Raper v. Braley

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

JAMES M. RAPER, JR. PLAINTIFF

v. Case No. 4:22-cv-04057

ROSE BRALEY DEFENDANT

ORDER

Before the Court is the Report and Recommendation filed April 11, 2023, by the Honorable

Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. ECF No.

29. Defendant Rose Braley has objected. ECF No. 30. Thus, the matter is ripe for the Court’s

consideration.

I. BACKGROUND

On September 13, 2022, Plaintiff James M. Raper Jr. filed a second amended complaint,

which now governs. ECF No. 13. Plaintiff brings the instant action against Defendant, the Head

of Commissary at the Southwest Arkansas Community Correction Center, in her official and

individual capacities. Specifically, Plaintiff brings an “excessive force, endangerment, conditions

of confinement, cruel and unusual punishment, wreckless” claim. In Plaintiff’s view, Defendant

failed to follow the Centers for Disease Control’s (CDC) guidelines and knowingly introduced

COVID-19 to inmates after she “continued to come to work and [dispense] comisary [sic] 5 days

a week” despite caring for family members who had COVID-19. ECF No. 13, at 5-6. Plaintiff

further alleges that Defendant “continued to come maskless to work after she contracted

[COVID-19], and gave the three residents who worked for her the fatal disease” and that Defendant

“only stopped working after the three residents tested positive.” ECF No. 13, at 5-6. Plaintiff

claims that he “in turn contracted the disease and got sick from the disease[,] putting [his] life in

jeopardy.” ECF No. 13, at 4.

On October 24, 2022, Defendant filed a motion to dismiss for failure to state a claim upon

which relief may be granted. ECF No. 16. Defendant notes that when a plaintiff brings an Eighth

Amendment claim, he must establish objectively unconstitutional conduct by the defendant (the

objective prong), as well as subjective deliberate indifference by the defendant (the subjective

prong). The plaintiff must additionally allege a causal link between the defendant’s conduct and

the alleged unconstitutional deprivation. In Defendant’s view, Plaintiff does not allege facts

sufficient to satisfy either the objective or subjective prong, nor does Plaintiff allege facts sufficient

to establish causation. See ECF No. 17, at 6 (explaining that Plaintiff fails to allege key facts

establishing causation, such as “when [Defendant] is alleged to have cared for her family, when

she then came to work, when the residents she allegedly worked with became ill, and finally when

the remainder of the residents allegedly became ill”). On November 3, 2023, Defendant filed a

motion requesting that the Court revoke Plaintiff’s in forma pauperis (IFP) status. ECF No. 21.

Defendant argues that Plaintiff has “received three or more litigation strikes and failed to disclose

that he has had three cases dismissed for failure to state a claim in the past six months alone,” and

therefore, pursuant to 28 U.S.C. § 1915(g), the Court should revoke Plaintiff’s IFP status and stay

the instant matter until Plaintiff has paid the filing fee in full. ECF No. 22, at 3-4.

Plaintiff opposes both motions. Plaintiff first argues that Defendant is not employed by

the State of Arkansas but rather, a private employer who contracts with the State of Arkansas.

Thus, Defendant is not entitled to qualified immunity.1 ECF No. 23, at 2-3. Plaintiff then argues

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that he has sufficiently alleged that Defendant acted with deliberate indifference. ECF No. 23, at

4-5 (explaining that Defendant “did not leave work until after her commissary workers, who had

1Although Plaintiff mentions qualified immunity in his response, Defendant did not allege that she is entitled to

qualified immunity in her motion to dismiss. Stated simply, Plaintiff raised the issue of qualified immunity sua sponte.

no choice may I add, were forced to be exposed to Brayley”). Finally, Plaintiff argues that he has

sufficiently pled the existence of a causal connection between Defendant’s conduct and the spread

of COVID-19 among inmates. ECF No. 23, at 6-7 (explaining that Defendant “came to work

positive for Covid-19 Delta” and “non-positive inmates, and possible [Arkansas Department of

Correction] employees, were infected as put at risk for Braley’s actions”).

