Opinion
2:22CV00170-LPR-JTK
06-10-2024
JARELL D. TERRY ADC #149998 PLAINTIFF v. DEXTER PAYNE, et al. DEFENDANTS REASON CITATION
PROPOSED FINDINGS AND RECOMMENDATIONS
JEROME T. KEARNEY UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS
The following recommended disposition (“Recommendation”) has been sent to United States District Judge Lee P. Rudofsky. Any party may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objections; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.
DISPOSITION
I. Introduction
Jarell D. Terry (“Plaintiff”) is currently incarcerated in the Maximum Security Unit of the Arkansas Division of Correction (“ADC”). (Doc. No. 86). His claims in this case arise from the time he was in custody at the East Arkansas Regional Unit of the ADC. He filed this action under 42 U.S.C. § 1983 without the help of a lawyer. Plaintiff sued ADC Director Dexter Payne, Deputy Director William Straughn, Retired Warden Gaylon Lay, Captain Marcus Etherly, Kenyon Randle, and Sweatman in their personal and official capacities. (Doc. No. 2 at 1-2).
Plaintiff's claims against Defendant Sweatman and Plaintiff's official capacity damages claims were dismissed for failure to state a claim on which relief could be granted. (Doc. Nos. 4, 22). Plaintiff's conditions of confinement claims against Defendants Payne, Straughn, Lay, Etherly, and Randle (collectively, “Defendants”) remain pending.
On April 24, 2024, Defendants filed a Motion for Summary Judgment on the merits of Plaintiff's claims, along with a Brief in Support and Statement of Facts. (Doc. Nos. 91-93). Plaintiff has responded and Defendants have replied. (Doc. Nos. 100, 101, and 108, respectively).
After careful consideration, and for the reasons set out below, the Court recommends that Defendants' Motion be granted.
II. Plaintiff's Complaint
Plaintiff's statement of claim reads:
1. The policy of the ADC states that temperatures of the cell shall be between 70o-78o. How while housed in Isolation 378 my cell exceed 90o daily, these temperatures are an issue throughout ISO3 (and possibly other isolations).
2. Air circulation is poor due to non-working blowers, my cell light never went out, and there are portable A/C units that blow cool air at an approximate range of two feet in any one direction and blow heat upwards.
3. On June 2, 2022 I wrote Joyce Elliott about the temperatures but nothing was done at the Unit. I had begun to experience cluster headaches that turned into migraines daily, extreme dizziness, lightheadedness that caused me to see spots, dots, and shadows. Temperatures also intensified heatflashes and chest pains connected with anxiety and cause fatigues and lack of concentration.
4. I initially prepared a grievance May 21, 2022 wall panels were taken off the walls outside to decrease humidity. On approximately May 25, 2022 and blowers (used to ventilate) were turned on June 14, 2022. Temperatures still were extreme and uncomfortable because the measures taken on caused air to circulate from outside where temperatures reach the 90s and 100s. Incarcerated persons of Isolation 3 experience these temperatures 24/7 unless nature brings a cool down. Due to understaffing incarcerated persons are not adequately monitored.
5. On approximately June 7, 2022 Deputy Warden Richardson made security round, June 8, 2022 Deputy Warden Johnson made security round (along with Lt. Davis), on June 13, 2022 Major K. Randle made a security round, and Captain Etherly made several security rounds during the extreme temperatures but failed to take reasonable measures to about dangerous temperatures. William Straughn and Dexter Payne have been faced with several complaints of extreme temperature. Incarcerated persons have even died due to extreme temperatures, but Straughn and Payne have failed to take reasonable measures to control temperatures.
6. On approximately June 24, 2022, the wall panels had been placed back on the walls of all the openings of the back wall panes where I had been housed as Major Randle states the A/C would slowly kick in however hot air began to circulate causing the cell to feel like a sauna. That night I awoke drenched in sweat and began to experience an anxiety attack in which I had difficulty breathing and chest pains. I was seen by medical nurse L. Smith. Temperature had been so extreme Nurse C. Rivers could not adequately conduct sick call.
7. On June 27, 2022, A/C was turned on by Major K. Randle however on approximately June 30, 2022 Warden Lay ordered Major Randle to turn off the A/C because Isolation 3 inmates were on punitive as stated by Cpr. Mr. James.
