Opinion
4:23CV01219-LPR-JTK
09-04-2024
MARVIN KENT, ADC # 119175 PLAINTIFF v. DEXTER PAYNE, et al. DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATIONS
JEROME T. KEARNEY, UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS
The following recommended disposition (“Recommendation”) has been sent to United States District Judge Lee P. Rudofsky. Any party may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objections; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.
DISPOSITION
I. Introduction
Marvin Kent (“Plaintiff”) is in custody at the East Arkansas Regional Unit of the Arkansas Division of Correction (“ADC”). Plaintiff's claims in this case arise from the time he was in custody at the Varner Unit of the ADC. Plaintiff filed a Complaint, Amended Complaint, and Second Amended Complaint alleging violations of his federally protected rights. (Doc. Nos. 1, 5, 7-1).
Upon screening Plaintiff's claims pursuant to the Prison Litigation Reform Act (“PLRA”) and 28 U.S.C. § 1915(e), the Court determined it needed further information to properly screen Plaintiff's claims. (Doc. No. 10). The Court gave Plaintiff the chance to file a superseding Third Amended Complaint. (Id. at 4-5). Plaintiff has filed his Third Amended Complaint. (Doc. No. 20). The Court recommends this action be dismissed without prejudice for the reasons set out below.
II. Screening
The PLRA requires federal courts to screen prisoner complaints seeking relief against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). See also 28 U.S.C. § 1915(e) (screening requirements).
An action is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Whether a plaintiff is represented by counsel or is appearing pro se, his complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F .2d 1334, 1337 (8th Cir.1985).
An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32 (1992).
III. Discussion
A. Plaintiff's Pleadings
When the Court gave Plaintiff the chance to amend his pleadings, the Court explained that a Third Amended Complaint would render Plaintiff's earlier pleadings without legal effect. (Doc. No. 18 at 7) (citing In Home Health, Inc. v. Prudential Ins. Co. of America, 101 F.3d 600, 603 (8th Cir. 1996) (“An amended complaint ‘ordinarily supersedes the original and renders it of no legal effect.'”) (internal citation omitted)).
. Plaintiff's Third Amended Complaint is the operative pleading in this case.
In his Third Amended Complaint, Plaintiff sued ADC Director Dexter Payne, Assistant Director William Straughn, Chief Assistant Director Dale Reed, and Warden James Gibson (collectively, “Defendants”) in their personal and official capacities. (Doc. No. 20). Plaintiff claims Defendants failed to protect him. (Id. at 5).
Plaintiff says Deputy Warden Jackson placed inmate K. Gilliam on Plaintiff's enemy alert list after Plaintiff and Gilliam had a verbal altercation in February 2023. (Id. at 4). On March 11, 2023, inmate Gilliam put a $1,000 hit on Plaintiff's life. (Id.). On October 28, 2023, the Classification Committee Board released Plaintiff to general population and housed him in 21 barracks with Gilliam, who was on Plaintiff enemy alert list per Defendant Jackson's orders. (Id. at 4-5).
In April 2023, Plaintiff was housed in isolation cell 22 along with inmate C. Lewis who had physically assaulted Plaintiff. (Id. at 4). On April 17, 2023, the Classification Committee Board failed to remove Plaintiff from that cell. (Doc. No. 20 at 4).
On August 4, 2023, Defendant Barton and a Sergeant Dunlap ordered Lieutenant Sifuentes and Sergeant Taylor to use excessive force on Plaintiff by dragging Plaintiff across the hard concrete floor from isolation cell 4 to cell 25 in cell block 3. (Id.).
On March 1, 2024, Sergeant Dunlap destroyed Plaintiff's personal property, which included “all [Plaintiff's] legal paperwork.” (Id. at 5).
Plaintiff seeks damages. (Id. at 6).
B. Analysis
Plaintiff's allegations as currently pled fail to state a claim for the reasons set out below.
1. Defendants Carroll, Jackson, Washington, ADC, Barton, and Does
As mentioned above, Plaintiff's Third Amended is the operative pleading in this case. When the Court gave Plaintiff the chance to submit a Third Amended Complaint, the Court advised Plaintiff that a Third Amended Complaint should:
1) name as a Defendant each party he believes deprived him of his constitutional rights and whom he wishes to sue in this action; 2) provide specific facts against each named Defendant in a simple, concise, and direct manner, including dates, times, and places if possible; 3) indicate whether he is suing each Defendant in his/her individual or official capacity, or in both capacities; 4) explain the reasons for an official capacity claim, if he makes one; 5) explain how each Defendant's actions harmed him personally; 6) explain the relief he seeks; and 7) otherwise cure the defects explained above and set out viable claims.(Doc. No. 18 at 7).
The Court's instructions specifically directed Plaintiff to “name as a Defendant each party he believes deprived him of his constitutional rights and whom he wishes to sue in this action” if he chose to file a Third Amended Complaint. (Id.). The docket reflects that Carroll, Jackson, Washington, ADC, Baron, and Does are Defendants in this action. Plaintiff, as the master of his Third Amended Complaint, did not name Carroll, Jackson, Washington, ADC, Baron, or Does as Defendants. As such, there are no pending claims against them. Consequently Defendants Carroll, Jackson, Washington, ADC, Baron, and Does should be terminated as parties to this action.
