# Kellebrew v. Arkansas, State of

> District Court, E.D. Arkansas · March 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10008602

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** March 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10008602

## How later opinions describe it (automated extraction)

- holding that the “Constitution does not mandate comfortable prisons” or that prisons be “free of discomfort”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

MARCUS A. KELLEBREW PLAINTIFF

v. Case No. 4:23-cv-00170 KGB

STATE OF ARKANSAS, et al. DEFENDANTS

ORDER
Before the Court are several motions filed by plaintiff Marcus A. Kellebrew. Mr.
Kellebrew has filed a motion for leave to proceed in forma pauperis (Dkt. No. 1), a petition for
“writ of mendabus [sic]” (Dkt. No. 9), a motion for order (Dkt. No. 10), a motion for judgment by
default (Dkt. No. 24), and a “motion for relief and injunctive relief excessive Eighth Amendment
violations” (Dkt. No. 28). Defendants Melody Anderson and Katrina Barrow have filed a separate
motion to dismiss (Dkt. No. 5). Defendant Thomas McBroome has filed a separate motion to
dismiss (Dkt. No 14). Defendants Melody Anderson, Katrina Barrow, and Lasandra Sanders have
filed a supplemental motion to dismiss (Dkt. No. 22). Finally, defendants Melody Anderson,
Katrina Barrow, and Thomas McBroome have filed a motion to vacate the initial scheduling Order
(Dkt. No. 19). For the following reasons, the Court grants all three motions to dismiss, dismisses
Mr. Kellebrew’s complaint consistent with the terms of this Order, and denies all remaining
motions.
I. Background
Mr. Kellebrew is a convicted sex offender who was released on parole on April 5, 2022
(Dkt. No. 2, at 43-44). On March 6, 2023, Mr. Kellebrew filed a motion for leave to proceed in
forma pauperis and a complaint naming as defendants the State of Arkansas, Arkansas Community
Corrections, Arkansas Department of Corrections, and Arkansas Community Corrections agents
Melody Anderson, Katrina Barrow, Lasandra Sanders, and Thomas McBroome (Dkt. Nos. 1; 2).
The Court understands Mr. Kellebrew to allege that a search of his home by defendants was an
unreasonable search and seizure in violation of the Fourth Amendment to the United States
Constitution and an unconstitutional retaliation in violation of the First Amendment to the United
States Constitution (Dkt. No. 2, at 4, 5, 8-10).

On March 3, 2023, before the Court ruled on Mr. Kellebrew’s motion to proceed in forma
pauperis, he paid the Court’s filing fee (Dkt. No. 3). Rather than serve process, Mr. Kellebrew
sent a letter with some portion of the complaint but no summons to Arkansas Community
Corrections Agents Anderson and Barrow (Dkt. No 5, ¶ 2). On March 31, 2023, Agents Anderson
and Barrow filed a motion to dismiss (Dkt. No. 5).
On April 12, 2023, Mr. Kellebrew filed a petition for “writ of mendabus [sic]” (Dkt. No.
9). This filing appears to inform the Court that Mr. Kellebrew has a separate related case in the
Arkansas state court system and that he has filed related “Title VI complaints” with the Department
of Justice (Id., ¶¶ 1, 2). It also alleges additional violations not mentioned in Mr. Kellebrew’s

complaint of his rights under the Eighth Amendment to the United States Constitution and the
Arkansas Constitution, though it does not specify the ways in which Mr. Kellebrew believes that
these rights were violated (Id., ¶¶ 3, 4).
On April 19, 2023, Mr. Kellebrew filed another document with the Court (Dkt. No. 10).
This filing appears to allege that Agent Anderson refused service of process, although it also
appears to conflate service of process and the informal letter sent by Mr. Kellebrew (Id.).
On May 4, 2023, Arkansas Community Corrections Agent McBroome filed a separate
motion to dismiss (Dkt. No 14). On August 28, 2023, Agents Anderson and Barrow, joined now
by Agent Sanders, filed a supplemental motion to dismiss (Dkt. No 22).
On September 5, 2023, Mr. Kellebrew moved for default judgment (Dkt. No. 24). On
February 15, 2024, Mr. Kellebrew filed a motion seeking relief and injunctive relief (Dkt. No. 28).
II. Mr. Kellebrew’s In Forma Pauperis Motion
After moving for leave to proceed in forma pauperis, Mr. Kellebrew paid the Court’s filing
fee (Dkt. Nos. 1; 3). The Court therefore denies as moot Mr. Kellebrew’s motion to proceed in

