by Douglas Ankney

On August 23, 2023, the U.S. Court of Appeals for the Eighth Circuit affirmed the judgment of a lower court in favor of Arkansas prisoner Deverick Scott, who claimed that a guard with the state Department of Corrections (DOC) provoked a fellow prisoner to attack Scott in retaliation for grievances he filed. See: Scott v. Payne, 2023 U.S. App. LEXIS 19698 (8th Cir.).

That left to stand a decision by the U.S. District Court for the Eastern District of Arkansas on September 19, 2022, in Scott’s pro se claim against the Varner Unit guard, Cpl. Jonathan Vineyard. In that, Scott recalled a grievance he had written involving Vineyard and another prisoner identified as “Obama-Prowse.” He alleged that Vineyard then told Obama-Prowse that Scott had written a grievance about the two of them, after which Obama-Prowse attacked Scott and threw urine on him.

Vineyard moved to dismiss the claim, arguing that Scott had “no proof that Vineyard’s disclosure was motivated by retaliatory animus” nor that it caused Obama-Prowse to attack him with urine. The guard also pointed to 67 grievances that Scott subsequently filed, arguing they established that a person of “ordinary firmness” would not be discouraged from filing grievances involving other prisoners if he knew they would be disclosed. On top of that, Vineyard claimed qualified immunity (QI).

The Court began by noting that Vineyard failed to offer “a nonretaliatory motive” for his disclosure to Obama-Prowse; instead he merely denied making the disclosure at all. However, the Court continued, it was required to view the disputed facts in the light most favorable to Scott by Oglesby v. Lesan, 929 F.3d 526 (8th Cir. 2019). Considering the allegation true and seeing that Vineyard offered no alternative explanation, the Court found it reasonable to infer that the guard acted with an illicit motive, as laid out in Spencer v. Jackson County, 738 F.3d 907 (8th Cir. 2013).

As to whether the disclosure actually caused Obama-Prowse to throw urine on Scott, the Court said was irrelevant. Scott’s claim concerned “Vineyard’s unauthorized and allegedly unconstitutional retaliatory disclosure, not Obama-Prowse’s assault.”

Scott’s filing of numerous subsequent grievances was not determinative of his claim, either, the Court added. Citing Gonzalez v. Bendt, 971 F.3d 742 (8th Cir. 2020), it said “[t]he standard is an objective one: how would the hypothetical reasonable inmate have reacted to Vineyard’s disclosure?” Moving on to cite Irving v. Dormire, 519 F.3d 441 (8th Cir. 2008), the Court said that disclosures “like Vineyard’s place inmates at a substantial risk of harm.” While Scott’s grievance-related speech was not chilled in general, “[a] jury could reasonably conclude … that being subjected to a substantial risk of harm would chill an inmate of ordinary firmness.” Thus the Court concluded Scott had “made a prima facie case of retaliation.”

To defeat Vineyard’s claim of QI, Scott had to show that Vineyard violated a statutory or constitutional right that was clearly established at the time of the incident. The Court had to decide “if the contours of Scott’s First Amendment right ‘were sufficiently definite that any reasonable official in [Vineyard’s] shoes would have understood that he was violating it,” as laid out in McDaniel v. Neal, 44 F.4th 1085 (8th Cir. 2022). The Court determined that at the time of the disclosure, “Vineyard was on notice that he could not do anything with an illicit motive that would chill Scott’s grievance-related speech,” citing Cody v. Weber, 256 F.3d 764 (8th Cir. 2001). Vineyard “should also have been aware that disclosing Scott’s grievance to Obama-Prowse placed Scott at a substantial risk of serious harm,” the Court added. Thus Vineyard was not entitled to QI. Accordingly, the Court denied Vineyard’s motion for dismissal. See: Scott v. Vineyard, 2022 U.S. Dist. LEXIS 169315 (E.D. Ark.).

On February 10, 2023, Scott reached a settlement with DOC in another pro se suit he filed alleging he suffered retaliation from two other guards, Lt. Antonio Johnson and Cpl. Cornissa Green. When they came to escort him to a disciplinary hearing on June 8, 2018, he said they refused to double-cuff him and then emptied a can of mace on him, leaving him in a scalding shower while they went to the hearing and waived his appearance, after which he lost privileges and spent time in isolation.

Under the settlement terms, Scott’s telephone and commissary restrictions from the incident were lifted, and he was allowed non-contact visits. DOC also placed him in its “Step-Down” program, “a four-level reentry program into general population.” After completing the first two levels, which would take a minimum of 60 days, he would be allowed before the classification committee. He would earn another hearing there by completing Level 3 and then, if he progressed to Level 4, complete the program.

The agreement anticipated no payments to Plaintiff nor the attorney whose counsel he had by then picked up, Joe Perry of Daggett & Perry, PLLC in Marianna. See: Scott v. Gibson, USDC (E.D. Ark.), Case No. 5:19-cv-00280.  

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