The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
DENARIUS M. STALLINGS PLAINTIFF
ADC # 155066
v. 4:22CV00579-BSM-JTK
GIBSON, et al. DEFENDANTS
ORDER
Denarius M. Stallings (“Plaintiff”) is confined in the Varner Supermax Unit of the
Arkansas Division of Correction (“ADC”). He filed this pro se action under 42 U.S.C. ' 1983
against multiple ADC officials alleging violations of his constitutional rights. (Doc. No. 1).
On July 15, 2022, upon reviewing Plaintiff’s Complaint pursuant to the Prison Litigation
Reform Act (“PLRA”), the Court found Plaintiff’s Complaint failed to state a claim on which relief
may be granted and explained why. (Doc. No. 5). Plaintiff was given the chance to file a
superseding amended complaint to cure the defects in his pleading. (Id.). Plaintiff filed an
Amended Complaint without the benefit of the Court’s Order; it seems the July 15, 2022 Order
and Plaintiff’s Amended Complaint crossed paths. (Doc. Nos. 4, 5, 8). Plaintiff filed a superseding
Second Amended Complaint on August 2, 2022. (Doc. No. 7).
The Court has reviewed Plaintiff’s Second Amended Complaint, as required by the PLRA.
As explained below, Plaintiff’s Second Amended Complaint fails to state a claim on which relief
may be granted. Plaintiff will be given one more opportunity to cure the defects in his pleading.
I. 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).
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).
II. Facts and Analysis
In his Second Amended Complaint, Plaintiff sued Wardens Gibson and Johnson, Deputy
Warden Shipman, Major B. Carroll, Captains Taylor and Plumer, Lieutenant Brown, Sergeants
Franklin and Taylor, and Escort Officer Green in their personal and official capacities. (Doc. No.
7 at 1-5). Plaintiff alleges that on September 15, 2020, Defendants Franklin and Green woke
Plaintiff for court. (Id. at 9). Plaintiff was placed in handcuffs and ankle restraints, and was
wearing a belt that connected both. (Id.). When Plaintiff began walking, Inmate C. Brewer
emerged from the pipechase, which Inmate Brewer accessed through the light fixture in his cell.
(Id.). Plaintiff asserts that Inmate Brewer had done the same thing years earlier. (Id.). Inmate
Brewer stabbed Plaintiff “in the head, neck, [and] back, over and over again.” (Id.).
Defendant Franklin tried to restrain Brewer. (Doc. No. 7 at 10). Defendant Sergeant
Taylor came to assist. (Id.). Defendant Green initially retreated, then returned “pulling the
Plaintiff down to the ground while Inmate Brewer stabbed the Plaintiff,” who was helpless. (Id.).
Eventually, backup arrived. (Id.).
Plaintiff was taken to the infirmary where three or four nurses attended to his wounds.
(Id.). Plaintiff asked to go to the hospital, but his request was denied. (Id.). Plaintiff also submitted
a sick call request. (Doc. No. 7 at 10). He was seen by a doctor only once for his injuries. (Id. at
11). Plaintiff says he is scarred and suffers shoulder and neck pain, and headaches so severe that
the cannot sleep. (Id. at 10-11). Plaintiff also says he has “paranoid visions.” (Id. at 11).
Plaintiff claims Defendants “knew or should have known” that Inmate Brewer was a danger
and maintains Defendants failed to protect Plaintiff from Inmate Brewer. (Id. at 4-7, 12). Plaintiff
seeks damages. (Id. at 13).
***
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)).
To establish deliberate indifference in failing to protect from assault by another inmate, a
plaintiff “‘must show that he was faced with a pervasive risk of harm and that the prison officials
failed to respond reasonably to that risk.’” Id. at 977 (internal citation omitted). The Court of
Appeals for the Eighth Circuit has stated that
a “pervasive risk of harm” may not ordinarily be shown by pointing to a single
incident or isolated incidents, but it may be established by much less than proof of
a reign of violence and terror in the particular institution. It is enough that violence
and sexual assaults occur with sufficient frequency that prisoners are put in
reasonable fear for their safety and to reasonably apprise prison officials of the
existence of the problem and the need for protective measures.
