Coleman v. Adams

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

VINCENT J. COLEMAN PLAINTIFF

v. Civil No. 4:18-cv-04151

SERGEANT GRIFFIE, Miller County

Detention Center (“MCDC”); OFFICER

PATTERSON, MCDC; WARDEN WALKER,

MCDC; CAPTAIN ADAMS, MCDC;

OFFICER HENDERSON, MCDC; OFFICER POOLE,

MCD; OFFICER RICHARDSON, MCDC;

And SHERIFF RUNION, Miller County, Arkansas DEFENDANTS

ORDER

This is a civil rights action filed by Plaintiff Vincent J. Coleman pursuant to 42 U.S.C. §

1983. Plaintiff proceeds pro se and in forma pauperis. The case is before the Court for preservice

screening 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.

I. BACKGROUND

Plaintiff filed his Complaint on November 1, 2018. (ECF No. 1). His application to

proceed in forma pauperis (“IFP”) was granted the same day. (ECF No. 3). Plaintiff is currently

incarcerated in the Miller County Detention Center (“MCDC”) awaiting trial on pending criminal

charges and serving a sentence as a result of a judgment of conviction. (ECF No. 1, p. 3). Plaintiff

sets forth five claims in his Complaint. However, many allegations in these claims overlap and

are repeated against various defendants.

Plaintiff describes Claim 1 as “Use of Offensive words or actions – Protected Class –

Toward an Offender Mistreatment of offenders.” He alleges on October 1, 2018:

Griffie and other officers conducted a cell search on . . . [other inmates] myself.

Aimed guns in our face, which by law, 7 feet or more is legal distance to use on

inmates. When I informed this info. Sgt. Griffie handled the situation

unprofessional calling me nigga, using other obscene gestures, threats saying he

will pop a cap in my ass…offensive words and threats or (actions) toward me

while I was handcuffed facing toward the wall. Left me in a state of shock and

fear. Fearing that my life/safety of well being was actually in danger . . . .

(ECF No. 1, pp. 5-6).

As for Claim 2, Plaintiff states: “Use of excessive or unnecessary force – Non-Provoked-

without serious injuries.” Id. at 7. Plaintiff repeats the allegations set forth in Claim 1 relating to

the incident on October 1, 2018, but clarifies that the “guns” pointed in his face were “pepper ball

guns aimed in our face at a distance less than 7 feet away that could of caused serious injuries if

they would’ve shot . . . none of us were showing any sign of aggression . . . .” Plaintiff alleges

this incident caused him “loss of sleep, paranoia, dis-trust in authority . . . .” Id. at 8. He claims

that Defendants Griffie, Henderson, Poole, Richardson and Patterson were the officers involved

in pointing the pepper ball guns toward him.

In Claim 3, Plaintiff alleges: “Mistreatment of offenders, Denial of medical care,

Harassing or Retaliating against another individual.” Id. at 9. Again, Plaintiff refers to the

incident on October 1, 2018, and states that the grievance he filed concerning the incident “was

marked as non-appealable. Stating it was not a legal concern . . . I feel this is a cover up made by

the captain . . . .” Id. Plaintiff then goes on to set forth his disapproval of the grievance procedure

at the MCDC and how various defendants inadequately responded or failed to respond to his

grievances. He states “I feel the grievance system here is not meant for our best interest of safety

and well being. And constantly puts our well being in danger . . . .” He also alleges he sent a

medical request on October 17, 2018 stating:

I can’t sleep at night, waking up at the sound of keys and the opening of doors only

at fear thinking something is going to happen to me. This feeling of fear didn’t

start until after the incident that occurred on Oct. 1 . . . .

Response by Capt. G. Adams 10-23-18 . . . . I will arrange for you to be

placed on P.C. to ease your mind. I feel this is further evidence of him trying to

cover this incident up, also denying me medical care.

On 10-24-18 Capt. Adams put me on lockdown. . . . I feel this is Harassing

or Retaliating.

Id. at 12.

Although Plaintiff describes Claims 4 and 5 as “Mistreatment of Offenders,” he simply

restates his frustration with and complaints about the MCDC’s grievance procedure that he set

forth in Claim 3 and identifies Warden Walker and Sheriff Runion as the Defendants responsible

for the procedure.

Plaintiff is suing Defendants in their individual and official capacities. He is seeking

compensatory and punitive damages. (ECF No. 1, p. 13).

II. APPLICABLE LAW

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)). However, 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. DISCUSSION

Plaintiff alleges his constitutional rights were violated when defendants: 1) used offensive

words and gestures towards him; 2) used excessive force against him; 3) failed to properly

respond to his grievances; 4) denied him medical care; and 5) retaliated against him.

