Petition for Writ of Certiorari — Jarell Davis Terry, Petitioner v. William Straughn, Deputy Director, Arkansas Division of Correction, et al.

Supreme Court briefAug 7, 2024

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®mte)J States Court of Appeals

Jfor tFje Ctglitf) Circuit

No. 23-1936

Jarell Davis Terry

Plaintiff - Appellant

William Straughn, Assistant Director, ADC; Dexter Payne, Director, ADC; Devine

Maiden, Lieutenant, ADC (originally named as "Maiden"); Dennis Ugbaja,

Sergeant, ADC (Originally named as "Ugbaja")

Defendants - Appellees

Ciara Brown, Nurse, Wellpath (Originally named as "Brown")

Defendant

Mya Coney

Defendant - Appellee

Appeal from United States District Court

for the Eastern District of Arkansas - Delta

Submitted: April 26, 2024

Filed: May 13, 2024

[Unpublished]

Before GRUENDER, ERICKSON, and KOBES, Circuit Judges.

Appellate Case: 23-1936

Rape: 1

Dgte Filed: 05/13/2024 Entry ID: 5392851

PER CURIAM.

Arkansas inmate Jarell Terry appeals following the district court’s1 adverse

grant of summary judgment in his pro se 42 U.S.C. § 1983 action. After careful

review of the record and the parties’ arguments on appeal, we conclude that the grant

of summary judgment was proper for the reasons stated by the district court. See

Smith v. Andrews, 75 F.4th 805, 808 (8th Cir. 2023) (de novo review of grant of

summary judgment). We find no abuse of discretion in the district court’s denial of

Terry’s motions regarding the surveillance video, and we lack jurisdiction to review

the magistrate judge’s orders denying his motions for recusal and appointment of

counsel. See Williams v. Wells Fargo Bank, N.A., 901 F.3d 1036, 1042 (8th Cir.

2018) (when appellant does not object to magistrate’s non-dispositive order before

district court, appellate court cannot review order); Murchison v. Rogers, 779 F.3d

882, 893-94 (8th Cir. 2015) (gross abuse of discretion review of denial of untimely

discovery motion); Press Mach. Corn, v. Smith R.P.M. Corp., 727 F.2d 781, 783 n.2

(8th Cir. 1984) (abuse of discretion review of decision to grant summary judgment

without hearing).

The judgment is affirmed. See 8th Cir. R. 47B. We deny Terry’s motion to

supplement the record.

JThe Honorable Brian S. Miller, United States District Judge for the Eastern

District of Arkansas, adopting the report and recommendations of the Honorable J.

Thomas Ray, United States Magistrate Judge for the Eastern District of Arkansas.

-2-

Appellate Case: 23-1936

Page: 2

Date Filed: 05/13/2024 Entry ID: 5392851

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 23-1936

Jarell Davis Terry

Plaintiff - Appellant

William Straughn, Assistant Director, ADC; Dexter Payne, Director, ADc; Devine Maiden,

Lieutenant, ADC (originally named as "Maiden"); Dennis Ugbaja, Sergeant, ADC (Originally

named as "Ugbaja")

Defendants - Appellees

Ciara Brown, Nurse, Wellpath (Originally named as "Brown")

Defendant

Mya Coney

Defendant - Appellee

Appeal from U.S. District Court for the Eastern District of Arkansas - Delta

■

(2:20-cv-00145-BSM)

JUDGMENT

Before GRUENDER, ERICKSON, and KOBES, Circuit Judges.

This appeal from the United States District Court was submitted on the record of the

district court and briefs of the parties.

After consideration, it is hereby ordered and adjudged that the judgment of the district

court in this cause is affirmed in accordance with the opinion of this Court.

May 13,2024

Order Entered in Accordance with Opinion:

Acting Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Stephanie N. O'Banion

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 1 of 16

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

DELTA DIVISION

PLAINTIFF

JARELLD. TERRY

ADC #149998C

NO. 2:20-CV-145-BSM-JTR

WILLIAM STRAUGUN, Assistant Director, ADC;

DEXTER PAYNE, Director, ADC;

DEVINE MAIDEN, Lieutenant, ADC;

DENNIS UGBAJA, Sergeant, ADC;

and MYA CONEY

DEFENDANTS

PARTIAL RECOMMENDED DISPOSITION

The following Partial Recommended Disposition has been sent to United

States District Judge Brian S. Miller. 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 Miller 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

Plaintiff Jarell D. Terry (“Terry”), a prisoner in the East Arkansas Maximum

Unit (“EAMU”) of the Arkansas Division of Correction (“ADC”), filed this § 1983

action alleging violations of his constitutional rights.

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 2 of 16

After screening Terry’s Complaint, the Court allowed him to proceed with

claims that: (1) Lieutenant Devine Maiden (“Maiden”) and Sergeant Dennis Ugbaja

(“Ugbaja”) harassed and wrote false disciplinaries against Terry as a means of

retaliation; conspired to deny him medical care; and subjected him to

unconstitutional conditions of confinement; (2) Ugbaja used excessive force against

him on May 11,2020; and (3) Assistant Director William Straughn (“Straughn”) and

Director Dexter Payne (“Payne”) failed to take corrective action when notified of

Maiden and Ugbaja’s alleged constitutional violations.

Defendants Straughn, Payne, Maiden, and Ugbaja have filed a Motion for

Partial Summary Judgment, Brief in Support, and a Statement of Undisputed

Material Facts arguing that the majority of Terry’s claims should be dismissed

because he failed to exhaust his administrative remedies. Doc. 58; Doc. 59; Doc. 60.

Terry filed Responses to the Motion and the Statement of Undisputed Material Facts.

Doc. 64; Doc. 65. Defendants have not filed a Reply, and the time to do so has now

passed. See Local Rule 7.2(b). Thus, the issues are joined and ready for disposition. i

Nummary 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. See Fed R. Civ. P. 56(c);

Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011).

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 3 of 16

II. Discussion

The PLRA’s Mandatory Exhaustion Requirements

The PLRA requires prisoners to exhaust all available administrative remedies

before filing a § 1983 action: “No action shall be brought with respect to prison

conditions under section 1983 of this title, or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s

exhaustion requirement is mandatory. Woodford v. Ngo, 548 U.S. 81, 85 (2006);

Muhammad v. Mayfield, 933 F.3d 993, 1000 (8th Cir. 2019).

The PLRA requires inmates to: (1) fully and properly exhaust their available

administrative remedies as to each claim that is later raised in a § 1983 action; and

(2) complete the exhaustion process before initiating the § 1983 action. Jones, 549

U.S. at 211, 219-20, 223-24; Woodford, 548 U.S. at 93-95; Burns v. Eaton, 752

F.3d 1136, 1141-42 (8th Cir. 2014). Importantly, “it is the prison’s requirements,

and not the PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S.

at 218; see also Woodford, 548 U.S. at 90 (explaining that administrative exhaustion

“means using all steps that the agency holds out, and doing so properly so that the

agency addresses the issues on the merits”). Thus, to satisfy the PLRA, a prisoner

must comply with the exhaustion requirements of the incarcerating facility before he

can properly file a § 1983 action.

