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Herrera v. Mowry

United States District Court, D. Nebraska

August 18, 2014

PIMENIO VELA HERRERA, Plaintiff,
v.
TAMMY MOWRY, in their individual capacity, MONTE HOVIC, in their individual capacity, HAHN, Deputy, in their individual capacity, STEPHENS, Deputy, in their individual capacity, and JEREMY BRUNGARD, in their individual capacity, Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, District Judge.

This matter is before the court on Defendants' Motion for Summary Judgment (Filing No. 39). For the reasons explained below, Defendants' motion will be granted.

Also pending is Plaintiff Pimenio Herrera's (also known as Manuel Herrera) Motion for Sanctions (Filing No. 47). For the reasons explained below, Herrera's motion will be denied.

I. BACKGROUND

Herrera is a pro se litigant incarcerated at a federal correctional institution in Florence, Colorado. He filed this action against Box Butte County Sheriff Tammy Mowry ("Mowry"), former Box Butte County Administrator Monte Hovik ("Hovik"), former Box Butte County Jailer Jesse Robins ("Robins"), Box Butte County Deputy Sheriff Jerod Hahn ("Hahn"), Box Butte County Deputy Sheriff J.D. Sutphen ("Sutphen"), and former Alliance Fire Department EMT Jeremy Brungard ("Brungard"). Herrera filed a Complaint and two amended pleadings that the court considers supplemental to his Complaint. ( See Filing No. 1, Filing No. 12, and Filing No. 24.) Herrera alleged in his pleadings that Hahn and Sutphen assaulted him after he refused to get dressed. (Filing No. 24 at CM/ECF p. 3.) Herrera also alleged that Brungard and others strapped a naked Herrera to a stretcher and then transported him from Box Butte County Jail to Scotts Bluff County Detention Center in a van with no tinting on its windows. ( Id. ) Herrera claimed he was transferred to Scotts Bluff County Detention Center as retaliation for filing grievances at Box Butte County Jail. ( Id. at CM/ECF p. 5.) Herrera also claimed Defendants conspired to violate his constitutional rights. ( Id. ) For relief, Herrera requested, among other things, that the court award damages in the amount of $375, 000. (Filing No. 1 at CM/ECF pp. 6-7.)

On February 12, 2013, the court found that Herrera had sufficiently alleged Fourth and Eighth Amendment claims against Defendants in their individual capacities. (Filing No. 13.) The court dismissed Herrera's claims against Robins on October 22, 2013, because Herrera failed to serve him with process. (Filing No. 46.) Defendants Mowry, Hovic, Hahn, and Sutphen filed the summary judgment motion at issue here on September 20, 2013. (Filing No. 39.)

II. SUMMARY JUDGMENT STANDARD

"Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1085 (8th Cir. 2011) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)). After the movant has demonstrated the absence of a genuine issue of material fact, the nonmovant must respond by submitting evidence that sets out specific facts showing that there is a genuine issue for trial. Id. In doing so, the nonmovant must substantiate her allegations with "sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy." Moody v. St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). "A mere scintilla of evidence is insufficient to avoid summary judgment." Id. "The basic inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005) (internal quotation marks and citations omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Jackson, 643 F.3d at 1085 (quoting Torgerson, 643 F.3d at 1042).

III. UNDISPUTED MATERIAL FACTS[1]

1. Herrera was arrested by the City of Alliance Police Department on September 24, 2010, on drug charges. (Filing No. 40-1 at CM/ECF p. 1, Mowry Aff.)

2. Herrera was initially held at Box Butte County Jail, but on October 13, 2010, he was transferred to Scotts Bluff County Detention Center as a courtesy hold due to his behavior and disciplinary problems. Box Butte County Jail does not have sufficient staff or equipment to handle on a long-term basis the types of behaviors Herrera exhibited. (Filing No. 40-1 at CM/ECF pp. 1-2, Mowry Aff.)

3. Herrera was transferred from Scotts Bluff County Detention Center back to Box Butte County Jail on January 9, 2011, to more easily accommodate his need to attend court proceedings. (Filing No. 40-1 at CM/ECF p. 2, Mowry Aff.)

4. Upon returning to Box Butte County Jail on January 9, 2011, Herrera was housed in cell block 701, cell C-1. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.)

5. After his return to Box Butte County Jail on January 9, 2011, Herrera continued to frequently exhibit behavior problems, and/or threatened staff members. As a result, Herrera was placed in segregation numerous times for various violations of jail rules and regulations. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.; Filing No. 40-11 at CM/ECF p. 1, Hovik Aff.)

