Covert v. Kelley

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION HAROLD COVERT PLAINTIFF ADC #151511 v. CASE NO. 4:20-CV-00202-BSM JAMES PLUMMER, et al. DEFENDANTS ORDER Having reviewed the record de novo, United States Magistrate Judge J. Thomas Ray’s recommended disposition [Doc. No. 98] is adopted in part and rejected in part. Sergeant Hampton is dismissed without prejudice because he was never served with process.

Summary judgment is granted on Harold Covert’s official capacity claims against James Plummer, Mary Lloyd, and Laquista Swopes because nothing in the record shows that they acted pursuant to a government policy or custom. Summary judgment is denied on Covert’s individual capacity claims against Plummer, Lloyd, and Swopes because there are material

factual disputes as to whether defendants’ search of Covert’s cell was an adverse action that would chill a person of ordinary firmness from reporting drug activity, and whether the cell search was motivated by Covert’s call to the Arkansas Crime Information Line. Additionally, qualified immunity does not apply because, viewing the facts in the light most

favorable to Covert, his allegations that defendants retaliated against him, in violation of his First Amendment rights, sufficiently demonstrate a constitutional violation that is clearly established. See e.g., Santiago v. Blair, 707 F.3d 984, 991 (8th Cir. 2013). Therefore, the claim against Hampton is dismissed without prejudice, the official capacity claims against Plummer, Lloyd, and Swopes are dismissed with prejudice, and the individual capacity claims against Plummer, Lloyd, and Swopes will proceed to trial. IT IS SO ORDERED this 7th day of March, 2023.

x Wr UNITED STATES DISTRICT JUDGE