEY KEPTH POPPING THE LOCK
OT THE DOOR WHEN I GOT INTO IT WITH REMOND ANDERSON.
BENNETT HE TOLD THEM IN C POD SINCE I HAVE A LAW WUITE
AGAINST HIM HE GOING TO RUIN MY REPUTATION THAT’S NOT FAIR
TO ME!!! BENNETT IS THE ONE GOING AROUND SAYING
HOMESEXAUL WORDS TO MOST OF THE PEOPLE IN THIS JAIL! I WAS
AROUND WHEN HE SAID SOMETHING SEXUAL TO T. BLOCKER AND
HE WROTE HIM UP FOR IT AND JAILOR BENNETT ALSO BE TOUCHING
ON PEOPLE AS WELL I KNOW AT LEASE 3 OF THEM BY NAME. THANKS
FOR YOUR TIME.
(ECF No. 29-3, p. 1) (errors and emphasis in original). Jail Administrator Cox responded to this
Grievance on the same date stating: “I have already taken care of this situation.” Id. Plaintiff filed
a Request Form on the same day as the above Grievance seemingly in reply to Administrator Cox’s
response:
WHEN DID YOU ALREADY TOOK CARE OF THIS MATTER WHEN I AM
JUST FOUNDING OUT ABOUT WHAT JAILOR BENNETT SAID ABOUT ME
TWO DAYS A GO.?. I COULDN’T PUT IN A GRIEVANCE BECAUSE I HAD
ONE ALREADY PINNING . . . WHY AM I JUST NOW FOUNDING OUT
ABOUT THIS . . . HE TALKING ABOUT MY SEXUAL LIFE WHEN HE
DOESN’T KNOW ANYTHING ABOUT ME!?! WHAT DID YOU DO TO
SOLVE THIS MATTER? WHEN HE COMES IN HE STILL BE LOOKING AT
ME FUNNY, MAKING COMMENTS, AND LAUGHING AND SAY DO YOU
WANT ME TO GO GET BROWN? I HAVE SEEN HIM AT COURT?!? I
DON’T THINK ITS FUNNY AT ALL!!
(ECF No. 29-3, p. 2) (errors and emphasis in original). Administrator Cox responded on
November 7, 2024 stating: “I have been getting complaints and I took care of it.” Id.
Plaintiff testified in his deposition that this comment by Administrator Cox indicates her
agreement that Defendant is sexual harassing Plaintiff and other inmates. (ECF No. 29-4, pp. 38-
39.) Plaintiff also testified in his deposition that Defendant made inappropriate sexual comments
to many inmates, not just Plaintiff. (ECF No. 29-4, p. 39).
On December 8, 2024, Plaintiff filed another Grievance stating:
TODAY IT WAS CHURCH CALL I MYSELF WENT TO CHURCH. I WE WAS
ALOWED TO COME BACK TO THE POD. I CAME INTO A POD. I WENT
TO USE THE RESTROOM IN THE CELL BECAUSE THERES NO
RESTROOM IN THE DAY AREA WHERE I AM SLEEPING. AS I WAS
USING THE RESTROOM STANDING UP AND FALSELY ACCURSED ME
OF SMOKING WHEN I DIDN’T HAVE ANYTHING IN MY HAND BUT
MYSELF HE ASKED ME WHERE IS THE COFFEE CIG AT? I DIDN’T
KNOW WHAT HE WAS TALKING ABOUT BECAUSE I HAD JUST CAME
IN THE POD. OFFICER JAILER BENNETT WALKED A FEW OF US BACK
TO THE POD. I WASN’T IN THE POD BUT FOR ONLY 5 MINUTES THE
MOST. IT WAS FOUR MORE PEOPLE IN THE CELL LIVING IN THERE.
HE ONLY STAKED ME OUT OF THE OTHERS TO SAY SOMETHING
ABOUT SMOKING WHEN THERE WASN’T ANY SMOKING GOING ON. IT
WAS FOUR WHITES AND I WAS THE ONLY BLACK PERSON IN THERE.
