Smith v. Hurst

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

NORTHERN DIVISION

BRAD PAUL SMITH PLAINTIFF

ADC #660448

V. NO. 3:24-cv-9-DPM-ERE

THOMAS HURST, et al. DEFENDANTS

ORDER

Pro se plaintiff Brad Paul Smith has moved for the Court to reconsider its

decision denying his motion for leave to proceed in forma pauperis (IFP). Doc. 4.

Mr. Smith is a three-striker, which he does not dispute. However, Mr. Smith argues

he has satisfied the imminent danger exception to the three strikes rules. Mr. Smith

re-alleges that: (1) in May 2023, Defendant Felecia Bell called him a “snitch” in

front of other inmates; (2) on October 11, 2023, other inmates attacked him; (3) on

October 19, 2023, other inmates stabbed him; (4) in November 2023, other inmates

attacked him; and (5) on December 27, 2023, other inmates carrying “locks on

strings” and homemade shanks” surrounded hm in his cell. Id. at 2.

This Order grants Mr. Smith’s motion to reconsider, allows him to proceed

IFP, identifies deficiencies (or problems) in Mr. Smith’s complaint, and gives Mr.

Smith the opportunity to file an amended complaint.

1. Mr. Smith’s Complaint and Motion to Reconsider

Mr. Smith’s complaint alleges that, on May 28, 2023, Defendant Felicia Bell

told other inmates that he was a “snitch.” Doc. 2 at 5. He explains that he notified

Defendants Pigford, Thomas Hurst, Claudia Harris, Cantrell, Baker, Harmon, and

Dunagon about Defendant Bell’s comment and the risk posed to his safety. After

Mr. Smith was released from segregation, he was moved into an open barracks. At

that time, Mr. Smith states that he began “having problems and requested to be

moved barracks [be]cause of staff spreading rumors again saying [he was] a

‘snitch.’” Id. He again notified the same individuals of the risk posed to his safety.

On October 11, 2023, other inmates “jumped” Mr. Smith. He explains that

those inmates stated, “[k]eep your mouth shut snitch or we’ll kill you.” Id. at 6.

On October 19, 2023, Mr. Smith got into an altercation with another inmate

who he identifies as an Aryan. Id. That inmate stabbed Mr. Smith twice and accused

him of “snitching.” Id. ADC officials the moved Mr. Smith to 2 barracks. He alleges

that the inmate who stabbed him was assigned to the same hallway. Once he

informed staff about the location of the other inmate, ADC officials moved him to

“the other side.” Id.

On November 17, 2023, ADC officials moved Mr. Smith to 5 barracks where

Defendant Bell allegedly started the rumor that Mr. Smith was a “snitch.” Id.

A couple of days later, Mr. Smith alleges that several inmates again “jumped” him

and called him a “snitch.” Id. At that time, Defendants Baker and Dunagan were

notified about the incident and stated “they couldn’t do nothing[sic].” Id.

In his motion to reconsider, Mr. Smith explains that, on December 27, 2023,

other inmates surrounded him in his cell carrying locks and homemade shanks. Doc.

4 at 2. Mr. Smith states that he “told staff again [but] to no avail.” Id.

Mr. Smith claims that all named Defendants have failed to protect him and

have been deliberately indifferent to his safety. He sues Warden Thomas Hurst,

Deputy Warden Claudia Harris, Sergeant Felicia Bell, Captain Baker, Classification

Officer Pigford, Lieutenant Harmon, Captain Cantrell, Lieutenant Dunagan, and

Deputy Director Warden Straughn each in both his or her individual and official

capacities seeking monetary damages and unspecified “injunctive relief.” Doc. 2 at

8.

Based on these allegations, the Court concludes that Mr. Smith has arguably

satisfied the imminent danger exception to the three-strikes rule. See Ashley v.

Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (concluding that the exception was

satisfied when an inmate alleged that prison officials continued to place him near his

inmate enemies, despite two prior stabbings); Martin v. Shelton, 319 F.3d 1048

(2003) (stating that the imminent danger “exception focuses on the risk that the

conduct complained of threatens continuing or future injury, not whether the inmate

deserves a remedy for past conduct.” ) Accordingly, the Court grants Mr. Smith’s

motion to reconsider and will allow him to proceed IFP at this time.

2. In Forma Pauperis Application:

A review of the documents submitted by Mr. Smith demonstrates that he

qualifies to proceed IFP.

Based on Mr. Smith’s prison trust account information, the Court will not

assess any initial partial payment. However, his custodians are instructed to collect

the $350.00 filing fee by deducting monthly payments equal to 20% of the preceding

month’s income credited to Mr. Smith’s prison trust account each time the amount

exceeds $10.00. The entire $350.00 filing fee must be paid, even if the lawsuit is

dismissed before trial. Mr. Smith’s custodian should clearly identify the monthly

payments by the name and number of this case.1

3. Deficiencies (Problems) in Current Pleadings

As explained below, in its current form, Mr. Smith’s complaint fails to state a

plausible constitutional claim for relief against many of the named Defendants.

Rather than screen the complaint and recommend the dismissal of many of Mr.

Smith’s claims, the Court will postpone the screening process2 to give Mr. Smith the

1Brad Paul Smith v. Thomas Hurst, et al., E.D. Ark. No. 3:24-cv-00009-DPM-ERE.

