# Smith v. Montgomery

> District Court, W.D. Arkansas · February 27, 2018

URL: https://www.frixlaw.com/law-library/cases/10009015

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** February 27, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
JEFFREY L. SMITH PLAINTIFF
V. CASE NO. 3:17-CV-03113
SHERIFF JOHN MONTGOMERY,
Baxter County, Arkansas;
JAILER TONY BECK; and
JAILER GARY KOCHA DEFENDANTS
OPINION AND ORDER
This is a civil rights case filed by the Plaintiff, Jeffrey L. Smith, under the provisions
of 42 U.S.C. § 1983. Plaintiff also asserts a claim under the Americans with Disabilities
Act (“ADA”). Plaintiff proceeds pro se and in forma pauperis (“IFP”). He is currently
incarcerated in the Grimes Unit of the Arkansas Department of Correction (“ADC”).
The Prison Litigation Reform Act (“PLRA”) modified the IFP statute, 28 U.S.C.
§ 1915, to require the Court to screen complaints for dismissal under § 1915(e)(2)(B). The
Court must dismiss a complaint, or any portion of it, if it contains claims that: (a) are
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.
§ 1915(e)(2)(B).
|. BACKGROUND
According to the allegations of the Amended Complaint (Doc. 13), Plaintiff was
being held at the Baxter County Detention Center (“BCDC”) on a parole violation pending
transfer to the ADC. Plaintiff was held at the BCDC from August 5, 2017, until September
20, 2017.

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While at the BCDC, Plaintiff contends his constitutional rights were violated in the
following ways:
(1) | He was not provided with “balanced nutritional meals sufficient in
quantity, quality, nutritionally to prevent healthy and safe continuance
of life”; and, as to the custom or policy supporting an official capacity
claim, Plaintiff alleges “failure to properly supervise daily operations”
of the facility. /d. at 4-5.
(2) Defendants failed to dispense medication in accordance with
prescribed amounts and times; and, as to the custom or policy
supporting an official capacity claim, Plaintiff alleges “failure to
properly dispense medications as required by the bottle it was in.
An{d] as prescribed by plaintiff's Primary Care Physician.” /d. at 5-6.
(3) | Defendants failed to upgrade all areas of the facility “so as to bring [it]
into compliance with [the ADA]. . . . Failure to attach assist bars for
handicapped in showers and other required areas.” /d. at 6-7.
With respect to his medication, Plaintiff has attached a jail request form addressed
to the attention of Lieutenant Lewis stating his blood pressure medication dosage had been
changed from twice a day to once a day. He stated this could result in heart failure or
stroke. In response, he was told the request would be forwarded to the nurse. /d. at 8.
Plaintiff sues the Defendants in both their individual and official capacities. As relief,
Plaintiff seeks compensatory and punitive damages. He also requests an order directing
“Defendants to bring their facilities into compliance with Title Il of the [ADA] and barring
retaliation against Plaintiff.” /d. at 7.
ll. DISCUSSION
Under the PLRA, the Court is obligated to screen a case prior to service of process
being issued. A claim is frivolous when it “lacks an arguable basis either in law or fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim fails to state a claim upon which
relief may be granted if it does not allege “enough facts to state a claim to relief that is
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plausible on its face.” Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007). The Court bears in
mind, however, that when “evaluating whether a pro se plaintiff has asserted sufficient facts
to state a claim, we hold ‘a pro se complaint, however inartfully pleaded, . . . to less
stringent standards than formal pleadings drafted by lawyers.” Jackson v. Nixon, 747 F.3d
537, 541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
A. Section 1983 Claims
Section 1983 provides a federal cause of action for the deprivation, under color of
law, of a citizen's “rights, privileges, or immunities secured by the Constitution and laws” of
the United States. In order to state a claim under 42 U.S.C. § 1983, plaintiff must allege
that the defendant acted under color of state law and that he violated a right secured by the
Constitution. West v. Atkins, 487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009.
(8th Cir. 1999). The deprivation must be intentional; mere negligence will not suffice to
state a claim for deprivation of a constitutional right under § 1983. Daniels v. Williams, 474
U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986).
In this case, Plaintiff makes a number of broad allegations. First, he vaguely alleges
he was not provided with “balanced nutritional meals sufficient in quantity, quality,
nutritionally to prevent healthy and safe continuance of life.” He alleges no other facts in
support. He does not state how the meals were nutritionally inadequate; how the meals
were insufficient in quantity or quality; how his health was affected — or even if it was
affected; nor does he allege that he lost weight, muscle mass, or became sick. Plaintiff
contends the Defendants failed to properly supervise daily operations of the facility; but,
once again, he makes no factual allegations at all.
Second, Plaintiff alleges the Defendants did not properly dispense his medications
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as prescribed by his primary physician. On this claim, Plaintiff does attach a request he
submitted about his medication. The request was referred to medical personnel. Plaintiff
has not alleged the named Defendants took any action with respect to his medical care
other than referring his request to the nurse. As a matter of law, the mere action of
referring a medical issue to trained medical personnel does not constitute deliberate
indifference to his medical care. Carpenter v. Gage, 686 F.3d 644, 650 (8th Cir. 2012)
(Eighth Amendment deliberate indifference standard applies to all medical care claims);
Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (merely receiving letters from an inmate
and referring those letters to others does not constitute involvement for purposes of
§ 1983); Perrey v. Donahue, 703 F. Supp. 2d 839 (N.D. Ind. 2010) (prisoner officials were
not personally involved in alleged constitutional deprivation where they merely referred the
issue to proper staff and made no individual treatment decisions for prisoner).
Further, with respect to Sheriff Montgomery, there is no respondeat superior liability
under § 1983. Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010). Instead, “[tlo
establish personal liability of the [Sheriff, the Plaintiff] must allege specific facts of personal
involvement in, or direct responsibility for, a deprivation of his constitutional rights.”
Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007).
Plaintiff fails to allege any facts attributing the alleged unconstitutional conduct to
the named Defendants in all of his § 1983 claims. Liability under § 1983 requires personal
or direct involvement in the alleged constitutional violation. Clemmons, 477 F.3d at 967
(“Liability under section 1983 requires a causal link to, and direct responsibility for, the
deprivation of rights”); see a/so Ripson v. Alles, 21 F.3d 805, 808-09 (8th Cir. 1994)

