Sherman v. Hot Spring Cnty.
| Decision Date | 27 February 2015 |
| Docket Number | Civil No. 6:13-cv-06049 |
| Parties | PATRICK L. SHERMAN PLAINTIFF v. HOT SPRING COUNTY, ARKANSAS; OFFICER DONALD MORELAND; DETECTIVE DAN USSERY; CHIEF OF POLICE DONNIE D. TABER; SERGEANT BRIAN ORRELL; and SHERIFF HOLLINGSWORTH DEFENDANTS |
| Court | U.S. District Court — Western District of Arkansas |
This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis.
Plaintiff maintains he was unlawfully arrested on September 17, 2012, and subjected to unconstitutional conditions of confinement while being held in the Hot Spring County Detention Center. Currently pending before me for issuance of this report and recommendation are the following motions: (1) a motion for summary judgment filed by the Plaintiff (Doc. 33); (2) a motion for summary judgment filed by Sheriff Hollingsworth and Sergeant Brian Orrell (Doc. 45); and (3) a motion for summary judgment filed by Officer Donald Moreland, Detective Dan Ussery, Chief of Police Donnie Taber, and the City of Malvern (Doc. 48).
According to the affidavit of arrest completed by Detective Dan Ussery, the events of September 17, 2012, unfolded as follows: On September 17, 2012, at approximately 10:20 p.m, Officer Donald Moreland, of the Malvern Police Department, observed a white four door 1996 Ford Taurus go through a stop sign at the intersection of Section Line and Gloster Street. Plaintiff's Exhibit (hereinafter Plff's Ex.) S. When Moreland activated his lights and siren to stop the vehicle,the driver increased his speed and attempted to flee. Id.
At the intersection of First Street and Cabe Street, the vehicle came to a stop and a male exited the passenger side. The male subject was wearing blue jeans, a ball cap, and a gray shirt. Plff's Ex. S. The man raised his hands. Id. The driver of the vehicle then sped off. Id.
The driver lost control and spun out near the waste water plant on North Walco Road. Plff's Ex. S. A black male, later identified as the Plaintiff, got out of the vehicle and ran into the woods. Id.
Moreland ordered the Plaintiff to stop or Moreland would let his dog Csipa loose on the Plaintiff. Plff's Ex. S. Moreland released Csipa. Id. When Csipa neared the Plaintiff, he stopped running and placed his hands in the air. Id. Csipa was put back on the leash and Sergeant Kyle and Officer Taylor arrived and placed Plaintiff into custody. Id. Plaintiff had an outstanding absconder warrant from parole and probation. Id.
A small baggie of marijuana and several torn baggies were located on the Plaintiff. Plff's Ex. S. Moreland conducted a secondary search of the area where he and Csipa had chased Plaintiff through the woods. Id. A Newport Cigarette pack contained a small baggie of methamphetamine. Id. The package was dry even though it had rained heavily that night and was misting at the time it was located. Id. Plaintiff was charged with possession of a controlled substance and fleeing.
Deputy James Tallant located a white male subject at the apartment of First Street. Plff's Ex. X. Moreland responded and identified him as the white male who had exited the vehicle. Id. He was identified as Matthew Wofford and arrested on outstanding warrants. Id.
Plaintiff's version of the events of September 17th is as follows: According to the Plaintiff, Moreland was no where near the area at 10:20 p.m. Plff's Motion at pg. 1. Plaintiff maintains thisfact can be established by a review of the dash cam video from the evening in question.1 Id. Plaintiff asserts that Ussery knowingly falsified the affidavit of probable cause. Id. at pg. 2. Plaintiff maintains Chief of Police Donnie Tabor knew, or should have know, of the falsified affidavit because the vehicular fleeing charge was dropped to fleeing on foot. Id. Plaintiff maintains the charge was reduced to cover up the falsified affidavit. Id. Plaintiff alleges that Tabor did nothing to discourage, decrease, correct, or reprimand corrupt practices under his supervision. Id.
Plaintiff alleges that he stopped at the intersection of Gloster and Section Line and there were no police officers in the area. He indicates he was headed left on First Street when Moreland came off of Babcock Street. Moreland put on his sirens and lights and Plaintiff, who had an absconding warrant, did not stop. Plaintiff's Response (Doc. 55)(hereinafter Resp.) at ¶ ¶ 6-8. Plaintiff states he let out his brother-in-law out at the intersection of First and Cabe Streets because his brother-in-law did not want to go to jail and knew there was a warrant out for his arrest. Plaintiff continued until he lost control of his vehicle. Resp. at ¶ 9. He fled on foot until the police dog got behind him. Id. The dog did not bite or injure Plaintiff. Id. at ¶ 11. Plaintiff was handcuffed and searched. Id. at ¶ 12. Plaintiff admits that a small bag of marijuana was found on him. Id. at ¶ 13.
