Guy v. Ross et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
ROLAND F. GUY 	PLAINTIFF
v. 	Civil No. 6:23-cv-06089-SOH-CDC
CORPORAL JACOB ROSS (Ouachita River
Unit, ADC);
JUSTIN HUNTER (Sgt., Ouachita River
Unit, ADC);
NICHOLAS KILLIAN (Sgt., Ouachita River
Unit, ADC);
ZORN TURNER (Inmate) 0F
1 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions
of 28 U.S.C. § 636(b)(1) and (3), 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. Currently before the Court is a Motion for Summary Judgment by Defendants
Ross, Hunter and Killian (“ADC Defendants”). (ECF Nos. 42, 43, 44).
I. BACKGROUND
Plaintiff filed his Complaint in the Eastern District of Arkansas on August 3, 2023. (ECF
No. 2). It was transferred to this District on August 4, 2023. (ECF No. 5). That same day, the
Court entered an Order directing Plaintiff to submit an Amended Complaint to address deficiencies
in his initial Complaint. (ECF No. 8). Plaintiff submitted his Amended Complaint on August 24,
1 A private person can act under color of state law for the purposes of § 1983 only if they are “a
willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27
(1980). Although inmates are typically not state actors, Plaintiff’s Amended Complaint, read very
broadly at the preservice screening stage, permitted an inference that Inmate Turner might have
acted jointly with the Arkansas Division of Correction Defendants.
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2023. 	(ECF No. 10). 	Plaintiff is currently incarcerated in the Arkansas Division of Correction
(“ADC”) Tucker Maximum Security Unit, but his claims center on an incident in the ADC
Ouachita River Unit.
Plaintiff names all Defendants for his first claim. (ECF No. 10 at 4). He alleges that on
February 26, 2023, he was “jumped” by multiple Caucasian males between 5:00 p.m. to 6:00 p.m.
in Housing 2, Barracks 6. (Id.). Review of Plaintiff’s ADC online profile indicates he is Black.
Plaintiff alleges he was then tackled to the ground by three ADC officers and placed in handcuffs.
He alleges Defendants Ross, Hunter and Killian had him in handcuffs, “subdued, defenseless” and
not resisting while escorting him out of the barracks. 	(Id. at 4-5). 	During this escort process,
Plaintiff alleges that Defendant Inmate Zorn Turner came up on him and struck him multiple times
with a lock strapped to a rope. 	(Id. at 5). 	Plaintiff alleges he “was not protected in no form or
fashion.” (Id.). He alleges his hand was broken and he was also “severely stabbed,”1F
2 which he
did not notice until he was placed in the Isolation shower. 	(Id.). 	Plaintiff proceeds against all
Defendants in their official and individual capacities. (Id. at 5). 	As his official capacity claim,
Plaintiff states: “Administrative Directive 13-06 Mission Statement state all ADC officers will
protect and serve the inmates.” (Id.).
For his second claim, Plaintiff names Defendants Ross, Hunter, and Killian. (Id. at 5-6).
He alleges that, after the attack, he noticed his hand was broken and he had been stabbed. (Id. at
6). He “tried to be seen by medical but to no avail.” (Id.). He alleges he was instead “emergency
transferred to Maximum Security.” (Id.). Plaintiff proceeds against Defendants in their official
2 Because Plaintiff alleges that Turner attacked him only with a lock on a rope (or, as described
later in his incident grievance, a lock in a sock (ECF No. 42-3 at 3)), the Court will infer that the
stab wound occurred during the initial physical altercation with inmates other than Turner.
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and individual capacity. (Id. at 7). As his official capacity claim, Plaintiff states: “Administrative
Directive 11-10 obtaining medical attention for inmates was violated.” (Id.).
Plaintiff seeks compensatory, punitive, and other relief. (Id. at 9). Plaintiff states he wants
$250,000 to compensate him for his injuries, physical pain and suffering. (Id.). He also seeks to
be sent to work release and to have his disciplinary history expunged from his disciplinary jacket.
(Id.).
The ADC Defendants submitted their Motion for Summary Judgment on July 25, 2024.
(ECF Nos. 42,43, 44). They characterize Plaintiff’s Amended Complaint as stating a violation of
his Eighth Amendment rights for failure to protect him from an unexpected attack by another
inmate. (ECF No. 44 at 1). No mention is made of the denial of medical care claim. Accordingly,
the Court will interpret this to be a motion for partial summary judgment concerning the failure to
protect claim alone.