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(personal or direct involvement required).
Plaintiff's official capacity claims are the equivalent of claims against Baxter County.
“Official-capacity liability under 42 U.S.C. § 1983 occurs only when a constitutional injury
is caused by ‘a government's policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy.” Grayson v. Ross, 454
F.3d 802, 810-811 (8th Cir. 2006) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658,
694 (1978)). Plaintiff has not alleged the existence of any custom or policy of Baxter
County that was a moving force behind the alleged constitutional violations.
Plaintiff has already been directed to file an Amended Complaint because of the
lack of factual allegations in the original Complaint. See Doc. 12. He was told he must
write short, plain statements telling the Court: (1) the constitutional right Plaintiff believes
was violated; (2) the name of the Defendant who violated the right; (3) exactly what the
Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected
to the violation of Plaintiffs constitutional rights; and, (5) what specific injury Plaintiff
suffered because of that Defendant’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72,
377 (1976). Plaintiff was told to repeat this process for each person he had named as a
Defendant. Despite this, Plaintiff's Amended Complaint fails to state any plausible § 1983
claims.
B. ADA Claim
Plaintiff also asserts a claim under Title Il of the ADA. Title Il of the ADA provides
that “no qualified individual with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services, programs or activities of a
public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
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The United States Supreme Court has held that Title Il, which prohibits a “public entity”
from discriminating against a “qualified individual with a disability” on account of that
individual's disability, includes inmates in detention facilities. Pennsylvania Dept. of Corr.
v. Yeskey, 524 U.S. 206, 208 (1998).
To state a prima facie case under the ADA, a plaintiff must show: (1) he is a person
with a disability as defined by statute; (2) he is otherwise qualified for the benefit in
question; and (3) he did not receive this benefit due to discrimination based upon his
disability.” Randolph v. Rogers, 170 F.3d 850, 858 (8th Cir. 1999) (citing 42 U.S.C.
§ 12101 et seq.).
Plaintiff has not alleged any facts to demonstrate that he is a disabled person as
defined by the ADA. Moreover, Plaintiff has failed to plead any facts to support a finding
that he was discriminated against based on any disability by named Defendants in either
their personal or official capacities. Therefore, Plaintiff has failed to state a claim under the
ADA.
Ill. CONCLUSION
For the reasons set forth above, this case is DISMISSED WITHOUT PREJUDICE,
as all claims asserted are frivolous or fail to state claims upon which relief may be granted.
See 28 U.S.C. § 1915(e)(2)(B)(i)- (ii) (in forma pauperis action may be dismissed on such
grounds at any time).
The dismissal of this case will constitute a strike under 28 U.S.C. § 1915(g). The
Clerk is DIRECTED to place a strike flag on the case.

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IT IS SO ORDERED on this ih, of February, 2018.
i ot

TIMOTHY L. BROOKS
_Z UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10009015. Public record. Not legal advice.