# Pratt v. Juno

> District Court, W.D. Arkansas · September 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10012387

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** September 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10012387

## How later opinions describe it (automated extraction)

- explaining the “relitigation of a claim on grounds that were raised or could have been raised in the prior action” is precluded by the doctrine of res judicata
- explaining a party must suffer an “injury in fact” of “an actual or imminent concrete and particularized invasion to a legally protected interest” to have standing
- stating the district court possesses the power to dismiss sua sponte under Rule 41(b)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION

BARRY MICHAEL PRATT, JR. PLAINTIFF

v. Civil No. 1:22-cv-01039-BAB

JERRY JUNEAU1,
CAPTAIN RICHARD MITCHAM;
CHARLIE PHILLIPS; LT. BILLY
PERRY; and GAYLA TELANO DEFENDANTS

MEMORANDUM OPINION

This is a civil rights action filed pro se by Plaintiff, Barry Michael Pratt, Jr., under 42
U.S.C. § 1983. On November 3, 2022, the parties consented to have the undersigned conduct all
proceedings in this case including a jury or nonjury trial and to order the entry of a final judgment
in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (ECF No. 25).
Plaintiff names as Defendants Jerry Juneau, Captain Richard Mitcham, Charlie Phillips,
Lt. Billy Perry, and Gayla Telano. Plaintiff claims Defendants violated his constitutional rights in
both their individual capacities as well as official capacities. Currently before the Court, is
Defendants, Captain Richard Mitcham, Charlie Phillips, Lt. Billy Perry, and Gayla Telano
(hereinafter “County Defendants”) Motion for Summary Judgment (ECF No. 38) and Defendant
Jerry Juneau’s Motion for Summary Judgment (ECF No. 35). Plaintiff responded to both Motions
with a single set of responses. (ECF Nos. 46, 50, 51). The Court will address both Motions herein.

1 Defendant Jerry Juneau is incorrectly identified in the case caption as Jerry Juno.
I. FACTUAL BACKGROUND
At all times relevant to Plaintiff’s claims, Defendant Perry was a Lieutenant at the Union
County Detention Center (“UCDC”), Defendant Mitcham was the Captain at the UCDC,
Defendant Phillips was the Chief Deputy of the UCDC, Defendant Telano was the kitchen
supervisor at the UCDC; and Defendant Juneau was the owner of Citi-Tela-Coin—the vendor

providing telephone and tablet services to the UCDC. (ECF No. 1).2 Plaintiff has been
incarcerated in the UCDC on many occasions, but for purposes of his instant claims, he was housed
at the UCDC from August 2020 through June 2021. (ECF Nos. 35-3, p. 9; 40-1, p. 9).
The material facts in this matter are wholly undisputed. Plaintiff was unable to place a call
to the Prison Rape Elimination Act (“PREA”) Hotline on multiple occasions during his
incarceration at the UCDC. However, Plaintiff did not suffer any sexual abuse or assault while
housed at the UCDC. (ECF Nos. 35-3, p. 12; 40-1, p. 12). Plaintiff also was unable to afford the
price of commissary items at the UCDC. However, Plaintiff was provided with indigent items
such as soap, toothpaste, toothbrush, toilet paper, and a bath towel. Id. at pp. 17-22.

II. PROCEDURAL BACKROUND
Plaintiff filed his original Complaint on July 8, 2022. (ECF No. 1). In this original
Complaint, Plaintiff alleged seven claims: (1) the “PREA does not work” and the phone numbers
for PREA hotline, DHS privacy officer, and officer for civil rights are all blocked; (2) the
commissary prices are to high and in violation of the Arkansas Jail Standards; (3) the cost of a
phone card is to high; (4) the Sheriff and Chief Deputy are never inside the jail and do not inspect
the operations of the jail; (5) Plaintiff cannot communicate with any supervisors other than

2 Plaintiff is not currently incarcerated. However, his claims in this action arose while he was
housed in the UCDC in El Dorado, Arkansas.
Defendant Mitcham; (6) the diet provided is inadequate while locked down; and (7) excessive
force was used against him during his September 10, 2018 arrest. (ECF No. 1).

