Aaron v. Reed

• Decision Date: 23 January 2017
• Docket Number: Civil No. 6:15-CV-06073-PKH-MEF
• Parties: BARRY AARON PLAINTIFF v. MARSHALL DALE REED, DARYL GOLDEN, FLOYD MCHAN, LT. MCGEE, SGT. COOK, OFFICER ELKINS, and OFFICER NITZKE DEFENDANTS
• Court: U.S. District Court — Western District of Arkansas

BARRY AARON PLAINTIFF v. MARSHALL DALE REED, DARYL GOLDEN, FLOYD MCHAN, LT. MCGEE,SGT. COOK, OFFICER ELKINS, and OFFICER NITZKE DEFENDANTS

Civil No. 6:15-CV-06073-PKH-MEF

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION

January 23, 2017

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

This is a civil rights action filed by Plaintiff, Barry Aaron, pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated in the Arkansas Department of Corrections ("ADC"), Ouachita River Unit. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable P. K. Holmes, III, Chief United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation.

Currently before me is a Motion for Summary Judgment by Defendants Reed, Golden, McHan, McGee, Cook, and Elkins.¹ (Doc. 30) After careful consideration, the undersigned makes the following Report and Recommendation.

I. BACKGROUND

Plaintiff filed his Complaint on July 17, 2015. (Doc. 1) Plaintiff alleges he was assaulted by inmate Bowden just after midnight on November 24, 2014. He required reconstructive surgery on his right eye-socket at the University of Arkansas for Medical Sciences (UAMS). (Doc. No. 1,pp. 4-6) Plaintiff has a heart condition, and he has a pacemaker. (Doc. 30-10, p. 23) Based on his Complaint, grievances, and deposition testimony, Defendant Elkins was present in Charlie Barracks the night of the assault. Plaintiff's cellmates Snow and Bowden were talking, and Plaintiff asked them to be quiet. (Doc. 1, p. 4) Bowden became verbally aggressive, cursing and threatening to beat Plaintiff up. Defendant Elkins watched this and did not call for backup or intervene, despite knowing that Bowden had assaulted another older inmate with a heart condition (Kristantis), who had died as a result. (Doc. 1, p. 5) Plaintiff alleges he asked Officer Elkins to remove inmate Bowden before he attacked him. He alleges Bowden then walked up and down the aisle and Elkins just watched him. Bowden then attacked him, and Officer Elkins then called Sergeant Cook for backup. (Doc. 1, p. 5) He alleges Elkins did not call "all available officers," but that this was done by Cook. (Doc. 1, p. 5)

Plaintiff alleges security is inadequate in the open barracks, with single officers tasked to supervise two separate barracks. He alleges each of the barracks currently holds 46 inmates, so one officer is overseeing 92 inmates in the open barracks. He alleges walk-throughs are not performed according to policy, and the safety and well-being of aging and medically-challenged inmates is at risk due to lax security measures. (Doc. 1, pp. 6-9)

Defendant Elkins

Plaintiff alleges Officer Elkins failed to protect him because she knew inmate Bowden's history and did nothing to defuse the situation or stop it once it escalated to assault.² (Docs. 1, pp.4-5; 30-10, p. 26) Plaintiff also alleges Elkins filed the disciplinary against him for the November 24, 2014, incident in retaliation for him filing a grievance against her over her handling of the assault by Bowden. (Doc. 1, p. 7)

Defendant Cook

In his Complaint, Plaintiff alleges Sergeant Cook wrote a disciplinary against him for out-of-place assignment, but that Cook told him the disciplinary would "go away" if he dropped a grievance against Officer Nitzke for an issue involving an inventory of Plaintiff's belongings - and missing personal property - which occurred while Plaintiff was at UAMS. Plaintiff alleges he had no choice but to tear up the grievance against Nitzke. Plaintiff alleges this interfered with his right to access to courts. (Doc. 1, pp. 7-8) Plaintiff also alleges Sergeant Cook failed to protect him from the assault. This claim was based on the ADC policy of assigning one officer to supervise two barracks. (Docs. 1, p. 7)

Defendants Reed, Golden, McHan, and McGee

Plaintiff alleges these Defendants failed to protect him because they knew that only one officer was assigned to supervise two barracks, and this placed him in a life and death situation. (Doc. 1, p. 7)

Plaintiff proceeds against all Defendants in both their personal and official capacities. (Doc. 1, p. 4) Plaintiff seeks compensatory and punitive damages; an injunction ordering the ADC to immediately assign a correctional officer to supervise each section; and, expungement of his disciplinary charge. (Doc. 1, pp. 9-11)

Summary Judgment Proceedings

Defendants filed their Summary Judgment Motion on July 29, 2016. (Doc. 30) Plaintiff filed a written response to the Summary Judgment Motion, a Statement of Facts, and an Answer to Defendants Statement of Facts on August 18, 2016. (Docs. 35, 36, 37) Plaintiff filed proposed exhibits on August 24, 2016. (Doc. 38) Defendants filed a Reply to Plaintiff's Response on August 25, 2016. (Doc. 39) Medical records from UAMS were received on November 2, 2016.

