Klingensmith v. Cruz

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

TYLER B. KLINGENSMITH PLAINTIFF

V. CASE NOS. §:19-CV-05185

§:20-CV-05015

DETECTIVE MARK JORDAN; CHIEF JON SIMPSON;

OFFICER SHRUM; PROSECUTOR STUART CEARLY;

OFFICER ROBIN HOLT; SERGEANT JOE ADAMS;

OFFICER COGDILL; SHERIFF SHAWN HOLLOWAY;

KALEY SCHWAB; GLORIA SCHWAB;

CAPTAIN BANTA; JERROD C. WISEMAN;

JUDGE ROBIN GREEN; BRENDA DESHIELDS;

DEPUTY ADRIAN CRUZ; DEPUTY JOSEPH ALLEN;

MEGAN RUTLEDGE; DEPUTY NICHOLAS GUERRERO;

NURSE HEATHER TRIMMER; NURSE FRAN INFANTE;

DEPUTY TREY BRADY; DEPUTY RANDALL MCELROY;

DEPUTY ANTHONY COBB; DEPUTY W. GUENTHER;

DEPUTY ROSS; and DEPUTY CHANDLER DEFENDANTS

MEMORANDUM OPINION AND ORDER

This case is before the Court for preservice screening pursuant to the Prison

Litigation Reform Act (“PLRA”). 28 U.S.C. § 1915A. Under the PLRA, the Court has an

obligation to screen any complaint in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity.

Additionally, the Court has reviewed Separate Defendants’ Motion to Strike

Plaintiffs Third Amended Complaint and Separate Benton County Defendants’ Motion to

Adopt and Join Defendant Mark Jordan’s Motion to Strike Plaintiffs Third Amended

Complaint. (Docs. 139 & 142).

1. BACKGROUND

Plaintiff filed his original Complaint on September 27, 2019. (Doc. 1). Plaintiff filed

a separate case, Klingensmith v. Jordan, et al., 5:20-cv-05015, involving largely the same

Defendants and issues, on January 14, 2020. The two cases were consolidated on April

24, 2020, at which time Plaintiff was given an opportunity to file a third and final amended

complaint. (Doc. 127). The Court noted that Plaintiffs previous complaints were difficult

to construe and contained “unnecessary verbiage.” /d. at p. 2. The Court therefore

directed Plaintiff to file an amended complaint that clearly and concisely set forth his

claims against each named Defendant. He was limited to completing the form complaint

and attaching up to six additional pages. In addition, he was directed to provide the dates

on which all events occurred and to assert a single cause of action for each claim or

count.

Plaintiff's Third Amended Complaint, which he filed on May 14, 2020 (Doc. 135),

now contains sixteen claims, and many of them seek relief based on multiple causes of

action. Accordingly, the Court finds that the Third Amended Complaint fails to comply

with the Court's earlier Order (Doc. 127). Even so, the Court declines to strike the

pleading in favor of proceeding with the claims Plaintiff has articulated. The Court believes

that this approach, in the end, will best serve the interests of justice and conserve judicial

resources. Therefore, Defendants’ separate Motions to Strike (Docs. 139 & 142) are

DENIED. Below, the Court will consider the sufficiency of Plaintiffs claims for service

purposes.

ll. 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) seek 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 Ati. 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, 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).

lll. DISCUSSION

A. Defendants Subject to Dismissal

Defendants Kaley and Gloria Schwab are private citizens and are not subject to

suit under § 1983. Kaley is the victim in the state court criminal case in which Plaintiff was

convicted, and Gloria is Kaley’s mother. Both of these individuals will be dismissed. See

West v. Atkins, 487 U.S. 42, 48 (1988) (italics added). “[A] private party’s mere invocation

of state legal procedures does not constitute state action.” Youngblood v. Hy-Vee Food

Stores, Inc., 226 F.3d 851, 855 (8th Cir. 2001) (store employee, who was not employed

by the police department, was not a state actor when employee reported suspected

shoplifting and detained the shoplifter until police arrived) (citations omitted); see □□□□

Grow v. Fisher, 523 F.2d 875, 879 (7th Cir. 1975) (“The mere fact that the individual

defendants were complainants and witnesses in an action which itself was prosecuted

under color of law does not make their complaining or testifying other than what it was,

i.e., the action of private persons not acting under color of law.”).