The ADC Defendants first argue that Summary Judgment in their favor is appropriate
because Plaintiff failed to exhaust his administrative remedies against the ADC Defendants
concerning his failure to protect claim. (ECF No. 44 at 1, 3-11). They argue that Plaintiff filed
only one grievance naming the ADC Defendants concerning the incident: OR-23-00244. (Id. at
9). They state this grievance was handled as follows:
When Plaintiff appealed the denial of his Grievance to the Warden, the Warden
refused to rule on the grievance because it related to a disciplinary matter. The
Warden’s decision was issued on April 10, 2023. Inmate Guy did not appeal the
Warden’s 	decision 	on 	Grievance 	Number 	OR-23-00244 	to 	the 	Chief
Deputy/Deputy/Assistant Director (the final level of appeal) until July 9, 2023.
(SUMF ¶ 44) This was long past the date by which that appeal was required to be
made under the ADC’s Administrative Directive 19-34—5 working days.
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(Id. at 10). 	They argue that, because Plaintiff failed to exhaust his administrative remedies
concerning the only grievance that names the ADC Defendants regarding his claims in the case,
they are entitled to summary judgment in their favor. (Id. at 11).
The ADC Defendants next argue that they are entitled to summary judgment on the merits
of Plaintiff’s failure to protect claim as well. (Id. at 11). They first argue that Plaintiff’s official
capacity claims against the ADC Defendants are barred by sovereign immunity. (Id.). They next
argue that Plaintiff’s individual capacity claims are barred by qualified immunity. 	(Id. at 12).
Finally, they argue that the ADC Defendants did not fail to protect Plaintiff from a substantial risk
of harm and were not deliberately indifferent to a substantial risk of serious harm. (Id. at 13-15).
Plaintiff filed his Response on October 17, 2024. (ECF No. 53). Plaintiff failed to file a
separate Statement of Disputed Facts as ordered by the Court and as required by the Local Rules
of Civil Procedure. 	In his Response, Plaintiff does not dispute that he failed to exhaust his
administrative remedies. 	Plaintiff first argues that the “Naming Requirement” in the ADC
grievance process does not “play any role in how the ADC resolves grievances.” (Id. at 1). He
further argues that the grievance process was unavailable to him due to problems with the
institutional mail system at the Maximum Security Unit. (Id. at 6-8). Specifically, he argues that:
the Maximum Security Unit was seeking accreditation, and the institutional
mailroom was in a state of chaos following the departure of experienced mailroom
staff. As a result, at least 2 individuals missed their appellate filing deadlines. Also,
grievance appeals were not mailed out, causing prisoners to miss deadlines. These
matters are a subject of a pending lawsuit in the Eastern District of Arkansas. (See
Holt v. Wallace, et. al., Case No. 4:22-CV-01132-KGB-JJV, U.S.D.C., E.D.Ark.
DE#64-1, Exhibits T + U). The document from Deputy Warden Maurice Culclager
was written on March 5. (Exhibit U). Plaintiff [in the E.D. case] wrote his Step 1
Grievance on March 10, 2023 and when he attempted to appeal to Central Office,
the documents never arrived or were held up by staff.
(Id. at 8). Plaintiff further argues that he should be permitted to conduct limited discovery on this
issue before a merits determination is made. (Id. at 9). Plaintiff argues that his Motion in Limine
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to exclude the declaration of Teri Grigsby Brown should be granted. (Id. at 9). Finally, Plaintiff
argues that he should be granted an extension of time to file his Opposition to the Merits of the
Summary Judgment Motion once exhaustion has been addressed. (Id. at 10).2F
3
The ADC Defendants did not file a Reply to Plaintiff’s Response, and the time to do so has
expired.
II. LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986), the record “shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“Once a party moving for summary judgment has made a sufficient showing, the burden rests with
the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a
genuine issue of material fact exists.” 	National Bank of Commerce v. Dow Chemical Co., 165
F.3d 602, 607 (8th Cir. 1999).
The non-moving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must show there is sufficient
evidence to support a jury verdict in their favor.” National Bank, 165 F.3d at 607 (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case founded on speculation or suspicion is
insufficient to survive a motion for summary judgment.” Id. (citing Metge v. Baehler, 762 F.2d
621, 625 (8th Cir. 1985)). 	“When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not
3 An Initial Scheduling Order in this case was entered on February 26, 2024. (ECF No. 36). The
deadline to complete discovery was set for June 25, 2025. (Id.). 	Plaintiff was also granted an
extension of time to submit his Summary Judgment Response. (ECF No. 51).