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 4 of 16

The ADC provides the following three-step process that prisoners must

comply with to exhaust non-emergency grievances raising “complaints, problems

and other issues”: (1) file a “Step One” informal resolution raising the claim or

matter with the designated unit-level problem-solver; (2) if the informal resolution

is denied, file a “Step Two” formal unit-level grievance with the Warden; and (3) if

the Warden denies the grievance, file a “Step Three” appeal with the appropriate

ADC Chief Deputy/Deputy/Assistant Director. ADC Administrative Directive 1934 §§ I & IV(E)-(G) (“AD 19-34”).2

The ADC grievance process also requires that, in all grievances, a prisoner

“specifically name each individual involved,” and include a “brief statement that is

specific as to the substance of the issue or complaint to include the date, place [and]

personnel involved or witnesses.” AD 19-34 §§ IV(C)(4) & (E)(2). The instructions

contained in the grievance forms explicitly state these requirements to make sure

prisoners are aware of them. Id., Att. 1 (“[B]e specific as to the complaint, date and

place, name of personnel involved and how you were affected.”) (emphases in

original).

2 Defendants submitted, with their summary judgment papers, a copy of AD 19-34, which

became effective December 2, 2019. Doc. 60-1.

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 5 of 16

Discussion

In support of their Motion for Partial Summary Judgment, Defendants attach

the affidavits of the ADC’s Inmate Grievance Supervisor, Terri Grigsby Brown

(“Brown”), and ADC Medical Grievance Coordinator, Jacqueline Buterbaugh

(“Buterbaugh”). Doc. 60-2. Brown and Buterbaugh reviewed the grievances filed by

Terry during the relevant time period and identified five grievances potentially

relevant to the claims Terry has asserted in this action.3 Based on the information

contained in these grievances, Defendants argue that several claims must be

dismissed because Terry failed to exhaust his administrative remedies.

1. Terry’s Sexual Harassment Claim Against Maiden.

In his Complaint, Terry alleges several instances of sexual harassment by

Defendant Maiden. First, Terry alleges that, sometime in late March or early April,

2020, Maiden sexually harassed him in retaliation for another lawsuit Terry had filed

against Maiden.4 Doc. 2 at 4-5. Terry alleges that Maiden’s sexual harassment

involved watching him while he was in the shower. Id.

Later, Terry was escorted to the infirmary by Maiden to seek medical attention

for a “cut or infection to [his] penis area.” Doc. 19-1 at 44. According to Terry, once

3 EAM20-01222, EAM20-01223, EAM20-01224, EAM20-01230, and EAM20-01454.

4 Terry filed a Complaint on December 11,2019 alleging a failure-to-protect claim against

Maiden. Terry v. Lane et al., No. 2:19-CV-153-KGB (E.D. Ark. Dec. 11, 2019).

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 6 of 16

in the infirmary, Maiden attempted to have Terry expose his penis so it could be

examined by the nurse, even though the nurse said it was unnecessary for him to do

so. Doc. 2 at 5.

Terry raises both of these sexual harassment claims in grievance EAM2001222 {Doc. 60-4 at 9-13). However, Terry admits that, as of the date he initiated

this action on July 14, 2020, he was still in the process of completing the exhaustion

of this grievance. Doc. 60 at 6, ^ 25; Doc. 65 at 2, f 25. It is undisputed that Terry

did not complete the exhaustion of EAM20-01222 until August 3, 2020, when

Defendant Straughn denied his Step 3 appeal. Doc. 60-4 at 11.

On May 14,2020, Terry initiated grievance EAM20-01224 {Doc. 60-4 at 2026), which also raises a sexual harassment claim against Maiden for apparently

watching him in the shower. This grievance states only that: “Lt. Maiden continues

to sexual harass me while I’m in the shower after I’ve called the Arkansas State

police.” Doc. 60-4 at 23.

Defendants concede that Terry fully exhausted EAM20-01224 but argue that

this sexual harassment claim against Maiden must be limited to his alleged conduct

before May 14, 2020, the date the grievance was filed. Doc. 59 at 9-10. Terry

contends that, because the grievance was not fully exhausted until July 10,2020, the

date the Step Three appeal was denied, he should be allowed to purse Maiden’s

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 7 of 16

alleged continuing sexual harassment through July 10, 2020. Doc. 60 at 7, f 28;

Doc. 65 at 2, 128; see also Doc. 60-4 at 25.

Under the ADC grievance policy, inmates are not allowed to “raise new or

additional issues or complaints” on appeal. AD 19-34 § 111(D) {Doc. 60-1 at 2).

Consequently, in grievance EAM20-01224, Terry could only be deemed to have

exhausted his sexual harassment claim against Maiden that occurred shortly before

May 14, 2020.5 Accordingly, Terry should be allowed to proceed with this sexual

harassment calm against Maiden for his alleged misconduct between approximately

April 29,2020 and May 14,2020.

Importantly, EAM20-01224 does not mention the claim that Maiden

attempted to make Terry expose his penis to the nurse on May 10,2020, a claim that

was raised but not fully exhausted before he initiated this action. Accordingly, that

claims should be dismissed, without prejudice.

2. Terry’s Excessive Force Claim Against Ugbaia.

Terry also alleges that, in the early morning hours of May 11, 2020, Ugbaja

made threatening comments, “became enraged,” slammed Terry down on his face,

and placed both knees on Terry’s spine. Doc. 2 at 5-6. Defendants concede that

5 The ADC grievance process requires that a prisoner file a Step One informal resolution

within fifteen days after the incident. AD 19-34 § IV(E)(1). Because Terry filed his informal

resolution on May 14, 2020, his sexual harassment claim against Maiden is limited to his conduct

between approximately April 29, 2020 and May 14, 2020. Accordingly, Terry should be allowed

to proceed with his sexual harassment claim against Maiden for watching him shower from

approximately April 29, 2020 through May 14, 2020.

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 8 of 16

Terry exhausted this excessive force claim in EAM20-01223 {Doc. 60-4 at 14-19).

Doc. 59 at 9. Thus, Terry should be allowed to proceed with this claim.

3. Terry’s Conspiracy to Deny Medical Care Claims Against Ugbaia and

Maiden.

Following the alleged excessive force incident with Ugbaja, Terry claims that

Ugbaja and Maiden conspired with Nurse Ciara Brown6 to deny him medical care

for his back injury. Doc. 2 at 7. Terry raises inadequate medical care claims in

EAM20-01230, which he initiated on April 20, 2020—before the May 11, 2020

excessive force incident with Ugbaja. Doc. 60-4 at 28. At Step Two, EAM20-01230

was denied, on procedural grounds, because it was untimely. Terry then attempted

to expand his claims in his Step Three appeal by alleging that Ugbaja, Maiden, and

Brown “conspired” to deny him medical care after the May 11 excessive force

incident. The Step Three appeal was also denied as untimely.

Terry does not argue that he properly exhausted his conspiracy-to-denymedical-care claims in EAM20-01230. Instead, he claims that the rejection of the

appeal as untimely “only [shows] that administrative remedies were unavailable.”

