Opinion
CASE NO. 4:18-CV-285-BRW-BD
07-09-2018
ALAN DOERING, ADC #106115 PLAINTIFF v. WENDEY KELLEY, et al. DEFENDANTS
RECOMMENDED DISPOSITION
I. Procedure for Filing Objections
This Recommended Disposition ("Recommendation") has been sent to Judge Billy Roy Wilson. Any party may file written objections to this Recommendation. Objections must be specific and must include the factual or legal basis for the objection. To be considered, objections must be received in the office of the Court Clerk within 14 days of this Recommendation.
If no objections are filed, Judge Wilson can adopt this Recommendation without independently reviewing the record. By not objecting, parties may also waive any right to appeal questions of fact.
II. Discussion
A. Background
Alan Doering, an Arkansas Department of Correction ("ADC") inmate, filed this lawsuit without the help of a lawyer under 42 U.S.C. § 1983. (Docket entry #2) He claims that ADC officers failed to protect him from serious threats made by other inmates. (Docket entry #2) The Court allowed Mr. Doering to proceed in forma pauperis ("IFP"), despite his litigation history, based on allegations that he faced imminent physical injury.
Defendants have now moved to revoke Mr. Doering's IFP status and to dismiss all pending claims. (#21, #23) Mr. Doering has not filed a response to the motion, but he has filed a number of motions that remain pending in this case. The Court will consider Mr. Doering's verified complaint and supplemental filings in reviewing the Defendants' motion to dismiss.
B. Standard
In deciding whether Mr. Doering has stated a federal claim for relief, the Court must determine whether he has pleaded facts with enough specificity "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint cannot simply "[leave] open the possibility that a plaintiff might later establish some 'set of undisclosed facts' to support recovery." Id. at 561 (citation omitted). Rather, the facts set forth in the complaint must be sufficient to "nudge[] [the] claims across the line from conceivable to plausible." Id. at 547.
C. Failure-to-Protect Claim
1. Factual Allegations
According to Mr. Doering's complaint, on April 10, 2018, while he was housed in general population at the Wrightsville Unit, several inmates affiliated with the Aryan brotherhood physically threatened him. After he reported the threats to staff members, Captain Young placed him on investigative status. (#2 at p.7) The following day, Mr. Doering appeared before Defendants Harris and Lowe at "restrictive housing review." At that time, Mr. Doering requested "P.C. single man status." (#2 at p.7) Defendants Harris and Lowe asked Mr. Doering to identify the inmates who had threatened him, but he refused.
Following the review hearing, Defendant Felts escorted Mr. Doering to his cell and instructed him to pack his belongings so that he could return to general population. Mr. Doering refused Defendant Felts's order. As a result, Mr. Doering received a major disciplinary and was sentenced to fifteen days in punitive isolation. In a supplement to his amended complaint, Mr. Doering complains that, rather than being placed in protective custody, Defendants "ordered him to indefinite restrictive housing 24 hour a day lock down." (#12 at p.1)
On or about, May 18, 2018, Mr. Doering was transferred to the East Arkansas Regional Unit ("EARU") of the ADC. (#29-2 at p.1)
Mr. Doering states that he was transferred to the EARU on April 18, 2015. In his complaint, filed on April 24, 2018, however he listed his address as the Wrightsville Unit. (#2 at p.7) Mr. Doering filed a notice of change-of-address on May 23, 2018, indicating that he was at the EARU. (#10) Finally, Mr. Doering's status assignment sheet indicates that he was housed at the Wrightsville Unit on May 10, 2018. (#21-1 at p.1)
2. Analysis
Prison officials have a long-established duty to protect prisoners from violence at the hands of other prisoners. See Farmer v. Brennan, 511 U.S. 825, 833 (1994). In order to establish this constitutional violation, Mr. Doering must prove that his incarceration at the Wrightsville Unit posed a substantial risk of serious harm (objective component), and that Defendants actually knew of, or were deliberately indifferent to, the risk Mr. Doering faced, but disregarded that risk (subjective component). Pagels v. Morrison, 335 F.3d 736, 740 (8th Cir. 2003); Jackson v. Everett, 140 F.3d 1149, 1151 (8th Cir. 1998). An inmate's complaints of "general fear for his safety" are not enough to show that a defendant "acted with deliberate indifference." Robinson v. Cavanaugh, 20 F.3d 892, 895 (8th Cir. 1994).
Here, it is undisputed that, immediately after Mr. Doering reported that other inmates had threatened him, Mr. Doering was moved out of general population at the Wrightsville Unit. Even though Defendant Harris did not assign Mr. Doering to protective custody, it is undisputed that Mr. Doering did not return to general population at the Wrightsville Unit before his transfer to the EARU. Finally, it is undisputed that Mr. Doering was not injured by any inmate during his incarceration at the Wrightsville Unit.
In his subsequent pleadings, Mr. Doering complains about the conditions of his confinement at the EARU. Those claims, however, arose after Mr. Doering filed this lawsuit. Therefore, he could not have fully exhausted his administrative remedies regarding those claims before filing this lawsuit. He cannot pursue those claims in this case. See 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted"). --------
Based on these facts, Mr. Doering has failed to allege facts that would show that the Defendants knowingly placed him in harm's way, or that he suffered any harm during his incarceration at the Wrightsville Unit. Even assuming Mr. Doering's allegations to be true, the Court cannot conclude that his continued incarceration at the Wrightsville Unit posed a substantial risk of harm to his safety, or that any of the Defendants disregarded the risk that Mr. Doering faced.
III. Conclusion
The Court recommends that the Defendants' motion to dismiss (#23) be GRANTED. Mr. Doering's claims should be DISMISSED, without prejudice. All pending motions (#3, #4, #7, #9, #10, #19, #21, #25, #26, #28, #36, #37) should be DENIED, as moot.
DATED, this 9th day of July, 2018.
/s/_________
UNITED STATES MAGISTRATE JUDGE