Wilmoth v. Sgt. Garner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

MICHAEL SHANE WILMOTH PLAINTIFF

v. Civil No. 6:15-CV-06057

SHEILA SHARP, et. al. DEFENDANTS

ORDER

Plaintiff proceeds in this matter pro se and in forma pauperis pursuant to 42 U.S.C. § 1983.

Currently before the Court is Defendant Sheila Sharp, Jerry Bradshaw, Robert Wiley, Aaron

Hewitt, and David Brooks’s Motion to Dismiss.1 (ECF No. 30), and Plaintiff’s Response, (ECF

No. 40).

I. BACKGROUND

Plaintiff filed his Complaint in the Eastern District of Arkansas on May 12, 2015. (ECF

No. 2). It was transferred to this District on June 2, 2015. (ECF No. 7). Plaintiff filed a Motion

for Preliminary Injunction on June 8, 2015. (ECF No. 10). This Motion was denied, and Plaintiff

was ordered to file an Amended Complaint on November 12, 2015. In the Order, Plaintiff was

advised that he must use the Court-approved form for his Amended Complaint, and that the

Amended Complaint would supersede his Original Complaint. (ECF No. 11). After repeated

issues with mail being returned to the Court, including two instances when Plaintiff failed to keep

1 These five Defendants are the only Defendants who have been served in this case. Attempts to serve the

other Defendants were unsuccessful, and Plaintiff has provided no additional information to identify them

for service. See Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993) (it is Plaintiff’s responsibility to

provide the Court with an address for proper service on Defendants).

the Court apprised of his current address, Plaintiff filed his First Amended Complaint on December

8, 2016. (ECF No. 21).

Plaintiff did not utilize the Court-approved Complaint form sent to him for his First

Amended Complaint, and did not indicate if he was proceeding against the Defendants in their

official or personal capacities. In his Amended Complaint, Plaintiff alleged that, in the summer

of 2015, he was housed in the Arkansas Community Correction (ACC) T.V.P. program2 when an

unnamed Major accused him of being a homosexual and then “denied him the right to call the

P.R.E.A.3 hotline.” (ECF. No. 21 at 3). Plaintiff further alleged that an unnamed Sergeant

assaulted him when he was wearing handcuffs, and he was denied medical treatment for the assault

by unnamed staff. Plaintiff alleges he was then sent to the Arkansas Department of Correction

(ADC), where he was again denied his right to call the P.R.E.A. hotline and denied medical care.

Plaintiff alleges he requested mental health treatment at the ADC and was denied mental health

treatment by unnamed ADC “mental health doctors.” (Id.) Plaintiff stated he did not know the

names of the Defendants and “reserves the right to add more Defendants and names after discovery

is complete.” (Id. at 4).

On December 9, 2016, the Court entered an Order directing Plaintiff to complete an

Addendum to provide names for Defendants previously identified only by job title and, in some

cases, the year 2015. (ECF No. 22). Plaintiff filed the Addendum to his Amended Complaint on

December 16, 2016. (ECF No. 23). In the Addendum, Plaintiff provided the following names:

Title Provided on Amended Complaint Name(s) Provided on Complaint Addendum

ACC Director of 2015 Sheila Sharp

2 Plaintiff identifies this, in later documents as Omega TVP, which appears to be the Arkansas Technical Violator

Center.

3 Prison Rape Elimination Act. See Arkansas Community Correction AD-17-33, available at

http://www.dcc.arkansas.gov/agency-policy.

ACC Assistant Director of 2015 Jerry Bradshaw

ACC Warden of TVP in 2015 K. Brown

ACC Assistant Warden of TVP in 2015 Havard

ACC Major of TVP in 2015 Wiley

ACC Sergeant of TVP Garner, Hewitt, Brooks, “I do not know the name

of all officers”

ACC Mental Health Doctor of 2015 Kitrell

ADC Mental Health Doctors Do not know name

The Court entered an Order directing the Clerk to amend the Defendant names, to the extent

possible, on December 19, 2016. (ECF No. 24). In his Addendum, Plaintiff was given the

opportunity to provide additional detail or clarification to his claims. Plaintiff provided only one

date, and linked only one claim to one named Defendant. Specifically, Plaintiff alleged that he

was “ass[a]ulted twice by ACC person[n]el on two different incidents once on 4-19-2015 and once

by Sgt. Garner.” Plaintiff again did not indicate if he was proceeding against the Defendants in

their official or personal capacities.