forma pauperis (Dkt. No. 1).
III. Claims Against Agent Defendants
The Court now turns to the three pending motions to dismiss filed by Agents Anderson,
Barrow, Sanders, and McBroome. First, Agents Anderson and Barrow move to dismiss on
grounds of insufficient services of process, sovereign immunity in their official capacities, and
qualified immunity in their individual capacities (Dkt. No. 5). Second, Agent McBroome moves
to dismiss on sovereign immunity and qualified immunity grounds (Dkt. No. 14). Third, Agents
Anderson and Barrow, now joined by Agent Sanders, filed a supplemental motion to dismiss
focusing again on Mr. Kellebrew’s insufficient service of process (Dkt. No. 22).

A. Service Of Process
Agents Anderson, Barrow, and Sanders move to dismiss for insufficient service of process
(Dkt. Nos. 5, 22). They assert that Mr. Kellebrew sent a letter to Agents Anderson, Barrow, and
Sanders that did not attach a copy of the summons and the complete complaint, instead only
including 24 pages of the 120-page case-initiating pleading (Dkt. No. 23, at 2–3). Federal Rule of
Civil Procedure 4 requires service of “a copy of the complaint” and summons. Fed. R. Civ. P.
4(c)(1). Because Mr. Kellebrew failed to provide a complete copy of the complaint and provided
no summonses for Agents Anderson, Barrow, and Sanders, Mr. Kellebrew failed to comply with
Rule 4, and his complaint against Agents Anderson, Barrow, and Sanders should be dismissed for
this reason. The Court grants Agents Anderson, Barrow, and Sanders’s motions to dismiss for
insufficient service of process (Dkt. Nos. 5, 22).
B. Dismissal On The Merits
The Court finds that, even if this Court were to assume that Mr. Kellebrew obtained
sufficient service of his summons and complaint on defendants Agents Anderson, Barrow,

Sanders, and McBroome, Mr. Kellebrew’s claims against these defendants should be dismissed.
Federal Rule of Civil Procedure 8(a)(2) requires only a “short and plain statement of the
claim showing that the pleader is entitled to relief . . .” Fed. R. Civ. P. 8(a)(2). Specific facts are
not required; the complaint simply must “give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, the complaint must include
enough factual information to “provide the ‘grounds’ on which the claim rests, and to raise a right
to relief above a speculative level.” Twombly, 550 U.S. at 555-56; Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008). A plaintiff’s “obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original)
(citations omitted). “[T]he complaint must contain facts which state a claim as a matter of law and
must not be conclusory.” Briehl v. General Motors Corp., 172 F.3d 623, 627 (8th Cir. 1999).
“When ruling on a motion to dismiss, the district court must accept the allegations contained in
the complaint as true and all reasonable inferences from the complaint must be drawn in favor of
the nonmoving party.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001).
The Court construes Mr. Kellebrew’s complaint to allege that the search of his home by
defendants was an unreasonable search and seizure in violation of the Fourth Amendment to the
United States Constitution and an unconstitutional retaliation in violation of the First Amendment
(Dkt. No. 2, at 4, 5, 8-10). Defendants Agents Anderson, Barrow, Sanders, and McBroome, who
are named as defendants in their official and individual capacities, move to dismiss on the merits
due to sovereign immunity and qualified immunity (Dkt. Nos. 5, 14). For relief, Mr. Kellebrew
seeks in his complaint to be removed from Arkansas Community Corrections parole services, to

be removed from Arkansas Community Corrections – Monticello S.O.A.P. Sex Offender After-
Care Program, to be refunded all money he has paid to these entities, relief from polygraph testing,
and monetary damages (Dkt. No. 2, at 12–15).
“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against
the entity . . . [and] is not a suit against the official personally.” Kentucky v. Graham, 473 U.S.
159, 165–66 (1985). States are immune to suits for monetary damages. See generally Hans v.
Louisiana, 134 U.S. 1 (1890). Likewise, a state official sued in their official capacity is protected
by sovereign immunity under the Eleventh Amendment from all claims except claims for
prospective injunctive relief. See Hopkins v. Saunders, 199 F.3d 968, 977 (8th Cir. 1999). The