8. On July 1, 2022, temperatures had been so extreme that Cpl. Akins had turned off the hallway lights to lower temperatures. Her efforts, however, were of no help. Temperatures remained extreme and uncomfortable. I was removed from Isolation 3 July 17, 2022.(Doc. No. 2 at 4-5).
Plaintiff seeks injunctive relief and damages. (Id. at 6). Plaintiff attached multiple grievances to his Compliant. (Id. at 7 - 24).
III. Summary Judgment Standard
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate if the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997). “The moving party bears the initial burden of identifying ‘those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'” Webb v. Lawrence County, 144 F.3d 1131, 1134 (8th Cir. 1998), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (other citations omitted). “Once the moving party has met this burden, the non-moving party cannot simply rest on mere denials or allegations in the pleadings; rather, the non-movant ‘must set forth specific facts showing that there is a genuine issue for trial.'” Id. at 1135. Although the facts are viewed in a light most favorable to the non-moving party, “in order to defeat a motion for summary judgment, the non-movant cannot simply create a factual dispute; rather, there must be a genuine dispute over those facts that could actually affect the outcome of the lawsuit.” Id.
IV. Analysis
The Court recommends Defendants' Motion be granted for the reasons explained below.
A. Injunctive Relief
Plaintiff filed this lawsuit while he was in Isolation 3 West at the East Arkansas Regional Unit (“ISO 3 West”). In addition to damages, Plaintiff seeks injunctive relief. (Doc. No. 2 at 6).
In his Complaint, Plaintiff says he was moved out of ISO 3 West in July 2022. Nothing in the record reflects that Plaintiff currently is in ISO 3 West. Rather, Plaintiff filed a notice of change of address on March 18, 2024 indicating that he is now incarcerated in the Tucker Maximum Security Unit of the ADC. (Doc. No. 86). Nothing in the record otherwise suggests that Plaintiff is subjected to the same allegedly unlawful conditions as he was between May and July 2022. Accordingly, Plaintiff's request for injunctive relief is moot. Smith v. Hundley, 190 F.3d 852, 855 (8th Cir. 1999).
B. Qualified Immunity
Defendants maintain they are entitled to qualified immunity. (Doc. No. 93 at 3). Qualified immunity shields a government official from liability when his conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is a question of law, not a question of fact. McClendon v. Story County Sheriff's Office, 403 F.3d 510, 515 (8th Cir. 2005). Thus, issues concerning qualified immunity are appropriately resolved on summary judgment. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (the privilege is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.”).
To determine whether defendants are entitled to qualified immunity, courts generally consider two questions: (1) whether the facts alleged or shown, construed in the light most favorable to the plaintiff, establish a violation of a constitutional or statutory right; and (2) whether that right was so clearly established that a reasonable official would have known that his or her actions were unlawful. Pearson v. Callahan, 555 U.S. 223, 232 (2009).“‘A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'” Thurmond v. Andrews, 972 F.3d 1007, 1012 (8th Cir. 2020) (internal citation omitted). In considering whether a right is clearly established, courts do not look at precedent “at a high level of generality.” Id. Instead, courts “look for a controlling case or a robust consensus of cases of persuasive authority. There need not be a prior case directly on point, but ‘existing precedent must have placed the statutory or constitutional question beyond debate.'” Id. (internal citation omitted).
Courts are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Nelson, 583 F.3d at 528 (quoting Pearson v. Callahan, 555 U.S. at 236).
A defendant is entitled to qualified immunity only if no reasonable fact finder could answer both questions-whether the facts alleged or shown, construed in the light most favorable to the plaintiff, establish a violation of a constitutional or statutory right and whether that right was so clearly established that a reasonable official would have known that his or her actions were unlawful-in the affirmative. Nelson v. Correctional Medical Services, 583 F.3d 522, 528 (8th Cir. 2009). The Court will begin by considering whether the facts, taken in the light most favorable to Plaintiff, establish that a violation occurred.
C. The Eighth Amendment and Deliberate Indifference
Plaintiff brought suit under 42 U.S.C. § 1983. “Liability under § 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). “Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Bare allegations void of factual enhancement are insufficient to state a claim for relief under § 1983. See Iqbal, 556 U.S. at 678.
