Brown v. Moore

• Decision Date: 18 March 2015
• Docket Number: Case No. 3:13–CV–03056.
• Citation: 93 F.Supp.3d 1032
• Parties: Daniel Ray BROWN, Plaintiff v. Sheriff Mike MOORE; Jail Administrator Jason Day ; Nurse Mandy Jones; Former Sheriff Danny Hickman; Detective Ryan Watson; and Captain Bob King, Defendants.
• Court: U.S. District Court — Western District of Arkansas

93 F.Supp.3d 1032

Daniel Ray BROWN, Plaintiff

v.Sheriff Mike MOORE; Jail Administrator Jason Day ; Nurse Mandy Jones; Former Sheriff Danny Hickman; Detective Ryan Watson; and Captain Bob King, Defendants.

Case No. 3:13–CV–03056.

United States District Court, W.D. Arkansas, Harrison Division.

Signed March 18, 2015.

Daniel Ray Brown, Harrison, AR, pro se.

Colin P. Wall, Little Rock, AR, for Defendants.

ORDER

TIMOTHY L. BROOKS, District Judge.

Comes on for consideration the Report and Recommendation (“R & R”) (Doc. 64) filed in this case on February 3, 2015, by the Honorable Mark E. Ford, United States Magistrate for the Western District of Arkansas, regarding Defendants' Motion for Summary Judgment (Doc. 55). More than fourteen (14) days have passed without objections being filed by the parties; accordingly, the Court finds that the R & R should be, and hereby is, APPROVED and ADOPTED. However, the Court finds it necessary to clarify which of Brown's many claims have been dismissed and which remain in this lawsuit as discussed below.

Brown maintains that while incarcerated at Boone County Detention Center (“BCDC”), his constitutional rights were violated because: (1) he was subjected to unconstitutional conditions of confinement by being housed with inmates who had genital herpes

and staph infections; (2) he was not provided an adequate diet; (3) he was forced to watch CNN news coverage continually without access to local news unless he was able to obtain a copy of the local newspaper; (4) the detention center officers were not properly trained in the use of tasers and pepper spray and used these to intimidate him; (5) he was not provided a safe environment and was fearful of one inmate who made threats and racial slurs in general; (6) he was discriminated against when Defendants failed to investigate his kidnapping allegations; (7) personal mail was restricted to post cards only; and (8) he was denied access to a law library.¹ The Court adopts the detailed facts as set forth in the R & R, and those will not be recounted in this Order.

The Magistrate recommends that all claims identical to ones Brown has asserted in his other cases before this Court should be either dismissed as duplicative or barred by res judicata. These include Brown's claim that BCDC officers were not properly trained in the use of tasers and pepper spray; the claim that he was discriminated against when Defendants failed to investigate his kidnapping allegations; all claims against Watson and King; and the denial of access to a law library. The Magistrate further recommends that Defendants' Motion be granted as to: (1) Brown's allegations of inadequate diet; (2) exposure to high levels of noise; (3) being housed in an unsafe environment; and (4) all official capacity claims against Defendants. However, the Magistrate opined that Defendants are not entitled to summary judgment regarding Brown's allegations as to whether: (1) being housed with an inmate with a staph infection constitutes deliberate indifference to his constitutional rights; (2) he had access to a newspaper; and (3) remaining Defendants are entitled to qualified immunity on the surviving claims.

The Court, being well and sufficiently advised, finds that the R & R (Doc. 64) should be and hereby is ADOPTED.

IT IS THEREFORE ORDERED that Defendants' Motion for Summary Judgment (Doc. 55) is GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED with respect to the following claims:

(1) failure to provide an adequate diet;

(2) failure to train officers in the use of tasers and pepper spray, as this is barred by res judicata as duplicative of Brown's allegation in Case No. 5:13–CV–03065;

(3) denial of access to the law library, as this is barred by res judicata as duplicative of Brown's allegation in Case No. 3:12–CV–03150;

(4) failure to investigate Brown's kidnapping allegations, as this is barred by res judicata as duplicative of his allegation in Case No. 3:12–CV–03150;

(5) housing Brown in an unsafe environment;

(6) exposing Brown to high levels of noise;

(7) restricting personal mail to post cards only, as this is barred by res judicata as duplicative of Brown's allegations in Case No. 3:12–CV–03150; and

(8) official-capacity claims against all Defendants. All of the above claims are DISMISSED WITH PREJUDICE. Further, all claims against Separate Defendants Bob King and Ryan Watson are DISMISSED WITH PREJUDICE.

The Motion is DENIED with respect to the following claims:

(1) alleged constitutional violations due to being housed with an inmate with a staph infection;

(2) lack of access to a newspaper; and

(3) Defendants' entitlement to qualified immunity on these two remaining claims.

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

MARK E. FORD, United States Magistrate Judge.

This is a civil rights action filed by the Plaintiff under the provisions of 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis.