Court dismisses with prejudice based on sovereign immunity all of Mr. Kellebrew’s claims for
monetary damages against Agents Anderson, Barrow, Sanders, and McBroome named in their
official capacities.
The Ex Parte Young doctrine allows an exception to state sovereign immunity when a state
official is named in their official capacity and “the complaint alleges an ongoing violation of
federal law and seeks relief properly characterized as prospective.” Verizon Maryland, Inc. v. Pub.
Serv. Comm'n of Maryland, 535 U.S. 635, 636 (2002). In his complaint, Mr. Kellebrew alleges
only prior constitutional violations, not ongoing violations (Dkt. No. 2). Further, with respect to
Agent McBroome, Mr. Kellebrew alleges no conduct from which the Court can determine how
Mr. Kellebrew maintains Mr. McBroome violated the Fourth Amendment (Id.). For these reasons,
the Court dismisses all of Mr. Kellebrew’s claims for injunctive relief against defendants Agents
Anderson, Barrow, Sanders, and McBroome named in their official capacities.
The Court now turns to Mr. Kellebrew’s individual capacity claims against Agents
Anderson, Barrow, Sanders, and McBroome. “Qualified immunity shields a government official

from liability in a § 1983 action unless the official’s conduct violates a clearly established
constitutional or statutory right of which a reasonable person would have known.” Partlow v.
Stadler, 774 F.3d 497, 501 (8th Cir. 2014) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
A two-step inquiry determines whether qualified immunity should be granted: “(1) whether the
facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2)
whether that right was clearly established at the time of the defendant’s alleged misconduct.” Id.
As a condition of his parole, Mr. Kellebrew has waived his right to be free from warrantless
searches that would otherwise violate the Fourth Amendment (Dkt. No. 2, at 45-46). This waiver
is constitutional. See Samson v. California, 547 U.S. 843, 857 (2006) (“The Fourth Amendment

does not prohibit a police officer from conducting a suspicionless search of a parolee.”). In other
words, a parolee who is released on the condition that he must “submit to suspicionless searches
by a parole officer or other police officer ‘at any time’” and is “unambiguously” made aware of
the condition lacks “an expectation of privacy that society would recognize as legitimate.” Id. As
a result, the Court finds that Mr. Kellebrew fails to state a Fourth Amendment claim upon which
relief can be granted against the agents he names as individual defendants.
Generally, to succeed on a First Amendment retaliation claim, a plaintiff must prove that:
“(1) he engaged in a protected activity, (2) [the defendant] took adverse action against him that
would chill a person of ordinary firmness from continuing in the activity, and (3) the adverse action
was motivated at least in part by the exercise of the protected activity.” Gonzalez v. Bendt, 971
F.3d 742, 745 (8th Cir. 2020) (quoting Spencer v. Jackson County, 738 F.3d 907, 911 (8th Cir.
2013)). Even if retaliation is a motivating factor, a defendant may still prevail if he or she would
have taken the same action even in the absence of the protected conduct. See Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285–87 (1977); Lewis v. Jacks, 486 F.3d 1025,

1029 (8th Cir. 2007); Haynes v. Stephenson, 588 F.3d 1152, 1156 (8th Cir. 2009).
Mr. Kellebrew appears to allege that he was removed from a sex offender after-care class
run by Arkansas Community Corrections on September 15, 2022, and that the search of his home
was either retaliation for whatever it was that caused him to be removed from this class or for a
complaint he filed after being removed from the class (Dkt. No. 2, at 7, 8). Mr. Kellebrew fails to
state a First Amendment retaliation claim against Agents Anderson, Barrow, Sanders, and
McBroome because the search about which he complains was not an adverse action but instead a
condition of his parole. That warrantless search could be conducted at any time, whenever
requested by the officer, and need not be based on any articulable suspicion of criminal activity.

See Ark. Code Ann. § 16–93–106; see also Clingmon v. State, 620 S.W.3d 184, 190 (Ark. Ct. App.
2021) (upholding the statute as constitutional under Arkansas law). Further, Mr. Kellebrew fails
to explain the protected activity in which he alleges he engaged, and Mr. Kellebrew fails to allege
sufficient facts to demonstrate a causal connection or any retaliatory motive or animus. As a result,
the Court finds that Mr. Kellebrew fails to state a First Amendment claim upon which relief can
be granted against the agents he names as individual defendants.
For these reasons, the Court dismisses Mr. Kellebrew’s claims against Agents Anderson,
Barrow, Sanders, and McBroome in their individual capacities.
To the extent Mr. Kellebrew’s complaint and prayer for relief can be construed as a request
for preliminary injunctive relief, he is not entitled to such relief as he fails to meet the requirements
of Federal Rule of Civil Procedure 65 and fails to satisfy the factors in Dataphase Systems, Inc.,
v. C L Systems, Inc., 640 F.2d 109. 114 (8th Cir. 1984) (en banc).
Moreover, to the extent Mr. Kellebrew seeks for this Court to declare that he is removed