6. On January 24, 2011, jail staff searched Herrera's cell and found several items of contraband. As discipline, Herrera received 48 hours of lock down in his cell and suspended visits until January 27, 2011. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.; Filing No. 40-11 at CM/ECF pp. 1-2, Hovic Aff.) Subsequently, on this same day, the following additional events occurred[2]:

6.1. At approximately 5:45 p.m., while deputies were passing out beverages to inmates, Herrera became verbally aggressive and was yelling, expressing anger about only getting out for half an hour from lock down for supper. Herrera continued to yell, stripped himself of all his clothing, and proceeded to walk around the cell block completely naked. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.)
6.2. At approximately 6:30 p.m., Herrera was instructed to return to his cell for continued lock down. Herrera, who was still standing naked in the cell block, did enter his cell. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.; Filing No. 40-6 at CM/ECF p. 4, Log Sheet.)
6.3. Once back in his cell, Herrera continued to yell and began banging on his cell wall. At approximately 7:30 p.m., Herrera was observed to have partially covered his cell window with his bed sheet. Herrera eventually complied with staff directives to take the bed sheet off of his window. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.; Filing No. 40-6 at CM/ECF p. 5, Log Sheet.)
6.4. At approximately 9:30 p.m., Herrera began banging on his cell walls again as well as continuously yelling. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.; Filing No. 40-6 at CM/ECF p. 5, Log Sheet; Filing No. 40-7 at CM/ECF p. 2, Incident Report.)

7. A few hours later in the early morning hours of January 25, 2011, at approximately 12:30 a.m., Herrera again began yelling and banging on his cell walls when he became angry after his request for Tylenol was denied. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.; Filing No. 40-6 at CM/ECF p. 5, Log Sheet; Filing No. 40-7 at CM/ECF p. 2, Incident Report.) Jail staff advised Herrera of the general rule that non-prescription medications are not given after lock down. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.; Filing No. 40-6 at CM/ECF p. 7, Log Sheet; Filing No. 40-7 at CM/ECF p. 2, Incident Report.) When Herrera persisted in his loud behavior, a decision was made to transfer him to a holding cell. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.; Filing No. 40-6 at CM/ECF p. 7, Log Sheet; Filing No. 40-7 at CM/ECF p. 2, Incident Report.) The following events then occurred:

7.1. At approximately 12:40 a.m., Herrera was transported to the holding cell. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.; Filing No. 40-6 at CM/ECF p. 7, Log Sheet; Filing No. 40-7 at CM/ECF p. 2, Incident Report.)
7.2. At approximately 12:45 a.m., it was observed by jail staff that Herrera had again stripped himself of all of his clothing and used his clothing to clog the toilet and drain in the holding cell, causing the area to flood with water. Herrera proceeded to stand naked in his cell, and stated he would calm down and go to sleep if he got Tylenol. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.; Filing No. 40-6 at CM/ECF p. 7, Log Sheet; Filing No. 40-7 at CM/ECF p. 2, Incident Report.)
7.3. At approximately 12:50 a.m., jail staff provided Herrera with two non-aspirin. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.; Filing No. 40-6 at CM/ECF p. 7, Log Sheet; Filing No. 40-7 at CM/ECF p. 2, Incident Report.)
7.4. Herrera then stated he wanted dry clothes and a blanket. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.; Filing No. 40-7 at CM/ECF p. 2, Incident Report.) The evidence does not reflect whether Herrera was given dry clothes and a blanket at this time.[3]

8. Mowry was familiar with Herrera's past history of unruly behavior, and was advised of his behavior on January 24 and 25, 2011. (Filing No. 40-1 at CM/ECF p. 3, Mowry Aff.) Mowry was concerned that her small staff could not continue to devote so much time to dealing with Herrera's behavior problems. (Filing No. 40-1 at CM/ECF pp. 3-4, Mowry Aff.) Mowry was concerned about the safety and morale of her staff. (Filing No. 40-1 at CM/ECF p. 4, Mowry Aff.)

9. Mowry directed Robins to contact Scotts Bluff County Detention Center (a larger facility with more staff members) to ask if its officials would accept Herrera as a "courtesy hold." (Filing No. 40-1 at CM/ECF pp. 3-4, Mowry Aff.; Filing No. 40-9, Incident Report.) At approximately11:00 a.m. on January 25, 2011, Scotts Bluff County Detention Center notified Box Butte County staff that it would accept Herrera on a courtesy hold if he were transferred there. (Filing No. 40-1 at CM/ECF p. 4, Mowry Aff.; Filing No. 40-9, Incident Report.)

10. On January 25, 2011, at approximately 12:00 p.m., Hahn, Sutphen, and Robins went to Herrera's holding cell in order to place him into shackles for transport to Scotts Bluff County Detention Center. When the deputies entered the holding cell, Herrera was wearing only boxer shorts. (Filing No. 40-10 at CM/ECF p. 1, Sutphen Aff.; Filing No. 40-13 at CM/ECF p. 1, Hahn Aff.) The following events transpired:

10.1. Clothing was present in the cell, and Hahn, Sutphen, and Robins asked Herrera to get dressed for his transport to Scotts Bluff County Detention Center. Herrera reacted by removing his boxer shorts, laying down, and telling the officers he would not go, and they would have to hand cuff him while he was naked because he would not get dressed. (Filing No. 40-10 at CM/ECF pp. 1-2, Sutphen Aff.; Filing No. 40-13 at ...

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