Guirlando v. Roberts

• Decision Date: 24 August 2021
• Docket Number: Civil 1:20-cv-01007
• Parties: MARCO GUIRLANDO PLAINTIFF v. SHERIFF RICKY ROBERTS; CAPTAIN RICHARD MITCHAM; LT. KEVIN PENDLETON; LT. PAUL KUGLER; LT. BILLY PERRY; SGT JOHN WARD; SGT. JEDIDIAH COTTON; DR. DEANNA HOPSON; and NURSE SHERIE RICE DEFENDANTS
• Court: U.S. District Court — Western District of Arkansas

MARCO GUIRLANDO PLAINTIFF v. SHERIFF RICKY ROBERTS; CAPTAIN RICHARD MITCHAM; LT. KEVIN PENDLETON; LT. PAUL KUGLER; LT. BILLY PERRY; SGT JOHN WARD; SGT. JEDIDIAH COTTON; DR. DEANNA HOPSON; and NURSE SHERIE RICE DEFENDANTS

Civil No. 1:20-cv-01007

United States District Court, W.D. Arkansas, El Dorado Division

August 24, 2021

REPORT AND RECOMMENDATION

HON BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE.

Before the Court is a Motion for Summary Judgment filed by Defendants Roberts, Mitcham, Pendleton, Kugler, Cotton and Rice. (ECF No. 73).^[1] Pursuant to the provisions of 28 U.S.C § 636(b)(1) and (3)(2011), the Honorable Susan O Hickey, Chief United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation.

I. BACKGROUND

A. Procedural Background

Plaintiff is currently incarcerated in the Federal Detention Center in Miami, Florida. His claims in this lawsuit arise from his incarceration in the Union County Detention Center (“UCDC”) in 2019 and 2020. Plaintiff filed his initial Complaint on March 12, 2020. (ECF No. 1). The following day, the Court ordered Plaintiff to file an Amended Complaint to state his claims against each Defendant with factual specificity on the Court's approved § 1983 form. (ECF No. 5). On April 29, 2020, Plaintiff filed an Amended Complaint. (ECF No. 20). On May 13, 2020, Plaintiff's application to proceed in forma pauperis was granted. (ECF No. 25). On May 27, 2020, Plaintiff filed a Second Amended Complaint. (ECF No. 27).

On July 21, 2020, attorney Richard E. Worsham entered his appearance on behalf of Plaintiff. (ECF No. 40). On November 20, 2020, counsel for Plaintiff filed an Amended Complaint naming the following individuals as Defendants: Sheriff Ricky Roberts, Captain Richard Mitcham, Lieutenant Kevin Pendleton, Lieutenant Paul Kugler, Lieutenant Billy Perry, Sergeant John Ward, Sergeant Jedidiah Cotton, Dr. Deanna Hopson, and Nurse Sherie Rice.^[2] (ECF No. 60).^[3] Plaintiff is suing Defendants in their individual and official capacities and is seeking compensatory and punitive damages. Id. at p. 12.

Specifically, Plaintiff states he was subjected to numerous incidents of abuse and unjustified punishments at the hands of Defendants and “a list of incidents includes, but is not limited to:”

a. Defendant Richard Mitcham leaked grievances made by Plaintiff to staff members of the correctional facility and to inmates, which lead to assaults by inmates upon Plaintiff and abuse by correctional officers;

b. Defendants, Lt. Billy Perry, Sgt. Ward and Sgt. Jedidiah Cotton subjected Plaintiff to mental abuse and physical abuse;

c. Defendant Lt. Kevin Pendleton subjected Plaintiff to mental abuse;

d. Defendant Lt. Kevin Pendleton withheld mail directed to Plaintiff;

e. Defendant Sgt. Jedidiah Cotton sexually assaulted Plaintiff and turned off his body camera to prevent any recording of the poor medical treatment Plaintiff was receiving from the medical staff;

f. Defendants Sheriff Ricky Roberts, Captain Richard Mitcham, Lt. Kevin Pendleton, Lt. Paul Kugler, Lt. Billy Perry, Sgt. Ward and Sgt. Jedidiah Cotton placed Plaintiff in the detention area colloquially referred to by staff and officers as ‘the hole' as punishment for instigating a fight, even though he was attacked by another inmate for being an alleged informant;

g. Defendants Sheriff Ricky Roberts, Captain Mitcham, Kt. Kevin Pendleton, Lt. Paul Kugler, Lt. Billy Perry, Sgt. Ward and Sgt. Jedidiah Cotton ignored Plaintiff's request for medical treatment about an injury to his hand for a week;

h. Defendants Sheriff Ricky Roberts, Captain Richard Mitcham, Lt. Kevin Pendleton, Lt. Paul Kugler, Lt. Billy Perry, Sgt. Ward and Sgt. Jedidiah Cotton placed Plaintiff in solitary confinement for 20 days without justification;

i. Defendants Sheriff Ricky Roberts, Captain Richard Mitcham, Lt. Kevin Pendleton, Lt. Paul Kugler, Officer Lt. Billy Perry, Sgt. Ward and Sgt. Jedidiah Cotton placed Plaintiff in the ‘intake pod' which is used to quarantine new inmates to determine if they have the COVID-19 virus;

j. Defendant Nurse Sherie Rice initially improperly wrapped Plaintiff's injured hand and did not check on the status of the injury while Plaintiff was in solitary confinement;

k. Defendant Sgt. John Ward assaulted Plaintiff while taking him to solitary confinement and made threats to Plaintiff;

l. Defendant Lt. Kevin Pendleton encouraged other inmates to retaliate against Plaintiff for his grievances;