from Arkansas Community Corrections parole services, removed from Arkansas Community
Corrections – Monticello S.O.A.P. Sex Offender After-Care Program, and need not comply with
certain conditions imposed on him such as polygraph testing (Dkt. No. 2, at 12–15), his requested
relief is barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that
a prisoner may not recover damages in a 42 U.S.C. § 1983 suit where the judgment would
necessarily imply the invalidity of his conviction, continued imprisonment, or sentence unless the
conviction or sentence is reversed, expunged, or called into question by issuance of a writ of
habeas corpus. Heck, 512 U.S. at 486-87; see also Schafer v. Moore, 46 F.3d 43, 45 (8th Cir.
1995). Absent such a favorable disposition of the charges or conviction, a plaintiff may not use

42 U.S.C. § 1983 to cast doubt on the legality of his conviction, confinement, or sentence. See
Heck, 512 U.S. at 486-87.
Mr. Kellebrew has not alleged that his prior conviction or sentence as a sex offender leading
him to be under these conditions imposed by the State of Arkansas has been reversed, expunged,
or called into question by a writ of habeas corpus. The relief Mr. Kellebrew seeks implicates the
validity of his prior conviction and sentence. Thus, his claims for relief in this regard are barred
by Heck and must be dismissed. See Sheldon v. Hundley, 83 F.3d 231, 233 (8th Cir. 1996)
(indicating that, under Heck, courts disregard the form of relief sought and instead look to the
essence of a plaintiff’s claims).
For these reasons, the Court dismisses all of Mr. Kellebrew’s claims against Agents
Anderson, Barrow, Sanders, and McBroome.
IV. Claims Against Remaining Defendants
Mr. Kellebrew also names as defendants the State of Arkansas, Arkansas Community
Corrections, and Arkansas Department of Corrections (Dkt. No. 2). There is no indication in the

record that Mr. Kellebrew has attempted or effectuated service on any of these defendants.
Pursuant to Rule of Civil Procedure 4(m), if a defendant is not served within 90 days after the
complaint is filed, the Court may dismiss without prejudice claims against the defendant on the
Court’s own motion. The Court dismisses without prejudice Mr. Kellebrew’s claims against the
State of Arkansas, Arkansas Community Corrections, and Arkansas Department of Corrections.
V. Remaining Motions
A. Writ Of Mendabus
The Court construes Mr. Kellebrew’s “writ of mendabus” as an attempt to amend Mr.
Kellebrew’s operative complaint to add claims against all defendants for violation of the Eighth

Amendment and unspecified provisions of the Arkansas state constitution (Dkt. No. 9, ¶¶ 3, 4).
“[A] party may amend its pleading only with the opposing party’s written consent or the
court’s leave. The Court should freely give leave when justice so requires.” Fed. R. Civ. P.
15(a)(2). “‘[D]enial of leave to amend a pleading is appropriate only in those limited
circumstances in which undue delay, bad faith on the part of the moving party, futility of the
amendment, or unfair prejudice to the nonmoving party can be demonstrated.’” Artz v. Armstrong
Flooring, Inc., No. 6:17-03352-CV-RK, 2019 WL 79366, at *2 (W.D. Mo. Jan. 2, 2019) (quoting
Roberson v. Hayti Police Dept., 241 F.3d 992, 995 (8th Cir. 2001)); Foman v. Davis, 371 U.S.
178, 182 (1962).
In the document that the Court construes as Mr. Kellebrew’s proposed amended complaint,
he alleges “THAT A.C.C. ARKANSAS COMMUNITY CORRECTIONS HAVE
OVERSTEPPED IN VIOLATIONS OF PLAINTIFFS RIGHTS INTO THE BOUND OF
EIGHTH AMENDMENT VIOLATIONS” and “THAT THESE ALLEGED ‘HOME VISITS’
ARE INTRUDEING [sic] INTO VIOLATIONS OF ARKANSAS SUPREME COURT AND

