Brown v. Helder

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

REV. TOM BROWN PLAINTIFF

V. CASE NO. 5:18-cv-05199

SHERIFF TIM HELDER, Washington County,

Arkansas; OFFICER SMITH #564; OFFICER

PARADES #553; OFFICER HOLIDAY # 472;

OFFICER WELCHEL CW02; NURSE REGINA

WALKER; DR. ROBERT KARAS; PA VERONICA

DOCKERY; NURSE ANDREW PIAZZA; NURSE

PHEBE GROTHAUS; ADMINISTRATOR JANE

BURLESON, KARAS URGENT CARE; and

BRIAN THOMAS, City of Fayetteville, Prosecutor's Office DEFENDANTS

OPINION AND ORDER

Plaintiff Reverend Tom Brown filed this action pursuant to 42 U.S.C. § 1983. He

proceeds pro se and in forma pauperis. Plaintiff was directed to file an amended

complaint on July 26, 2019. See Doc. 52. His “First Corrected Amended Complaint”

(Doc. 59) was filed on August 19, 2019.

Under the IFP statute, 28 U.S.C. § 1915, 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) seek monetary relief from a defendant who

is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B).

|. BACKGROUND

Plaintiff was arrested on October 17, 2016, and booked into the Washington

County Detention Center (WCDC”). He remained incarcerated there until October

19, 2016, when he was released. At the time of incarceration, Plaintiff was sixty-nine

years old.

He asserts three claims stemming from this incarceration: (1) he was subjected

to unconstitutional conditions of confinement; and (2) he was denied adequate care for

his serious medical needs." .

While at the WCDC, Plaintiff contends he:

was held in torture for some 30 hours, admitted to jail population without

access to needed medications, denied writing instruments and paper to

make any record of events and personalities involved in the events, [and]

denied access to any communication thru the jails computer Kiosk telephone

system

(Doc. 59 at 3).

Plaintiff states he was unable to submit a grievance because an inmate using the

kiosk system must start by entering the identification number contained on his arm

band. As his glasses were taken away from him, Plaintiff maintains he could not read

his arm band. In any event, when both inmates and jailers assisted him by entering

his identification number, the number did not work. The jailer reported this; however,

Plaintiff claims he was not able to access the kiosk at all during his incarceration at the

WCDC.

On October 17, 2016, Officer T. Smith was the intake officer and the one who

took Plaintiff's personal clothing away. Plaintiff alleges Officer Smith “threaten[ed] to

keep him in the intake cell for 72 hours if Plaintiff refused to answer his questions.”

1 Plaintiff initially asserted a number of other claims against various Defendants. Those

claims were dismissed by Opinion and Order (Doc. 17) entered on February 14, 2019.

Only the two claims asserted in the current complaint survived dismissal. Plaintiff

previously attempted to reassert the dismissed claims and was denied permission to

do so. (Doc. 52).

Plaintiff believes Officer Smith deliberately put him in the cold cell “for the purpose of

torturing Plaintiff in compliance with Smith’s orders.”

Plaintiff maintains that Officer Smith failed to list on the property intake sheet all

of the identification cards carried by Plaintiff, including a VA hospital identification card.

According to Plaintiff, Officer Smith's actions show he was “a willing and able member

of a conspiracy to deny rights to those arrested and placed in his custody and care.”

Plaintiff also states Officer Smith failed to contact the “VA hospital to determine

Plaintiff's medical needs” and failed to contact jail medical staff.

Plaintiff was placed in an intake cell and remained there until sometime in the

afternoon of October 18, 2016, when he was moved to general population. Plaintiff

alleges he was placed in the intake cell because he “refused to verbally answer

questions from the intake officer.” Plaintiff asserts that the temperature in the intake

cell was maintained at less than 50 degrees. Plaintiff's contends that his requests for

his personal clothing in order to stay warm were refused as were his request for

blankets.

Plaintiff indicates he had been treated for elevated PSA? levels in urine, difficulty

and pain on urination, urine retention, and other symptoms of prostate cancer. Plaintiff

told Officer Smith that he had been searched by the arresting officer who had Plaintiff's

“medical identification.” Further, Plaintiff states he advised the intake officer that “the

[Veteran's Administration (“VA”)] would supply his needed medications upon demand

by the jail staff.” Despite this, Plaintiff alleges he went without his necessary

medications until October 19, 2016.

2 Prostate-Specific Antigen.

Plaintiff alleges that Defendants failed to respond to a report that he was bleeding

from the penis at 9:45 p.m. on October 19, 2019, “thru obstruction and bleeding again

at 9:45 am” on October 20th. Plaintiff also alleges that when he was being released,

the initial plan was to release him to the street with “no transportation, no means of

communication, all the while bleeding from the penis with no medical care whatsoever.”