Plaintiff complains of the conditions of his confinement, namely excessive heat. [T]he Constitution “does not mandate comfortable prisons”; it prohibits “inhumane ones.” Williams v. Delo, 49 F.3d 442, 445 (8th Cir. 1995) (internal citation omitted). To succeed on an Eighth Amendment claim challenging conditions of confinement, an inmate must show the alleged violation is ‘“objectively [and] sufficiently serious,'” that is, the inmate “'is incarcerated under conditions posing a substantial risk of serious harm.'” Kulkay v. Roy, 847 F.3d 637, 642-43 (8th Cir. 2017). In this case, it is not enough for Plaintiff to establish only that it was uncomfortably hot in ISO 3 West. Plaintiff alleged that the heat caused him to suffer from medical problems. Plaintiff must also establish through medical records or other evidence that the heat caused his medical issues and put him at a substantial risk of serious harm. Once Plaintiff has made that showing, he must also establish that each Defendant knew of the risk and failed to respond to it in a reasonable way. Id. at 643.
1. Substantial Risk of Harm
a. Temperatures During the Relevant Time Period
In their Statement of Undisputed Material Facts, Defendants provided outside temperature data for Marianna, Arkansas, from the National Weather Service for the months of May, June, and July 2022 and ask the Court take judicial notice of this information. (Doc. No. 92 at ¶¶ 46, 48, 50). Plaintiff contests the data because he says the relevant location was Brickeys, Arkansas, not Marianna. (Doc. No. 101 at ¶¶ 46, 48, 50). Plaintiff does not contest the accuracy of the temperatures provided; he also submitted the records as evidence. (Doc. No. 100 at 24 - 68). As such, the Court takes judicial notice of the data from the National Weather Service that Defendants provided for Marianna, Arkansas. See FED. R. EVID. 201.
As mentioned above, Plaintiff contests the data Defendants provided because the data was for Marianna, Arkansas instead of for Brickeys, Arkansas. The distance between Brickeys and Marianna is a little more than 11 miles.The Court finds, without evidence to the contrary, that the roughly 11-mile distance between Brickeys and Marianna is insignificant for the purposes of this Motion.
Distance between Marianna, AR and Brickeys, AR (distance-cities.com) (last visited June 10, 2024. The Court takes judicial notice of this fact, as well.
Defendants also provided inside air temperatures for the months of May, June, and July, 2022. (Doc. No. 92 at ¶¶ 47, 49, and 51). The Court notes that all air temperatures were measured in the morning, generally between 7:00 a.m. and 9:00 a.m. (Id.). Plaintiff contests these temperatures only to the extent that data is missing for certain days. (Doc. No. 101 at ¶¶ 47, 49, 51). Because Plaintiff did not contest the accuracy of the data for the days on which data exists, the Court will consider the inside air temperatures as undisputed.
May
| Date | Maximum Temp Outside | Minimum Temp Outside | Inside Air Temp 7:00 a.m.-9:00 a.m. | |
| 1 | 80 | 59 | N/A | |
| 2 | 80 | 58 | N/A | |
| 3 | 83 | 63 | N/A | |
| 4 | 78 | 57 | N/A | |
| 5 | 80 | 59 | N/A | |
| 6 | 77 | 60 | N/A | |
| 7 | 71 | 54 | N/A | |
| 8 | 71 | 53 | N/A | |
| 9 | 77 | 62 | N/A | |
| 10 | 86 | 69 | N/A | |
| 11 | 90 | 63 | N/A | |
| 12 | 92 | 61 | N/A | |
| 13 | 94 | 72 | N/A | |
| 14 | 86 | 65 | N/A | |
| 15 | 87 | 67 | N/A | |
| 16 | 89 | 65 | N/A | |
| 17 | 83 | 57 | N/A | |
| 18 | 82 | 66 | N/A | |
| 19 | 90 | 72 | N/A |
20
89
72
78.9
21
90
74
N/A
22
90
66
N/A
23
67
58
74
24
70
60
74
25
80
65
78
26
77
61
80
27
71
57
74.5
28
74
58
N/A
29
84
63
N/A
30
85
68
N/A
31
88
69
78
June
Date
Maximum Temp Outside
Minimum Temp Outside
Inside Temp 7:00 a.m.-9:00 a.m.