m. Defendant Lt. Kevin Pendleton watched other inmates steal Plaintiff's possessions and took no action against the inmates or to prevent the actions of the other inmates;

n. Defendant Lt. Kevin Pendleton informed other inmates that Plaintiff was filing grievances against them;

o. Defendants Cpt. Richard Mitcham, Lt. Kevin Pendleton, Lt. Paul Kugler, and Lt. Billy Perry labeled Plaintiff as an informant;

p. Defendants Cpt. Richard Mitcham, Lt. Kevin Pendleton, Lt. Paul Kugler, and Sgt. Jedidiah Cotton retaliated against Plaintiff for filing grievances;

q. Defendants Cpt. Richard Mitcham, Lt. Kevin Pendleton, Lt. Paul Kugler, and Lt. Billy Perry refused to act upon any grievances filed by Plaintiff;

r. Defendants Cpt. Richard Mitcham, Lt. Kevin Pendleton, and Lt. Paul Kugler refused to take action against any inmate for stealing Plaintiff's property or any action to stop said stealing;

s. Defendants Sheriff Ricky Roberts, Cpt. Richard Mitcham, Lt. Kevin Pendleton, and Lt. Paul Kugler were aware of the abuse and mistreatment of Plaintiff by the officers and inmates at the Union County Jail a/k/a Union County Detention Center and took no action to stop said abuse and mistreatment. In fact, Defendants, Sheriff Ricky Roberts, Cpt. Richard Mitcham, Lt. Kevin Pendleton, and Lt. Paul Kugler encouraged said abuse and mistreatment;

t. Defendant Dr. Deanna Hopson refused to provide necessary medical treatment to Plaintiff;

u. Defendant Dr. Deanna Hopson refused to place Plaintiff's hand in a cast, allow Plaintiff to see as specialist, or provide any follow-up therapy;

v. Defendant Dr. Deanna Hopson refused to follow the proper sanitary protocol as it pertains to changing the wrap on Plaintiff's hand;

w. Defendant Nurse Sherie Rice refused to provide necessary medical treatment to Plaintiff;

x. Defendant Nurse Sherie Rice refused to place Plaintiff's hand in a cast, allow Plaintiff to see a specialist, or provide any follow-up therapy;

y. Defendant Nurse Sherie Rice refused to follow the proper sanitary protocol as it pertains to changing the wrap on Plaintiff's hand;

z. Defendants Sheriff Ricky Roberts, Cpt. Richard Mitcham, Lt. Kevin Pendleton, and Lt. Paul Kugler, refused to follow proper procedure in the imposition of punishment of Plaintiff;

aa. Defendants Sheriff Ricky Roberts, Cpt. Richard Mitcham, Lt. Kevin Pendleton, and Lt. Paul Kugler refused to follow the directives of the Arkansas Department of health regarding the reduction of the spread of COVID-19 in correctional facilities issued on April 15, 2020.

(ECF No. 60, pp. 3-6).

In Count I, Plaintiff claims Defendants were aware of Plaintiff's serious medical condition “but deliberately disregarded it”. (ECF No. 60, p. 7-9). In Count II, Plaintiff alleges Defendants “subjected Plaintiff to physical, mental, and sexual abuse in violation of Plaintiff's constitutional rights.” Id. at p. 9. In Count III, Plaintiff alleges Defendants “refused to follow the directive of the Arkansas Department of Health”, issued on April 15, 2020, to reduce the spread of COVID-19 in correctional facilities”. Id. at p. 10.

Plaintiff also asserts a breach of contract claim under state law in Count IV against Defendant Rice. (ECF No. 60, pp. 11-12). He claims she has a contract of employment with Union County to provide medical care and treatment for inmates in the UCDC and Plaintiff was a third-party beneficiary to that contract. Plaintiff alleges Defendant Rice breached her duty to provide medical care and treatment to him. Id. at p. 12.

On March 18, 2021, Defendants Cotton, Kugler, Mitcham, Pendleton, Rice and Roberts filed their Motion for Summary Judgment. (ECF No. 73). They argue the motion should be granted because: 1) Defendants are entitled to qualified immunity; 2) Defendants were not deliberately indifferent to Plaintiff's medical needs; 3) there is no evidence Plaintiff suffered any physical, mental, or sexual abuse as a result of the actions, or inactions, of Defendants; 4) none of the Defendants were deliberately indifferent to any “excessive or substantial” risk of Covid-19 with respect to Plaintiff; 5) Defendant Rice did not breach any contract to provide medical care to Plaintiff; and 6) there is no proof of any unconstitutional county policy or custom of Union County which was the “moving force” behind any alleged violation of Plaintiff's rights. (ECF No. 75). In support of the motion, Defendants submitted a Statement of Facts (ECF No. 74), a Brief (ECF No. 75), Plaintiff's Deposition Transcript (ECF No. 74-1), and affidavits from Defendants Cotton (ECF No. 74-2), Roberts (ECF No. 74-3), Rice (ECF No. 74-4), Mitcham (ECF No. 74-5), and Kugler (ECF No. 74-6).

On April 29, 2021, Plaintiff filed a Response to the motion for summary judgment. (ECF No. 83). He also filed disputed Statements of Fact (ECF No. 85), and a Brief in Support of his Response. (ECF No. 87). Plaintiff argues Defendants are not entitled to summary judgment because he filed numerous grievances against Defendants which should be viewed in the light most favorable to Plaintiff regarding his claims and Plaintiff testified in his deposition concerning the various incidents supporting his claims. Id. at pp. 4-7. Plaintiff argues there are material issues of fact in dispute...