On February 15, 2017, the Court entered an Order directing service on Defendants. (ECF

No. 25). On February 27, 2017, the summons were returned unexecuted on Defendants Garner,

Havard, and Kitrell. (ECF No. 27).

On March 7, 2017, the served Defendants filed a Motion to Dismiss. (ECF No. 30). On

November 14, 2017, the Court entered an Order directing Plaintiff to respond to the Motion. (ECF

No. 35). On January 26, 2018, after two extensions, Plaintiff submitted a cover sheet labelled

“Response” and a proposed Second Amended Complaint, utilizing portions of a form from the

Eastern District of Arkansas. (ECF No. 40, 40-1). The Response states that Plaintiff “still does

not have all the names of the Defendants.” (ECF No. 40). Plaintiff’s proposed Second Amended

Complaint appears to add a number of new Defendants, either by name or title, as well as several

new dates and new alleged incidents, several of which occurred after the initial filing of this case.

Plaintiff also checked the box indicating he would like to proceed against Defendants in both their

official and personal capacity. (ECF No. 40-1).

There is some question as to whether a Plaintiff may respond to a Motion to Dismiss with

an Amended Complaint – particularly when he has already been permitted the opportunity to

amend and given an Addendum to aid in clarifying his previous amendment. See Fischer v.

Minneapolis Pub. Schools, 792 F.3d 985, n. 4 (8th Cir. 2015); Morgan Distribg. Co., Inc. v.

Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) (“[I]t is axiomatic that a complaint may not

be amended by the briefs in opposition to a motion to dismiss.”); but see Pure Country, Inc. v.

Sigma Chi Fraternity, 312 F.3d 952, 956 (8th Cir. 2002) (holding that it was procedural error to

ignore the motion to amend because Pure Country's motion to amend rendered moot Sigma Chi's

motion to dismiss the original complaint)). Keeping in mind the liberal construction to be afforded

pro se Plaintiffs, and following the directive of the Eighth Circuit in Pure Country, the Court will

permit Plaintiff to file his Second Amended Complaint and deny Defendants’ Motion to Dismiss

(ECF No. 30) as MOOT. The Clerk is DIRECTED to rename Plaintiff’s Response Supplement

(ECF 40-1) as his Second Amended Complaint and file it on the docket as such.

Accordingly, the Court will screen Plaintiff’s Second Amended Complaint as required

under the provisions of the Prison Litigation Reform Act (PLRA). Pursuant to 28 U.S.C. § 1915A,

the Court has the obligation to screen any complaint in which a prisoner seeks redress from a

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

II. LEGAL STANDARD

Under the PLRA, the Court is obligated to screen the case prior to service of process being

issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are

frivolous, malicious, or fail to state a claim upon which relief may be granted; or, (2) seeks

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

A claim is frivolous if “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 plausible on its face.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007). “In 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)). Even a pro se Plaintiff

must allege specific facts sufficient to support a claim. Martin v. Sargent, 780 F.2d 1334, 1337

(8th Cir. 1985).

III. ANALYSIS

A. April 2015 – Accusation of Homosexuality and PREA Hotline

Plaintiff was transferred from the Benton County Detention Center to the Arkansas

Community Correction (ACC) Technical Violator Center on March 9, 2015. (ECF No. 40-1 at

11). At some point in April 2015, Plaintiff alleges Major Wiley accused him of being a

homosexual and of engaging in homosexual acts with another inmate, then denied him his right to

call the PREA hotline. (Id.). Plaintiff alleges he then told Warden K Brown, and Asst. Warden

Havard about the incident with Wiley, but nothing was done, and he was still denied his right to

call PREA hotline. (Id. at 11-12).

Plaintiff’s allegations regarding a PREA Hotline fail to state a claim upon which relief may

be granted. Section 1983 does not create any substantive rights. Rather, it provides a remedy for

violations of constitutional rights or rights created under federal law. Tarsney v. O’ Keefe, 225

F.3d 929, 939 (8th Cir. 2000). While there appear to be no Eighth Circuit decisions on point, it is

clear the PREA does not create such a cause of action pursuant to § 1983. “[O]ther courts

addressing this issue have found that the PREA does not establish a private cause of action . . . .”