With respect to Officers Parades, Plaintiff alleges his claims against him are the

same as those he brought against Officer Smith. Plaintiff notes one exception as to

Officer Parades: Plaintiff maintains that Officer Parades falsified the intake sheet by

crossing out Officer Smith’s name and putting his own name as the “searching officer.”

With respect to Officer Holiday, Plaintiff notes she is listed-as the officer on duty

when Plaintiff was released. Plaintiff therefore contends she is the officer who initially

refused to call an ambulance even though “the blood dripping from the Plaintiff's penis

was obvious on the jail uniform.” Officer Holiday knew Plaintiff had no transportation.

Plaintiff alleges Officer Welchel is the intake officer who processed him on

October 18, 2016. Plaintiff states he was nearly comatose from being in the cold cell

and he could not even open his eyes. Despite this, Officer Welchel, without getting

Plaintiff medical attention, simply finished his intake paperwork and assigned him to

general population.

With respect to Sheriff Helder, Plaintiff maintains that “he is personally

responsible for the medical care of inmates, that as Sheriff he established the

Standards and procedures under which jail employee’s function, and that all actions

taken by jail staff are taken at his direction, authorization and intention.” Plaintiff,

therefore, believes “all injuries suffered by Plaintiff, caused by jail staff, are correctly

attributed [to] Helder in [his]Official Capacity as they answer to him for the performance

of their jail duties.” Further, Plaintiff has submitted a newspaper article to establish that

Sheriff Helder “has repeatedly had problems providing adequate health care for jail

inmates over many years.” Although Plaintiff had no interactions with Sheriff Helder,

he believes Sheriff Helder is liable personally because the injuries Plaintiff suffered

were the result of the sheriff's policies and procedures.

With respect to Nurse Walker, Dr. Karas, PA Dockery, Nurse Piazza, Nurse

Grothaus, and Karas Urgent Care, Plaintiff alleges they refused him medical care.

Plaintiff maintains Administrator Jane Burelson had the authority to manage the

Plaintiffs health care needs and did not.

Finally, with respect to Prosecutor Thomas, Plaintiff claims he is the one who

ordered Plaintiffs release. Plaintiff asserts that the denial of adequate medical care

began with his arrest, and Prosecutor Thomas was responsible for “everything that

happened after the initial arrest as he is the person who charges the Plaintiff with

violation of the law and imposition of confinement prior to trial.” Plaintiff maintains that

Prosecutor Thomas was responsible for the “four days of illegal confinement which

caused injuries.”

ll. LEGAL STANDARD

Under the IFP statute, 28 U.S.C. § 1915, 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) seek monetary relief from a defendant who is

immune from such relief. 28 U.S.C. § 1915 (e)(2)(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 Atl. 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)).

lll. DISCUSSION

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. To establish a claim under § 1983, Plaintiff must show

defendants: (1) acted under color of law; and (2) caused the deprivation of a right

established by the Constitution and laws of the United States. West v. Atkins, 487 U.S.

42, 48 (1988); Magee v. Trustees of Hamline Univ., Minn., 747 F.3d 532, 534-35 (8th

Cir. 2014).

B. Claims Against Prosecuting Attorney Thomas

Plaintiff's claims against Prosecuting Attorney Thomas are subject to dismissal.

A prosecutor is absolutely immune from suit for any conduct undertaken in his or her

role as advocate for the state. Imbler v. Pachtman, 424 U.S. 409 (1976). Absolute

prosecutorial immunity protects the prosecutor as a key participant in the criminal

justice process, such that the prosecutor need not be inhibited from performing his or

her functions by a constant fear of retaliation. Id. at 428. This is true no matter the

underlying motive of the prosecutor or the propriety of the actions taken. Myers v.

Morris, 810 F.2d. 1437, 1446 (8th Cir. 1987) (finding that allegations that a prosecutor

proceeded with a prosecution based on an improper motive did not defeat absolute

prosecutorial immunity); see also Schenk v. Chavis, 461 F.3d 1043, 1046 (8th Cir.

2006) (“Actions connected with initiation of prosecution, even if those actions are

patently improper are immunized.” (internal quotation omitted).

C. Remaining Claims

The Court believes Plaintiff has asserted plausible claims against the remaining

Defendants. The Complaint will be served on those Defendants.

IV. CONCLUSION

The claims against Prosecuting Attorney Thomas are hereby DISMISSED WITH

PREJUDICE, because they are asserted against an individual immune from suit, 28

U.S.C. § 1915(e)(2)(B)(iii).

The Complaint will be served on the remaining Defendants by separate order.

IT IS SO ORDERED on this NG Bay of wou = =

AMODAY, Ss

UNITED $TALES DISTRICT JUDGE