Benton County Circuit Judge Robin Green is immune from suit. Mireles v.

Waco, 502 U.S. 9, 11 (1991) (“Judicial immunity is an immunity from suit, not just from

ultimate assessment of damages.”). See also Duty v. City of Springdale, 42 F.3d 460,

462 (8th Cir. 1994). “Judges performing judicial functions enjoy absolute immunity from

§ 1983 liability.” Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir. 1994). “A judge will not

be deprived of immunity because the action [s]he took was in error, was done maliciously,

or was in excess of [her] authority.” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978).

Judicial immunity is overcome in two situations: (1) if the challenged act is non-judicial;

and, (2) if the action, although judicial in nature, was taken in the complete absence of all

jurisdiction. Mireles, 502 U.S. at 11. It is clear from the allegations of the Third Amended

Complaint that neither of those situations applies here. Accordingly, all claims against

Judge Green will be dismissed.

Plaintiffs claims against Benton County Prosecutor Stuart Cearly are also

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. /d. 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); 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). Accordingly, Mr. Cearly will be

dismissed from this action.

Finally, Plaintiff has failed to state any specific facts in his Third Amended

Complaint to show that the following Defendants had any personal involvement in

depriving him of his constitutional rights: Chief Jon Simpson, Sheriff Holloway,

Captain Banta, Brenda DeShields, Jerrod C. Wiseman, Deputy Ross, and Deputy

Chandler. “Liability under Section 1983 requires a causal link to, and direct responsibility

for, the deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990)

(citing Rizzo v. Goode, 423 U.S. 362, 370 (1976)). Thus, to state a cognizable § 1983

claim, a complaint must set forth specific factual allegations showing what each named

defendant allegedly did, or failed to do, that allegedly violated the plaintiff's federal

constitutional rights. Plaintiff failed to do this with respect to these Defendants, and all

individual-capacity claims against them are subject to dismissal.

B. Claims Subject to Dismissal

1. Section 1985 Conspiracy

Plaintiff fails to state a plausible claim for a violation of violation of 42 U.S.C. § 1985

in Claim One of the Third Amended Complaint. He asserts that the Defendants named

in Claim One conspired to falsely charge him with the sexual assault crime for which he

was convicted. These Defendants supposedly entered Plaintiff's storage unit and stole

a TV, a jewelry box, and a video that would have exonerated him.

There are five types of conspiracies to interfere with civil rights under § 1985: (a)

the performance of official duties by federal officers; (b) the administration of justice in

federal courts; (c) the administration of justice in state courts; (d) the private enjoyment

of “equal protection of the laws” and “equal privileges and immunities under the laws’;

and (e) the right to support candidates in federal elections. Kush v. Rutledge, 460 U.S.

719, 724 (1983). The Third Amended Complaint does not specify the type of conspiracy

alleged, but the facts clearly do not support a claim under either § 1985(1) or (2). If

Plaintiff means to allege a violation of § 1985(3), he must state facts to show that there

was a conspiracy “fueled by some ‘class-based, invidiously discriminatory animus.”

Andrews v. Fowler, 98 F.3d 1069, 1079 (8th Cir. 1996) (quoting Bray v. Alexandria

Women’s Health Clinic, 506 U.S. 262, 268 (1993)). He has failed to state such facts.

Therefore, Plaintiffs conspiracy claim under 42 U.S.C. § 1985 will be dismissed.