On August 3, 2022, Plaintiff filed a Motion to Amend his Complaint, which the Court
construed and filed as Plaintiff’s Amended Complaint. (ECF Nos. 16, 17). In his Amended
Complaint, Plaintiff request leave to add the following claims: (1) Separate Defendant Juneau is
selling things marked “Not for Individual Sale” in the commissary; and (2) the tablets are being
used as weapons by inmates against one another, and the batteries from the tablet are being used
to light cigarettes and smoke drugs. (ECF No. 17).

At his deposition, Plaintiff specifically testified he intended to abandon all claims not
against Defendant Mitcham and Defendant Juneau. (ECF No. 40-1, pp.35, 44). Further, Plaintiff
clarified he only intends to assert claims regarding the PREA hotline being unavailable, and
commissary “price gouging.” Id. However, Plaintiff never filed any document on the docket
seeking leave to voluntarily dismiss any claims or defendants from this matter.
County Defendants filed their Motion for Summary Judgment with Brief in Support and
Statement of Undisputed Facts on February 3, 2023. (ECF No. 38, 39, 40). In their Brief, County

Defendants argue: (1) they are entitled to qualified immunity; (2) there is no constitutional claim
related to the PREA; (3) there is no constitutional claim related to commissary prices; (4) Plaintiff
abandoned his claims regarding the tablets and inadequate diet; (5) there is no constitutional claim
regarding the Sherrif or Chief Deputy not responding to grievances. (ECF No. 39).
Defendant Juneau also filed his Motion for Summary Judgment with Brief in Support and
Statement of Undisputed Facts on February 3, 2023. (ECF No. 35, 36, 37). In his Brief, Defendant

Juneau argues: (1) the Court should only consider the claims alleged in Plaintiff’s Amended
Complaint; (2) Plaintiff has failed to state a cognizable claim regarding commissary items being
sold when marked “Not for Individual sale” and at high prices; (3) Plaintiff “dropped” his tablet
claim through his deposition testimony, but if the Court considers it then it should be dismissed
because Plaintiff has no standing to assert it; (4) Plaintiff cannot maintain a private claim of action
under PREA; (5) Defendant Juneau is not a proper party; and (6) Defendant Juneau is entitled to

qualified immunity. (ECF No. 36).
On March 6, 2023, Plaintiff responded to both Motions for Summary Judgment with a
single Motion to Proceed to Trial. (ECF No. 46). The Court construed this Motion as a response
in opposition to both Motions for summary judgment as Plaintiff included a “Statement of
Undisputable Facts” within this Motion. In this Motion, Plaintiff first argues the Arkansas Jail
Standards regulate prices for jail commissaries. These standards state the commissary prices

“shall” be set at retail prices. Id. at 1. Plaintiff also reiterates the PREA hotline at the UCDC is
not operable. Id. at 2. Next, Plaintiff argues Defendant Juneau is not a public official, therefore,
he is not entitled to any immunities. Id. Plaintiff did not make any factual dispute or argument
regarding his other seven claims.
County Defendants replied on March 13, 2023. (ECF No. 48). In their Reply, County
Defendants reassert the argument that Plaintiff’s PREA and commissary claims fail to state
cognizable constitutional claims. County Defendants also reiterate their understanding that

Plaintiff has abandoned all claims except for Claims 1and 2 regarding the PREA hotline and the
commissary pricing. Id. Defendant Juneau did not file a Reply.
Plaintiff then filed a Response and Supplement to County Defendants’ Reply. (ECF Nos.
50, 51). In this Response, Plaintiff did not dispute County Defendants’ statement that he
abandoned all claims except his Claims 1 and 2—the PREA hotline and commissary claims.
Plaintiff argues again that the PREA hotline is not operable and the UCDC rules state you must
file a written PREA request to the captain. Plaintiff argues this is not a hotline. Id. Plaintiff also
reiterates his argument that Defendant Juneau is not entitled to any immunities. Id. Additionally,
Plaintiff attached a handwritten list he compiled of commissary items and the corresponding
prices: a honey bun is $3.75; a coke is $4.00; soups are $1.00; Folgers Coffee is $10.25; and chips

are $4.90. (ECF No. 51).
III. LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the nonmoving party, the record "shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Once

a party moving for summary judgment has made a sufficient showing, the burden rests with the
non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine
issue of material fact exists.” Nat’l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir.
1999).
The non-moving party "must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient
evidence to support a jury verdict in their favor." Nat’l Bank, 165 F.3d at 607. "A case founded