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adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007).
III. ANALYSIS
A. 	Failure to Comply with Local Rules
Plaintiff failed to submit a separate Statement of Disputed Facts as directed by the Court.
Local Rule 56.1(a) requires any party moving for summary judgment to submit a separate
statement of undisputed material facts. 	Local Rule 56.1(b) requires the non-moving party
opposing the summary judgment motion to file a separate statement of disputed facts. 	Pro se
inmates are advised of this requirement in the Order directing them to file a summary judgment
response. Pro se inmates are also advised of this requirement in the District’s Prisoner Litigation
Guide, which contains an example to help them understand the concept of using the same
paragraph numbering as that used by the moving party in their own statement of disputed facts.
Due to Plaintiff’s failure, Defendants’ Statement of Facts is deemed admitted pursuant to
Local Rule 56.1(c). In determining whether there are genuine disputes of material fact, however,
the Court has also considered the allegations set forth in Plaintiff’s verified Amended Complaint.
A verified complaint is the equivalent of an affidavit for summary judgment purposes. See, e.g.,
Roberson v. Hayti Police Dep’t., 241 F.3d 992, 994-95 (8th Cir. 2001). “[A] complaint signed and
dated as true under penalty of perjury satisfies the requirements of a verified complaint . . ..” Id.
As the Court in Roberson pointed out, “[a]lthough a party may not generally rest on his pleadings
to create a fact issue sufficient to survive summary judgment, the facts alleged in a verified
complaint need not be repeated in a responsive affidavit to survive the summary judgment motion.
Id. The Court will, therefore, “piece[] together [Plaintiff’s] version of the facts from the verified
complaint . . ..” McClanahan v. Young, No. 4:13-cv-04140, 2016 WL 520983, *1 (D.S.D. Feb. 5,
2016).
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B. 	Official Capacity Claims
Plaintiff’s official capacity claims against the ADC Defendants are subject to dismissal.
“Claims against individuals in their official capacities are equivalent to claims against the entity
for which they work.” 	Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir.1998). 	Thus, Plaintiff's
official capacity claims against Defendants Ross, Hunter and Killian are claims against the ADC.
Id. The ADC is an Arkansas state agency. See Fegans v. Norris, 351 Ark. 200, 206, 89 S.W.3d
919 (2002). States and state agencies are not “persons” subject to suit under § 1983. Howlett v.
Rose, 496 U.S. 356 (1990); Will v. Mich. Dept. of State Police, 491 U.S. 58 (1989); McLean v.
Gordon, 548 F.3d 613, 618 (8th Cir. 2008). “This bar exists whether the relief sought is legal or
equitable.” Williams v. Missouri, 973 F.2d 599, 599-600 (8th Cir. 1992) (citing Papasan v. Allain,
478 U.S. 265, 276 (1986)). “Congress did not abrogate constitutional sovereign immunity when
enacting the law that was to become section 1983.” Burk v. Beene, 948 F.2d 489, 493 (8th Cir.
1991) (citing Quern v. Jordan, 440 U.S. 332, 342 (1979)).
Defendants Ross, Hunter and Killian are all employees of the Arkansas Division of
Correction. As such, the official capacity claims against them for monetary damages are barred
by sovereign immunity.
C. 	Administrative Exhaustion
The 	Prison 	Litigation 	Reform 	Act 	(“PLRA”) 	mandates 	exhaustion 	of 	available
administrative remedies before an inmate files suit. Section 1997e(a) of the PLRA provides: “[n]o
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).
In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court concluded that “exhaustion [as
required by the PLRA] is not per se inadequate simply because an individual later sued was not
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named in the grievances.” Id. at 219. “[T]o properly exhaust administrative remedies prisoners
must complete the administrative review process in accordance with the applicable procedural
rules.” Id. at 218 (internal quotation marks and citation omitted). The Court stated that the “level
of detail necessary in a grievance to comply with the grievance procedures will vary from system
to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the
boundaries of proper exhaustion.” Id.
The Eighth Circuit Court of Appeals has recognized only two exceptions to the PLRA
exhaustion requirement: (1) when officials have prevented prisoners from utilizing the grievance
procedures, or (2) when the officials themselves fail to comply with the grievance procedures. See
Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (explaining a prisoner is only required to
exhaust those administrative remedies that are “available” and any remedies that prison officials
prevent a prisoner from utilizing are not considered available).