Doc. 60 at 7, f 30; Doc. 65 at 2,

Inmates may overcome the PLRA’s exhaustion requirement by showing that

administrative remedies were unavailable. Townsend v. Murphy, 898 F.3d 780, 783

6 Terry voluntarily dismissed his claim against Nurse Brown because he concedes that he

failed to exhaust administrative remedies against her in connection with this claim. Doc. 62; Doc.

63.

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 9 of 16

(8th Cir. 2018). But, the onus is on the inmate to prove the unavailability of remedies,

something that Terry’s conclusory and factually unsupported allegation does not

even begin to do. See Gibson v. Weber, 431 F.3d 339,341 (8th Cir. 2005) (upholding

dismissal on summary judgment because prisoners failed to present evidence that

their administrative remedies were thwarted).

Accordingly, Terry’s conspiracy to deny medical care claims against Ugbaja

and Maiden should be dismissed, without prejudice, based on his failure to properly

raise and fully exhaust that claim before initiating this action.

4. Terry’s Retaliatory Disciplinary Claims Against Ugbaia and Maiden.

Terry complains of at least two “retaliatory” disciplinaries filed against him

by Maiden and one filed by Ugbaja.7 Defendants allege, and Terry acknowledges,

that, in connection with those claims, he did not exhaust his administrative remedies

under the ADC’s grievance policy (AD 19-34).

Despite having not exhausted this claim, Terry argues he “used the appeal

process of the Major Disciplinaries...thereby satisfying the timely and available

remedy requirement.” Doc. 64 at 2. The ADC’s grievance policy specifically

requires an inmate to grieve retaliatory disciplinary claims. See AD 19-34 § 111(H)

7 Terry claims that, on March 31, 2021, Maiden wrote a false disciplinary “accusing [him]

of ‘failure to obey verbal and/or written order(s) of staff.’” Doc. 2 at 4. He further accuses Maiden

of writing false disciplinary regarding the May 10 exposure incident. Doc. 2 at 6; Doc. 19-1 at 5660. He alleges that Ugbaja filed a false disciplinary after the May 11 excessive force incident. Doc.

2 at 6; Doc. 19-1 at 61-66.

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 10 of 16

(“Note: Claims of Retaliation, even if related to [Disciplinaries], are Grievable”)

{Doc. 60-1 at 3). Appealing a disciplinary action is not a substitute for properly filing

and exhausting a grievance. Scott v. Burl, No. 5:17-CV-98-DPM-PSH, 2018 WL

3134295, at *4 (E.D. Ark. May 29, 2018), report and recommendation adopted,

2018 WL 3132602 (E.D. Ark. June 26,2018) (“The disciplinary appeal process does

not serve to exhaust administrative remedies; an inmate must follow the ADC

grievance policy in order to exhaust.”)

To fully and properly exhaust his retaliatory disciplinary claims, Terry was

required to file a Step One informal resolution under AD 19-34, followed by a Step

Two grievance, and then a Step Three appeal. See Ford v. Metcalf, No. 5:17-CV230-KGB-JTK, 2018 WL 9812753, at *3 (E.D. Ark. Dec. 18, 2018), report and

recommendation adopted, 2019 WL 4017370 (E.D. Ark. Aug. 26,2019) (“Plaintiffs

failure to timely grieve the retaliation claim and to attempt to resolve the merits of

his claim through the grievance process, requires that the retaliation claim be

dismissed without prejudice, for failure to exhaust.”)

Terry admits that he did not pursue the required administrative remedy to fully

and properly exhaust his retaliatory disciplinary claims against Ugbaja and Maiden.

While Terry may have appealed the underlying disciplinaries, this did not relieve

him of his obligation to initiate and fully exhaust a grievance challenging the

allegedly retaliatory nature of those disciplinaries. Accordingly, Terry’s retaliatory

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 11 of 16

disciplinary claims against Ugbaja and Maiden should be dismissed, without

prejudice.

5. Terry’s Unconstitutional Conditions of Confinement Claim Against

Ugbaia and Maiden.

Terry alleges that he was: (1) left in a hall cage for five hours on May 10-11

without a restroom break, “forcing [him] to urinate in the hall cage;” (2) refused a

mattress for a week; and (3) left in a cell for a month-and-a-half with no working

cold water and a cell light that was never turned off. Doc. 2 at 5, 7.

Terry grieved these unconstitutional conditions claims in EAM20-01222 but

acknowledges that he did not exhaust this grievance before filing this § 1983 action.

Doc. 60 at <5,f 25; Doc. 65 at 1, If 25. In an effort to preserve these claims, Terry

argues that: (1) In EAM19-02826, he exhausted his May 10-11 conditions of

confinement claims as to Maiden; and (2) “viewed in a light most favorable to him,”

he exhausted his other conditions of confinement claims against both Ugbaja and

Maiden in EAM20-01223 and EAM20-01224.

In EAM19-02826, Terry alleged that, on November 7, 2019, in a separate

incident, Maiden subjected him to unconstitutional conditions by keeping him in a

hall cage for nine hours, without allowing him to use the bathroom. While the

November 7,2019 incident is factually similar to the May 10-11,2020 incident, they

are separate and distinct claims which required Terry to file and fully exhaust

separate and distinct grievances. Obviously, Terry cannot rely on EAM19-02826 to

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 12 of 16

establish that he also exhausted his administrative remedies as to Maiden in

connection with the separate incident that took place six months later, on May 1011,2020. 8

In grievance EAM20-01223, which he initiated on May 14,2020, Terry states:

“No mattress since May 10, 2020.” Doc. 60-4 at 14. In grievance EAM20-01224,

also initiated on May 14, 2020, Terry complains that he had “been placed in

inadequate and filthy unclean cell numerous times [with] no tb lights... [and] sprayed

and place on behavioral control without due process.” Doc. 60-4 at 20. Although

Terry identifies Maiden and Ugbaja in relation to other complaints contained in those

two grievances, he does not name or identify either Maiden or Ugbaja as the person

who caused him to have “no mattress” or be placed in a “filthy unclean cell.” Id.9

Accordingly, Terry failed to properly exhaust these claims against Maiden and

8 Less than a week after filed this suit, Terry filed a separate § 1983 action against Maiden

for his actions on November 7,2019. Terry v. Larry et al., No. 2:20-CV-155-DPM (E.D. Ark. July

20, 2020). On August 16, 2021, Terry moved to voluntarily dismiss the second lawsuit, claiming

that he “can address [Maiden’s] misconduct [in] suit Terry v. Straughn et al., 2:20-CV-145-BSMJTR.” Terry v. Larry, No. 2:20-CV-155-DPM (E.D. Ark. Aug. 16, 2021).

Terry never raised the November 7, 2019 hall cage allegation in his Complaint, Amended

Complaint, or Second Amended Complaint. He cannot use his Summary Judgment Response to

bootstrap that claim to the pending litigation.

9 Contrary to the ADC grievance policy, Terry raises several separate and unrelated

complaints in one grievance. See AD 19-34 § IV(D)(2) (“[0]nly one problem/issue should be

stated in the grievance, not multiple problems/issues. An inmate must use a separate form for each

issue.”)

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 13 of 16

Ugbaja under ADC policy, which explicitly requires that the grievance be “specific”

and “name the personnel involved.” AD 19-34 §§ IV(C)(4) & (E)(2), Att. 1.