on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. at 610.
“When opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007).
Under Section 1983, a defendant may be sued in either his personal capacity, or in his
official capacity, or claims may be stated against a defendant in both his personal and his official
capacities. The type of conduct that is actionable and the type of defense available depend on
whether the claim is asserted against a defendant in his official or individual capacity. See Gorman
v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted). “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.” Id. Personal capacity claims
“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” to these individual capacity claims. Id. To state a claim under 42 U.S.C. § 1983, Plaintiff
must allege that the defendant acted under color of state law, and that the actor violated a right,
privilege, or immunity secured by the Constitution. West v. Atkins, 487 U.S. 42, 48 (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
Section 1983. See Daniels v. Williams, 474 U.S. 327 (1986); See also Davidson v. Cannon, 474
U.S. 344 (1986).
Official capacity claims are “functionally equivalent to a suit against the employing
governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). To
sustain an official capacity claim against such an entity a plaintiff “must show that there was a
policy, custom, or official action that inflicted an actionable injury.” Johnson v. Hamilton, 452

F.3d 967, 973 (8th Cir. 2006). Thus, Plaintiff's official capacity claims against County Defendants
are “functionally equivalent,” Veatch, 627 F.3d at 1257, to alleging their employer, Miller County,
had “a policy, custom, or [took an] official action” that deprived him of his constitutional rights,
Johnson, 452 F.3d at 973.

To establish a claim for “custom” liability, Plaintiff must demonstrate:
1) The existence of a continuing, widespread, persistent pattern of unconstitutional
misconduct by the governmental entity's employees;
2) Deliberate indifference to or tacit authorization of such conduct by the governmental
entity's policymaking officials after notice to the official of that misconduct; and
3) That Plaintiff was injured by acts pursuant to the government entity's custom, i.e., that
the custom was a moving force behind the constitutional violation.

Johnson v. Douglas Cty Medical Dept., 725 F.3d 825, p. 828 (8th Cir. 2013). “A single deviation
from a written, official policy does not prove a conflicting custom.” Id. (quoting Wedemeier v.
City of Ballwin, Mo., 931 F.2d 24, 26 (8th Cir. 1991)).
IV. DISCUSSION
First, Plaintiff does not dispute County Defendants’ assertion that he has abandoned all
claims other than: (1) Claim 1—the PREA hotline claim; and (2) Claim 2—his commissary pricing
claim.3 Accordingly, the Court need only substantively address these two claims herein.

3 The Court notes Defendant Juneau’s argument that Plaintiff did not allege either of these two
claims in his amended Complaint. (ECF No. 17). However, in his amended Complaint, Plaintiff’s
language suggest he intended the document to supplement his original Complaint and not replace
it. Id. As pro se documents are to be construed liberally, for purposes of this motion, the Court
will assume Plaintiff intended the motion to amend to supplement his original Complaint. See
Williams v. Aldridge, Civil No. 6:13-cv-6004, 2014 WL 504874, at 2 (W.D. Ark. Feb. 7, 2014).
Furthermore, Plaintiff testified clearly in his deposition as to which claims he intended to pursue
in this matter through his original and amended complaints, and all Defendants had ample
opportunity to, and in fact did, move for summary judgment on those claims Plaintiff intended to
pursue.
i. Abandoned claims
All of Plaintiff’s claims, other than the PREA and commissary pricing claims (claims 1
and 2 in his original Complaint), shall be dismissed as Plaintiff abandoned the claims at his
deposition and failed to prosecute these claims other than asserting them in his original and
amended Complaints.

Although pro se pleadings are to be construed liberally, a pro se litigant is not excused
from complying with substantive and procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.
1984). Additionally, the Federal Rules of Civil Procedure specifically contemplate dismissal of a
case on the grounds that the plaintiff failed to prosecute or failed to comply with orders of the
court. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (stating the
district court possesses the power to dismiss sua sponte under Rule 41(b)).

