Scharnhorst v. Cantrell

1

JOHN WILLIAM SCHARNHORST, III PLAINTIFF v. SHERIFF CANTRELL; MAJOR RANDALL DENZER; CAPTAIN NOLAN AKE; CORPORAL TOM MULVANEY; DANIEL GIERTZ; LIEUTENANT A. ARNOLD; and CAPTAIN KEVIN EAST DEFENDANTS

CIVIL No. 5:22-CV-05232-TLB-CDC

United States District Court, W.D. Arkansas, Fayetteville Division

July 8, 2024

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

CHRISTY COMSTOCK, UNITED STATES MAGISTRATE JUDGE

Plaintiff John William Scharnhorst, III, a prisoner, filed the above-captioned civil rights action pursuant to 42 U.S.C § 1983. (ECF No. 1). He proceeds pro se and in forma pauperis (“IFP”). (ECF No. 6). Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3), the Honorable Timothy L. Brooks, United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation on the pending Motion for Partial Summary Judgment for Failure to Exhaust Administrative Remedies (ECF No. 34), and Separate Defendant Giertz' Motion to Dismiss (ECF No. 53). Plaintiff has responded to both motions (ECF No. 64, 75), and Separate Defendant Giertz has replied in support of his Motion to Dismiss. (ECF No. 67).

I. PROCEDURAL POSTURE

On November 28, 2022, Plaintiff submitted his original complaint, along with a Motion to Proceed IFP.^[1] (ECF Nos. 1, 2). After curing his IFP application, United States Magistrate Judge Mark Ford granted Plaintiff IFP status. (ECF Nos. 3, 5, 6).

Upon preservice review of the original complaint pursuant to 28 U.S.C. § 1915A(a), Judge Ford recommended that Plaintiff's original complaint be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A(b)(1). (ECF No. 8). During the objections period, Plaintiff filed a motion to amend his complaint. (ECF No. 10). United States District Court Judge Timothy L. Brooks granted the motion to amend, (ECF No. 11), declined to adopt Judge Ford's recommendation of dismissal, and referred the case for further consideration. (ECF No. 12). In the interests of judicial economy, this matter was later reassigned to the undersigned.^[2]

On March 31, 2023, Plaintiff submitted his Amended Complaint (ECF No. 15), and this Court directed service of the Amended Complaint on defendants. (ECF No. 16). On May 4, 2023, Defendants Nolan Ake, A. Arnold, Jay Cantrell, Randall Denzer, Kevin East, and Tom Mulvaney (“County Defendants”) filed their Answer. (ECF No. 18).

After multiple service attempts, separate Defendant Giertz was served on August 21, 2023 (ECF No. 27) and filed his Answer on September 11, 2023. (ECF No. 28).

On the same day, Defendants were directed to either file a motion for summary judgment on the issue of whether Plaintiff exhausted his administrative remedies in accordance with 42 U.S.C. § 1997e(a) by October 26, 2023, or promptly file a notice saying they did not intend to pursue such a defense at trial. (ECF No. 30). On October 26, 2023, County Defendants requested (and received) an extension of time to file a motion for summary judgment on the issue of exhaustion. (ECF No. 33).

On November 9, 2023, County Defendants submitted a Motion for Partial Summary Judgment for Failure to Exhaust Administrative Remedies along with a memorandum, statement of facts, and five exhibits in support. (ECF Nos. 34, 36). Plaintiff was directed to file his response by December 5, 2023. (ECF No. 37). Plaintiff subsequently filed four (4) motions for an extension of time to respond. (ECF Nos. 38, 61, 70, 72). Ultimately, this Court ordered Plaintiff to submit his response by not later than April 11, 2024 (ECF No. 73) and Plaintiff complied, responding to the County Defendants' Motion for Partial Summary Judgment on April 10, 2024. (ECF No. 75).

While Plaintiff's response to the County Defendants' Motion for Partial Summary Judgment was pending, separate Defendant Giertz filed a Motion to Dismiss and memorandum in support. (ECF Nos. 53, 54). Plaintiff was directed to respond (ECF No. 55) and thereafter requested (and received) an extension of time until March 22, 2024. (ECF Nos. 61, 62). On February 26, 2024, Plaintiff filed his pleading in opposition to Separate Defendant Giertz' Motion to Dismiss. (ECF No. 64). Separate Defendant Giertz requested (and received) permission to submit a reply (ECF No. 65, 66) which was filed on March 4, 2024. (ECF No. 67).

II. BACKGROUND

Plaintiff's Amended Complaint asserts three (3) claims for relief.

