The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
JACKIE DORAIL HOWARD PLAINTIFF
v. Civil No. 4:18-cv-4131
LISA GOODWIN, Manager, Whataburger;
CHARLES BLACK, District Attorney,
Miller County, Arkansas; DETECTIVE
BRIAN TRIBBLE, Texarkana Arkansas
Police Department; and SERGEANT
ZACHERY WHITE, Texarkana Arkansas
Police Department DEFENDANTS
ORDER
Before the Court is Defendant Lisa Goodwin’s Motion to Dismiss. (ECF No. 10).
Plaintiff has filed a response. (ECF No. 21). The Court finds this matter ripe for consideration.
I. BACKGROUND
Plaintiff is currently an inmate in the Miller County Detention Center (“MCDC”) in
Texarkana, Arkansas. On September 12, 2018, Plaintiff filed his Complaint pursuant to 42 U.S.C.
§ 1983. (ECF No. 1). His application to proceed in forma pauperis was granted the same day.
(ECF No. 3). In addition to Goodwin, Plaintiff names Charles Black, Brian Tribble, and Zachery
White as Defendants in this lawsuit.
Plaintiff alleges that Defendant Goodwin is the manager at the Whataburger restaurant in
Texarkana. He claims she violated his constitutional rights when she “accused me of stealing out
of a business . . . I didn’t do it.” Plaintiff states that because of Defendant’s actions, he was arrested
and incarcerated based on charges that were eventually nolle prossed. (ECF No. 1, pp. 4-7).
Attached to Plaintiff’s Complaint is the Affidavit of Defendant Brian Tribble, dated June
7, 2018.1 Defendant Tribble is a Texarkana police officer. The Affidavit states in part:
That on Tuesday, 5th day of June 2018, the Texarkana Arkansas Police
Department, received a call at Whataburger, located at 4110 North State
Line Avenue, of a theft already occurred.
That Officer Cobin Brown and Officer Landon Loe, made contact with the
complainant, Lisa Goodwin. Goodwin advised that an unknown black male
and an unknown white female entered the building and split up. She states
the white female entered the restroom where she stayed for approximately
10, minutes, meanwhile, the black male went to the counter and asked an
employee for a water cup. Goodwin advised the employee asked her to
keep an eye on the suspect as he thought the male was attempting to steal a
fountain drink because of his suspicious behavior. Goodwin stated she
watched the suspect while trying to count the money in the manager’s office
and watched him go to the fountain get a beverage. The employee then
made the suspect pay for the drink, due to it not being water. Goodwin said
after that she turned her head for a few seconds to enter numbers on the
computer. She said when she turned back to look at the suspect, he was
gone.
. . .
That Goodwin advised a short time later, the white female exited the
bathroom and also approached the counter to ask for a water cup. Goodwin
stated at this time, she observed the laptop missing from the table and asked
the employees where it was. She was able to pull up security footage that
showed the male suspect walking over towards the booth table that the
laptop was sitting on and place his drink on the table next to it. He then
walks over to the outlet and unplugs the laptop charger, collects the laptop
and charger, and exits the store using the West side entrance and walking in
an unknown direction.
. . .
1 In deciding Rule 12(b) motions, courts are not strictly limited to the four corners of complaints. Outdoor
Cent., Inc. v. GreatLodge.com, Inc., 643 F.3d 1115, 1120 (8th Cir. 2011). “While courts primarily consider
the allegations in the complaint in determining whether to grant a Rule 12(b)(6) motion, courts can also
consider ‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters
of public records, orders, items appearing in the records of the case, and exhibits attached to the complaint
whose authenticity is unquestioned;’ without converting the motion into one for summary judgment.”
Miller v. Redwood Toxicology Lab., Inc., 688 F.3 928, 931, n.3 (8th Cir. 2012).
I made contact with the complainant, Lisa Goodwin[, on the same date]. I
explained to her that we attempted to get a photo of the suspects today from
the store and were not able to. She advised she could email me a photo of
the suspects. A short time later I received a photo of suspects.
(ECF No. 1, pp. 21-34). Defendant Goodwin later identified Plaintiff as the individual she saw in
the video taking the laptop from her place of employment from a separate photograph shown to
her by Defendant Tribble. Plaintiff was then charged and arrested for theft of property.