Furthermore, a dismissal pursuant to Rule 41(b) operates as an adjudication on the merits
unless it is otherwise specified. Fed. R. Civ. P. 41(b); Brown, 806 F.2d at 803. In considering a
Rule 41(b) dismissal, the Court must balance: (1) “the degree of [Plaintiff’s] egregious conduct”;
(2) the adverse impact of the conduct on the Defendants; and (3) the Court’s ability to administer
justice. Rodgers v. Curators of University of Missouri, 135 F.3d 1216, 1219 (8th Cir. 1998)
(internal quotations omitted). In Rodgers, the Eighth Circuit provides the standard the Court must
consider before dismissing with prejudice for failure to prosecute:
Dismissal with prejudice is an extreme sanction and should be used only in cases of willful
disobedience of a court order or . . . persistent failure to prosecute a complaint. [The Court
must consider] . . . whether in the particular circumstances of the case, the needs of the
court in advancing a crowded docket and preserving respect for the integrity of its internal
procedures are sufficient to justify the harsh consequences of forever denying a litigant of
his day in court. However, the [Court] need not [find] that appellant acted in bad faith,
only that he acted intentionally as opposed to accidentally or involuntarily.
Id.
Here, all Defendants expended resources in discovery and motions for summary judgment.
Plaintiff then, intentionally, chose not to dispute or argue any asserted claims other than Claims 1
and 2—the unavailable PREA hotline and the commissary pricing—in response to separate
Defendants’ motions for summary judgment. Plaintiff was advised, in the Court’s February 6,
2023 Orders, that his failure to respond and specifically dispute each of separate Defendants’

arguments and facts would result in those facts being deemed admitted or his case being dismissed
for failure to prosecute. (ECF Nos. 41, 42).
Accordingly, Plaintiff’s claims three through seven, in his original Complaint, and both of
Plaintiff’s claims in his amended Complaint shall be dismissed with prejudice. This leaves only
Plaintiff’s claims one and two, asserted in his original Complaint, for consideration herein.

ii. PREA Hotline – Claim 1
Initially, the Court notes it is unclear whether Plaintiff alleges his PREA claim against
County Defendants or Defendant Juneau. However, as explained below, this distinction is
inconsequential.
The Court interprets Plaintiff’s PREA claim as one for deliberate indifference to a

substantial risk of harm—sexual assault. See Blair v. Bowersox, 929 F3d 981, 987-88 (8th Cir.
2019) (to establish a constitutional violation for deliberate indifference to a risk of harm Plaintiff
must show: (1) the defendant knew of a substantial risk of serious harm to the inmate existed; and
(2) the defendant was deliberately indifferent to that risk). However, Plaintiff testified in his
deposition that he did not suffer a sexual assault and he had no need to report any sexual abuse
through the PREA hotline. (ECF No. 40-1, pp. 12-13). When asked why Plaintiff attempted to
call the PREA hotline, Plaintiff responded: “Because I am sick of Union County, and I’m trying
to do everything I can to make them stop rule violations.” Id. at 15. The summary judgment
record here is devoid of any evidence showing a substantial risk of harm to Plaintiff or any injury
in fact to Plaintiff. Accordingly, Plaintiff has no standing to pursue a claim related to a PREA
hotline. See Hodak v. City of St. Peters, 535 F.3d 899, 903 (8th Cir. 2008) (explaining a party
must suffer an “injury in fact” of “an actual or imminent concrete and particularized invasion to a
legally protected interest” to have standing).

Furthermore, as the Court previously held there is no private cause of action under the
PREA.4 See Pratt v. Mitcham, Civil No. 1:22-cv-01025, 2023 WL 56154981, at *3-4 (W.D. Ark.
Aug. 10, 2023) (citing Johnson v. Garrison, 859 F.App’x 863, 864 (10th Cir. 2021); Bowens v.
Wetzel, 674 F.App’x 133, 137 (3rd Cir. 2017); Krieg v. Steele, 599 F.App’x 213, 232-33 (5th Cir.
2015); Wilmoth v. Sharp, No. 6:15-cv-06057, 2018 WL 1092031, *3 (W.D. Ark. Feb. 27, 2018).
Accordingly, Plaintiff’s Claim 1—the PREA hotline claim—fails as a matter of law.

iii. Commissary pricing – Claim 2
Plaintiff then claims the prices charged for commissary items violates the Arkansas Jail
Standard regulations at section “004-03-22.” Plaintiff claims this section of the jail standards state:
all commissary items must be priced at retail value. Plaintiff explains in his deposition he is
asserting this claim against Defendant Mitcham and Defendant Juneau.