Plaintiff’s arguments that the grievance process was unavailable to him regarding OR-23-
00244 are supported by the summary judgment record before the Court because Warden Byer
refused to process the grievance and because Defendants’ submissions indicate acknowledged
issues with the Maximum Security Unit mail system. 	Defendants provided copies of the
documents for this grievance. (ECF No. 42-3). Plaintiff grieved that he was hit with a sock and
lock by inmate Zorn Turner while in cuffs and being escorted out of the barracks housing. 	He
states he is filing an informal resolution on Corporal Ross and Sergeant Hunter for discrimination
and failure to protect. (ECF No. 42-3 at 14). The grievance is signed on March 10, 2023. (Id.).
He filed the Step Two grievance on March 16, 2023, stating “no response from problem solver.”
(Id. at 16). The response by Warden Byer is dated April 10, 2023. It incorrectly categorizes this
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grievance as concerning a disciplinary matter and states it should have been rejected earlier in the
process. (Id. at 17). Warden Byer stated: “Therefore, I will not rule upon your grievance.” (Id.).
Other internal documentation concerning the grievance indicates acknowledged issues
an/or errors within the internal mail system:
Inmate wrote grievance 3/ /10/23 twelve days after alleged incident on 2/26/23. Lt.
R. Stewart signs as problem solver on 3/12/23. Inmate claims he went to STEP
TWO on 3/16/23 and Sgt. K Broadway signs bottom of yellow form on 3/16/23.
Yellow copy grievance received by ORCU 4/4//23 via Truck Mail nineteen days
later. Phone call on 4/4/23 with MSU Grievance coordinator M. Mena who states
she doesn't remember when she mailed grievance but asked mailroom to send it by
the U.S.P.S. but they sent it Truck Mail - (probably because it was lacking the
address on the envelope.) Processed as timely solely based upon the alleged receipt
on 3/16/23 by Sgt. K. Broadway 4 working days after its submission as a STEP
ONE with no response.
(ECF No. 42-3 at 4). Finally, the Court reviewed the Eastern District of Arkansas case referenced
by Plaintiff, Holt v. Profiri, Case No. 4:22-cv-01132-KGB-JJV. Plaintiff in that case is represented
by counsel and is also incarcerated in the ADC Tucker Maximum Security Unit. (Holt, ECF No.
68). A pending Report and Recommendation in that case (Holt, ECF No. 116) notes the Units’
failure to mail out a pleading in a state property claim. (Holt, Id. at 9, 11).
Thus, genuine issues of material fact remain as to whether the grievance process was
available to Plaintiff concerning OR-23-00244, and summary judgment on the matter of
exhaustion in not appropriate at this time.
D. 	Merits of the Failure to Protect Claim
“Because being subjected to violent assault is not ‘part of the penalty that criminal
offenders [must] pay for their offenses,’ Farmer v. Brennan, 511 U.S. 825, 834 (1994), ‘[t]he
Eighth Amendment imposes a duty on the part of prison officials to protect prisoners from violence
at the hands of other prisoners.’” Whitson v. Stone Cnty. Jail, 602 F.3d 920, 923 (8th Cir. 2010)
(quoting Perkins v. Grimes, 161 F.3d 1127, 1129 (8th Cir. 1998)) (cleaned up). 	Prison officials
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must “take reasonable measures to guarantee the safety of inmates.” 	Farmer, 511 U.S. at 832.
However, not “every injury suffered by one prisoner at the hands of another . . . translates into
constitutional liability for prison officials responsible for the victim’s safety.” Id. at 834.
To prevail on a failure to protect claim, Plaintiff must establish: (1) he was “incarcerated
under conditions posing a substantial risk of serious harm,” and (2) prison officials were
“deliberately indifferent [to his] health or safety.” See Holden v. Hirner, 663 F.3d 336, 341 (8th
Cir. 2011) (internal citations omitted).
The first prong is an objective requirement to ensure the deprivation of a constitutional
right is sufficiently serious. 	Nelson v. Shuffman, 603 F.3d 439, 446 (8th Cir. 2010). 	“The
deprivation is objectively, sufficiently serious, under the first requirement when the official’s
failure to protect resulted in the inmate being incarcerated under conditions posing a substantial
risk of serious harm.” Id. (cleaned up).
The second prong, however, is subjective, requiring a Plaintiff to show the named official
“both knew of and disregarded ‘an excessive risk to the inmate’s health or safety.’” Holden, 663
F.3d at 341 (quoting Farmer, 511 U.S. at 837). “An official is deliberately indifferent if he or she
actually knows of the substantial risk and fails to respond reasonably to it.” Young v. Selk, 508
F.3d 868, 873 (8th Cir. 2007).