2. Denial-of-Medical-Care Claims

In Claims 7, 8 and 12 of the Third Amended Complaint, Plaintiff asserts denial-of-

medical-care claims against Defendants Infante, Trimmer, and Banta. (Doc. 135, pp. 9,

11). Specifically, Plaintiff states that he arrived at the BCDC with a broken hand. He was

seen upon arrival by Nurses Infante and Trimmer, who looked at his hand and advised

him that he would be placed in the medical pod. /d. at 9. Plaintiff alleges that Trimmer

and Infante failed to notify the booking sergeant and that he was not placed in the medical

pod. /d. Plaintiff alleges that “Banta took note of the arm and placed me in POD 107

Gen. Pop.” /d. Plaintiff further alleges that “over 144 hours later my hand was examined

and the treatment prescribed was . . . no mobility for 6 wks. and to be wrapped with

support; Infante took my support only 4 days later and said ‘You don’t deserve this’ as |

was coming out of the shower.” (Doc. 135, p. 9).

Plaintiff also alleges that he was physically and sexually assaulted by inmate R.B.

and asked for medical attention following the assault. He claims he received no care and

states he was told that “Infante and Trimmer were on duty.” (Doc.135, p. 9).

Separate Defendant Infante previously filed a motion to dismiss identical claims

originally asserted in Plaintiffs Amended Complaint (Doc. 11). Infante’s Motion (Doc. 31)

was granted on February 14, 2020. (Doc. 67). As set forth in the Court’s Order, “In order

to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful

to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429

U.S. 97, 104 (1976). The deliberate indifference standard includes “both an objective and

a subjective component: ‘[Klingensmith] 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)). Based on that

standard, and for the reasons set forth in the Court's prior Order (Doc. 67), Plaintiff's

allegations against Infante, Trimmer, and Banta, as set forth in Claims 7, 8, and 12, fail

to state any new facts that would be sufficient to support plausible claims and will be

dismissed on that basis."

3. Official-Capacity Claims

Plaintiffs Third Amended Complaint names certain Benton County Defendants in

their official as well as individual capacities.

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

1 Plaintiff also names Banta as a Defendant in Claim 5. However, he makes no factual

allegations against Banta in that Claim.

custom of the entity violated the plaintiffs rights, and the only type of

immunity available is one belonging to the entity itself. Hafer v. Melo, 502

U.S. 21, 24-27 (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. /d. 502 U.S. at 25-27.

Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998).

“Section 1983 liability for a constitutional violation may attach to a municipality if

the violation resulted from (1) an ‘official municipal policy,’ (2) an unofficial ‘custom,’ or (3)

a deliberately indifferent failure to train or supervise.” Mick v. Raines, 883 F.3d 1075,

1079 (8th Cir. 2018) (quoting Corwin v. City of Independence, 829 F.3d 695, 699 (8th Cir.

2016)). Plaintiff has identified no policy or custom of Benton County that violated his

rights. Instead, he maintains—in a general and conclusory fashion—that

[t]he failure to implement, and train staff on and for non-existing and later

implemented policies, practices and procedures were insufficient in

protecting myself from becoming a victim to said results. The failure to

investigate and tacit authorization of such conduct allowed such a stated

result. Failure to reprimand and deter the subordinates after such

knowledge thereof allowed it to continue... .—

(Doc. 135, p. 5).

Municipal liability arises “only where the failure to train [or supervise] amounts to

deliberate indifference to the rights of persons with whom the [employee] come[s] into

contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). Deliberate indifference “is

a stringent standard of fault requiring proof that a municipal actor disregarded a known or

obvious consequence of his action.” S.M. v. Lincoln Cnty., 874 F.3d 581, 585 (8th Cir.

2017). To state a claim for “failure to train” liability, the Plaintiff must plead facts sufficient

to show: (1) the County’s officer-training practices were inadequate; (2) the County was

deliberately indifferent to the rights of others in adopting these training practices, and the

County’s failure to train was a result of deliberate and conscious choices it made; and (3)

the County's alleged training deficiencies caused Plaintiffs constitutional deprivation.

See Haller v. County of Dundy, 2019 WL 2764227, at *10 (D. Neb. July 2, 2019).

Plaintiffs bare allegations do not reach that standard. Accordingly, all official-

capacity claims will be dismissed.

4. Property Deprivation

In Claims 1 and 2 of Plaintiff's Third Amended Complaint, Plaintiff asserts claims

for deprivation of property. (Doc. 135, pp. 4-5). Specifically, Plaintiff mentions a “60’

curved tv and other components in the factory box, and a jewelry box with silver and other

valuables, and a video that would exonerate me.” (Doc. 135, p. 4).