A. Verbal Threats and Name Calling

Plaintiff’s allegation that Defendants Griffie, Henderson, Poole, Richardson and Patterson

used offensive language and verbally threatened him is frivolous. “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) (inmate’s claims of general

harassment and of verbal harassment were not actionable under § 1983); O’Donnell v. Thomas,

826 F.2d 788, 790 (8th Cir. 1987) (verbal threats and abuse by jail officials did not rise to the level

of a constitutional violation); Black Spotted Horse v. Else, 767 F.2d 516, 517 (8th Cir. 1985) (use

of racially offensive language in dealing with a prisoner does not, by itself, state a claim).

Accordingly, Plaintiff’s claim regarding the use of verbal threats and name calling is dismissed.

B. Excessive Force

Plaintiff alleges that Defendants Griffie, Henderson, Poole, Richardson and Patterson used

excessive force against him when they pointed pepper ball guns at him from less than seven (7)

feet away when there was no threat or provocation from any inmate. Plaintiff claims he could

have suffered substantial injuries if the guns had been fired. He also states because of this incident

he has lost sleep and is now distrustful of MCDC officers.

In evaluating an excessive force claim under the Eighth Amendment, the relevant inquiry

is whether the force used was applied in a good-faith effort to maintain or restore discipline or was

used to maliciously and sadistically cause harm. See U.S. v. Miller, 477 F.3d 644, 647 (8th Cir.

2007). In deciding whether a use of force was reasonable, the Court is required to consider whether

there was an objective need for force, the relationship between the need and the amount of force

used, the threat reasonably perceived by correctional officers, the efforts by the officers to temper

the severity of the forceful response, and the extent of the inmate’s injuries. See Johnson v.

Hamilton, 452 F.3d 967, 972 (8th Cir. 2006) (citation omitted).

“[N]ot every malevolent touch by a prison guard gives rise to a federal cause of action.”

See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). “The Eighth Amendment’s prohibition of ‘cruel

and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of

force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Id.

at 9-10 (internal quotation marks omitted). An inmate who complains of a push or shove that

causes no discernible injury almost certainly fails to state a valid claim for excessive force. Wilkins

v. Gaddy, 559 U.S. 34, 37-38 (2010).

Here, Plaintiff concedes that he was not physically touched by any defendant. Even

accepting as true Plaintiff’s allegations that there was no threat or provocation from any inmate,

the threat of using pepper spray on Plaintiff may at most have been unprofessional, but this conduct

does not rise to the level of a constitutional violation. See Askew v. Millerd, 191 F.3d 953, 958

(8th Cir. 1999) (providing that: “Section 1983 is intended to remedy egregious conduct, and not

every assault or battery which violates state law will create liability under it.”). Therefore, Plaintiff

has failed to state a claim for excessive force.

C. Failure to Respond to Grievances

Plaintiff also alleges his constitutional rights were violated when his grievances setting

forth complaints about the conduct of several of the defendants on October 1, 2018, was labeled

as “non-appealable” and found not to be a “legal matter.” “Inmates do not have a constitutionally

protected right to a grievance procedure. Because a state grievance procedure does not confer any

substantive right upon prison inmates, a prison official’s failure to comply with the grievance

procedure is not actionable under § 1983.” Lombolt v. Holder, 287 F.3d 683, 684 (8th Cir. 2002)

(denial of grievances does not state a substantive constitutional claim). “Rather, prison inmates

have a constitutional right to petition the government for redress through a right of access to the

courts.” Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991). Within a month after filing grievances

relating to the incident on October 1, 2018, Plaintiff filed the instant lawsuit. Accordingly, Plaintiff

fails to state a claim relating to inadequate responses to grievances.

D. Denial of Medical Care

Plaintiff alleges he submitted a medical request on October 17, 2018, indicating he was

having trouble sleeping because he was being awakened at night by the sound of keys and opening

doors. Plaintiff states in his Complaint that on October 23, 2018, Defendant Adams responded to

Plaintiff’s request and said, “I will arrange for you to be placed on P.C. to ease your mind.” (ECF

No. 1, p. 12). Plaintiff claims that this statement establishes that he was denied medical care by

Defendant Adams.

The Eighth Amendment’s prohibition against cruel and unusual punishment prohibits

deliberate indifference to the serious medical needs of prisoners. Luckert v. Dodge Cty, 684 F.3d

808, 817 (8th Cir. 2012). 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)). In order to show 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).

To establish 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. Deliberate indifference is akin to

criminal recklessness, which demands more than negligent misconduct.” Popoalii v. Corr. Med.

Servs, 512 F.3d 488, 499 (8th Cir. 2008) (internal quotation marks and citations omitted).