In EAM20-01223 and EAM20-01224, ADC officials were never given the

opportunity to investigate or resolve what role, if any, that Maiden or Ugbaja had in

the alleged unconstitutional conditions of confinement claim alleged in this action.

See Townsend v. Murphy, 898 F.3d 780, 784 (8th Cir. 2018) (By failing to mention

Defendants in his complaint, Plaintiff “limited the [ADC’s] ability to investigate his

claim and provide relief, and consequently, failed to exhaust an available

administrative remedy.”); see also Jones v. Bock, 549 U.S. 199, 219 (2007) (The

purposes of the exhaustion requirement include “allowing a prison to address

complaints about the program it administers before being subjected to suit, reducing

litigation to the extent complaints are satisfactorily resolved, and improving

litigation that does occur by leading to the preparation of a useful record.”)

Because Terry did not exhaust the unconstitutional conditions of confinement

claims that allegedly took place on, and immediately following, May 10-11, those

claims should be dismissed, without prejudice.

6. Terry’s Claims that Ugbaja Harassed, Threatened, and Retaliated Against

Him from March of 2020 through October of 2020.

Terry’s Complaint and Amended Complaint are rife with allegations that

Ugbaja harassed him, but the record contains no grievances filed by Terry which

raise any such claims against Ugbaja. Terry again argues that he “utilized the

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 14 of 16

available remedy of the Major Disciplinary Appeal process” to exhaust claims of

retaliation against Ugbaja. As previously discussed, Terry was still required to file

and fully exhaust grievances raising those claims of harassment, threats, and alleged

retaliation against Ugbaja. Because Terry failed to exhaust his claims that Ugbaja

harassed, threatened, and retaliated against him, those claims should be dismissed,

without prejudice.

7. Terry’s Corrective Inaction Claims Against Straughn and Pavne.

Terry’s only claims against Defendants Straughn and Payne are allegations

that they failed to take any corrective action when he notified them of Ugbaja and

Maiden’s unconstitutional conduct.

The parties agree that Terry never exhausted his administrative remedies on

these claims. Nonetheless, Terry contends that:

Due to claims against William Straughn and Dexter Payne being under

42 U.S.C. § 1983 due to supervisor liability, see Harlow v. Fitzgerald,

457 U.S. 800 (1982), exhaustion is not required. Porter v. Nussle, 534

U.S. 516 (2002) (citing Patsy v. Board ofRegents of Fla., 457 U.S. 496

(1982)).

Doc. 64 at 3 (internal citations corrected).

The case cited by Terry, Porter v. Nussle, directly contradicts his position. In

that case, the Supreme Court held that, under the Prison Litigation Reform Act of

1996, “exhaustion is now required for all actions brought with respect to prison

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 15 of 16

conditions, whether under § 1983 or any other Federal law.” Porter, 534 U.S. at

523-24 (cleaned up) (emphases added).

Because Terry failed to exhaust his administrative remedies against Straughn

and Payne, his claims against them should be dismissed, without prejudice.

in. Conclusion

Plaintiff Jarell Terry fully and properly exhausted an excessive force claim

against Ugbaja and a sexual harassment claim against Maiden. Accordingly, he

should be allowed to proceed with those claims. All of his other claims against

Defendants Straughn, Payne, Maiden, and Ugbaja should be dismissed, without

prejudice.10

IT IS THEREFORE RECOMMENDED that:

(1)

Terry be allowed to proceed with this excessive force claim against

Ugbaja for the events that took place on May 11, 2020;

(2)

Terry be allowed to proceed with his claim that Maiden sexually

harassed him in the showers from approximately April 29, 2020 through May 14,

2020;

(3)

Terry’s claim that Maiden tried to force him to expose himself on May

10,2020 be dismissed, without prejudice;

10 On December 3,2021, the Court allowed Terry to amend his Complaint to add a failureto-intervene action against Defendant Mya Coney. Coney has yet to be served and that claim

remains pending.

Case 2:20-cv-00145-BSM Document 109 Filed 12/13/21 Page 16 of 16

(4)

Terry’s claims that Ugbaja and Maiden subjected him to

unconstitutional conditions of confinement be dismissed, without prejudice;

(5)

Terry’s claims that Ugbaja and/or Maiden harassed, threatened, and

retaliated against him be dismissed, without prejudice; and

(6)

Terry’s corrective inaction claims against Straughn and Payne be

dismissed, without prejudice, and those Defendants be dismissed as parties to this

lawsuit.

DATED this 13th day of December, 2021.

UNITE© STATES MAGISTRATE JUDGE

Case 2:20-cv-00145-BSM Document 116 Filed 01/05/22 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

DELTA DIVISION

PLAINTIFF

JARELL TERRY

ADC #149998C

CASE NO. 2:20-CV-00145-BSM

DEFENDANTS

WILLIAM STRAUGHN, et al

ORDER

After de novo review of the record, United States Magistrate Judge J. Thomas Ray’s

proposed findings and partial recommendation [Doc. No. 109] is adopted. The motion for

partial summary judgment [Doc. No. 58] filed by defendants William Straughn, Dexter

Payne, Devine Maiden, and Dennis Ugbaja, is granted. Jarell Terry’s corrective inaction

claims against Straughn and Payne are dismissed without prejudice because Terry failed to

exhaust his administrative remedies as required by the Prison Litigation Reform Act

(“PLRA”). See Porter v. Nussle, 534 U.S. 516, 524 (2002). Straughn and Payne are

dismissed as parties to this lawsuit because there are no remaining claims against them.

Terry is allowed to proceed on his excessive force claim against Ugbaja for events that

took place on May 11, 2020. Terry is also allowed to proceed on his claim that Maiden

sexually harassed him in the showers from approximately April 29, 2020 through May 14,

2020. Terry’s remaining claims against Ugbaja and Maiden are dismissed without prejudice

for failure to exhaust administrative remedies pursuant to the PLRA. See 42 U.S.C. §

1997(e)(a); Woodford v. Ngo, 548 U.S. 81, 85 (2006).

Case 2:20-cv-00145-BSM Document 116 Filed 01/05/22 Page 2 of 2

IT IS SO ORDERED this 5th day of January, 2022.

-------

UNITED STATES DISTRICT JUDGE

Case 2:20-cv-00145-BSM Document 163 Filed 01/30/23 Page 1 of 25

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

DELTA DIVISION

PLAINTIFF

JARELL D. TERRY

ADC #149998C

No. 2:20-CV-145-BSM-JTR

DEVINE MAIDEN, Lieutenant, ADC;

DENNIS UGBAJA, Sergeant, ADC;

and MYA CONEY, Corporal, ADC

DEFENDANTS

RECOMMENDED DISPOSITION

The following Recommended Disposition has been sent to United States

District Judge Brian S. Miller. 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 Miller 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

Plaintiff Jarell D. Terry (“Terry”), a prisoner in the East Arkansas Maximum

Unit (“EAMU”) of the Arkansas Division of Correction (“ADC”), filed this § 1983

action alleging violations of his constitutional rights.