1
91
71
82.5
2
92
69
75.9
3
74
62
76
4
82
62
N/A
5
82
62
N/A
6
87
71
82.5
7
85
74
82.5
8
85
68
80
9
79
65
80.5
10
85
64
80.3
11
76
64
N/A
12
93
72
N/A
13
94
77
84
14
94
77
87
15
94
75
88
16
96
74
84
17
95
77
87.5
18
96
76
N/A
19
94
75
N/A
20
95
64
86
21
97
73
85.5
22
98
72
84
23
97
73
85
24
94
72
84
25
94
71
N/A
26
97
73
N/A
27
95
69
84.5
28
83
63
86
29
86
64
83.5
30
89
70
86.5
| July | |||||
| Date | Maximum Temp Outside | Minimum Temp Outside | Inside Temp 7:00 a.m.-9:00 a.m. | ||
| 1 | 91 | 71 | 85.5 | ||
| 2 | 91 | 72 | N/A | ||
| 3 | 89 | 74 | N/A | ||
| 4 | 86 | 72 | N/A | ||
| 5 | 95 | 76 | 89 | ||
| 6 | 97 | 75 | 88 | ||
| 7 | 96 | 76 | 89 | ||
| 8 | 95 | 78 | 89 | ||
| 9 | 98 | 79 | N/A | ||
| 10 | 96 | 74 | N/A | ||
| 11 | 90 | 69 | 89 | ||
| 12 | 92 | 69 | 89.5 | ||
| 13 | 94 | 76 | 90 | ||
| 14 | 91 | 72 | 89.5 | ||
| 15 | 93 | 72 | 87 | ||
| 16 | 93 | 74 | N/A | ||
| 17 | 95 | 75 | N/A | ||
The Court notes-and Plaintiff noted-that Defendants did not provide information about humidity levels or the heat index. (Doc. No. 101 at ¶ 48, for example). Plaintiff also did not provide that data to support his claims.
Plaintiff complained specifically about the temperature in ISO 3 West at night in addition to the daytime temperatures. (Doc. No. 2 at 5, 10, 13, 17). Defendants' inside air temperature data, collected between 7:00 a.m. to 9:00 a.m., reveals little about the temperature inside ISO 3 West during the day and reveals nothing about the air temperatures in the cells at night. The Court notes that outside temperatures generally are at their lowest in the morning. Even at 7:00 a.m. to 9:00 a.m. when the air temperature data was collected inside ISO 3 West, the temperature was sometimes 20 degrees warmer than the outside low temperature - as on July 12, for example. It is entirely conceivable that temperatures inside ISO 3 West in the afternoon and night reached the upper 90s for multiple consecutive days.
b. Plaintiff's Medical Records
In his Complaint, Plaintiff alleged that the heat caused him “migraines daily, extreme dizziness, lightheadedness that caused me to see spots, dots, and shadows. Temperatures also intensified heatflashes and chest pains connected with anxiety and cause fatigue and lack of concentration,” in addition to difficulty breathing. (Doc. No. 2 at 4, 5).
Defendants provided Plaintiff's medical records in support of their Motion for Summary Judgment. Plaintiff did not contest the authenticity or accuracy of the records. Rather, Plaintiff also used the same records in support of his Motion. (Doc. No. 100 at 76-181). The Court notes that Plaintiff argues that the symptoms he reported were indicative of heat exhaustion. (Doc. No. 101 at ¶¶30, 33, 34, 35, for example). But Plaintiff did not contest that the symptoms he reported are the symptoms reflected in the records. As such, the Court will consider the information in the records as uncontested.
Plaintiff's medical records for the months of May, June, and July, 2022, reflect as follows. Plaintiff's medical complaints that related to the issues in this appear in bold.
DATE
REASON
CITATION
4/27/2022
Pt to be seen for Keppra renewal. Pt in NAD. PT reports he had GSW and surg right ankle; arthritis pain, ibuprofen and naproxen is not effective
Doc. No. 99-2 at 5
5/16/2022
Pt to be seen for meloxicam renewal. Pt not seen. Current Meloxicam RX is current through 6/26/2022
Doc. No. 99-2 at 5
5/26/2022
IM voiced no acute medical complaints. AAOx3 NAD. Ambulates without assistance. Lungs CTA. HRRR. IM never mentioned HA, he started exam by arguing about number of Mobic he gests and is told to leave exam due to continued arguing regarding number of Mobic he gets a month for his ankle
Doc. No. 99-2 at 5
6/13/2022
Pt to be seen for migraines. Pt in NAD. Pt reports he has headaches behind his left eye and right temple area 1-3 times per day lasting no longer than 5 min. Pt denies associated symptoms. Pt. reports he sleeps most of the day.