Deliberate indifference may 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. Cnty of

Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2009).

Here, Plaintiff submitted one request stating he was not able to sleep because he was being

awakened by the sound of keys and the opening of doors during the night in the MCDC. First, the

Court finds that Plaintiff’s medical request does not involve an objectively serious medical need.

There is no evidence Plaintiff saw a doctor for his alleged loss of sleep or that he had been

diagnosed as requiring treatment for the issue. Plaintiff stated that the cause of his loss of sleep in

his Complaint was “noises at night” and thus Plaintiff did not attribute the loss of sleep to a medical

issue. Second, the Court finds that merely losing sleep because of noise, without naming any other

symptoms, is not a serious medical condition that would have been obvious to a lay person.

Accordingly, Plaintiff has failed to state a claim based on denial of medical care.

E. Retaliation

Plaintiff alleges Defendant Adams retaliated against him for filing a medical request when

he moved Plaintiff to “lockdown” to help him with his claim that he was having difficulty

sleeping.1

In general, “[c]onduct that retaliates against the exercise of a constitutionally protected

right is actionable, even if the conduct would have been proper if motivated by a different reason.”

Cody v. Weber, 256 F.3d 764, 771 (8th Cir. 2001) (citing Madewell v. Roberts, 909 F.2d 1203,

1206 (8th Cir. 1990)). The retaliatory conduct itself need not be a constitutional violation to be

actionable. Additionally, there is no independent injury requirement when retaliatory conduct is

involved. See Dixon v. Brown, 38 F.3d 379, 380 (8th Cir. 1994). To prevail on his retaliation

claim, Plaintiff must demonstrate: (1) he engaged in protected activity; (2) Defendants responded

with adverse action 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 exercise of the protected

action. See L.L. Nelson Enterprise Inc. v. County of St. Louis, Mo., 673 F.3d 799, 807-8 (8th Cir.

2012) (quoting Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004)).

There is no question that Plaintiff engaged in protected First Amendment activity when he

submitted a medical request [or grievance] on October 17, 2018. See Dixon v. Brown, 38 F.3d 379

(8th Cir. 1994). Plaintiff claims that Defendant Adams told him on October 23, 2018, that he

1 It is not clear to the Court from Plaintiff’s Complaint if lockdown is the same as P.C. (protective custody).

would move Plaintiff to “P.C.” to ease his mind and the following day Plaintiff was placed in

lockdown. Plaintiff then states, “I believe this is harassing or retaliating.” The Court finds that

Plaintiff has stated sufficient facts to support a claim. Accordingly, Plaintiff’s claim for retaliation

shall proceed.

F. Official Capacity Claims

Section 1983 provides a federal cause of action for the deprivation, under color of state

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 that a

defendant acted under color of state law and that the defendant 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). Under section 1983, a defendant may be sued in either his individual capacity, or in

his official capacity, or claims may be stated against a defendant in both his individual and his

official capacities. Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998). With respect to official

capacity claims, they are “functionally equivalent to a suit against the employing governmental

entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). In the present

case, Plaintiff’s official capacity claims against Defendants are treated as claims against Miller

County. See Murray v. Lene, 595 F.3d 868, 873 (8th Cir. 2010).

“[I]t is well established that a municipality [or county] cannot be held liable on a

respondeat superior theory, that is, solely because it employs a tortfeasor.” Atkinson v. City of

Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). To establish Miller County’s liability

under section 1983, “plaintiff must show that a constitutional violation was committed pursuant to

an official custom, policy, or practice of the governmental entity.” Moyle v. Anderson, 571 F.3d

814, 817 (8th Cir. 2009) (citation omitted).

Plaintiff’s allegations concerning official capacity merely consist of a recitation of the ways

he believes his constitutional rights were violated. His claims do not suggest the existence of any

policy, custom or practice of Miller County. Thus, Plaintiff has failed to state a claim against

Defendants in their official capacity.

IV. CONCLUSION

For the reasons stated above, Plaintiff’s individual claims against Defendants Griffie,

Officer Patterson, Warden Walker, Officer Henderson, Officer Poole, Officer Richardson, and

Sheriff Runion are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§

1915(e)(2)(B)(i-iii). Further, all official capacity claims are DISMISSED WITHOUT

PREJUDICE. Plaintiff’s individual claims against Defendant Adams in his personal capacity

based on verbal threats/offensive gestures, excessive force, inadequate responses to grievances,

and denial of medical care are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§

1915(e)(2)(B)(i-iii). Plaintiff’s claim of retaliation against Defendant Adams in his personal

capacity shall proceed.

IT IS SO ORDERED, this 15th day of January, 2019.

/s/ Susan O. Hickey

Susan O. Hickey

United States District Judge