HE DIDN’T SAY ANYTHING TO THE FOUR IN THERE BUT ME… WHEN
THEY DIDN’T FIND ANYTHING HE LEFT OUT THE CELL. I AM NOT
GOING TO SAY ANY NAME. ITS AN IMATE IN HERE WITH ME TOLD ME
OFFICER JAILER BENNETT SAID TO HIM I, HARRIS AND ANOTHER
INMATE BLOCKER HAS A LAWSUITE AGAINST HIM FOR SEXUAL
HARRASMENT AND HE’S OUT TO GET ME THEM FOR ANYTHING…. I
DON’T FEEL COMFORTABLE ROUND HIM ANYMORE. IF HE OFFICER
BENNETT WASN’T DOING HOMSEXUAL THINGS TO PEOPLE NOBODY
WONT BE WRITING HIM UP ALL THE TIME. I AM READY TO GO TO
PRISON AND DO MY TIME THERE. THIS WAS AROUND 11:15 AM
SUNDAY. THIS THE 3RD GRIEVANCES FROM I HAD TO PUT ON HIM
SINCEI HAVE BEEN IN THIS JAIL A YEAR A GO…. I WOULD LIKE FOR
THIS TO BE READ BY MRS. RAMI CAN OFFICER SHERIFF JEFF BLACK.
AND I WOULD LIKE A COPY OF THE GRIEVANCE PLEASE…. ITS
SOMETHING HAVE TO AND NEED TO BE DONE ABOUT OFFICER
BENNETT BEHAVIORS. THANS FOR YOUR CONCERN…
(ECF No. 29-3, p. 3) (errors and emphasis in original). Administrator Cox responded on December
9, 2024 stating: “I will investigate this.” Id. at 4.
On December 12, 2024, Plaintiff filed a Request Form asking for an update on the
investigation into Defendant from his December 8, 2024 Grievance. Administrator Cox
responded: “The matter was taken care of.” (ECF No. 29-3, p. 5).
On December 26, 2024, Plaintiff filed another Grievance regarding Defendant stating:
MRS. RAMI, I HAVE BEEN COMING TO YOU ABOUT BENNETTE
BEHAVIOR WITH ME IN THE LAST 3-6 MONTHS NOW AND TO ME IT
SEEMS LIKE THERE IS NOTHING BEEN DOING ABOUT IT. ON THE DAY
AFTER CHRISTMAS 2024. OFFICER BENNETTE CAME INTO A POD TO
DO POD CHECK. I MYSELF, WAS IN THE SHOWER WHEN OFFICER
BENNETTE CAME IN THE POD AND SAW ME AND PAUSED AND
STARED AT ME WHERE I WAS COMPLETELY EXPOSED, HE STARED AT
ME IN A JOKING MANNER FOR SEVERAL SECONDS AND SAID I DIDN’T
HAVE ENOUGH SOAP ON MY BODY. I ASKED HIM WHY IS HE LOOKING
AT ME WHILE I AM IN THE SHOWER. HE JUST LAUGHED AT ME AND
WALKED OFF LOOKING AT ME. I FEEL VERY DISRESPECTED AND
EMBARRASED BECAUSE OTHER INMATES WITNESSED IT. THEY
WERE TIMOTHY SIVILS, KENDALL WILLIS, AND RANDY GUINN. IVE
BEEN PATIENT AND WENT THROUGH THE PROPER CHANNELS BUT I
FEEL NOTHING IS BEING DONE. IF PREA WORKED I WOULD USE THAT
BUT WE CANT PLEASE TAKE MY GRIEVANCE SERIOUSLY, AND I
AWAIT YOUR RESPONSE. I WOULD LIKE THE SHERIFF TO KNOW
ABOUT THIS MATTER ASAP!!! THIS IS GETTING OUT OF HAND AND I
FEELS LIKE HE CANT BE TOUCHED OR STOPPED BECAUSE ITS STILL
HAPPEN. I AM TRYING TO CONTROL MY ANXIETY . . . .
(ECF No. 29-3, p. 6) (errors and emphasis in original). Administrator Cox responded stating: “I
will check the cameras on that day to see what happened.”). Id.
On January 6, 2025, Plaintiff filed another Request Form asking Administrator Cox if she
ever watched the video of the December 26, 2024 incident in the shower and stating that Defendant
was still making sexual comments to people while they were showering. (ECF No. 29-3, p. 8).
The parties do not dispute that Plaintiff filed these above Grievances and Request Forms
and that Administrator Cox responded as stated. (ECF Nos. 29, 35).
In his deposition, Plaintiff testified, Defendant was trying to provoke him with the shower
comments. (ECF No. 29-4, p. 16). Also, Plaintiff testified that Defendant told him once, when
Plaintiff complained his tray was too salty, that: “If you wouldn’t have put this lawsuit on me, you
wouldn’t be getting treated like this.” Plaintiff went on to testify that Defendant also told him:
“You’ll get what’s coming to you.” Id. at 18-19.