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After screening the Complaint, Terry was allowed to proceed with claims that:

(1) Lieutenant Devine Maiden (“Maiden”) and Sergeant Dennis Ugbaja (“Ugbaja”)

harassed him; conspired to deny him medical care; and subjected him to

unconstitutional conditions of confinement; (2) Ugbaja used excessive force against

him on May 11,2020; and (3) Assistant Director William Straughn (“Straughn”) and

Director Dexter Payne (“Payne”) failed to take corrective action when notified of

Maiden and Ugbaja’s alleged constitutional violations. Doc. 18. Terry was later

allowed to amend his Complaint to pursue a claim that Corporal Mya Coney failed

to intervene during the May 11, 2020 excessive force incident. Doc. 107.

On December 29, 2021, Judge Miller entered an Order granting Defendants’

Motion for Partial Summary Judgment on all Terry’s claims against Straughn and

Payne and some of his claims against Ugbaja and Maiden because he failed to fully

and properly exhaust his administrative remedies on those claims before he initiated

this action. Doc. 114. Thus, Terry’s only remaining claims are the following:

On May 11,2020, Ugbaja used excessive force against him;

Coney failed to intervene in the May 11 excessive force incident; and

From April 29, 2020 through May 14, 2020, Maiden sexual harassed

him in the shower.

Terry and Ugbaja have filed cross-Motions for Summary Judgment

addressing the merits of the May 11, 2020 excessive force incident {Doc. 144; Doc.

151). Coney has filed a Motion for Summary Judgment arguing that Terry failed to

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exhaust his administrative remedies regarding the failure to intervene claim {Doc.

129). Finally, Terry has filed a Motion for Voluntary Dismissal of his claims against

Maiden {Doc. 142) and a Motion for Preliminary Injunction {Doc. 135).

The Court will consider each of these fully and properly joined Motions

separately.

II. Discussion

Terry and Ugbaja’s Cross-Motions for Summary Judgment

On July 11, 2022, Terry filed a Motion for Summary Judgment {Doc. 144)

and Statement of Facts {Doc. 145) preemptively arguing that Ugbaja is not entitled

to qualified immunity and that the undisputed facts show that Ugbaja “maliciously

and sadistically” used excessive force against him “causing lasting and frequent”

injuries. Doc. 144 at 8.

In support of his Motion, Terry relies on: (a) two Declarations he signed under

penalty of peijury {Doc. 145 at 8-10); (b) his medical records from the date of the

excessive force incident, May 11, 2020, through August 24, 2020 {Doc. 145 at 1118); (c) disciplinary records related to the May 11 incident {Doc. 145 at 19-22); and

(d) the surveillance video of the incident previously submitted to the Court under

seal {Doc. 150).

On August 3, 2022, Ugbaja filed a combined “Response in Opposition to

Terry’s Motion for Summary Judgment” and “Cross-Motion for Summary

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Judgment” {Doc. 151), a Brief in Support (Doc. 153), a Response to Terry’s

Statement of Facts {Doc. 154) and his own Statement of Facts {Doc. 152). Ugbaja

argues that: Terry’s actions justified the reasonable and necessary force he applied;

Terry has failed to provide affirmative evidence that Ugbaja acted maliciously or

sadistically; and he is entitled to qualified immunity.

Ugbaja relies on: (a) his own sworn Declaration {Doc. 151-1); (b) Conley’s

sworn Declaration {Doc. 151-2); (c) the ADC’s Internal Affairs Investigation report

that found that the force used was necessary and complied with ADC policy {Doc.

151-3); (d) Terry’s Deposition {Doc. 151-4); and (e) the surveillance video of the

May 11 incident {Doc. 150).

Terry filed Responses to Ugbaja’s Motion for Summary Judgment and

Statement of Disputed Facts {Doc. 159; Doc. 160) and a Reply to Ugbaja’s Response

to his own Statement of Facts {Doc. 156). i

Nummary 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. See Fed R. Civ. P. 56(c);

Torgerson v. City of Rochester, 643 F.3d 1031,1042 (8th Cir. 2011).

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1. Undisputed Material Facts

Based on a review of the video of the incident, Terry’s Statement of Facts,

Ugbaja’s Statement of Facts, and the supporting evidence, the following undisputed

events took place on May 11, 2020.

(a)

In the early morning hours of May 11, 2020, Sergeant Ugbaja and

Corporal Coney escorted Terry from a hall cage to a cell in punitive isolation. During

the walk, Terry, whose hands were restrained behind his back, directed profanity and

insults at Ugbaja. Terry testified he became “so enraged” that he wanted to fight

Ugbaja. Terry Dep. 16:2-5, Doc. 262-4 at 17.

(b)

While standing outside Terry’s assigned isolation cell, Terry admits to

yelling, “fuck you bitch ass n

Doc. 145 at 8,

you gone have to fight me now I want some pain.”

6. Ugbaja then took Terry down to the floor, where he remained

face down, with Ugbaja using his weight for about thirty seconds to keep Terry on

the floor. Video of Incident {Doc. 150), Camera 19 at 04:50:16-04:50:46. Then,

Ugbaja stood over Terry, bending at the waist to keep Terry on the floor for about

one-and-a-half minutes before other officers arrived and escorted Terry to the

infirmary. Id. at 04:50:46-04:52:15. No blows were exchanged during the incident.

Id. at 04:50:16-04:52:15; Terry Dep. 16:6-15, Doc. 151-4 at 17.

(c)

After the incident, Terry was escorted to the infirmary where he

complained of “pain to jaw area and upper back.” Doc. 145 at 11. The nurse noted

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that there was no “asymmetry, swelling, redness, or open areas.” Id..2 Terry

continued to seek treatment for his back pain until at least August 24, 2020, when a

scan of his thoracic spine revealed mild scoliosis, a condition unrelated to the

incident. Doc. 145 at 18. He had “[n]o acute fracture or aggressive osseous lesion”

and his thoracic spine radiographs were “otherwise unremarkable.” Id.

2. The Disputed Facts Are Not Material to Determining the

Motions for Summary Judgment

Terry and Ugbaja dispute whether Ugbaja directed profanity, insults, and

threats back at Terry3 and whether Terry spit or lunged at Ugbaja directly prior to

the use of force.4 They also dispute the amount and nature of the force Ugbaja used

to take Terry to the ground and to keep him restrained on the floor.5 However, as

2 Pictures taken of Terry’s face, jaw, and back at the infirmary confirm this observation.

Doc. 151-3 at 35, 38-40.

3 Terry avers that, while Ugbaja was placing him in hand restraints, he told Terry, “don’t

make no sudden movements you already on my bad side.” Terry Decl., Doc. 145 at 8, f 2. Then,

during the walk, Ugbaja said “fuck yo momma.” Doc. 145 at 8, f 6. According to Terry, it was

you gone have to fight me

this statement that caused him to respond, “fuck you bitch ass n

now I want some pain.” Id.

In contrast, in his Declaration, Ugbaja swears that he did not threaten Terry. Ugbaja Decl.,

Doc. 151-1 at 2, f 8. Coney’s Declaration is silent on the matter. See Coney Deck, Doc. 151-2.

4 Terry states that, “At no time did I spit at or towards Ugbaja nor was I combative, or

charged at nor evade Ugbaja.” Doc. 145 at 9.