First, Plaintiff says that from December 5, 2021, to November 16, 2022, Defendants Cantrell, Denzer, Ake, East, Mulvaney, and Giertz violated his First Amendment right to access published materials. (ECF No. 15, p. 5). Plaintiff contends Defendants Cantrell and Denzer have “instituted a complete ban on books and newspapers.” Id. Plaintiff says that officials have not allowed him to obtain his book from his property, order books from Amazon, receive books from family, or subscribe to a newspaper. Plaintiff says Defendants Mulvaney and Ake have told him that books, including the Bible, are available on the Washington County Detention Center (“WCDC”) kiosk/tablet system, but Plaintiff says that system is “horribly neglected, often non-operational or in a state of malfunction making usage impossible or nearly impossible.” Id. Plaintiff says the WCDC kiosk/tablet system is provided to the WCDC via “Summit, Inc.,” and maintained by Defendant Giertz. Id.

Plaintiff says he has requested that Defendant Mulvaney save security footage showing staff allowing certain detainees to “own” or “monopolize” tablets. Id., p. 7. According to Plaintiff, WCDC officials allow inmates to take the tablets with them into their cells even though Defendant Giertz has explained to him that the contract between Summit, Inc. and the WCDC prohibits this practice. Id. Plaintiff contends that overcrowding at the jail and the practice of allowing certain inmates to monopolize tablets have prevented him from having access to the tablets, thereby depriving him of access to published materials. Id. Specifically, Plaintiff asserts the following:

12/5/21 - 2/1/22 - R Block was over capacity, had only one kiosk, several non-operation tablets, and a broken charging bay.

2/1/22 - 2/10/22 - B Block was extremely overcrowded - 70 people in a cell block designed for 32. 1 kiosk and most tablets being “owned” making them unavailable to me and others.

2/10/22 - 2/21/22 - I was housed in S24 with 3 other detainees. We got one hour out of our cell (15 minutes kiosk time each) all tablets were “owned” by “preferred” detainees and I had no access to them. On 2/15/22, I gave a letter to C. Rex which he delivered to Cpl. Mulvaney.

2/21/22 - 2/27/22 - The kiosk in S block froze up and stopped working. Everyone in the cell block complained to staff.... We were told that Lt. A. Arnold & Daniel Giertz were aware. Daniel never even came to look at it....

3/9/22 - Kiosk in WR3 non-responsive

3/25/22 - 3/29/22 - Kiosk in N-block unusable due to screen malfunction

4/8/22^[3] - Kiosk in L unusable due to “DDC/CI enable/disable *error*”

4/25/22 - Kiosk in P block non-operational

4/28/22 - Kiosk in K block non-operational

5/6/22 - 5/7/22 - Kiosk in L block still unusable due to “DDC/CI Enable/Disable” error, 28 days after I first reported it.

7/18/22 - Swollen tablet causing all tablets to be unusable in Q block.

8/28/22 - 9/6/22 - No kiosk access for 8 days due to “technical issues” “log in server error” and tablets “in count” in A-1 9/18/22 - 9/19/22 - No kiosk or tablet access according to DFC Bishop “5 cell blocks are down” with “technical issues”

10/13/22 - 10/17/22 - No kiosk access due to “technical issues”

10/28/22 - Kiosk down due to “technical issues”

11/10/22.4 - Kiosk down due to “technical issues”

11/11 - 11/16 - Kiosk unusable due to faulty touch screen

11/8 - 11/16/22 - tablets will not allow me access due to “technical issues” which Daniel Giertz can determine, ex

(ECF No. 15, pp. 8-9).

Plaintiff identifies Defendants in their individual and official capacities, claiming that “standing policy prevents access to any published material as they are ‘provided on the kiosk.'” Id., p. 6. Plaintiff contends that “neglect of the kiosk/tablet system, depriving detainees of published materials for days, a week, or longer is perfectly acceptable extremely common, and violating detainees' rights is the backbone of the operational procedure of the Washington County Sheriff's Department.” Id.^[4]

In his second claim, Plaintiff says that between February 21, 2022 to February 26, 2022, he developed two ingrown toenails and asked for nail clippers. Id., p. 10. Plaintiff asserts that the floor guards did not provide him with any nail clippers, even though they told him they would. Plaintiff says that he was directed to file a medical services request, but the kiosk was nonoperational, and the tablets were being hoarded by certain inmates. Id. Plaintiff says he was informed that only Defendant Arnold could “reset” the kiosk system, but she did not. Plaintiff also claims that Defendant Mulvaney and separate Defendant Giertz were aware of the problem, but no one took any action to repair the kiosk. Plaintiff says he removed his ingrown toenails himself when the ingrown toenails became overwhelmingly painful. Plaintiff identifies Defendants Arnold, Giertz, Denzer, Mulvaney, and Cantrell as defendants to this claim and he asserts that their action/inaction violated his First Amendment right to freedom of speech, Fourteenth Amendment due process rights, and the Eighth Amendment prohibition against cruel and unusual punishment. Id., p. 10. Plaintiff identifies Defendants in their individual and official capacities on the grounds that “it is the commonly accepted, widely practiced unofficial policy and custom to ignore the...