On September 21st, a bench warrant was issued for Plaintiff for the crimes of fleeing on foot, possession of a controlled substance (methamphetamine), and being a habitual offender. Plff's Ex. T.
On September 24th, Plaintiff states he was served with a bench warrant obtained through the use of Ussery's falsified probable cause affidavit. Resp. at ¶¶ 15-16. Plaintiff maintains this warrant was never filed and entered into the criminal docket sheet and is therefore illegal.
On September 27, 2012, an information was filed in the Circuit Court of Hot Spring County, Arkansas, charging the Plaintiff with residential burglary, robbery, and being a habitual criminal. Hot Springs Defedants' Exhibit (hereinafter H.S. Defts' Ex.) B.
On November 7th, Plaintiff states he was served with another warrant for burglary and robbery. Plaintiff stated he had been out drinking and lost his coat. However, his coat was located one-tenth of a mile from the alleged crime scene. Plaintiff states DNA later established it was Plaintiff's coat. Plaintiff maintains this warrant was never filed and entered into the criminal docket sheet and is therefore illegal.
As a result of the defective warrants, Plaintiff states he was incarcerated in the Hot Spring County Detention Center (HSCDC) from September 17, 2012, until September 26, 2012. From September 26th until November 27th, Plaintiff was incarcerated in the Technical Violator's Program. He was booked into the HSCDC again on November 27, 2012, until February 26, 2013, on charges of robbery and residential burglary. H.S. Defts' Ex. A; Resp. at ¶ 24. He was transferred to the Arkansas Department of Correction (ADC) on February 26, 2013. Resp. at ¶ 24.
With respect to his conditions of confinement at the HSCDC, Plaintiff maintains the diet met no dietary guidelines, there was no kitchen supervisor over the 309 inmates, no dietician was employed, not enough food was served, no vegetables were served, there was an inadequate amount of meat, he was not given sausage and cheese for breakfast like other inmates, and there was no record of the food being served. Plff's Exs. B-E, J, P-Q; Resp. at ¶¶ 29-30, Plaintiff described the daily diet as: oatmeal and a slice of bread for breakfast; two slices of bread, two thin slices of bologna, two or three cookies, and a bag of chips for lunch; and mashed potatoes for supper. Plff's Ex. B; Resp. at ¶¶ 31-32. In his response, Plaintiff states that "[d]inner was half way decent and much more tolerable." Resp. at ¶ 31.
Plaintiff received three meals each day. Resp. at ¶ 31. Plaintiff also states his tray always came from the bottom of the food cart and he was served "special trays" that contained different and less food than other prisoners and on at least one occasion contained pubic hair. Plff's Motion at 3; Plff's Ex. P. Finally, Plaintiff complained that the inmates only got to eat hamburger patties while the officers got chicken patties, Salisbury steak, chicken fried stead, chicken strips, pizza sticks, sausage, bacon and eggs, fish patties, and other foods that Plaintiff said was provided for the inmates. H.S. Defts' Ex. F.
On January 10, 2013, Plaintiff refused to take most of his morning medication as he had done on multiple occasions. H.S. Defts' Ex. K. He complained that he believed someone was lacing the medication. Id. Plaintiff was taken to the front of the jail and assured no one was tampering with his medication and reminded of the importance of taking it on a daily basis. Id. The doctor had also advised the Plaintiff to take his medication when it was given to him. Id.
On January 16, 2013, Plaintiff states he was involved in a "tussle" with eleven detention center officials and in the process his right middle finger was permanently injured. Plff's Motion at 3; Amended Complaint at 13; Resp. at ¶ 41. Plaintiff admits that he "flinched his head and shoulder at Officer Sealy as if [he] were about to throw a punch." Resp. at ¶ 42. Plaintiff claimed he was just playing. Id. Plaintiff states that when Officer Sealy pushed him that he put his hand out to keep from crashing into the wall but only his middle finger came into contact with the wall and it was bent almost completely back. Id. at ¶ 43. Plaintiff resisted because "Officer Sealy had a look like he was about to use excessive force." Id. at ¶ 44.
An incident report prepared by Deputy Michael Sealy contains the following account of this incident:
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