Regarding the harm Plaintiff suffered, he testified in his deposition that Defendant ruined
his reputation by causing people to believe he was a homosexual. (ECF No. 29-4, p. 52-53).3
3 Plaintiff also testified to several physical injuries he received when another inmate attacked him.
Plaintiff claims in his deposition that Defendant orchestrated this attack. (ECF No. 29-4, pp. 14,
48). However, Plaintiff did not raise any claims or factual allegations in his Amended Complaint
related to Defendant orchestrating a physical attack on Plaintiff by other inmates. As explained
above, the Court will not address such a claim raised now for the first time on summary judgment.
See N. State Power Co, 358 F.3d at 1057.
Regarding Plaintiff’s official capacity claim, he testified in his deposition that he did not
believe Lafayette County had a policy, practice, or custom to retaliate against him. Instead, he
believed Lafayette County had a policy not to violate his First Amendment rights, but that
Defendant went against that policy. (ECF No. 29-4, pp. 50-51).
Defendant testified in his Affidavit:
On or about February 29, 2024, another jailer and I observed Plaintiff and Inmate
Brown on the video system, appearing to be engaging in sexual activity. Upon
further investigation and entering the housing pod, I observed that Plaintiff and
Inmate Brown were engaging in sexual activity. I was then tasked with separating
and removing Plaintiff and Inmate Brown from the same pod. I removed Inmate
Brown from the pod that Plaintiff was housed in.
LCDC has a zero tolerance policy for sexual activity. Inmates engaging in sexual
activity is a safety and security risk to the detention center. Inmates that are found
engaging in sexual activity are separated as soon as possible.
I did not inform other inmates that Plaintiff engaged in sexual activity with Inmate
Brown. To the best of my knowledge, other inmates spread information regarding
Plaintiff and Inmate Brown.
It was my understanding that Inmate Ramon Anderson tried to begin a physical
altercation with Plaintiff. I received information indicating that the altercation may
have been due to Inmate Brown. Plaintiff was moved to A-pod for his safety on or
about April 18, 2024.
I do not recall making any comments to Plaintiff while he was in the shower.
I did not threaten Plaintiff, deprive him of any privileges, or otherwise change his
conditions during his incarceration within LCDC. Plaintiff was not charged with a
disciplinary action related to the incident of sexual activity.
. . .
I did not retaliate against Plaintiff for filing a lawsuit.
(ECF No. 29-5). Plaintiff does not dispute the fact he did not receive any disciplinary action
regarding the alleged sexual acts with Inmate Brown. Instead, Plaintiff points to the absence of
disciplinary action as support for his contention the sex act was fabricated by Defendant for
retaliatory purposes. (ECF No. 35, p. 3).
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).
IV. DISCUSSION
First, the only claims before the Court are those Plaintiff alleged in his Amended
Complaint. As previously explained, Plaintiff may not assert new claims for the first time in his
Response to Defendant’s Motion for Summary Judgment. This also stands true for Plaintiff’s
attempts to allege new or different instances of retaliation in his Response, e.g. Plaintiff did not
allege any retaliation claim based on housing location or physical attacks by other inmates in his
Amended Complaint. Such new allegations will not be addressed by the Court herein.
Plaintiff states two claims in his Amended Complaint that Defendant moves to dismiss on
summary judgment: (1) that Defendant “failed to protect” his “sexual rights” by disclosing his
sexual life; and (2) that Defendant retaliated against him for filing a Section 1983 civil rights
lawsuit by scandalizing his reputation with accusations of homosexual conduct with a fellow
inmate. Defendant first argues Plaintiff has failed to state any claim against him, and alternatively,
if the Court finds Plaintiff has alleged cognizable constitutional violations, Defendant is entitled
to qualified immunity. The Court need not reach the issue of qualified immunity because, as
explained below, both of Plaintiff’s claims fail as a matter of law.
A. Sexual Harassment
Plaintiff uses the term failure to protect his sexual rights in his Amended Complaint and
sexual harassment in his Response. The Court cannot interpret any version of Plaintiff’s claims to
state a failure to protect claim against Defendant in this case. Accordingly, the Court construes
Plaintiff’s first claim as one for sexual harassment against Defendant.
While “sexual harassment or abuse of an inmate by a corrections officer . . . can, in certain
circumstances, constitute the ‘unnecessary and wanton infliction of pain’ forbidden by the Eighth
Amendment, . . . sexual harassment, absent contact or touching, does not constitute unnecessary
and wanton infliction of pain.” Howard v. Everett, 208 F.3d 218, 20000 WL 268493, at *1 (8th
Cir. Mar. 10, 2000) (table opinion) (quoting Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997)).