Doc. No. 99-2 at 5-6; Doc. No. 100 at 89.
6/17/2022
Pt to be seen for R ankle crepitus. Pt in NAD. Pt reports he has taken all of his Meloxicam for the month. Pt. reports he is ISO and can't keep meds on person; nurses bring them.
Doc. No. 99-2 at 6
7/22/2022
Pt to be seen for crepitance right wrist and right ankle; reports meds don't help. Pt. in NAD. Pt reports he passed out and fell onto right wrist in June and it “popped out of place but I put it back in” and now it is painful. Pt reports he has a bullet fragment in his right ankle and the pain causes him to limp. Pt requests Keppra and states Tylenol, Ibuprofen, and Naproxen doesn't completely alleviate the pain.
Doc. No. 99-2 at 6; Doc. No. 100 at 89-90
***
5/13/2022
Plaintiff reviewed his medical jacket
Doc. No. 99-2 at 9
6/11/2022
Plaintiff reviewed his medical jacket
Doc. No. 99-2 at 9
6/13/2022 and 7/15/2022
Plaintiff was scheduled to review medical jacket but did not do so
Doc. No. 99-2 at 9
7/28/2022
Plaintiff reviewed his medical jacket
Doc. No. 99-2 at 9
8/30/2022
Plaintiff reviewed changes to his medication
Doc. No. 99-2 at 9
***
5/1/2022
Segregation visits by nurse in Plaintiff's cell. Plaintiff voiced no complaints.
Doc. No. 99-2 at 27
5/1/2022
Segregation visits by nurse in Plaintiffs cell at 10:30 a.m. Plaintiff complained of headaches that had been getting worse over the past week.
Doc. No. 99-2 at 28; Doc. No. 100 at 105
5/2/2022- 5/9/2022
Segregation visits by nurse in Plaintiffs cell. Plaintiff voiced no complaints.
Doc. No. 99-2 at 29-34
5/9/2022
Sick call visit in health services office. Patient c/o naproxen he uses as needed for headaches expired and request renewal for headaches due to excessive heat and noise in ISO. No acute distress, denies current use of HA or pain. Also c/o increase in moles on face and worries it could be cancer. No open wounds or s/s of infection noted.
Doc. No. 99-2 at 34-35; Doc. No. 99-3 at 152; Doc. No. 100 at 111-112
5/10/2022- 5/22/2022
Segregation visits by nurse in Plaintiffs cell. Plaintiff voiced no complaints.
Doc. No. 99-2 at 35- 42,43__
5/22/2022
Sick call visit in health services office. Plaintiff was experiencing worse pain in his ankle are bone all the way up to his knee
Doc. No. 99-2 at 42
5/23/2022
Plaintiff had been having recurring headaches, seeing black spots, and peeing a lot along with lightheadedness
Doc. No. 99-2 at 43; Doc. No. 99-3 at 146, 147; Doc. No. 100 at 120
5/24/2022-6/2/2022
Segregation visits by nurse in Plaintiffs cell. Plaintiff voiced no complaints.
Doc. No. 99-2 at 44-49
6/2/2022
Sick call visit in health services office. I've tried to bear with his migraines but they've become worse to the point they are blurring my vision. These migraines are the worse behind my left eye and at the right side of my temple reoccurring since mid April
Doc. No. 99-2 at 49-50 Doc. No. 100 at 79, 126-127
6/2/2022- 6/9/2022
Segregation visits by nurse in Plaintiffs cell. Plaintiff voiced no complaints.
Doc. No. 99-2 at SO-54
6/9/2022
Sick call visit in health services office. I'm continuing to have light headedness, migraines, and excessive heat flashes, due to excessive temperatures. Migraines are normally behind my left eye and right side of my brain and it times causes blurred vision.