Defendants argue that it is undisputed that neither Plaintiff nor Defendants were aware that
Inmate Turner posed a risk to Plaintiff. (ECF No. 44 at 14). They argue that Plaintiff never alerted
any of the ADC Defendants of any risk of an attack by Inmate Turner. (Id.). They further cite
Plaintiff’s deposition testimony to support the argument that the attack “was a surprise to everyone
involved and as ADC Defendants (and other staff) were clearing up an altercation in which the
Plaintiff was a participant.” (Id. at 14-15). Specifically, they argue “ Plaintiff acknowledges that,
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as he was being escorted from the scene of the altercation, he ‘didn’t even know [Turner] was
sitting there until he got up. I didn’t think he was going to do anything.’” (SUMF ¶ 55; Ex. D (Guy
Depo), p. 14, lines 18—25)” (Id. at 15). Plaintiff did not address this argument in his Response,
instead asking for additional time to do so after the question of exhaustion had been ruled upon.
Plaintiff did not file a separate Motion for Extension of Time.
Based on Plaintiff’s deposition testimony, neither prong of the failure to protect test was
met in this case. In his deposition, Plaintiff testified that Inmate Turner was “an all right dude. He
was all right, kind of laid-back, would mind his own business.” (ECF No. 42-4 at 13). Turner had
never threatened him before. (Id.). He was not on Plaintiff’s enemy alert list. (Id.). Plaintiff had
never added anyone to his enemies list. (Id. at 11). The physical altercation which happened that
day involved some of Turner’s friends. (Id. at 13). Prior to being hit by Turner, Plaintiff testified
that he:
didn’t even know [Turner] was sitting there until he got up. I didn’t even think he
was going to do anything. They were trying to tell everybody to lock down, and
there was just people running all over. I was being escorted out of the barracks, and
he got up and he hit me in my face with a lock.
(Id.). After Turner hit him, the guards “grabbed [Turner] and they escorted [Plaintiff] out the door.
Once I got hit they pushed me out the door. It’s like they pushed me right at him because he was
sitting right there.” 	(Id. at 15). 	Plaintiff testified that the entire incident, including the initial
physical altercation with Turner’s friends and the attack from Turner “might have lasted about
five, ten minutes.” (Id.).
When asked if there was any reason to believe that Defendants wanted Turner to attack
him, Plaintiff stated they “probably have” because there is a lot of racial tension. 	(Id. at 16).
Plaintiff further stated that “if they were telling everyone to lock down, [Turner] should have been
on the floor.” 	(Id.). 	When asked if the Defendants somehow worked with Turner to hurt him,
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Plaintiff testified “[t]hey probably have. I mean, I don’t know. They probably did.” (Id.). Plaintiff
was not sure if there were any witnesses to support this statement, he stated: “I’m not sure. I mean,
I don’t know, sir. I was surprised that I got attacked, and they didn’t seem to care much about it.
They didn’t seem to do anything about it neither.” (Id.). Plaintiff then noted that Defendants were
witnesses. (Id. at 20-21). Plaintiff testified that he had not told either Defendant Ross or Killian
that he was concerned about being attacked by Turner. (Id. at 17).
Thus, Plaintiff’s deposition testimony indicates that neither of the two prongs of the failure
to protect test were met in this case. Nothing in his testimony indicates that he was objectively
incarcerated under conditions posing a serious risk of harm or that the ADC Defendants
subjectively knew of and disregarded an excessive risk to his health and safety. Accordingly, no
material question of fact is in dispute as to the failure to protect claim, and summary judgment on
the merits is appropriate as a matter of law.
IV. CONCLUSION
Accordingly, it is recommended that the ADC Defendants’ Partial Motion for Summary
Judgment (ECF No. 42) be GRANTED as to Plaintiff’s failure to protect claim, and this claim
should be DISMISSED WITH PREJUDICE. As Plaintiff’s constitutional rights were not violated
by a failure to protect, Defendant Inmate Zorn Turner should be TERMINATED as a Defendant
in this case. 	As Plaintiff’s claim for denial of medical care after the incident against the ADC
Defendants Ross, Hinter and Killian was not addressed in the Partial Motion for Summary
Judgment, it should remain for further review.
Referral Status: This case should remain referred for all matters not recommended for
dismissal in this Report and Recommendation.
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The parties have fourteen days from receipt of the Report and Recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 6th day of January 2025.
/s/ Christy Comstock
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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