A Summary Judgment hearing was held on November 15, 2016, to permit Plaintiff to respond orally to the Motion. Plaintiff appeared via video conference. (Doc. 50)

At the hearing, Plaintiff agreed with the Court's summary of his claims, and he testified as follows.

Regarding the sovereign immunity issue, Plaintiff testified the Defendants individually implemented the ADC policy of only having one officer in the barracks, and this policy was unconstitutional. Plaintiff cited several cases to support his point. The Court reminded Plaintiff that there was no dispute that the official capacity claims against the Defendants were against the State of Arkansas.

Regarding the respondeat superior issue as to Defendants Reed, Golden, McHan, and McGee, Plaintiff testified that the Defendants were state actors, not supervisors, and they were supposed to provide adequate security. Plaintiff testified there had not been adequate security for years, and that inmates have to look out for other inmates. He stated the Defendants put people wherever they wanted, that it is disruptive, and that is why he is suing these people. Plaintiff testified he believed the ADC was already in violation of a federal court order. He confirmed that his claim was that there are not enough officers for too large an area.

Plaintiff then testified as to his failure to protect claims. Plaintiff testified both the day and night officers had knowledge of a threat of harm to him from Bowden. He referenced his Exhibit C in Document 35, being an affidavit from inmate Doug King. This affidavit is dated December 18, 2015. Inmate King stated he was on his bed in Charlie barracks when he heard inmates Snow and Bowden talking about Aaron in the bathroom. Snow stated someone needed to "beat the shit" out of Aaron, and Bowden said he was going to take care of it. King told Aaron what was said, and they both told Officer Nitzke. Nitzke told them he would watch for it and put a stop to it before it happened. (Doc. 35, p. 20)

Plaintiff testified that Officer Elkins did not insert herself between two fighting inmates the night of the assault. He referenced his Exhibit E from inmate Larry Davis. This affidavit is dated May 23, 2016. Inmate Davis states that he witnessed Elkins standing at the wall at C-24 in Charlie barracks on the night of the assault. He saw Bowden knock Aaron to the floor between C-31 and C-32. Bowden then walked up to Elkins. Inmate Aaron said something, and then Bowden came back and beat him in the face. Elkins then walked off. (Doc. 38-5)

Plaintiff testified that the assault began when there was no officer present. He noted a long history of security concerns in open barracks. He testified that if you are in the hallway or the hub, you cannot see in the barracks. He testified that if you are in the doorway, the cubicles block the view. Plaintiff referred to an interrogatory answer by Elkins. (Doc. 35, pp. 21-22)

Regarding his retaliatory discipline claim against Elkins, Plaintiff testified he was put in the same barracks when he came back from UAMS. Another officer told him Elkins did not write a disciplinary against him. But when he filed the grievance against her for the assault, then he got served with the disciplinary for that night. The officer who told him this no longer works with the ADC. Plaintiff agreed that the timing of the disciplinary is key to his claim.

Plaintiff testified Sergeant Cook allowed Officer Nitzke to get away with not doing an inventory of Plaintiff's belongings when he was taken to UAMS, and that he was missing some personal property upon his return. He testified he did not file a grievance against Cook for this because he was afraid "By-the-Book Cook" would enter a disciplinary into the computer against him. Plaintiff testified his first grievance against Nitzke was filed before Cook made his threat.

Plaintiff testified he provided no additional service address for Nitzke because the ADC refused to give him any information.

Regarding qualified immunity, Plaintiff referenced his Document 35, paragraph 17, and the affidavit from inmate Doug King. This paragraph states there was a clearly established constitutional right to have adequate security in the barracks, and Defendants were aware of that right. Further, Plaintiff asserts that Defendants were made aware of the potential for harm and chose to disregard it. (Doc. 35, p. 4)

Defense counsel was then permitted to question Plaintiff. Plaintiff confirmed he told Officer Nitzke about the threat to him from inmate Bowden. Plaintiff testified he did not speak to Officer Elkins about it, because she entered when he was sound asleep. He testified it was the barracks officer's duty to inform her. Plaintiff testified "he had no idea" if the barracks officer informed Elkins of the threat from Bowden. Plaintiff testified he had no evidence to show that Elkins knew of the threat from Bowden.

Plaintiff testified he did not personally speak with Sergeant Cook about the threat from Bowden. Plaintiff did state Officer Nitzke told him that he would tell Cook. Plaintiff te...