Krieg v. Steele, 599 F. App'x 231, 232 (5th Cir.) (per curiam) , cert. denied, 136 S. Ct. 238 (2015).

See also Diamond v. Allen, No. 7:14– CV– 124, 2014 WL 6461730, at *4 (M.D. Ga. Nov. 17,

2014) (citing cases); Amaker v. Fischer, No. 10– CV– 0977, 2014 WL 4772202, at *14 (W.D.N.Y.

Sept. 24, 2014) (noting that “ every court to address the issue has determined that PREA cannot

support such a cause of action by an inmate”); Simmons v. Solozano, No. 3:14CV– P354– H, 2014

WL 4627278, at *4 (W.D. Ky. Sept.16, 2014) (holding that the PREA creates no private right of

action). Here, Plaintiff has cited no case in support of his position; therefore, any claim raised

under the PREA is properly dismissed as frivolous.

To the extent Plaintiff alleges that Defendant Wiley verbally harassed him, this allegation

also fails to state a claim. “Verbal threats do not constitute a constitutional violation.” Martin v.

Sargent, 780 F.2d 1334, 1339 (8th Cir. 1985). Similarly, taunts, name calling, and the use of

offensive language does not state a claim of constitutional dimension. McDowell v. Jones, 990

F.2d 433, 434 (8th Cir. 1993).

To the extent Plaintiff’s allegations could be construed as a failure of a grievance system,

Plaintiff’s allegation that Defendant Brown and Havard failed to do anything does not state a claim.

"[P]risoners have the constitutional right to petition the Government for redress of their grievances,

which includes a reasonable right of access to the courts." Hudson v. Palmer, 468 U.S. 517, 523

(1984)(citing Johnson v. Avery, 393 U.S. 483 (1969)). However, it is well-settled that inmates

have no substantive constitutional right in detention center officials following grievance

procedures. See e.g., Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (no constitutional

violation in failing to process all of the grievances submitted by a prisoner); see also Phillips v.

Norris, 320 F.3d 844, 847 (8th Cir. 2003) (no federal constitutional liberty interest in having prison

officials follow state law or prison regulations). Plaintiff's constitutional right of access to the

courts was not impinged by Defendants Brown and Havard, as is demonstrated by Plaintiff's filing

of this action.

B. April 19, 2015 Incident

Plaintiff alleges that on April 19, 2015, he told unnamed ACC Security Personnel that he

was thinking about hurting another inmate in his barracks and asked for help with mental health

issues. Plaintiff alleges that approximately five minutes later, he was called into Hewitt’s office

where he was “poked and prodded and talked crazy to” by the personnel. They placed him in

handcuffs and then Sgt. Hewitt and Officer Brooks and “other treatment and security personnel”

assaulted him. He alleges he was injured in the assault. He further alleges he was denied medical

care after the assault by the unnamed ACC Nurse he saw that day. (ECF No. 40-1 at 12-13).

Plaintiff does not describe his injuries or what happened during the assault.

To the extent Plaintiff alleges verbal harassment when he was “talked crazy to,” this

allegation fails to state as claim, as discussed above. Plaintiff’s allegation that he was “poked and

prodded” likewise fails to state a claim of constitutional dimension.

Plaintiff’s allegations of being assaulted while in handcuffs, and then denied medical care

after the assault, while factually quite sparse, appear to state a claim sufficient to survive screening.

C. Denial of Mental Health Care from March 2015 through January 2018

Plaintiff alleges that the following Defendants denied him mental health treatment between

March 2015 through January 2018, and they additionally denied him all mental health medications

that had been prescribed by his free-world doctors:

Dr. Kitrell, Dr. Sells, female mental health doctor of ACC don’t know name,

Shelley Byers, Rory Griffin, Dream Redic-Young, Bob Parker, all mental health

workers at the Ouachita River Correction Unit, and East Arkansas Regional Unit,

and the mental health doctors at intake I do not know these names

(Id. at 13-14).

Plaintiff filed his initial Complaint in this lawsuit on May 12, 2015, for issues that arose

when he was incarcerated in the ACC Technical Violator Center. (ECF No. 2). He notes in his

Second Amended Complaint that he was transferred to the ADC Ouachita River Unit on June 23,

2015. (ECF No. 40-1).