Doc. No. 99-2 at 54; Doc. No. 99-3 at 137; Doc. No. 100 at 131-132
6/9/2022- 6/13/2022
Segregation visits by nurse in Plaintiffs cell. Plaintiff voiced no complaints.
Doc. No. 99-2 at 55-57
6/13/2022
Sick call visit in health services office. I am continuing to have severe pain in my right ankle foot and lower leg area. Throbbing aching it feels like I have a pain outgrowth of the bone and something moving in my ankle.
Doc. No. 99-2 at 57-58
6/14/2022- 6/19/2022
Segregation visits by nurse in Plaintiffs cell. Plaintiff voiced no complaints.
Doc. No. 99-2 at 58-62
6/19/2022
Sick call visit in health services office. On 06/14/2022 an inmate was sprayed with mace. I sneezed, hacked, and coughed until I threw up and then passed out and woke up to my wrist (right) and head hurting severely my naproxen which I take for other reasons has expired this morning and now I can feel the pain in my right wrist.
Doc. No. 99-2 at 62; Doc. No. 99-3 at 130; Doc. No. 100 at 139
6/20/2022- 6/21/2022
Segregation visits by nurse in Plaintiffs cell. Plaintiff voiced no complaints.
Doc. No. 99-2 at 62-63
6/21/2022
Sick call visit in health services. Every since I've been removed from my Tylenol my head has been hurting all day every day due to the heat in the cell. I also need the fingernail clippers.
Doc. No. 99-2 at 63-64; Doc. No. 99-3 at 121; Doc. No. 100 at 140-141
6/22/2022- 6/24/2022
Segregation visits by nurse in Plaintiffs cell. Plaintiff voiced no complaints.
Doc. No. 99-2 at 64-65
6/25/2024
Wellness check in health services office. Stabbing pain in my chest and hot. IM explains to medical staff since walking to the max infirmary he feels better, wants to know what happened to the air. Why it's so hot back in the cell all of the sudden.
Doc. No. 99-2 at 65-67; Doc. No. 100 at 142-144
6/25/2022- 6/26/2022
Segregation visits by nurse in Plaintiffs cell. Plaintiff voiced no complaints.
Doc. No. 99-2 at 67-68
6/26/2022
Sick call visit in the health services office. I am experiencing extreme light headedness from the excessive heat in the cell. I've become temporarily color blind along with the loss of hearing upon waking up. My headaches are becoming more frequent and severe
Doc. No. 99-2 at 68; Doc. No. 99-3 at 119; Doc. No. 100 at 145
at the top of my head. Tylenol ineffective however I do take Tylenol for this pain that I'm feeling at my back shoulders and wrist I greatly believe I'm fainting to sleep lately it has been hotter in the cell at night.
6/27/2022-7/11/2022
Segregation visits by nurse in Plaintiffs cell. Plaintiff voiced no complaints.
Doc. No. 99-2 at 68-77
7/11/2022
Sick call visit in health services office. I'm experiencing intense headaches, my skin is burning and itching, I'm having frequent headaches, trouble breathing at times and chest pains, due to heat I believe I'm seeing spots and dots and I'm having difficulty sleeping. Joints at ankles and knees also in great pain and back aching. Writs has been hurting for 1 month.
Doc. No. 99-2 at 77; Doc. No. 99-3 at 108; Doc. No. 100 at 154
7/12/2022- 716/2022
Segregation visits by nurse in Plaintiffs cell. Plaintiff voiced no complaints.
Doc. No. 99-2 at 77-80
7/16/2022
Sick call visit in health services office. My ankle is in great pain (right ankle), it is constantly aching and constantly popping. Ibuprofen, Tylenol. And meloxicam is inadequate for the pain. Reoccurring problem. My right wrist is still hurting from when I fainted. I believe I landed on it wrong. Reoccurring problem. Heat also causing weight loss.
Doc. No. 99-2 at SO-81; Doc. No. 100 at 157-158
7/17/2022
Plaintiff moved out of Isolation 3 to the Max Unit
Doc. No. 92 at ¶ 7; Doc. No. 101.
In addition, the Court notes that Plaintiff complained about the heat in one inmate request form, and the complaint was deemed a security issue. (Doc. No. 99-3 at 124). In that form Plaintiff complained that “the cell got so hot that I woke up drenched in sweat with a dry mouth and lighthead. I began to have a panic attack and my chest still hurts the next day as I worry of the night to come. I greatly believe that someone is trying to kill me with the heat, if not the torture it is too much especially at night.” (Id.).
Plaintiff's headaches were a recurring complaint reflected in his medical records from May, June, and July, 2022. But Plaintiff's headaches started before the excessive heat he complains of. Plaintiff sought medical care on April 24, 2022 and April 28, 2022 for severe headaches. (Doc. No. 92 at ¶¶ 32, 33; Doc. No. 99-3 at 161, 163). Plaintiff contests his April 28, 2022-related visit to the extent that he believes the symptoms of which he complained indicated heat exhaustion, but Plaintiff did not contest the accuracy of the underlying medical records. (Doc. No. 101 at ¶¶ 30, 33; Doc. No. 99-2 at 28). No objective medical problems were noted in the record. (Doc. No. 992 at 28).
Defendants maintain Plaintiff was never diagnosed with any heat-related injury such as heat exhaustion or heat stroke. (Doc. No. 92 at ¶ 30). Plaintiff contests this fact arguing that he presented to medical with symptoms of heat stroke or heat exhaustion, which he believes are headaches, dizziness, faintness, and profuse sweating. (Doc. No. 101 at ¶ 30).
The Court agrees that Plaintiff complained of headaches, dizziness, faintness, and profuse sweating. (Id.).
But the Court also agrees that the medical records do not reflect that Plaintiff was diagnosed with heat exhaustion or heat stroke, or even that any of Plaintiff's symptoms were caused by heat. (Doc. Nos. 99-2, 99-3). Beyond Plaintiff's complaints recorded in the medical records, the records reflect Plaintiff was generally in good physical condition. For example, a June 25 medical record reflects “IM great physical health” with no SOB, hypertension, cyanosis, tachycardia. (Doc. No. 99-2 at 65-66). Plaintiff was observed for four hours and then released back to security. (Id. at 66). Plaintiff was instructed to stay hydrated as much as possible. (Id.). He was also educated about the difference between heat exhaustion and chest pain. (Id.). Medical records from the next day again reveal no objective physical problem and suggest that Plaintiff needs “mental health evaluation.” (Id. at 68). Other medical records from even later in summer also revealed no objective physical problems. (Id. at 77, for example).
Plaintiff complained that he lost weight because of the heat. Plaintiff's medical records show that his weight varied some up and down, but not significantly from the beginning to the end of his confinement in ISO 3 West. For example, on April 27, 2022 Plaintiff weighed 171 pounds; on June 2, 2022 Plaintiff weighed 169 pounds; and on July 11, 2022 Plaintiff weighed 168 pounds. (Doc. No. 99-2 at 5, 49, 77).
Plaintiff asserts the buspirone he is prescribed for anxiety made him more susceptible to the heat. (Doc. No. 101 at ¶ 8). Plaintiff did not provide evidence to support this assertion.
After Plaintiff was released from ISO 3 West he continued to complain of headaches, chest pain, and other symptoms similar to those he complained of while he was in ISO 3 West. (Doc. No. 99-2 at 121, 122). On September 23, 2022, Plaintiff complained that he is “having great headaches that sometimes [blur] his vision to a blinding point there headaches started 9.16.2022 along with chest pains.” (Id. at 121).
Plaintiff acknowledged at his deposition that he did not have a medical condition that made him especially susceptible to heat-related injuries, though he mentioned his anxiety. (Doc. No. 91-3 at 27:2-27:9). See Blackmon v. Garza, 484 Fed.Appx. 866, 870-73 (5th Cir. 2012).
The Court notes that Plaintiff also submitted a Declaration purportedly signed by MiTyra James, an ADC employee at the EARU Maximum Security Unit, in which Ms. James purportedly said that the temperatures during the summer of 2022 “had been extremely dangerous in Isolations 2 and 3,” that Isolation 1 has air-conditioning while Isolations 2 and 3 have air-conditioning vents, and that “[s]ummer temperatures reach heights that are hazardous ....” (Doc. No. 100 at 8).
Defendants, however, produced a Declaration signed by Ms. James on May 29, 2024 in which she denies signing any documentation for Plaintiff and declares under penalty of perjury that the signature on the declaration Plaintiff submitted was not her signature. (Doc. No. 108-2; 108-3 at 8). The Court also notes that the Declaration signed by Ms. James does not establish how the heat affected Plaintiff specifically-how the heat created a substantial risk of harm for Plaintiff-or how any Defendant was involved.