Id.
An obvious risk of harm may justify an inference that a prison official deliberately
disregarded a risk. Patterson v. Kelley, 902 F.3d 845, 852 (8th Cir. 2018) (internal citation
omitted). But to make that inference, there must evidence showing the defendants “were exposed
to the underlying facts revealing that risk.” Id. As the Supreme Court explained,
[I]f an Eighth Amendment plaintiff presents evidence showing that a substantial risk of
inmate attacks was longstanding, pervasive, well-documented, or expressly noted by
prison officials in the past, and the circumstances suggest that the defendant-official
being sued had been exposed to information concerning the risk and thus must have
known about it, then such evidence could be sufficient to permit a trier of fact to find that
the defendant-official had actual knowledge of the risk.
Farmer, 511 U.S. at 842. In the majority of failure to protect claims arising from inmate-on-inmate
assault, the attacker was known to be violent or known to have made earlier inmate threats. Young
v. Selk, 508 F.3d 868, 873 (8th Cir. 2007); Pagels v. Morrison, 335 F.3d 736, 739 (8th Cir. 2003);
Newman v. Holmes, 122 F.3d 650, 651 (8th Cir. 1997).
Here, Plaintiff alleges Defendants “knew or should have known” that Inmate Brewer was
a danger. But Plaintiff does not explain how any Defendant knew, or how any Defendant should
have known, that Inmate Brewer presented a risk. Plaintiff says Inmate Brewer had gotten out of
his cell in years past. Did Inmate Brewer attack someone at that time? If so, where was the attack?
When? How was any Defendant involved with or aware of the earlier attack? Were there other
instances when Inmate Brewer attacked or threatened others? Plaintiff provides no such
information. And Plaintiff did not provide any information regarding any Defendant’s
involvement with Plaintiff’s medical care. Without these allegations, Plaintiff’s claims are bare
allegations—and bare allegations void of factual enhancement are insufficient to state a claim for
relief under § 1983. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As such, Plaintiff’s Second
Amended Complaint fails to state a claim on which relief may be granted.
III. Superseding Amended Complaint
Plaintiff may amend his Second Amended Complaint to cure the defects explained above.
If Plaintiff decides to amend, Plaintiff should submit to the Court, within thirty (30) days of the
entry date of this Order, a superseding Third Amended Complaint that contains in a single
document his claims against all Defendants he is suing. Plaintiff is cautioned that a Third Amended
Complaint renders his Second Amended Complaint without legal effect.1 Only claims properly
set out in the Third Amended Complaint will be allowed to proceed. Therefore, Plaintiff’s Third
Amended Complaint should: 1) name 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.
1 “An amended complaint ‘ordinarily supersedes the original and renders it of no legal
effect.’” In Home Health, Inc. v. Prudential Ins. Co. of America, 101 F.3d 600, 603 (8th Cir.
1996), quoting International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1994) (other
citations omitted).
If Plaintiff does not submit a Third Amended Complaint, I will recommend that his Second
Amended Complaint be dismissed without prejudice. See 28 U.S.C. § 1915(e)(2); Loc. R.
5.5(c)(2).
IV. Conclusion
IT IS, THEREFORE, ORDERED that:
1. If Plaintiff wishes to submit a Third Amended Complaint for the Court’s review,
he shall file the Third Amended Complaint consistent with the above instructions within thirty (30)
days from the date of this Order. If Plaintiff does not submit a Third Amended Complaint, I will
recommend that his Second Amended Complaint be dismissed. See 28 U.S.C. § 1915(e)(2);
LOCAL RULE 5.5(c)(2).
2. The Clerk of the Court is directed to mail Plaintiff a blank 42 U.S.C. § 1983
Complaint form.
IT IS SO ORDERED this 8" day of August, 2022.
UNITED STATES MAGISTRATE JUDGE