Plaintiff may not add new claims, naming new Defendants, and alleging issues that arose

in new facilities to this case. See Brown v. Wallace, 957 F.2d 564, 565 (8th Cir. 1992) (no abuse

of discretion when magistrate judge denied amendment of § 1983 inmate claims because it would

be “inefficient and possibly confusing to add defendants and claims which had nothing to do with

the original complaint.”); Fed. R. Civ. P. 15(c)(1)(B) (an amendment to a pleading relates back to

the original pleading when “the amendment asserts a claim or defense that arose out of the conduct,

transaction, or occurrence set out - or attempted to be set out - in the original pleading.”) To the

extent Plaintiff’s claims extend to June 23, 2015, and relate to his mental health care at the ACC

Technical Violator Center, they will be addressed. Dr. Kitrell and the unnamed “female mental

health Doctor” are the only two Defendants which Plaintiff has identified as ACC employees for

this claim.

Plaintiff’s allegations that Dr. Kittrell and the unnamed “female mental health Doctor” in

the ACC Technical Violator Center denied him the mental health medications prescribed by his

free-world physician fails to state a claim. Failure to follow the directions of a free world physician

is not a constitutional violation under § 1983. Dulany v. Carnahan, 132 F.3d 1234, 1240 (8th Cir.

1997) (a prison doctor is not required to follow the recommendations of outside consultants, but

instead "remains free to exercise his or her independent professional judgment and an inmate is

not entitled to any particular course of treatment").

Plaintiff’s bare allegation that Dr. Kittrell and the unnamed “female mental health Doctor”

in the ACC Technical Violator Center denied him the mental health care also fails to state a claim.

The Eighth Amendment prohibition of cruel and unusual punishment prohibits deliberate

indifference to prisoners’ serious medical needs. Luckert v. Dodge County, 684 F.3d 808, 817 (8th

Cir. 2012). To prevail on his Eighth Amendment claim, Plaintiff must prove that Defendants acted

with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106

(1976).

The deliberate indifference standard includes “both an objective and a subjective

component: ‘The [Plaintiff] must demonstrate (1) that [he] suffered [from] objectively serious

medical needs and (2) that the prison officials actually knew of but deliberately disregarded those

needs.’” Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting Dulany v. Carnahan, 132

F.3d 1234, 1239 (8th Cir. 1997)).

To show that he suffered from an objectively serious medical need Plaintiff must show he

“has been diagnosed by a physician as requiring treatment” or has an injury “that is so obvious

that even a layperson would easily recognize the necessity for a doctor’s attention.” Schaub v.

VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (internal quotations and citations omitted).

For the subjective prong of deliberate indifference, “the prisoner must show more than

negligence, more even than gross negligence, and mere disagreement with treatment decisions

does not give rise to the level of a constitutional violation.” Popoalii v. Correctional Med. Servs,

512 F.3d 488, 499 (8th Cir. 2008) (internal citation omitted). “Deliberate indifference is akin to

criminal recklessness, which demands more than negligent misconduct.” Id.

It is well-settled that a “prisoner’s mere difference of opinion over matters of expert

medical judgment or a course of medical treatment fail[s] to rise to the level of a constitutional

violation.” Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010) (internal quotation marks and

citations omitted). An “inmate must clear a substantial evidentiary threshold to show the prison’s

medical staff deliberately disregarded the inmate’s needs by administering inadequate treatment.”

Id. Despite this, issues of fact exist when there is a question of whether or not medical staff

exercised independent medical judgment and whether the decisions made by medical staff fell so

far below the reasonable standard of care as to constitute deliberate indifference. See Smith v.

Jenkins, 919 F.2d 90, 93 (8th Cir. 1990).

Deliberate indifference may also be manifested by “prison guards in intentionally denying

or delaying access to medical care or intentionally interfering with the treatment once prescribed.”

Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). However, the “Constitution does not require jailers

to handle every medical complaint as quickly as each inmate might wish.” Jenkins v. County of

Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2009). “A prisoner alleging a delay in treatment

must present verifying medical evidence that the prison officials ignored an acute or escalating

situation or that these delays adversely affected his prognosis.” Holden v. Hirner, 663 F.3d 336,

342 (8th Cir. 2011) (internal quotations omitted). Unless, however, the need for medical attention

is obvious to a layperson, in which case the plaintiff need not submit verifying medical evidence

to show the detrimental effects of delay. See Schaub, 638 F.3d at 919 (citing Roberson v.

Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999); Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995);

cf. Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995) (“noting that a delay in treatment, coupled with

knowledge that an inmate is suffering, can support a finding of an Eighth Amendment violation”).

Here, Plaintiff’s allegation fails to meet both components of the deliberate indifference

standard. Plaintiff alleges only that he was denied mental health treatment and that “he has medical

records to prove his mental illness.” (ECF No. 40-1 at 13-14). Plaintiff did not identify his mental

illness diagnosis or symptoms, and did not attach any medical records to substantiate his allegation.

His allegations, therefore, do not permit an inference that he had an objectively serious medical

need which was either diagnosed by a physician as requiring treatment, or was so obvious that

even a layperson would easily recognize the necessity for a doctor’s attention.

Plaintiff’s allegations also fail to meet the subjective component of the standard. Plaintiff

does not allege that saw or talked to either Dr. Kitrell or the unnamed ACC Nurse concerning his

mental health. Instead, he alleges only that he asked security personnel for help with his mental

health needs. (Id. at 12). Thus, Plaintiff’s allegations do not support an inference that Dr. Kittrell

or the ACC Nurse were even aware of his mental health needs, let alone deliberately indifferent to

them.

Finally, Plaintiff’s allegation that security personnel failed to help him with his mental

health needs fails to state a claim. Plaintiff does not allege that security personnel ignored an acute

or escalating situation with his mental health condition, or that his overall mental health prognosis

was made worse by any possible delay in treatment.

D. June 15, 2015 Incident

Plaintiff alleges that on June 15, 2015, he came back from the law library in cuffs and

shackles and found his cell had been “shaken down” and much of his legal work was missing, so

he refused to go into his cell until they called a Lieutenant or Captain to his cell. (Id. at 13).

Plaintiff alleges “many security personnel” came at that point, and Sergeant Garner came up to

him while he was in the cuffs and shackles, punched him in the face, and then took him to the

ground, where he continued to assault him. Plaintiff alleges no one tried to stop Garner. As they

were moving him to his cell, Garner kept punching him in the face and then slammed him face

first into the floor. Another Sergeant then got Garner to stop assaulting him and leave the cell.

(Id.).

Plaintiff mentioned Garner by name in the Addendum to his First Amended Complaint,

but did not provide a date for the alleged assault in the Addendum. Plaintiff did provide the date

of the assault in his Second Amended Complaint, placing the date of the assault as June 15, 2015,

which was more than a month past the filing of the original Complaint. This second alleged

assault, however, occurred in the same facility as the April 19, 2015, incident, is similar in nature,

and took place in a relatively short time period after the first alleged incident. Keeping in mind

the liberal construction to be afforded pro se Plaintiffs, this claim may remain for further

consideration.

Plaintiff’s claim that he told Ms. Haller, Mr. White. Warden K. Brown, Asst. Warden

Havard, Sheila Sharp and Jerry Bradshaw about the alleged assault, and they did nothing about it,

does not state a claim of constitutional dimension. As discussed earlier in this opinion, there is no

constitutional right to a grievance procedure. Plaintiff's constitutional right of access to the courts

was not impinged by these Defendants for this incident, as is demonstrated by Plaintiff's filing of

this action.

E. June 23, 2015 Incident

Plaintiff alleges that on June 23, 2015, he was transferred to the ADC Ouachita River Unit,

where he told intake personnel that he had been assaulted by Defendant Garner and showed them

his injuries. He alleges he filled out a statement and Defendant Pruitt had him fill out a statement

and a grievance, but nothing was done. Plaintiff alleges that the “ADC Warden, Asst. Warden, all

medical staff, mental health staff, and security personnel of the ADC at Ouachita River Correction

Unit on June 24, 2015 tried to cover up this assault.” (ECF No. 40-1 at 14).

As discussed earlier in this opinion, there is no constitutional right to a grievance

procedure. Plaintiff's constitutional right of access to the courts was not impinged by the ADC

Defendants for this incident, as is demonstrated by Plaintiff's filing of this action.