The Court notes that even if Plaintiff had named Carroll, Jackson, Washington, ADC, Barton, and Does as Defendants, Plaintiff's claims against them would nonetheless fail.
Carroll and Washington
Plaintiff made no allegations of fact against Carroll or Washington. Because liability under § 1983 is based on an individual's actions, the lack of allegations against Carroll and Washington is fatal to Plaintiff's claims.
Jackson
According to Plaintiff, Jackson placed inmate K. Gilliam on Plaintiff's enemy alert list after Plaintiff and Gilliam had a verbal altercation in February 2023. (Doc. No. 20 at 4). This is Plaintiff's only allegation against Jackson. Plaintiff's allegation against Jackson does not indicate any constitutional violation.
The ADC
Plaintiff named the ADC as a Defendant, but the ADC is not a “person” subject to suit under 42 U.S.C. § 1983. Zar v. S.D. Bd. of Exam'rs of Psychologists, 976 F.2d 459, 464 (8th Cir. 1992) (state departments not “persons” under § 1983). As such, this claim fails.
Barton
“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Bare allegations void of factual enhancement are insufficient to state a claim for relief under § 1983. See Iqbal, 556 U.S. at 678.
According to Plaintiff, on August 4, 2023, Barton and Sergeant Dunlap ordered Lieutenant Sifuentes and Sergeant Taylor to use excessive force on Plaintiff by dragging Plaintiff across the hard concrete floor from isolation cell 4 to cell 25 in cell block 3. (Doc. No. 20 at 4). Plaintiff does not describe Barton's actions specifically. Was Plaintiff present when Barton allegedly gave the order? What exactly did Barton say? Further, Plaintiff does not explain whether the excessive force was actually used; it is not clear from Plaintiff's Third Amended Complaint whether Sifuentes or Taylor followed Barton and Dunlap's orders. Plaintiff does not provide any detail at all about the August 4, 2023 incident. If force was used, Plaintiff does not explain if he was injured. Plaintiff's bare allegation is not sufficient to state a claim against Barton-or Dunlap, Sifuentes, or Taylor. (See Doc. No. 20 at 5, seeking to “add these names to this lawsuit,” including Dunlap, Sifuentes, and Taylor).
Does/the Classification Committee Board
Plaintiff alleges failure to protect. The Court of Appeals for the Eighth Circuit considered failure to protect in the context of inmate-on-inmate assault in Vandevender v. Sass, 970 F.3d 972, 975-76 (8th Cir. 2020). The Court explained that “[a] prison official ‘violates the Eighth Amendment if he is deliberately indifferent to the need to protect an inmate from a substantial risk of serious harm from other inmates.'” Id. at 975 (internal citation omitted).
A failure to protect claim “has an objective component, whether there was a substantial risk of serious harm to the inmate, and a subjective component, whether the prison official was deliberately indifferent to that risk.” (Id.). For a defendant to be found liable, “‘the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Plaintiff complains that the Classification Committee Board released him to general population in 21 barracks where Gilliam was also housed. (Doc. No. 20 at 5). Plaintiff also complains that the Board failed to move him out of isolation cell 22 where Plaintiff was housed with C. Lewis, who had assaulted Plaintiff. (Id. at 4). But Plaintiff made no allegations that any Classification Committee Board member knew of a substantial risk of harm to Plaintiff from Gilliam or Lewis. Without knowledge of a substantial risk, no Board member could have disregarded that risk. As a result, Plaintiff's failure to protect claim against the Doe Classification Committee Board members fails.
2. Official Capacity Claims
Plaintiff sued Defendants in their personal and official capacities seeking damages only. “A suit against a government officer in his official capacity is functionally equivalent to a suit against the employing governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). Accordingly, Plaintiff's official capacity damages claims Defendants are the equivalent of claims against the state of Arkansas and are barred by Eleventh Amendment. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989).
3. Personal Capacity Claims
Plaintiff's brought suit under 42 U.S.C. § 1983. “Liability under § 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). “Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Parrish, 594 F.3d at 1001. Bare allegations void of factual enhancement are insufficient to state a claim for relief under § 1983. See Iqbal, 556 U.S. at 678.
Plaintiff named Payne, Reed, Straugh, and Gibson as Defendants. Plaintiff claims “[a]ll Defendants mentioned in the above complaint and 1983 civil claim failed to protect [his] personal safety . . . .” (Doc. No. 20 at 5). But made no allegations of fact against Defendants Payne, Reed, Straugh, or Gibson. Because liability under § 1983 is based on an individual's actions, the lack of allegations against these Defendants is fatal to Plaintiff's claims against them. Plaintiff's claims against Defendants Payne, Reed, Straugh, and Gibson should be dismissed for failure to state a claim on which relief may be granted.
IV. Conclusion
IT IS, THEREFORE, RECOMMENDED that:
1. This action be DISMISSED without prejudice for failure to state a claim on which relief may be granted.
2. The Court recommendthat this dismissal count as a “strike” for purposes of 28 U.S.C. § 1915(g).
The number of strikes a plaintiff has accrued may be determined only by looking backwards to past dismissals; 28 U.S.C. § 1915(g) leaves the effective decision to the later tribunal. Gonzalez v. United States, 23 F. 4th 788, 789-91 (8th Cir. 2022).
Title 28 U.S.C. § 1915(g) provides as follows: “In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”
3. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any Order adopting these recommendations and accompanying Judgment would not be taken in good faith.