Plaintiff has adequate post-deprivation remedies to regain his property;

accordingly, any allegations of wrongful forfeiture do not rise to the level of a constitutional

violation. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional deprivation of

property does not violate due process when meaningful post-deprivation remedy is

available); Barnett v. Centoni, 31 F.3d 813 (9th Cir. 1994) (negligent or intentional

deprivation of prisoner's property fails to state claim under § 1983 if state has adequate

post-deprivation remedy); Elliot v. Hurst, 817 S.W.2d 877, 880 (1991) (cause of action for

conversion lies where distinct act of dominion is exerted over property in denial of owner's

right). Because Plaintiff could seek redress in state courts for his claim of loss of property,

he cannot pursue the same claim under § 1983.

IV. CONCLUSION

For the reasons set forth above, IT IS ORDERED:

e The following Defendants are DISMISSED WITHOUT PREJUDICE, and

the Clerk of Court is directed to terminate them as parties:

Chief Jon Simpson, Prosecutor Stuart Cearly, Sheriff Shawn Holloway,

Kaley Schwab, Gloria Schwab, Captain Banta, Jerrod C. Wiseman, Judge

Robin Greene, Brenda DeShields, Nurse Heather Trimmer, Nurse Fran

Infante, Deputy Ross, and Deputy Chandler.

e The following claims are DISMISSED WITHOUT PREJUDICE: Plaintiffs

claims under 42 U.S.C. § 1985, his denial-of-medical care claims stated in

Claims 1, 2, 7, 8, and 12, all official-capacity claims, and his claim for

property deprivation. See 28 U.S.C. § 1915(e)(2)(B)(i-ii) (in forma pauperis

action, or any portion of it, may be dismissed at any time due to

frivolousness or for failure to state a claim).

IT IS FURTHER ORDERED that Separate Defendants’ Motion to Strike Plaintiff's

Third Amended Complaint and Separate Defendants’ Motion to Adopt and Join Defendant

Mark Jordan’s Motion to Strike Plaintiffs Third Amended Complaint (Docs. 139 & 142)

are both DENIED.

The following claims remain for further litigation:

e Fourth Amendment claims against Defendants Shrum, Jordan, and Holt

with respect to alleged false allegations in arrest warrants, as set forth in

Claims 2, 3, 13, and 16;

e Fifth Amendment claims against Defendants Shrum, Jordan, and Holt with

respect to the questioning of Plaintiff, as described in Claim 4;

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e Freedom of Information Act (FOIA) claims pursuant to Arkansas Code

Annotated §§ 25-19-101, et seg., against Defendants Holt, Rutledge,

McElroy, and Jordan with respect to Plaintiff's allegation that Defendants

prevented his FOIA requests, as set forth in Claim 5;

e Failure to Protect claims against Defendants Cruz and Guerrero with

respect to Plaintiff's allegation that he was assaulted by inmate R.B., as set

forth in Claims 6, 8, and 12;

e Failure-to-protect claims against Defendants Brady and Allen with respect

to Plaintiffs allegation that he was assaulted by inmate R.B., as set forth in

Claims 9 and 12;

e First Amendment retaliation claims against Cogdill, Jordan, Adams, Holt,

Guenther, Rutledge, Brady, and Cobb with respect to Plaintiff's allegation

that he was retaliated against for filing grievances, as set forth in Claims 10

and 11;

e Fourth Amendment claim against Defendants Jordan and Shrum with

respect to the alleged illegal search of Plaintiff's phone and alleged false

statements in a search warrant related to Plaintiff's phone, as set forth in

Claim 14; and

e Fourth Amendment claim against Defendant Jordan with respect to the

alleged illegal search of Plaintiffs twitter account and alleged false

statements in a search warrant related to Plaintiff's twitter account, as set

forth in Claim 15.

Service on the remaining claims will be directed through a separate order.

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to

IT IS SO ORDERED on this day of August, i?

(he

THOTHY BOKS

UNITED STAFES DISTRICT JUDGE

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