Considering all facts on the summary judgment record in the light most favorable to
Plaintiff, Defendant’s actions were merely verbal—comments while Plaintiff showered and
comments to Plaintiff regarding Inmate Brown. While the Court finds such behavior and
commentary, if true, inappropriate and unprofessional, it does not rise to the level of a
constitutional violation. See Howard, 208 F.3d 218, 2000 WL 268493, at *1 (holding sexual
comments and gestures, while reprehensible, did not rise to the level of a constitutional violation
without contact or touching). See also McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993)
(explaining verbal threats and name calling, without more, are not usually actionable under Section
1983); O’Donnell v. Thomas, 826 F.2d 788, 790 (8th Cir. 1987) (verbal threats and abuse do not
rise to the level of a constitutional violation).
Accordingly, the Court finds Plaintiff’s claim of sexual harassment should be dismissed.
B. Retaliation
Even though Plaintiff’s sexual harassment claim fails as a matter of law, Defendant’s
actions may still give rise to a retaliation claim if Plaintiff can show all elements necessary for
such a claim. In general, conduct that retaliates against the exercise of a constitutionally protected
right is actionable, even if the conduct itself is not a constitutional violation. Cody v. Weber, 256
F.3d 764, 771 (8th Cir. 2001) (citation omitted); Madewell v. Roberts, 909 F.2d 1203, 1206 (8th
Cir. 1990) (citations omitted).
Plaintiff claims in his Amended Complaint, that Defendant retaliated against him for filing
a Section 1983 lawsuit by “going around the jail telling inmates he caught myself and another
inmate on video doing sexual act” and by “scandalizing” Plaintiff’s name. (ECF No. 8, p. 4). “To
prevail on a § 1983 claim for retaliation in violation of the First Amendment, [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 v. Blair, 707 F.3d 984, 991 (8th Cir. 2013) (citing Revels v. Vincenz,
382 F.3d 870, 876 (8th Cir. 2004)).
First, it is undisputed that Plaintiff engaged in a protected activity by filing his first Section
1983 civil rights lawsuit against Defendant. See Harris v. Burns, et al., Civil Case No. 4:24-cv-
04060-SOH; see also (ECF No. 28, p. 5).
Next, it is disputed whether Defendant took adverse action against Plaintiff through
spreading rumors regarding Plaintiff and Inmate Brown’s alleged sexual interaction. Defendant
testifies while he did observe Plaintiff engaging in sexual interactions with Inmate Brown, he did
not tell any other inmates of this observation. (ECF No. 29-5, p. 1). To the contrary, Plaintiff
testified Defendant told four separate inmates that Plaintiff was caught on LCDC video cameras
in sexual acts with Inmate Brown. (ECF No. 29-4, p. 37). To further confuse the issue, Plaintiff
also testifies that another inmate, Raymond Anderson, is the one that started the rumor regarding
Plaintiff and Inmate Brown inside the LCDC and in the “streets.” (ECF No. 29-4, pp. 22-23, 29).
Accordingly, the Court finds there are issues of fact as to whether Defendant took the alleged
adverse actions against Plaintiff.
However, the analysis does not end there. Even considering the facts in the light most
favorable to Plaintiff—as the Court must on summary judgment—there still must be evidence the
adverse action (spreading of rumor regarding Inmate Brown), by Defendant, was of the type that
would chill a person of ordinary firmness from continuing in the protected activity. Santiago, 707
F.3d at 991. “The ordinary-firmness test is designed to weed out trivial matters from substantial
violations of the First Amendment.” Gonzalez v. Bendt, 971 F.3d 742, 745 (8th Cir. 2020) (citing
Santiago, 707 F.3d at 992). “Summary judgment is appropriate if there is insufficient evidence
the adverse action would deter a person of ordinary firmness from continuing to engage in [the]
First Amendment protected activity.” Id. (citing Garcia v. City of Trenton, 348 F.3d 726, 729 (8th
Cir. 2003)). The Court will consider Plaintiff’s actions in response to Defendant’s alleged
retaliation as evidence as to what a person of ordinary firmness would have done. Naucke v. City
of Park Hills, 284 F.3d. 923, 928 (8th Cir. 2002).
Defendant argues in his Motion that Plaintiff has failed to show the alleged actions were
sufficiently adverse or serious to deter a person of ordinary firmness from continuing in the
protected activity—filing Section 1983 lawsuits. Specifically, Defendant argues, Plaintiff was not
deterred as he filed two additional Section 1983 lawsuits after the alleged retaliation. Further,
Defendant argues the alleged actions are not sufficiently adverse to implicate the First
Amendment. (ECF No. 28, pp. 5-6). The Court agrees.