Judge Bryant recommends denying both of Defendant’s motions. First, Judge Bryant

recommends finding that Plaintiff has not previously incurred three § 1915(g) strikes. Defendant

cites to Raper v. Deen, an opinion authored by this Court, as the basis for one of Plaintiff’s

previously incurred strikes. However, Judge Bryant finds that Plaintiff did not incur a strike in

Raper. Instead, Judge Bryant explains that “Plaintiff’s claims [in Raper] were dismissed based

solely on the grounds the Defendant was immune from suit and the official capacity claims were

barred by Eleventh Amendment immunity,” “Section 1915(g) does not include dismissals based

on immunity bars,” and ultimately, Raper does not constitute a dismissal “warranting a 1915(g)

strike against Plaintiff.” ECF No. 29, at 6.

Judge Bryant then proceeds to Defendant’s motion to dismiss and recommends that it be

denied. Although Plaintiff names several different causes of action in his second amended

complaint (“excessive force, endangerment, conditions of confinement, cruel and unusual

punishment, wreckless”), Judge Bryant finds that, in essence, Plaintiff brings “one individual

capacity claim and one official capacity claim for violation of his Eighth Amendment rights by

subjecting him to unconstitutional conditions of confinement.” ECF No. 29, at 8. Judge Bryant

then lists seven allegations made by Plaintiff before concluding that Plaintiff successfully “state[s]

a cognizable condition of confinement claim against Defendant.” ECF No. 29, at 10. Judge Bryant

finds that “Plaintiff sufficiently alleges Defendant came to work with signs and symptoms of

COVID-19, infected three inmates who worked with her, and then 250 resident[s], including

Plaintiff, who were all previously negative for COVID-19 contracted illness.” ECF No. 29, at 10.

This “factual content” is sufficient “for the Court to draw the reasonable inference that Defendant’s

conduct caused the alleged injury—a COVID-19 outbreak . . . which infected Plaintiff.” ECF No.

29, at 11.

Defendant objects to Judge Bryant’s Report and Recommendation. Defendant largely

reiterates arguments made in support of her pending motions. Compare ECF No. 30 with ECF

Nos. 16, 17, 21, 22. However, Defendant additionally argues that under Eighth Circuit law, a

violation of CDC guidelines does not rise to the level of an objectively unconstitutional violation.

ECF No. 30, at 3. Defendant further argues that Plaintiff has not sufficiently alleged that

Defendant subjectively acted with deliberate indifference because, at most, Defendant’s behavior

constituted negligence. Finally, any correlation between Defendant’s actions and the alleged

COVID-19 outbreak are, in Defendant’s view, “too tenuous to state a plausible claim for relief.”

ECF No. 30, at 6.

For the following reasons, the Court overrules Judge Bryant’s recommendation regarding

Defendant’s motion to dismiss, finding that the motion should be granted because Plaintiff has

failed to state a claim upon which relief can be granted. Further, while the Court agrees with Judge

Bryant’s recommendation that Defendant’s motion to revoke Plaintiff’s IFP status should be

denied, the Court declines to reach the merits of that motion and instead finds that it is moot.

II. DISCUSSION

“The Court may designate a magistrate judge to hear pre- and post-trial matters and to

submit to the Court proposed findings of fact and recommendations for disposition.” Bramlett v.

Wellpath, LLC, No. 6:19-cv-6070, 2020 WL 4748049, at *1 (W.D. Ark. Aug. 17, 2020). After

reviewing a magistrate judge’s report and recommendations under the appropriate standard of

review, the Court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

“[T]he specific standard of review depends, in the first instance, upon whether or not a

party has objected to portions of the report and recommendation.” Anderson v. Evangelical

Lutheran Good Samaritan Soc’y, 308 F. Supp. 3d 1011, 1015 (N.D. Iowa 2018). “The Court

applies a liberal construction when determining whether pro se objections are specific.” Raper v.

Maxwell, No. 4:21-cv-4067, 2022 WL 1978690, at *1 (W.D. Ark. June 6, 2022) (citation omitted).

If the prisoner “files timely and specific objections” to the magistrate’s report and

recommendations, then “the district court makes ‘a de novo determination of those portions of the

report or specified findings or recommendations to which objection is made.’” Branch v. Martin,

886 F.2d 1043, 1045 (8th Cir. 1989) (citation omitted). “When conducting de novo review, the

district court makes its own determinations of disputed issues and does not decide whether the

magistrate’s proposed findings are clearly erroneous.” Id. at 1046. Alternatively, if the plaintiff

does not timely and specifically object to the report and recommendation, the Court reviews that

report and recommendation for clear error. See Raper, 2022 WL 1978690, at *2; see also Thornton

v. Walker, No. 4:22-cv-4114, 2023 WL 3063381, at *1 (W.D. Ark. Apr. 24, 2023) (applying a

clear-error standard where plaintiff’s objections did not “specifically address any aspect of [the

magistrate judge’s] analysis or reasoning”); Engledow v. Comm’r of Soc. Sec., No. 20-cv-4, 2021

WL 916925, at *3 (N.D. Iowa Mar. 10, 2021) (explaining that de novo review is appropriate where

objections are not “more than . . . conclusory” and are not “accompanied by legal authority and

argument in support” (citations omitted)). Here, Defendant’s objections are specific enough to

trigger de novo review.

“An action fails to state a claim upon which relief can be granted if it does not plead

‘enough facts to state a claim to relief that is plausible on its face.’” Hill v. Payne, 2023 WL

2923152, at *1 (E.D. Ark. Mar. 20, 2023) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570 (2007)). “A pro se complaint . . . is to be given liberal construction, meaning ‘that if the

essence of an allegation is discernable, even though it is not pleaded with legal nicety, then the

district court should construe the complaint in a way that permits the layperson’s claim to be

considered within the proper legal framework.” Sykes v. Mitcham, No. 1:22-cv-01049, 2022 WL

17660958, at *2 (W.D. Ark. Sept. 29, 2022) (citation omitted). Nevertheless, pro se plaintiffs are

required to “allege sufficient facts to support the claims advanced.” Id. (citation omitted).

A. Motion to Dismiss

The Court first considers Defendant’s motion to dismiss, as it is dispositive. The Court

agrees with Judge Bryant insofar as Judge Bryant finds that Plaintiff alleges an Eighth Amendment

conditions of confinement claim against Defendant in her official and individual capacities.2 Thus,

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the Court will analyze Plaintiff’s second amended complaint and (Defendant’s motion to dismiss

that complaint) accordingly.

“[W]hen the State takes a person into its custody and holds him there against his will, the

Constitution imposes upon it a corresponding duty to assume some responsibility for his safety

and general well-being. The Constitution does not mandate comfortable prisons, but neither does

it permit inhumane ones.” Todd v. Ross, No. 4:13-cv-4044, 2013 WL 3800233, at *2 (W.D. Ark.

July 22, 2013) (alteration in original) (citation omitted). “A prisoner alleging an Eighth

Amendment violation must prove both an objective and subjective element.” Id. at *3. To state a

2The Supreme Court has noted that exposure to potential illness is properly aggrieved in a conditions-of-confinement

claim. See Helling v. McKinney, 509 U.S. 25 (1993); see also Flowers v. Harrell, 2023 WL 3391405, at *2 (E.D.

Ark. May 11, 2023) (relying on Helling, 509 U.S. 25).

plausible claim, the plaintiff must allege: “(1) objectively, he suffered a ‘sufficiently serious’

deprivation that denied him ‘the minimal civilized measure of life’s necessities’ or posed ‘a

substantial risk of serious harm’ to his health or safety; and (2) subjectively, the defendants were

‘deliberately indifferent’ to the risk of harm caused by the deprivation.” Robertson v. Kelly, No.

5:18-cv-00152, 2019 WL 1325921, at *2 (E.D. Ark. Mar. 25, 2019) (citation omitted).

The Eighth Circuit, looking to Supreme Court precedent, has defined “deliberate

indifference” as being “equivalent to criminal-law recklessness, which is ‘more blameworthy and

negligence,’ yet less blameworthy than purposefully causing or knowingly bringing about a

substantial risk of serious harm to the inmate.” Schaub v. VonWald, 638 F.3d 905, 914-15 (8th

Cir. 2011) (quoting Farmer v. Brennan, 511 U.S. 825, 835, 839-40 (1994)). “An obvious risk of

harm justifies an inference that a prison official subjectively disregarded a substantial risk of

serious harm to the inmate.” Id. at 915. This “is an extremely high standard to meet,” Valentine

v. Collier, 978 F.3d 154, 163 (5th Cir. 2020) (citation omitted), and does not encompass mere

negligence, Yeager v. Carrier, 2022 WL 16942237, at *4 (W.D. Ark. Oct. 24, 2022). Instead,

“defendants are deemed deliberately indifferent only if they were aware of facts from which they

could have inferred that plaintiffs faced a substantial risk of serious harm and only if they actually

drew that inference.” Abdulaziz/Askew v. Payne, No. 4:20-cv-529, 2020 WL 7083487, at *2 (E.D.

Ark. Nov. 2020). In cases where an inmate-plaintiff challenges an employee’s response to the

exposure or outbreak of COVID-19, federal courts consider whether the defendant’s response to

that exposure or outbreak was reasonable when conducting the deliberate indifference analysis.

See Wilson v. Williams, 961 F.3d 829, 940 (6th Cir. 2020) (“The key inquiry is whether the [Bureau

of Prisons] ‘responded reasonably to [the risk of COVID-19].’” (quoting Farmer, 511 U.S. at

844)).

1. Official Capacity

First, the Court finds that Plaintiff’s official capacity claim should be dismissed for failure

to state a claim. An official capacity claim “is functionally equivalent to a suit against the

employing governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir.

2010). “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.”

Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998). Further, a government entity “cannot be

held liable on a respondeat superior theory, that is, solely because it employs a tortfeasor.”

Williams v. Runion, No. 4:18-cv-4059, 2018 WL 2435420, at *2 (W.D. Ark. May 30, 2018)

(citation omitted). Stated simply, a plaintiff’s official capacity “claims can only survive a motion

to dismiss if he pleads facts that plausibly suggest the existence of an illegal policy or custom.”

Thomas v. Dakota Cnty. Law Enforcement Ctr., No. 15-2197, 2016 WL 1248674, at *5 (D. Minn.

Mar. 29, 2016).

Reviewing Plaintiff’s complaint de novo, Plaintiff alleges only that Defendant was “not

following CDC, ADC guidelines” and “knowingly introduce[d] Covid-19 Delta Variant to non-

positive residents.” ECF No. 13, at 4. Plaintiff fails to allege that Defendant was acting pursuant

to an unconstitutional policy or custom. See Gorman, 152 F.3d at 914. Absent any such allegation,

Plaintiff’s official capacity claim against Defendant should be dismissed. Although Judge Bryant

expressly states that Plaintiff brings both an official and an individual capacity claim, he does not

distinguish between the two types of claims in his substantive analysis or otherwise consider the

applicable, official-capacity standard: the plaintiff must allege the existence of an unconstitutional

policy or custom. See ECF No. 29, at 8-9. Accordingly, the Court overrules Judge Bryant’s

recommendation and dismisses Plaintiff’s official capacity claim against Defendant.

2. Individual Capacity

Turning to Plaintiff’s individual capacity claim, the Court again overrules Judge Bryant’s

recommendation, finding that the claim should be dismissed for failure to state a claim. Judge

Bryant recommends finding that the following allegations were sufficient to state a cognizable

claim against Defendant: (1) “Defendant continued to come to work while caring for family

members with COVID-19”; (2) “Defendant continued to come maskless to work after she

contracted COVID-19”; (3) “Defendant gave three residents who worked for her COVID-19”; (4)

“Defendant only stopped coming to work after the three residents tested positive”; (5) “all residents

had tested negative up to this point and then 250 residents, including Plaintiff, contracted

COVID-19”; (6) “the residents had no contact with outsiders other than staff”; and (7) “Defendant

failed to wear a mask or take off work when she showed signs and symptoms of COVID-19.” ECF

No. 29, at 9-10. However, Judge Bryant’s analysis is incomplete, as he did not analyze these

allegations within the context of the previously discussed objective and subjective prongs. Cf.

Frazier, 460 F. Supp. 3d at 835 (explaining that the Eighth Circuit “stresses that these objective

and subjective components should not be ‘collapsed’ into one another and remain separate but

related inquiries”).

In the Court’s view, Plaintiff’s allegations can be consolidated into three points: Defendant

continued to come to work while caring for family members who had contracted COVID-19,

Defendant continued to come to work “maskless” after contracting COVID-19, and Defendant

stopped coming to work after three residents tested positive. ECF No. 13. Even if the Court

assumes that Plaintiff has alleged facts sufficient to demonstrate an objective constitutional

violation, Plaintiff has not alleged facts sufficient to demonstrate that Defendant acted with

deliberate indifference.

The Court finds Hill v. Payne instructive. See 2023 WL 2192961, at 8. As is relevant here,

the Hill plaintiff brought an Eighth Amendment conditions of confinement claim in which he

alleged that employees at an Arkansas Division of Correction facility did not follow CDC

guidelines, which led to the plaintiff contracting COVID-19. Id. at *7 (alleging that the defendants

“subjected him to [unconstitutional] conditions of confinement by not properly wearing a mask or

gloves to prevent the spread of COVID-19”). The Court found that the plaintiff “failed to state a

conditions of confinement claim” because allegations that the defendants did not wear masks or

gloves when administering medication was “at most” suggestive of negligence. Id. Defendant

directs the Court to Hill in support of her argument that failure to follow CDC guidelines does not

constitute deliberate indifference.

Similarly, here, Plaintiff’s allegations suggest that Defendant was, at most, negligent.

Plaintiff alleges that Defendant came to work after caring for sick family members, came to work

after contracting COVID-19, “would not follow the ADC, CDC, or any Covid-19 guidelines,” and

“was sent home after [testing] positive. ECF Nos. 13, 23. However, Plaintiff does not allege that

Defendant was “aware of facts” from which she could have inferred that her behavior was placing

Plaintiff (and other inmates) in “a substantial risk of serious harm,” let alone that Defendant

“actually drew that inference.” Abdulaziz/Askew, 2020 WL 7083487, at *2. By Plaintiff’s own

admission, Defendant left work after inmates tested positive. The Court agrees with Defendant

that, “if taken as true, the allegations show that once [Defendant] became aware that the residents

tested positive, she immediately stopped coming to work” which is not behavior “suggestive of

someone who is acting with criminal recklessness.” ECF No. 17, at 5. Instead, this suggests to

the Court that upon learning that she was positive, Defendant left the facility to prevent further

spread of COVID-19.

Moreover, even assuming that “250 residents, including Plaintiff, contracted COVID-19,”

the scope of the alleged injury is not pertinent to the Court’s deliberate indifference analysis. See

Valentine, 978 F.3d at 163 (explaining that the deliberate indifference “inquiry concerns [the

defendant’s] state of mind, not the scope of the injury”); see also Medina v. Williams, No. 21-

1350, 2022 WL 2714517, at *2 (10th Cir. 2022) (“A response may be reasonable even if ‘the harm

imposed by COVID-19 on inmates . . . ultimately is not averted.’” (alteration in original) (citation

omitted)). For these reasons, the Court overrules Judge Bryant’s recommendation and dismisses

Plaintiff’s individual capacity claim against Defendant.

B. Motion to Revoke IFP Status

As a final matter, because the Court finds that Plaintiff’s claims should be dismissed,

Defendant’s motion to revoke Plaintiff’s IFP status is now moot. Cf. 28 U.S.C. § 1915(a)(1)

(providing in part that a court “may authorize” the prosecution of an action “without prepayment

of fees or security therefor”). Accordingly, the Court adopts Judge Bryant’s Report and

Recommendation insofar as he recommends denying Defendant’s motion to revoke Plaintiff’s IFP

status, albeit for different reasons.

III. CONCLUSION

Upon de novo review and for the foregoing reasons, the Court adopts Judge Bryant’s

Report and Recommendation in part, albeit for different reasons.

The Court finds that Defendant’s Motion to Dismiss (ECF No. 16) should be and hereby

is GRANTED.

The Court further finds that Defendant’s Motion to Revoke Plaintiff’s IFP Status (ECF No.

21) should be and hereby is DENIED AS MOOT.

As a final matter, Plaintiff is warned that, in the future, this dismissal may be counted as a

strike for purposes of 28 U.S.C. § 1915(g), and the Clerk of Court is hereby DIRECTED to place

a § 1915(g) strike flag on the case for future judicial consideration.3 Finally, pursuant to

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§ 1915(a)(3), any appeal from the instant dismissal would not be taken in good faith.

IT IS SO ORDERED, this 10th day of July, 2023.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge

3As stated above, the Court declines to consider whether Plaintiff has already incurred three strikes for the purposes

of § 1915, as Defendant’s motion to dismiss is dispositive.