4 Plaintiff previously alleged the same PREA hotline claim against Defendant Mitcham, but not
Defendant Juneau, in a separate case. Pratt v. Mitcham, Civil No. 1:22-cv-01025, 2023 WL
56154981, at *3-4 (W.D. Ark. Aug. 10, 2023). In that case, the Court found no private right of
action exists under the PREA. The Court dismissed Plaintiff’s claim against Defendant Mitcham
with prejudice in a final judgment. Id. Accordingly, Plaintiff’s PREA hotline claim against
Defendant Mitcham here is clearly barred by res judicata. See Followell v. United States, 532
F.3d 707, 708 (8th Cir. 2008) (explaining the “relitigation of a claim on grounds that were raised
or could have been raised in the prior action” is precluded by the doctrine of res judicata).
However, neither Defendant Mitcham nor Defendant Juneau argued res judicata or privity of
parties in their motions for summary judgment. As Plaintiff’s claim fails on the merits, the Court
need not sue sponte raise the issue of res judicata for either Defendant.
Arkansas Jail Standards do not represent minimal constitutional standards. Johnson v.
Busby, 953 F.2d 349, 351 (8th Cir. 1991). Further, violation of state law or state standards does
not necessarily equate to a constitutional violation. United States v. Suing, 712 F.3d 1209, 1213
(8th Cir. 2013); Buckley, 997 F.2d at 495. Accordingly, an allegation that separate Defendants
Mitcham and Juneau failed to satisfy the Arkansas Jail Standards, without more, fails to state a

constitutional violation pursuant to Section 1983.
Furthermore, when a jail provides for an inmate’s needs, the inmate has no federal
constitutional right to purchase items from the commissary. Blake v. Moore, 4:16-cv-4078, 2018
WL 3745826, at *8 (W.D. Ark. Aug. 7, 2018). Plaintiff testified in his deposition that the UCDC
provided him with necessary indigent items such as hygiene items, and toilet paper. (ECF No. 40-
1, pp. 17-22). Other districts have also found commissary pricing does not implicate constitutional

rights. See Amos v. Stolzer, Civil No. 1:14CV63SNLJ, 2014 WL 6473596, at *9 (E.D. Mo. Nov.
18, 2014) (an inmate has “no constitutionally protected interest in commissary privileges or
commissary prices . . .”) (internal quotations omitted); see also Boyd v. Lasher, Civil No. 09-7641,
2010 WL 444778, at *2 (E.D. La. Feb. 8, 2010) (inmate failed to state a Section 1983 claim when
he alleged he was overcharged for commissary purchases and taxed without representation as those
claims did not implicate the Constitution).
Accordingly, Plaintiff’s Claim 2 against separate Defendants Mitcham and Juneau, related

to “price gouging” in the commissary, also fails as a matter of law.
iv. Official capacity claims
Plaintiff also alleges his claims against all Defendants in their official capacities. “Claims
against individuals in their official capacities are equivalent to claims against the entity for which
they work…” Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998). Here, this means Plaintiff’s
official capacity claims against the County Defendants are essentially claims against their
employer Union County, and Plaintiff’s official capacity claims against Defendant Juneau are
essentially claims against his employer Citi-Tela-Coin. To be successful on such a claim, Plaintiff
will need to show Union County and Citi-Tela-Coin caused the constitutional violation. See Elder-
Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006). However, as the Court has determined

Plaintiff failed to state a constitutional claim against County Defendants and Defendant Juneau in
their individual capacities, there can be no official capacity claims. See McCoy v. City of
Monticello, 411 F.3d 920, 922 (8th Cir. 2005) (The Eighth Circuit has consistently recognized
without an underlying substantive constitutional violation against a defendant in their individual
capacity, a plaintiff cannot be successful on an official capacity claim against that defendant’s
employer).

V. CONCLUSION
Defendant Juneau’s Motion for Summary Judgment (ECF No. 35) is GRANTED and all
of Plaintiff’s claims against Defendant Juneau are DISMISSED with prejudice.
County Defendants’ Motion for Summary Judgment (ECF No. 38) is GRANTED and all
of Plaintiff’s claims against Defendants Mitcham, Phillips, Perry, and Telano are DISMISSED
with prejudice.

IT IS SO ORDERED this 14th day of September 2023.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10012387. Public record. Not legal advice.