Ugbaja swears that, “Terry lunged towards me as if he was going to headbutt me, and spit

on my right jaw and collar.” Doc. 151-1 at 1, f 6. Coney states that she “heard someone spit [and]

turned and saw Terry in close proximity to Ugbaja’s face and saw him try to pull away from

Ugbaja.” Doc. 151-2 at 1, f 5. She further states that she “did see wet spots consistent with spit on

Ugbaja’s collar.” Doc. 151-2 at 2, f 8.

5 Terry states that Ugbaja grabbed him by his legs, lifted him in the air, and slammed him

to the floor. Doc. 145 at 9,^10. Ugbaja then applied pressure to his back by “placing] either both

knees or one knee” on his back. Id., 11. In his deposition, Terry testifies that Ugbaja grabbed

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explained later, the video of the incident is consistent with Ugbaja’s description of

the force he used and in direct conflict with Terry’s description of the force used by

Ugbaja.

At the summary judgment stage, the Court may not make credibility

determinations or weigh evidence in favor of one party’s version against the other.

Coker v. Arkansas State Police, 734 F.3d 838, 843 (8th Cir. 2013) (“[I]t is not [the

court’s] function to remove the credibility assessment from the jury.”). However, the

Court may disregard facts provided by a party which are “so utterly discredited by

the record that no reasonable jury could [] believe[] him.” Scott v. Harris, 550 U.S.

372, 380 (2007).

Both the EAMU surveillance video of the incident {Doc. 50) and photographs

taken of Terry after the incident {Doc. 151-3 at 35, 38-40) completely discredit the

nature and extent of the force Terry claims Ugbaja used during the incident.

Video Footage. Defendants submitted video footage from five separate

EAMU cameras with video coverage ranging from 3:45 to 5:08 the morning of May

him in the “thigh area or probably like the knee area...airlifted me” and “slammed me on the

face.. .put both his knees in my back and balled his fist up and said he was about to punch me.”

Doc. 151-4 at 28,17. There is nothing in the video that appears to support Terry’s version of what

took place during the incident. Doc. 50.

Ugbaja states “I grabbed [Terry] by the torso, rolled back onto the ground, and pulled him

down with me to regain control over him” and “[t]o keep him on his stomach on the floor, I

straddled him and held him down with my arm. Then I stood up off the floor while holding him

down. At no point did I use my knees to hold him down.” Doc. 151-1 at 1-2,

5-6. Coney’s

Declaration states that she “did not see Ugbaja place his knees on Terry’s back.” Doc. 151-2 at 1,

f 7. The video of the incident supports the testimony of Ugbaja and Coney. Doc. 50.

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11, 2019. Doc. 50. Starting at 4:46:43, the video shows Ugbaja and Coney escorting

Terry from the hall cage to his isolation cell. Video, Camera 20 (“ISO 2 C”) and

Camera 17 (“ISO 2 West”). Terry has his hands restrained behind his back and

Ugbaja walks slightly behind and to the right of Terry, with his left hand gripping

Terry’s upper inner right arm. For most of the walk, Ugbaja and Terry walk slowly

and steadily with Coney trailing slightly behind with a piece of paper in her hand.

At one point, Coney shows Terry the piece of paper and he leans over to look at it.

At 4:47:57, Terry and Ugbaja turn to face each other in “ISO 2 West.” There

is no sound recording for any of the cameras, so it is unknown why the two turned

to face each other and, due to the quality and distance of the video camera, it is

impossible to tell if the two are even exchanging words. Approximately 15 seconds

later, Terry, Ugbaja, and Coney continue walking. They walk to the end of the

hallway in “ISO 2 West” and, for unknown reasons, turn and walk back down the

entirety of the hallway.6

At 4:49:32, the parties enter “ISO 2 East” (Camera 19). It appears that Ugbaja

and Terry are talking to each other, while Coney walks directly behind them. For

approximately 20 seconds the parties walk down the hallway away from the camera.

6 In his Declaration, Terry speculates that Ugbaja and Coney purposely tried to escort him

“down the opposite wing” from his assigned cell. He alleges that he told them “I’m not going off

camera so you can do anything to me.” He then turned and “went the proper way.” Doc. 145 at 8,

| 5. Ugbaja disputes this allegation (Doc. 154 at 2,^6) and the Court will not consider Terry’s

speculation or hearsay statement, especially since it appears there were cameras in all the hallways

at EAMU.

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At 4:49:54, Ugbaja and Terry turn to face a door—which all parties agree is

Terry’s assigned isolation cell—on the right side of the hallway. Coney stands with

her back to the camera partially blocking the camera’s view of Ugbaja and Terry

Terry then begins to pace back and forth. It appears that, while Terry is pacing

back and forth, Ugbaja keeps his left hand gripping Terry’s right arm for the first

few paces. Then Ugbaja switches to standing behind Terry’s left side.

At 4:50:15, Ugbaja grabs Terry from behind by both shoulders, and uses a hip

roll to take Terry to the floor. Ugbaja and Terry fall down together, and Ugbaja then

rolls Terry on his stomach.

By 4:50:23, Ugbaja has Terry face down on the ground and is leaning over

him. Ugbaja either rest his right knee on Terry’s back (as Terry alleges) or Ugbaja

straddles Terry’s body with his knees on either side of Terry (as Ugbaja contends).

If Ugbaja did have his knee in Terry’s back, he did so for no more than five

seconds—not for “around 30 seconds” as Terry estimated in his deposition. Terry

Dep. 28:25-30:2, Doc. 151-4 at 29-31. By 4:50:28, Ugbaja is clearly straddling

Terry as another prison official approaches. Id. at 04:50:28. During Ugbaja’s use of

force, Coney remains standing, mere feet away, and observing.

After the unidentified prison official reaches the scene, at 4:50:38, Ugbaja

rises up off his knees and, while continuing to bend over and straddle Terry, uses

both hands to keep Terry down on the ground. Ugbaja and Terry remain in this

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position for a minute and five seconds. At 4:51:43, a group of prison officials arrive

at the scene. Ugbaja then begins holding Terry down with one hand. At 4:52:15,

Terry is allowed to get to his feet. In all, Ugbaja uses his hands to apply the force

necessary to keep Terry on his stomach on the floor for less than two minutes.

The video directly contradicts Terry’s sworn assertions that Ugbaja grabbed

him by the legs and lifted him in the air before slamming him to the floor, or that

Ugbaja otherwise used any unnecessary force against Terry after he admittedly made

a direct threat to attack Ugbaja. Doc. 145 at 9, f 10\ Doc. 151-4 at 28, 17. Instead,

it supports Ugbaja’s statement that, after Terry threatened to attack him, he grabbed

Terry by the torso, pulled Terry to the ground with him, and straddled him to gain

control. Doc. 151-1 at 1-2,

5-6.

Photographs of Uebaia’s Shirt and Face, and Terry’s Face and Back.

Following the May 11 incident, an internal investigation was launched against

Ugbaja, and Terry was charged with multiple disciplinaries infractions, including

“throwing OR attempting to throw substances, known or unknown, toward or upon

another person.” See Doc. 151-3 (emphasis in original).7 The investigation file

7 ADC Director Dexter Payne, ADC Deputy Director William Straughn, EAMU Warden

Gaylon Lay, and Internal Affairs Investigator Amanda Homer all found that Ugbaja’s use of force

was necessary and complied with ADC policy. Doc. 151-3 at 1-5.