2 Screening is mandated by the Prison Litigation Reform Act, which 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 a 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). When making this determination, the Court must accept the truth of the factual

opportunity to file an amended complaint clarifying his constitutional claims and

correcting the deficiencies in his current complaint.

Accordingly, in his amended complaint, Mr. Smith should clarify the events

for which he is seeking a remedy as opposed to claims related to any ongoing risk

of physical harm.

A. Unrelated Claims

As discussed above, Mr. Smith’s complaint references events that occurred in

May 2023, October 2023, November 2023, and December 2023. It appears unlikely

that these events are sufficiently related such that he may pursue claims arising from

each of these events in one lawsuit.

Mr. Smith may not pursue multiple claims that are factually and legally

unrelated in a single lawsuit. See FED. R. CIV. P. 20(a)(2) (multiple defendants may

be joined in one lawsuit only if the claims against them arise “out of the same

transaction, occurrence, or series of transactions or occurrences,” and involve “any

question of law or fact common to all defendants”). In other words, Mr. Smith may

not pursue in one lawsuit claims involving different defendants and different events.

Instead, Mr. Smith must choose which related claims he wishes to pursue in this

allegations contained in the complaint, and it may consider the documents attached to the

complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Reynolds v. Dormire, 636 F.3d 976, 979

(8th Cir. 2011).

case.

C. Defendant William Straughn

In his complaint, Mr. Smith sues Deputy Director Warden Straughn. Doc. 2

at 3. However, Mr. Smith fails to allege that Defendant Straughn personally

participated in any alleged unconstitutional conduct or had direct responsibility for

any alleged constitutional violation. Instead, Mr. Smith appears to seek to hold

Defendant Straughn liable based on his supervisory position at the ADC.

Established law holds that a supervisor may not be held vicariously liable

under § 1983 for the constitutional violations of a subordinate. Ashcroft, 556 U.S. at

676 (holding that “vicarious liability is inapplicable to . . . § 1983 suits”); Saylor v.

Nebraska, 812 F.3d 637, 644-45 (8th Cir. 2016) (because a supervisor cannot be

held vicariously liable for the constitutional violations of a subordinate, prisoner

must “show that the supervisor personally participated in or had direct responsibility

for the alleged violations” or “that the supervisor actually knew of, and was

deliberately indifferent to or tacitly authorized, the unconstitutional acts”).

In its current form, Mr. Smith’s complaint fails to state a constitutional claim

for relief against Defendant Straughn.

4. Guidelines for Filing Amended Complaint:

Mr. Smith has thirty days to file a third amended complaint. If Mr. Smith files

an amended complaint, he should specifically: (1) include only those claims related

to any ongoing risk of harm to his safety; (2) identify and name as Defendants those

individuals who are aware that his continued incarceration poses an ongoing risk of

harm to his safety;3 (3) state how those individuals have acted with deliberate

indifference to his safety; and (4) state the injury he suffered as a result of each

Defendant’s unconstitutional conduct.4

Mr. Smith’s amended complaint, if filed, will supersede or replace the current

complaints. See In re Atlas Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000) (an

amended complaint supersedes an original complaint and renders the original

complaint without legal effect). So, Mr. Smith should make sure that his amended

complaint includes all allegations relevant to the claim(s) he wants to pursue in this

lawsuit. Also, Mr. Smith should not rely upon, or incorporate by reference, any

allegations made in his other complaints. In other words, Mr. Smith’s amended

complaint, if filed, will stand alone.

Finally, in his amended complaint, Mr. Smith need only include a “short and

plain statement” showing that he is entitled to relief, with factual allegations that are

“simple, concise, and direct.” FED. R. CIV. P. 8(a)(1) & (d). At this stage, there is no

need to identify witnesses or to describe evidence that he may rely on later to prove

3 “Liability under section 1983 requires a causal link to, and direct responsibility for, the

deprivation of rights.” See Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007).

4 If the Court later determines that Mr. Smith’s amended complaint relates solely to past

harm, the Court may revoke Mr. Smith’s IFP status.

his claim.

5. Conclusion:

For the reasons explained above,

IT IS THEREFORE ORDERED THAT:

1. Mr. Smith’s motion to reconsider (Doc. 4) is GRANTED.

2. Mr. Smith may proceed IFP.

3. The Clerk of the Court is directed to send a copy of this Order to the

Arkansas Division of Correction Trust Fund Centralized Banking Office, P.O. Box

8908, Pine Bluff, Arkansas 71611; the Arkansas Division of Correction Compliance

Division, P.O. Box 20550, Pine Bluff, Arkansas 71612; and the Warden of the

Grimes Unit, 300 Corrections Drive, Newport, Arkansas 72112.

4. Mr. Smith may file an amended complaint within thirty (30) days of the

entry of this Order.

5. If Mr. Smith fails to file an amended complaint, the Court will screen

the original complaint (Doc. 2), which is likely to result in the dismissal of some of

Mr. Smith’s claims.

6. The Clerk is instructed to provide Mr. Smith a blank 42 U.S.C. § 1983

complaint form, along with a copy of this Order.

SO ORDERED 8 February 2024.

UNITED STATES MAGISTRATE JUDGE