F. Allegations for June and October of 2017

Plaintiff alleges that on October 20, 2017, he had a medical seizure in front of Captain

Fields who then sprayed him with M-K 1.3% and handcuffed him. He was then assaulted while

in handcuffs by Captain Fields, Sergeant Scott, Officer Armstrong, and ADC security staff.

Plaintiff alleges he was then denied medical care by Nurse DeWitt and all medical staff working

on October 20, 2017. (ECF No. 40-1 at 16). Plaintiff further alleges that in June of 2017, he broke

his foot and was denied medical care for several weeks. (Id.).

These claims occurred more than two years past the filing of the original Complaint and

do not relate back to the claims therein.

G. Denial of SATP Program

Plaintiff alleges Dr. Sells and Cedric Albritton denied him a transfer into the SATP

program because he wrote grievances against them and mental health staff. Plaintiff alleges this

is keeping him from being released from prison.

Plaintiff does not provide a date for this allegation, but identifies Dr. Sells and Albritton as

employees of the Arkansas Department of Correction. (ECF No. 40-1 at 5, 6). Therefore it appears

that this claim does not relate back to Plaintiff’s original Complaint. Additionally, inmates have

no constitutional right to a particular classification. Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976).

It is also well-settled that inmates do not have a constitutionally protected liberty interest in the

possibility of parole or probation as required for a due process claim. Hamilton v. Brownlee, 237

Fed. App’x. 114, 115 (8th Cir. 2007). Plaintiff’s denial of transfer into a particular program

therefore fails to state a claim.

H. Official Capacity Claims

In Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998), the Eighth Circuit discussed official

capacity suits. As explained by the Court in Gorman:

“Claims against government actors in their individual capacities differ from those

in their official capacities as to the type of conduct that is actionable and as to the

type of defense that is available. See Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358,

116 L.Ed.2d 301 (1991). Claims against individuals in their official capacities are

equivalent to claims against the entity for which they work; they require proof that

a policy or custom of the entity violated the plaintiff’s rights, and the only type of

immunity available is one belonging to the entity itself. Id. 502 U.S. at 24-27, 112

S.Ct. at 361-62 (1991). Personal capacity claims, on the other hand, are those which

allege personal liability for individual actions by officials in the course of their

duties; these claims do not require proof of any policy and qualified immunity may

be raised as a defense. Id. 502 U.S. at 25-27, 112 S.Ct. at 362.”

Gorman, 152 F.3d at 914.

In his Amended Complaint, Addendum, and Second Amended Complaint, Plaintiff has

identified no policy or custom or the ADC or ACC which violated his constitutional rights.

Further, to the extent any Defendants have been identified sufficiently to be served, they are

employees of the State of Arkansas. “[N]either a State nor its officials acting in their official

capacities are “persons” under § 1983.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71

(1989); Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (“a section 1983 suit

cannot be brought against the State”).

IV. CONCLUSION

For these reasons, the following claims remain for further consideration:

1. Plaintiff’s individual capacity claim that he was assaulted and injured by Sergeant

Hewitt, Officer Brooks, and unnamed “treatment and security personnel” while

handcuffed on April 19, 2015.

2. Plaintiff’s individual capacity claim against an unnamed ACC Nurse for denial of

medical care on April 19, 2015, after the alleged assault.

3. Plaintiff’s individual capacity claim that he was assaulted by Sergeant Garner while

he was in handcuffs and shackles on June 15, 2015, and security personnel on the

scene failed to stop Garner.

Defendants are DIRECTED to identify the “treatment and security personnel” and the ACC

Nurse who interacted with Plaintiff on April 19, 2015. Defendants are further DIRECTED to

identify the security personnel and Sergeant Garner4 who interacted with Plaintiff for the June 15,

2015, incident.

As to Plaintiff’s other claims and listed Defendants, IT IS ORDERED that they are

DISMISSED WITHOUT PREJUDICE.

Defendants’ Motion to Dismiss (ECF No. 30) is DENIED as MOOT. The Clerk is

DIRECTED to rename Plaintiff’s Response Supplement (ECF 40-1) as his Second Amended

Complaint and file it separately on the docket as such.

IT IS SO ORDERED this 27th day of February 2018.

/s/P. K. Holmes,

P. K. HOLMES, III

CHIEF U.S. DISTRICT JUDGE

4 Service was previously attempted on Defendant Sergeant Garner, but service was returned unexecuted, indicating

he could not be identified. (ECF No. 27 at 4).