ARKANSAS CODE ANNON. [sic] UNDER RULES OF CONFIDENTIALITY, ADDITIONAL
FOURTH AMENDMENT VIOLATIONS AND EIGHTH AMENDMENT VIOLATIONS OF
EXCESSIVE PUNISHMENT.” (Dkt. No. 9, ¶¶ 3, 4).
The Court construes this language to allege claims for violations of the Eighth Amendment
and of the Arkansas constitution (Id.). To state a viable Eighth Amendment claim, Mr. Kellebrew
must allege facts demonstrating that: (1) objectively, he suffered an “extreme deprivation” that
was “sufficiently serious” enough to deny him “the minimal civilized measure of life’s
necessities,” or to pose “a substantial risk of serious harm” to his health or safety; and (2)
subjectively, the defendants were deliberately indifferent to the risk of harm posed by the

deprivation. Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994); see Rhodes v. Chapman, 452
U.S. 337, 349 (1981) (holding that the “Constitution does not mandate comfortable prisons” or
that prisons be “free of discomfort”). In support of his amendment, Mr. Kellebrew alleges only
facts that implicate the Fourth Amendment claims he previously asserts in his original complaint,
complaining again about the “home visits” (Dkt. No. 9, at 2).
None of Mr. Kellebrew’s proposed amended claims include sufficient explanation to
qualify as a “short and plain statement of the claim showing that the pleader is entitled to relief . .
.” Fed. R. Civ. P. 8(a)(2). Mr. Kellebrew does not “provide the ‘grounds’ on which the claim
rests” or “raise a right to relief above a speculative level.” Twombly, 550 U.S. a 555-56. As a
result, the Court denies without prejudice Mr. Kellebrew’s motion to amend his complaint (Dkt.
No. 9).
B. Federal Refusal Motion

Mr. Kellebrew filed a motion titled “federal refusal” that appears to request relief for
defendants allegedly refusing service of process (Dkt. No. 10). The Court denies this motion,
having granted certain defendants’ motions to dismiss based on insufficient service of process and
having granted certain defendants’ motions to dismiss on the merits.
C. Motion For Default Judgment
Mr. Kellebrew also files a motion for default judgment, again based on defendants
allegedly refusing of service of process (Dkt. No. 24). The Court denies this motion, having
granted certain defendants’ motions to dismiss based on insufficient service of process and having
granted certain defendants’ motions to dismiss on the merits.
D. Motion For Relief And Injunctive Relief
Mr. Kellebrew files a motion for relief and injunctive relief (Dkt. No. 28). In this motion,

Mr. Kellebrew again invokes the Eighth Amendment, claiming excessive Eighth Amendment
violations give rise to his request for immediate relief (Id., at 1). The relief he seeks in this motion
appears to be relief from the terms and conditions of parole in the State of Arkansas that he is
currently serving, such as relief from ankle monitoring, polygraph testing, warrantless searches,
and the programming required for sex offenders. To the extent this motion can be construed as a
motion for leave to amend his complaint, the Court denies it for the same reasons explained in this
Order with regard to his prior filing invoking the Eighth Amendment. To the extent this motion
can be construed as a request for preliminary injunctive relief, the Court denies it for the same
reasons explained in regard to Mr. Kellebrew’s prior request for injunctive relief. Further, the
relief Mr. Kellebrew seeks in this motion also is Heck barred for the reasons explained in this
Order. For all of these reasons, the Court denies the motion (Dkt. No. 28).
E. Defendants’ Motion To Vacate
Finally, the Court denies as moot defendants’ motion to vacate the initial scheduling Order
(Dkt. No 19).
IV. Conclusion
For the foregoing reasons, the Court grants the pending motions to dismiss (Dkt. Nos. 5,
14, 22). The Court dismisses with prejudice Mr. Kellebrew’s claims for monetary damages against
Agents Anderson, Barrow, Sanders, and McBroome in their official capacities. The Court
dismisses Mr. Kellebrew’s remaining claims against Agents Anderson, Barrow, Sanders, and
McBroome in their official and individual capacities. The Court dismisses Mr. Kellebrew’s claims
against the State of Arkansas, Arkansas Community Corrections, and Arkansas Department of
Corrections. The Court denies as moot Mr. Kellebrew’s motion to proceed in forma pauperis
(Dkt. No. 1). The Court denies as moot defendants’ motion to vacate the initial scheduling Order
(Dkt. No. 19). The Court denies all other pending motions for the reasons explained in this Order
(Dkt. Nos. 9, 10, 24, 28). Consistent with the terms of this Order, this case is dismissed, and the
requested relief is denied.
It is so ordered this 25th day of March, 2024.
Hstn A. Pale
stine G. Baker
Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10008602. Public record. Not legal advice.