Undoubtedly, ISO 3 West was hot and uncomfortable. Plaintiff suffered symptoms that he reported to various medical providers. But at no time did the providers find that Plaintiff showed any signs of medical conditions that were brought about because of the heat. Plaintiff's most frequent complaint was headaches. Plaintiff's headaches began before Plaintiff the heat he complained of and continued after his release from ISO 3 West. Plaintiff has not come forward with any medical or other evidence establishing that his headaches-or any other symptom-was caused by the heat. Based on the record before me, no reasonable finder of fact could conclude that Plaintiff was at a substantial risk of serious harm.
2. Deliberate Indifference
Even if Plaintiff had been at a substantial risk of serious harm, the record reflects that measures were taken to combat the heat. Plaintiff access to cool, potable running water inside of his cell. (Doc. No. 92 at ¶ 59). Plaintiff does not contest that, though he says the water did not get as cool as Defendants claim. (Doc. No. 101 at ¶ 59). Isolation units also have panels that can be removed to allow outside air flow directly into the prison cell. (Doc. No. 92 at ¶ 62). Plaintiff disputes this. He says “I disagree. When wall panels are removed evidence demonstrates a.m. temperatures, which are usually taken between 7:00 a.m. and 9:30 a.m., are always higher than Marianna's minimum in all summer months relevant.” (Doc. No. 101 at ¶ 62). There were also exhaust fans that brought outside air into the unit to assure adequate ventilation. (Doc. No. 92 at ¶ 65). Plaintiff contested this fact to the extent he said “air from outside would only increase inside temperatures.” (Doc. No. 101 at ¶ 65). In his Complaint and deposition, Plaintiff indicated that the exhaust fans were in use from at least June 14, 2022 throughout the time Plaintiff was in ISO 3 West. (Doc. No. 92 at ¶ 66; Doc. No. 2 at 4-5; Doc. No. 91-3 at 6:7-12). Plaintiff contests that there were six exhaust fans in use, but he does not contest that there were some exhaust fans in use. (Doc. No. 101 at ¶ 66). Plaintiff also testified that portable air conditioning units that were placed in the barracks, but he maintains the units did not cool his cell down. (Doc. No. 91-3 at 5:7-6:12). According to Plaintiff, he was allowed to shower only once a week at that time. (Id. at 13:23-14:4).
The record supports Defendants' assertions that measures were taken to combat the heat. Plaintiff had access to water. There was ventilation. There were, at times, even portable air conditioning units. Even though Plaintiff contests almost every fact presented by Defendants, the disputes are either not material or properly unsupported. See FED. R. CIV. P. 56(e).
V. Conclusion
Where, as here, Defendants moved for summary judgment, Plaintiff “was required ‘to discard the shielding cloak of formal allegations and meet proof with proof by showing a genuine issue as to a material fact.'” Fatemi v. White, 775 F.3d 1022, 1046 (8th Cir. 2015) (internal citation omitted). Plaintiff has not, however, met proof with proof to establish facts in dispute that would preclude partial summary judgment in Defendants' favor. Wilson v. Miller, 821 F.3d 963, 970 (8th Cir. 2016) (allegations must be substantiated with sufficient probative evidence); Bolderson v. City of Wentzville, Missouri, 840 F.3d 982, 986-87 (8th Cir. 2016) (noting plaintiff's duty to meet proof with proof in affirming summary judgment in defendant's favor). Considering the facts in the light most favorable to Plaintiff, no reasonable finder of fact could conclude that Plaintiff suffered from a heat-related substantial risk of harm that Defendants ignored. Accordingly, Defendants are entitled to qualified immunity.
If the Judge Rudofsky adopts this Recommendation, all claims in this case will have been dismissed. As a result, the Court will also recommend that this case be dismissed.
IT IS, THEREFORE, RECOMMENDED that:
1. Defendants' Motion for Summary Judgment (Doc. No. 91) be GRANTED.
2. Plaintiff's claims against Defendants Payne, Straughn, Lay, Randle, and Etherly be DISMISSED with prejudice.
3. This case be DISMISSED.