Terry was found guilty of “Throwing OR attempting to throw substances, known or

unknown, toward or upon another person” and “Insolence to a staff member.” Doc. 146 at 2. He

was found not guilty on all other charges: (1) “Failure to obey verbal and/or written order(s) of

staff;” (2) Battery-Use of physical force upon staff;” (3) “Running, avoiding, or otherwise resisting

apprehension;” and (4) “Provoking or agitating a fight.” Id.

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includes pictures of Ugbaja’s shirt collar and jaw, dated May 11, 2020. Doc. 151-3

at 36-37. Presumably, these pictures were taken to show that Terry did, in fact, spit

on Ugbaja prior to the use of force. However, the pictures are inconclusive, and do

not “utterly discredit” either Ugbaja or Terry’s version of events.

Also part of the investigation file are pictures of Terry’s face, jaw, and back

taken at the infirmary on May 11, 2020. Doc. 151-3 at 35, 38-40. These pictures

reveal no bruising, swelling, or redness to Terry’s face (which Terry alleges was

“slammed to the floor”) or to his back (where Ugbaja allegedly placed his knee while

keeping Terry restrained on the floor).

After rejecting Terry’s version of facts that are blatantly contradicted by the

video, the only factual questions that remain are whether: (1) Ugbaja exchanged

“argumentative” banter with Terry; (2) Terry spit and lunged at Ugbaja immediately

prior to the incident; and (3) Ugbaja placed his knee on Terry’s back for five seconds.

However, because none of these disputed facts are material to the resolution of Terry

and Ugbaja’s cross-Motions for Summary Judgment, the Court need not resolve

those disputes.

3. Ugbaja Is Entitled to Qualified Immunity

Both Terry and Ugbaja address the issue of qualified immunity in their

summary judgment papers. Because qualified immunity is an affirmative defense,

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the Court will address Ugbaja’s Motion for Summary Judgment first, viewing the

facts in a light most favorable to Terry.

Thus, for summary judgment purposes only, the Court assumes that: both

Terry and Ugbaja were being argumentative during the walk from the hall cage to

the isolation cell; that Terry did not spit or lunge at Ugbaja; and Ugbaja’s only reason

for taking Terry to the ground was Terry pacing back and forth and yelling at Ugbaja

“fuck you bitch ass n**** you gone have to fight me now I want some pain,” as they

stood outside Terry’s assigned isolation cell. Doc. 145 at 8, f 6. As the video reveals,

Ugbaja grabbed Terry’s shoulders, rolled to the floor with Terry, straddled Terry to

maintain control, and then held him down with his hands for less than two minutes.

Doc. 50. The Court also assumes, for summary judgment purposes only, that during

this process, Ugbaja placed his knee or knees in Terry’s back for five seconds.8

Whether Ugbaja is entitled to qualified immunity is a two-prong inquiry, that

requires the Court to determine if Terry has demonstrated: “(1) a deprivation of a

constitutional right, and (2) that the right was clearly established at the time of the

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

While a district court may address the prongs in any order, it may not deny qualified

8 Terry admits from his position face down on the floor, he could not tell if Ugbaja “placed

one or both knees on [his] spine.” Doc. 159 at 7.

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immunity without answering both questions in the plaintiffs favor.” Watson v. Boyd,

2 F.4th 1106,1112 (8th Cir. 2021) (citation and internal quotations marks omitted).

a. Terry Has Not Demonstrated a Deprivation of His Eighth

Amendment Rights

“Whenever prison officials stand accused of using excessive physical force in

violation of the Eighth Amendment, the ‘core judicial inquiry’ is whether the force

was applied in a good faith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.” Jones v. Shields, 207 F.3d 491, 495 (8th Cir. 2000)

(citing Hudson v. McMillian, 503 U.S. 1, 6-7 (1992)). Factors that inform this

inquiry are: (1) “whether there was an objective need for force,” (2) “the relationship

between any such need and the amount of force used,” (3) “the threat reasonably

perceived by the correctional officers,” (4) “any efforts by the officers to temper the

severity of their forceful response,” and (5) “the extent of the inmate's injury.” Ward

v. Smith, 844 F.3d 717, 721-22 (8th Cir. 2016) (citation omitted).

Based on Terry’s own admissions, as he stood beside Ugbaja waiting to be

placed inside the isolation cell, he threatened that he was going to fight Ugbaja and

“wanted some pain.” The language used by Terry was profane, graphically insulting

to Ugbaja, and stated in a way that conveyed a direct threat to Ugbaja, who was only

supported by a single female guard.

Terry’s deposition testimony reveals that this was no ideal threat. Terry admits

that he was “so enraged” that he actually wanted to fight Ugbaja. Terry Dep. 16:2

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5, Doc. 151-4 at 17. He further testified that, because he was taken to the ground

before he could strike Ugbaja, “[t]here was never actually a fight”. Id. at 16:6-9.

Ugbaja tempered the use of force by rolling to the ground with Terry, rather

than slamming him to the floor. Ugbaja held Terry on the ground only until other

guards arrived to assist him. The video of the incident makes it clear that the amount

of force used by Ugbaja was reasonable and nothing in the video suggest that Ugbaja

applied force willfully or maliciously to injure Terry.

Immediately after the incident, Terry was taken to the infirmary where

photographs were taken, and he was examined by medical personnel. The

examination revealed no injures to Terry, a finding that was supported by the

photographs of the areas of his body he alleges were injured. Although Terry does

not need to demonstrate a “significant injury” to demonstrate his excessive force

claim, the lack of discemable injury is relevant to determining whether Ugbaja

applied force “maliciously and sadistically” to cause harm. Wilkins v. Gaddy, 559

U.S. 34, 37-38 (2010).

Based on these facts, viewed in a light most favorable to Terry, no reasonable

juror could find that Ugbaja used excessive force against Terry during the May 11

incident. To the contrary, the undisputed facts establish that Terry was agitated and

made a direct threat to physically harm Ugbaja. Ugbaja was only able to avoid the

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imminent fight by taking Terry to the floor using only the force necessary to control

him until other officers could arrive to assist him.

Because Terry has not met his burden to demonstrate he was deprived of a

constitutional right, Ugbaja is entitled to qualified immunity under the first prong of

the qualified immunity analysis.9

b. Terry Has Not Demonstrated That Ugbaja Violated Clearly

Established Law

Alternatively, Ugbaja is entitled to qualified immunity on the “clearly

established” prong of the qualified immunity analysis. To determine whether a right

is clearly established, the Court must conduct a “specific and particularized inquiry”

to determine “whether the violative nature of particular conduct is clearly established

... in light of the specific context of the case.” Thurmond v. Andrews, 972 F.3d 1007,

1012 (8th Cir. 2020); Ryan v. Armstrong, 850 F.3d 419, 427 (8th Cir. 2017)

(emphasis in original) (quoting Mullenix v. Luna, 577 U.S. 7,11 (2015)). The burden

is on the Terry to identify “controlling authority” or “a robust consensus of cases of

persuasive authority” that would give a reasonable officer in Ugbaja’s position a

“fair warning” that his conduct was unconstitutional. Kelsay v. Ernst, 933 F.3d 975,

979 (8th Cir. 2019). “There need not be a prior case directly on point, but ‘existing

9 Because the facts, viewed in a light most favorable to Terry, do not demonstrate a

violation of Terry’s Eighth Amendment rights, Terry’s Motion for Summary Judgment, which

must be decided on facts viewed in a light most favorable to Ugbaja, necessarily fails.