The Court recognizes that Plaintiff was not in fact deterred from exercising his First
Amendment rights. Plaintiff claims the retaliation by Defendant occurred or began on November
6, 2024. (ECF No. 8, p. 4). Plaintiff filed the instant action on February 14, 2025, and after the
Court severed this case into two separate cases on February 25, 2024, Plaintiff continued to
prosecute both cases. See Harris v. Bennett, Civil Case No. 4:25-cv-04012; Harris v. Cox, Civil
Case No. 4:25-cv-04015-SOH-SGS. Accordingly, the Court finds this is evidence that a person
of ordinary firmness would not be deterred by Defendant’s actions. See Naucke, 284 F.3d 928.
Further, the actions complained of by Plaintiff here are atypical to those usually
complained of as adverse actions showing retaliation. See Spencer v. Jackson Ctny., Mo. 738 F.3d
907, 911 (8th Cir. 2013) (“[a]dverse actions which may show retaliation include denial of
privileges or acts worsening an inmate’s working conditions.”). The Eighth Circuit has also
previously explained, in the retaliation context, offensive, unprofessional, and inappropriate
comments are not sufficiently serious to establish adverse actions which would deter a person of
ordinary firmness from exercising their First Amendment rights. Id. In Naucke, the plaintiff, Mrs.
Naucke, brought a retaliation claim against a city council for: causing damage to her reputation;
personal humiliation; disgrace; and mental anguish and suffering. Mrs. Naucke publicly spoke
against the city’s policies. After exercising that protected First Amendment right, the city
administrator made derogatory comments to Mrs. Naucke in public places, posted pictures of her
home in the local grocery store with embarrassing remarks stamped on it; and circulated a letter
alleging one of Mrs. Naucke’s children was illegitimate. Id. at 926. Mrs. Naucke claimed these
actions, by the city administrator, caused damage to her reputation, personal humiliation, disgrace,
and mental anguish and suffering. Id.
The Court finds Mrs. Naucke’s alleged injuries and the alleged adverse actions analogous
to Plaintiff’s here. Both complained of an attack on their reputation, embarrassment, and
emotional distress without any physical or monetary damage. Also, just as Plaintiff here, the
alleged adverse action did not deter Mrs. Naucke from continuing to exercise her First Amendment
rights. Mrs. Naucke continued to speak out against the policies of her city council just as Plaintiff
continued to exercise his rights to file Section 1983 lawsuits. Id. at 928.
Accordingly, as in Naucke, the Court finds the alleged actions of Defendant (spreading
rumors regarding Plaintiff’s sexual conduct) and the embarrassment, humiliation, and emotional
distress alleged by Plaintiff here, are insufficient to deter a person of ordinary firmness from
exercising protected activity such as filing Section 1983 lawsuits that implicate the First
Amendment. Id. Accordingly, the Court finds Plaintiff’s claim of retaliation should be dismissed.
Plaintiff did not produce any summary judgment evidence in his Response to alter this
analysis. While he argues Defendant’s actions were of the kind that would deter a person of
ordinary firmness, he does not allege any facts or produce any evidence to support this argument.
(ECF No. 35, p. 7). This is insufficient to survive summary judgment. Nat’l Bank, 165 F.3d at
607. Plaintiff also makes many arguments regarding the issues of fact surrounding whether
Defendant made sexual comments or spread rumors about him, but these disputes of fact are
irrelevant to the dispositive legal issues herein. Even taking all factual allegations made by
Plaintiff regarding Defendant’s sexual commentary and rumor spreading as true, Plaintiff’s claims
still fail as a matter of law.
The Court need not reach the issue of whether Plaintiff adequately established the final
element of causation, as his retaliation claim fails at the second element.
C. Official Capacity
Since Plaintiff has failed to state an individual claim against Defendant regarding either of
his claims, he cannot maintain an official capacity claim against Defendant or the Defendant’s
employer Lafayette County. 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 Lafayette County that violated his constitutional rights. On the contrary, Plaintiff
testified in his deposition that he did not believe Lafayette County had a policy causing
Defendant’s actions and if anything, Defendant violated Lafayette County policy with his actions.
As Plaintiff has failed to allege any unconstitutional policy, procedure, or custom of
Lafayette County, his official capacity claim should be dismissed.
V. CONCLUSION
For the reasons stated above, I recommend Defendant’s Motion for Summary Judgment
(ECF No. 27) be GRANTED and Plaintiff’s claims be DISMISSED WITH PREJUDICE.
Referral Status: The referral in this matter should be terminated.
The parties have fourteen 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 24th day of June 2026.
Spencer G. Singleton
/s/
HON. SPENCER G. SINGLETON
UNITED STATES MAGISTRATE JUDGE