The events that give rise to this case occurred while the Plaintiff was incarcerated in the Boone County Detention Center (BCDC). Plaintiff maintains his constitutional rights were violated when: (1) he was subjected to unconstitutional conditions of confinement by being housed with inmates who had genital herpes

and staph infection; (2) he was not provided with an adequate diet; (3) he was forced to watch CNN news coverage continually and had no access to local news unless he was lucky enough to get a copy of the local newspaper; (4) the detention officers were not properly trained in regard to the use of tasers and pepper spray and used these chemical agents for intimidation purposes; (5) he was not provided with a safe environment and was fearful of one inmate who was yelling, making threats, and using racial slurs; (6) he was discriminated against when Defendants failed to investigate his kidnaping; (7) personal mail was restricted to post cards only; (8) he was not given an opportunity for outside exercise; and (9) he was denied access to a law library.

The case is currently before me on the Defendants' motion for summary judgment (Doc. 55). Plaintiff requested that the Court assist him in responding by the preparation of a questionnaire. A questionnaire was prepared and sent to the Plaintiff (Doc. 61). Plaintiff has filed his response (Doc. 62) and the motion is now ready for decision.

1. Background

Plaintiff was incarcerated at the BCDC from August 31, 2012, until August 16, 2013, when he was transferred to the Arkansas Department of Correction (ADC). Plaintiff's Response (Doc. 62)(hereinafter Resp.) at ¶ 1. He was again incarcerated there from August 27, 2013, until September 11,2013. Id.

Plaintiff concedes that his claim that the detention officers were not properly trained in regard to the use of tasers and pepper spray and used these chemical agents for intimidation purposes is the same claim he asserts in Brown v. Boone County, et al., Civil No. 13–3065.¹ Resp. at ¶ 3(B). Similarly, he concedes that his claim that he was discriminated against when Defendants failed to investigate his kidnaping and his claim about restricting mail to post-cards are the same claims he asserts in Brown v. Hickman, Civil No. 12–3150.² Id. at ¶ 3(C). He also concedes that his claims against Detective Ryan Watson and Captain Bob King are the same as the ones he asserted in Brown v. Hickman, Civil No. 12–3150. Id. at ¶¶ 17–18. He states that he is asserting the lack of outside exercise claim in Brown v. Hickman, Civil No. 14–3005.³ Finally, in response to a question by the Court, Plaintiff notes that his denial to access to a law library claim was asserted in Brown v. Hickman, Civil No. 12–3150. Resp. at ¶ 19(L).

Two inmates, Dustin Newby and Ricky Mathis, had genital herpes

. Resp. at ¶ 7(A). Plaintiff maintains he was in direct skin to skin contact with the two infected inmates. Resp. at ¶ 4(B).

Ricky Mathis also had staph infection, Plaintiff indicates Mathis' clothes and bedding were washed with those of other inmates.

Resp. at ¶ 5. Plaintiff also states that Mathis used the same shower, the same phone, and the same living areas. Id. Plaintiff asserts that nothing was cleaned or sanitized. Id. Plaintiff maintains that Nurse Jones did not “follow protocol in separating” Newby and Mathis even though they were infectious. Id. at ¶ 13.

Plaintiff was incarcerated with Dustin Newby from November 29, 2012, until December 24, 2012. Defendants' Exhibit (hereinafter Defts' Ex.) A. Plaintiff was incarcerated with Ricky Mathis from December 3, 2012, to January 12, 2013. Id. Plaintiff did not make a request for medical treatment for an inflammation, infection, or contraction of staph or genital herpes

while he was incarcerated at the BCDC. Resp. at ¶ 6.

According to Defendants, the BCDC follows a dietician approved menu that provides for inactive detainees to receive at least 2400 calories per day, spread over three meals. Defts' Ex. A & A–1. The BCDC has a garden that provides fresh fruits and vegetables for detainees. Resp. at ¶ 8(B). However, other than the few months a year when the garden yields fresh produce, Plaintiff maintains that detainees are not provided with fresh fruit or vegetables. Id.

Arkansas Department of Correction 309 inmates plant and harvest the crops.⁴ Resp. at ¶ 8(C). The 309 inmates also assist in canning the fruits and vegetables for preservation and use during non-harvest months. Defts' Ex. A; Resp. at ¶ 8(G)(without knowledge to agree or disagree). The fresh fruits and vegetables are used to supplement detainee diets and served as part of the dietician approved menu.Defts' Ex. A.

According to Defendants, during 2013 the garden provided 3140 pounds of squash; 273 pounds of lettuce; 201 heads of cabbage; 1525 pounds of greens; 5102 pounds of cucumbers; 2733 pounds of okra; 91 pounds of beets; 4185 ears of corn; 221 pounds of banana peppers; 291 pounds of bell peppers; 151 pounds of jalapeno peppers; 588 pounds of green beans; 2126 pounds of tomatoes; 1060 pounds of cantaloupe; and 418...