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precedent must have placed the statutory or constitutional question beyond debate.’”

Dillard v. O'Kelley, 961 F.3d 1048, 1052 (8th Cir. 2020) (en banc) (citing Ashcroft

v. al-Kidd, 563 U.S. 731, 741^12 (2011)).

Terry identifies four cases he believes are sufficiently analogous to the case

at hand: Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989) (police officer slammed

an arrestee’s face into the sidewalk); Treats v. Morgan, 308 F.3d 868 (8th Cir. 2002)

(officer sprayed prisoner in the face with pepper spray; second officer threw prisoner

to the floor); Santiago v. Blair, 707 F.3d 984 (8th Cir. 2013) (officers tightened

prisoner’s handcuffs to the “crushing point,” dug fingers into his arm, slammed his

face and body into the wall, sprayed him with pepper spray, and threw him to the

floor); Wilkins v. Gaddy, 559 U.S. 34 (2010) (officer slammed prisoner onto concrete

floor and then punched, kicked, and choked him).

In only two of those cases—Jackson and Treats—did the Court directly

address the excessive force claim.10 Thus, it follows that those are the only two cases

Terry has presented that can clearly establish that Ugbaja’s actions violated Terry’s

Eighth Amendment rights. However, both those cases are materially distinguishable

from the case at hand.

10 In Santiago and Wilkins, the case was remanded for further proceedings. Santiago, 707

F.3d at 990 (remanding because the district court erred in applying the Fourth Amendment

excessive force standard); Wilkins v. Gaddy, 559 U.S. at 40 (remanding because the district court

erred in dismissing Eighth Amendment claim based on the allegedly de minimis nature of the

injuries).

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In the Jackson case, a police officer chased after a fleeing arrestee, handcuffed

him, and then slammed his face into the pavement. Jackson, 873 F.2d at 1107. It is

doubtful that a case involving a police officer applying force on a free-world arrestee

could place a reasonable corrections officer on notice that his actions would violate

a prisoner’s constitutional rights.11 Even so, as previously discussed, Terry’s

allegation that he had his face slammed into the ground was directly contradicted by

the video footage. Thus, this case does not “clearly establish” that Ugbaja’s actions

of rolling Terry to the floor and allegedly placing his knee in Terry’s back for five

seconds violated the Eighth Amendment prohibition against cruel and unusual

punishment.

In the Treats case, as the plaintiff was walking away from a prison guard, the

guard “sprayed him in the face with a prolonged burst of capstun pepper spray,”

without warning. Treats, 308 F.3d at 870. Another guard, seeing the commotion, ran

over and slammed the plaintiff to the ground. Id. The Eighth Circuit found that the

unthreatening, unresisting plaintiff had demonstrated an unconstitutional use of

force sufficient to survive summary judgment. Because Terry indisputably made a

11 Because the Jackson decision, dated May 1,1989, slightly predated the Supreme Court’s

decision in Graham v. Connor, 490 U.S. 386 (May 15, 1989), that arrestee excessive force case

used the same standard applied in prisoner excessive force cases. In Graham, the Court held that

an arrestee’s excessive force claim should be analyzed under the Fourth Amendment's “objective

reasonableness” test, not the Eighth Amendment’s “malicious and sadistic” inquiry. Graham, 490

U.S. at 388.

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threat to fight Ugbaja, and was not pepper sprayed or “slammed” to the floor, he

cannot rely on Treats to clearly establish that Ugbaja’s actions violated the Eighth

Amendment.

All the cases presented by Terry for the clearly established prong of the

qualified immunity analysis rely on his disproved assertion that he was “slammed”

to the ground. He does not attempt to provide any cases addressing his allegation

that Ugbaja placed a knee in his back while restraining him.

After searching for relevant precedent, the Court has not identified any Eighth

Amendment excessive force cases that found a knee placed in a prisoner’s back

violated his constitutional rights.12 Thus, assuming Ugbaja placed a knee in Terry’s

back for no more than five seconds, those actions did not violate a clearly established

right.

The facts, viewed in a light most favorable to Terry, do not demonstrate that

Terry suffered a deprivation of a clearly established constitutional right.

12 The United States Supreme Court and Eighth Circuit have addressed similar conduct in

the Fourth Amendment context. Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021) (holding that

“placing his knee on suspect's back for no more than eight seconds, and only on the side of his

back near the knife that officers were in the process of retrieving, did not violate a clearly

established right against excessive force”); Perry v. Woodruff Cnty., 858 F.3d 1141, 1146 (8th Cir.

2017) (officer violated clearly established right of unresisting and unthreatening arrestee by

restraining his arm and forcing knee into his back); White v. Jackson, 865 F.3d 1064, 1080 (8th

Cir. 2017) (finding it was not unreasonable for a police office to restrain an arrestee, who was

reasonably perceived to be part of a violent crowd, by placing a knee on his back while handcuffing

him).

Case 2:20-cv-00145-BSM Document 163 Filed 01/30/23 Page 19 of 25

Accordingly, Ugbaja is entitled to qualified immunity, in his individual capacity,

and his Motion for Summary Judgment should be granted.

To the extent Terry seeks to sue Ugbaja, in his official capacity,13 “that claim

necessarily fails for lack of an underlying violation.” Newport v. Payton, No. 213795, 2023 WL 116480, at *2 (8th Cir. Jan. 6, 2023) (citing Watson, 2 F.4* at 1114;

Meier v. St. Louis, 934 F.3d 824, 829 (8th Cir. 2019)).

Coney’s Motion for Summary Judgment

On May 12, 2022, Coney filed a Motion for Summary Judgment {Doc. 129),

Statement of Material Facts {Doc. 129-4), and Brief in Support {Doc. 129-5) arguing

that Terry failed to exhaust his failure-to-protect claim against her. Terry filed

Responses to the Motion for Summary Judgment and the Statement of Material

Facts. Doc. 132; Doc. 133. Thus, the issues are joined and ready for disposition.

The PLRA Requires Prisoners to Exhaust Administrative

Remedies

The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust all

available administrative remedies before filing a § 1983 action: “No action shall be

brought with respect to prison conditions under section 1983 of this title, or any other

Federal law, by a prisoner confined in any jail, prison, or other correctional facility

until such administrative remedies as are available are exhausted.” 42 U.S.C. §

13 See Terry’s Complaint, Doc. 2 at 2 (indicating that all Defendants are being sued in their

“official and personal capacity”).

Case 2:20-cv-00145-BSM Document 163 Filed 01/30/23 Page 20 of 25

1997e(a). The PLRA’s exhaustion requirement is mandatory. Woodford v. Ngo, 548

U.S. 81, 85 (2006); Muhammad v. Mayfield, 933 F.3d 993, 1000 (8th Cir. 2019).