In the instant Motion to Dismiss, Defendant Goodwin argues that Plaintiff failed to state
any claim that entitles him to relief because she was not acting under color of law when she
provided information to the Texarkana police concerning the theft of the laptop from Whataburger.
(ECF No. 10). Plaintiff filed a Response stating “the Fraud[u]lent Accusations of Lisa Goodwin
in The Police Report generated by Detectives Brian Tribble and Sergeant Zachary White
Insinuated felonious Activities Perpetrated by Another Indivi[d]ual that Legally and Publicly
Impugh [sic] my chara[c]ter, and stole my freedom.” (ECF No. 21). Plaintiff is seeking
compensatory and punitive damages and “would like for The Manger Lisa Goodwin To be
disaplien [sic] for Lies she Told an her Actions . . . .” (ECF No. 1, p. 14).
II. APPLICABLE LAW
Rule 8(a) contains the general pleading rules and requires a complaint to present “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), ‘a
complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is
plausible on its face.’” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. While
the Court will liberally construe a pro se plaintiff’s complaint, the plaintiff must allege sufficient
facts to support his claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
III. DISCUSSION
Plaintiff alleges Defendant Goodwin violated his civil rights when she provided
information to the Texarkana police which implicated him in a theft of property from Defendant
Goodwin’s place of employment.
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, a plaintiff must allege each defendant
acted under color of state law and that he or she violated a right secured by the constitution. West
v. Atkins, 487 U.S. 42, 108 S. Ct. 2250, 101 L.Ed.2d 40 (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).
To determine the presence of state action, a court must examine the record to determine
whether “the conduct allegedly causing the deprivation of a federal right [is] fairly attributable to
the State.” Montano v. Hedgepeth, 120 F.3d 844, 848 (8th Cir. 1997) (quoting Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982)). There can be no “fair attribution” unless the
alleged constitutional violation was “caused by the exercise of some right or privilege created by
the State or by a rule of conduct imposed by the State or by a person for whom the State is
responsible.” Lugar, 457 U.S. at 937. In addition, “the party charged with the deprivation must
be a person who may fairly be said to be a state actor. This may be because he is a state official,
because he has acted together with or has obtained significant aid from state officials, or because
his conduct is otherwise chargeable to the State.” Id.; see also Roudybush v. Zabel, 813 F.2d 173,
176-77 (8th Cir. 1987).
The facts set forth in Plaintiff’s Complaint do not support any plausible cause of action
for relief under 42 U.S.C. § 1983 against Defendant Goodwin. Plaintiff has not alleged any facts
showing Defendant Goodwin was acting under color of state law when she contacted the police
and provided information to them. Instead, Plaintiff’s Complaint indicates that Defendant
Goodwin was acting in her capacity as a private citizen who was an employee of the Whataburger
restaurant. Accordingly, the Court finds that Defendant Goodwin is not a state actor. For this
reason, the Court finds that Plaintiff has failed to plead an actionable § 1983 claim against
Defendant Goodwin.
Even if the Court assumes, for purposes of this motion, that Defendant Goodwin was
somehow acting under color of state law, Plaintiff has failed to allege sufficient facts for the Court
to draw any reasonable inference that Defendant Goodwin engaged in any unlawful activity for
which it should be held responsible under 42 U.S.C. § 1983. Plaintiff uses the phrase “fraudulent
accusations” which “Publicly Impugh[sic] my chara[c]ter, and stole my freedom.” (ECF No. 1).
Giving Plaintiff’s words the most liberal interpretation, at most the allegations could possibly be
construed as claims for slander or defamation. “[A] defamed person has not been deprived of any
right, privilege or immunity secured to him by the Federal Constitution or laws of the United
States.” Ellinburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) (citations omitted). See also
Waller v. Rice, 1:15-cv-01010, 2015 WL 2227799, *2 (W.D. Ark. May 12, 2015) (“Slander is not
a cognizable claim under section 1983.”)
IV. CONCLUSION
In the present case, Plaintiff has failed to state facts to support any claim against Defendant
Goodwin under 42 U.S.C. § 1983. Accordingly, the Court finds that Defendant Goodwin’s Motion
to Dismiss (ECF No. 10) should be and hereby is GRANTED. Plaintiff’s claims against
Defendant Goodwin are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, this 17th day of December, 2018.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge