Guirlando v. City Tel-Coin Company, Inc.

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

MARCO GUIRLANDO PLAINTIFF

v. Civil No. 1:21-cv-01013

CITY TELE-COIN COMPANY, INC.;

CAPTAIN RICHARD MITCHAM; NURSE

SHERIE RICE; DR. DEANNA HOPSON;

SHERIFF RICKY ROBERTS, Union County,

Arkansas; and UNION COUNTY, ARKANSAS DEFENDANTS

REPORT AND RECOMMENDATION

This is a civil rights action filed by Plaintiff Marco Guirlando pursuant to 42 U.S.C. § 1983.

Plaintiff proceeds pro se and in forma pauperis. Plaintiff’s claims arose while he was incarcerated

in the Union County Jail (“UCJ”) awaiting trial on pending criminal charges and for a time after

his conviction.1

Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O.

Hickey, Chief United States District Judge, referred this case to the undersigned for the purpose

of making a Report and Recommendation. The case is before the Court on a Motion to Dismiss

(ECF No. 43) filed by City Tele-Coin Company, Inc. (“CTC”). The Motion was filed pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure. After Plaintiff pointed out that CTC filed

its Answer (ECF No. 35) prior to filing the Rule 12(b) motion making it untimely, CTC conceded

that Plaintiff is technically correct and asks (ECF No. 55) the Court to treat the Motion as one for

1 Plaintiff had two criminal cases filed against him in this district. The first, United States v. Guirlando, Case

No. 1:19-cr-10001-001, charged Plaintiff with the sexual exploitation of a minor via the production of child

pornography and the possession of child pornography. The indictment was filed on February 6, 2019. The case was

dismissed by the Government when Plaintiff pled guilty in the second case, United States v. Guirlando, 1:20-CR-

10005-001. The second case was filed on January 27, 2020. Plaintiff was charged with traveling with intent to

engage in illicit sexual conduct and he pled guilty to that charge on the day the case was filed, January 27, 2020 (1:20-

cr-10005-001;ECF Nos. 4-5). He was sentenced on May 3, 2021, to 60 months imprisonment in the Federal Bureau

of Prisons. (Id; ECF Nos. 26-27).

judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.2 The

Motion will be so treated. Plaintiff has responded (ECF Nos. 49 & 52) to the Motion.

I. PROCEDURAL HISTORY

Plaintiff filed an Amended Complaint on June 24, 2021. (ECF No. 19). Plaintiff

specifically names the following Defendants in the Amended Complaint: the UCJ; Captain

Richard Mitcham; Sheriff Ricky Roberts; Lieutenant Billy Perry; Lieutenant John Ward;

Lieutenant Paul Kugler; Officer Tubbs; Officer Kevin Pendleton; Nurse Sherie Rice; Dr. Deanna

Hopson; CTC; and Jerry Juneau.

A pre-service screening report and recommendation (ECF No. 23) which was adopted in

toto on October 15, 2021 (ECF No. 41), dismissed various causes of action and a number of the

Defendants.3 As relevant to CTC, the following plausible claims were found to exist: (1) a

Fourteenth Amendment procedural due process claim; (2) a First Amendment retaliation claim;

and (3) a state-law negligence claim. The Court did not read the Amended Complaint to assert a

substantive due process claim against CTC. However, CTC has so read it and has moved for

dismissal of the claim.

II. APPLICABLE LAW

Federal Rule of Civil Procedure 12(c) provides that a party may move for judgment on the

pleadings. The Court applies the same standard on a motion for judgment on the pleadings as it

2 Rule 12(h)(2)(B) of the Federal Rules of Civil Procedure provides that a defense of failure to state a claim

may be raised by motion under Rule 12(c).

3 In his response to the Motion to Dismiss, Plaintiff indicates that because he was in-transit he did not receive

notice of the entry of the screening report and recommendation. (ECF No. 52 at 3). He also maintains he should be

given an opportunity to again amend his complaint to correct any deficiencies. Id. The proper manner to bring his

lack of notice regarding the report and recommendation and its adoption to the attention of the Court, would be to file

a motion asking Chief United States District Judge Hickey to reconsider her order (ECF No. 41) adopting the report

and recommendation. Plaintiff may also file a Motion to Amend his Amended Complaint.

would on a Rule 12(b)(6) motion for failure to state a claim. Westcott v. City of Omaha, 901 F.2d

1486, 1488 (8th Cir. 1990).

Rule 8(a) contains the general pleading rules and requires a complaint to present “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). “In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), ‘a

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.’” Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)

(cleaned up)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. In evaluating the

plausibility of a claim, “[t]he Court may consider the pleadings themselves, materials embraced

by the pleadings, exhibits attached to the pleadings, and matters of public record.” Mills v. City of

Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010). While the Court will liberally construe a pro se

plaintiff’s complaint, the plaintiff must allege sufficient facts to support his claims. See Stone v.

Harry, 364 F.3d 912, 914 (8th Cir. 2004).

III. DISCUSSION

CTC has now moved for dismissal on the following grounds (1) for failure to state a claim;

(2) as to the federal claims, on the basis of qualified immunity; and (3) as to the state law claims

on the basis of statutory immunity.4

In the Amended Complaint (ECF No. 19), Plaintiff expounds on legal theory, makes broad

legal statements, and even cites the Court to various cases. The Amended Complaint contains few

4 CTC argues that the Plaintiff fails to allege a plausible Equal Protection claim. The Equal Protection claim

was dismissed at the screening stage and will not be addressed in this report and recommendation.

dates which makes it difficult to determine when specified events occurred or how long specified

conditions lasted.

A. Fourteenth Amendment Claims

(1). Allegations

It is also impossible to ascertain from the Amended Complaint the dates of Plaintiff’s

incarceration in the UCJ. While Plaintiff alleges that “[f]or the biggest part of [his] pre-trial

detention, he was held in very harsh conditions . . . at (UCJ),” he also says that he pled guilty to

federal charges on January 27, 2020. (ECF No. 19. at 9).5 Unfortunately, the dates on which

particular incidents occurred is important because the standards applicable to procedural due

process claims brought by pretrial detainees and convicted inmates differ significantly.6

With respect to CTC, Plaintiff alleges it is a private corporation that “operates and

maintains the phone systems and kiosk” at the UCJ. (ECF No. 19 at 10). During the periods of

time when he was held in a windowless cell, he says that Captain Mitcham working in

“conjunction” with CTC “did prevent the Plaintiff from access all communication. This was done

without any due process to or due to fault or actions of the Plaintiff.” Id. at 15.7 Plaintiff indicates

he did not have access to the kiosk or phone. Id. He further asserts that the kiosk is the only

5 Plaintiff indicates he has filed another civil rights action against most of these same defendants, Guirlando

v. Mitcham, Case No. 1:20-cv-01007. Plaintiff is represented by counsel in that suit. Plaintiff alleges the events

outlined in this suit are “a different set of facts” although some allegations are “overlapping” which was

“unpreventable.” (ECF No. 19 at 10). The case was dismissed on October 18, 2021, when summary judgment was

granted the Defendants and is currently on appeal. CTC was not a named party to that lawsuit.

6 Claims of pretrial detainees fall under Bell v. Wolfish, 441 U.S. 520, 535 (1979) in which the Supreme Court

held that the Fourteenth Amendment’s Due Process Clause prohibits holding pretrial detainees in conditions that

amount to punishment. Whereas claims of convicted inmates are analyzed under Sandin v. Conner, 515 U.S. 472,

484 (1995), which requires a showing that the particular condition at issue amounts to an “atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life.”

7 Plaintiff maintains these same actions were taken in retaliation for him having filed a civil action. His

retaliation claim will be addressed in a separate section.

available means of communicating with loved ones or submitting grievances and/or medical

requests. Id.; see also Id. at 19 (denied him access to the phone, the kiosk, and the law library).

Further, Plaintiff alleges that on or about March 1, 2020, and throughout his stay at UCJ,

there were numerous occasions on which “he was deprived of his purchases commissary and the

money was not returned even thou he did not receive his commissary or sign for his commissary.”

(ECF No. 19 at 16). On approximately March 4, 2020, Plaintiff alleges the UCJ and CTC deprived

him of “communication through the paid for tablet including all the apps, movies and music he

had purchased.” (ECF No. 19 at 15).

(2). Procedural Due Process

“The Due Process Clause of the Fourteenth Amendment provides that ‘[n]o state shall . . .

deprive any person of life, liberty, or property, without due process of law.’” Walters v. Wolf, 660

F.3d 307, 311 (8th Cir. 2011)(quoting U.S. Const. Amend. XIV, § 1). “Procedural due process

imposes constraints on governmental decisions which deprive individuals of liberty or property

interests within the meaning of the Due Process Clause of the . . . Fourteenth Amendment.”

Matthews v. Eldridge, 424 U.S. 319, 332 (1976)(cleaned up).

The Court views Plaintiff’s claims of being completely cut-off from use of the phone

system, the kiosk, and from being unable to use his purchased tablet or any purchased material on

it, differently than a straightforward deprivation of property case in which all that is necessary is

an adequate post-deprivation remedy. Zinermon v. Burch, 494 U.S. 113, 128 (1990)(availability

of an adequate post-deprivation remedy will suffice in erroneous deprivation of property cases).

When deciding whether an individual should be afforded procedural due process, the Court

employs a two-step analysis. See Kentucky Dep’t. of Corr. v. Thompson, 490 U.S. 454, 460 (1989).

First, the Court must determine whether the individual holds a protected liberty or property

interest. Id. If a protected interest exists, “[a] procedural due process claims focuses not on the

merits of the deprivation, but on whether the State circumscribed the deprivation with

constitutionally adequate procedures.” Parrish v. Mallinger, 133 F.3d 612, 615 (8th Cir. 1998).

In determining what process is due, the Parrish Court listed a number of relevant factors including

“the affected private interest, the risk of an erroneous deprivation, the probable value of additional

procedural safeguards, and the government’s interest, including burdens that additional safeguards

would entail.” Parrish, 133 F.3d at 615.

First, CTC argues that Plaintiff’s claims fail at step one of the due process analyses as he

has no protected interest in telephone use. CTC overstates the law in this regard. It is true that

inmates do not have the right to unfettered use of a telephone, to particular telephone systems, or

to particular rates for telephone usage. See e.g., Johnson v. State of California, 207 F.3d 650, 656

(9th Cir. 2000)(prisoners not entitled to a specific rate for their telephone calls although at some

point the rate charged could be “so exorbitant as to deprive prisoner of phone access altogether”);

Benzel v. Grammar, 869 F.2d 1105, 1108 (8th Cir. 1989)(no right to unfettered phone access).

However, “in some instances prison inmates may have a right to use the telephone for

communication with relatives and friends,” which right is subject to reasonable restrictions.

Benzel, 869 F.2d at 1108; see also Tucker v. Randall, 948 F.2d 388, 391 (7th Cir.

1991)(unreasonable restrictions on prisoner’s telephone access may violate the First and/or

Fourteenth Amendment). CTC fails to address Plaintiff’s allegations with respect to his claimed

complete loss of access to the kiosk, his tablet, and its content.

Second, CTC argues that Plaintiff “makes no challenge to the manner he was allegedly

denied these interests; he only states that he was denied them.” (ECF No. 44). The Court

disagrees. Manner in general refers to the way in which a thing is done or happens.8 More

particularly, in the context of this case it refers to a lack of notice and opportunity to be heard.

Plaintiff contends he was improperly denied access to the phone, the kiosk, his tablet, and its

content on numerous occasions without proper procedures and due to no fault of his own; plainly

this challenge encompasses the manner in which the deprivation occurred. See e.g., (ECF No. 19

at 15).

Third, CTC maintains it “has no control over” Plaintiff’s access to the systems it operates

and maintains and the tablets and associated content it sells. (ECF No. 44 at 4-5). However, as

set forth above, Plaintiff has alleged that CTC owns and operates the phone system and kiosk, sells

inmates tablets and content such as music and movies, and works in conjunction with the UCJ

officials in shutting off access to the same. CTC’s argument is based solely on the Plaintiff’s use

of the words “owns and operates” and ignores Plaintiff’s other allegations. The use of these terms

does not establish that CTC has no control over the process. The issue of whether CTC has any

control over or discretion in terminating access to these items is presumably covered by the

provisions of the contract between Union County and CTC. Discovery is necessary on this issue.

Finally, CTC argues that Plaintiff “fails to state facts sufficient to weigh the three balancing

factors in his favor.” (ECF No. 44 at 5). In this regard, CTC argues that the risk of “erroneous

deprivation is low since CTC, according to the complaint, only operates and maintains the kiosk.

It does not decide or weigh in on who will be deprived of kiosk access.” Id. Further, it contends

that requiring it to screen every kiosk-access decision would impose substantial administrative and

financial burdens on it. The Court cannot properly weigh the three balancing factors at this stage

of the litigation. The facts are simply not developed enough. Further, as noted above, the Court

8 Oxford Dictionaries (2021). https://premium.oxforddictionaries.com/definition/english/manner (accessed

January 5, 2022).

believes Plaintiff has adequately alleged CTC is affirmatively involved in depriving him of access

to the various devices.

The Court concludes, as it did at the screening stage, that Plaintiff has stated a plausible

procedural due process claim. CTC’s Motion for Judgment on the Pleadings for failure to state a

cause of action should be denied as to this claim.

(3). Substantive Due Process

To establish a substantive due process claim the misconduct alleged to have occurred must

both violate a fundamental right and “shock the conscience.” Schmidt v. Des Moines Pub. Schs.,

655 F.3d 811, 816 (8th Cir. 2011). A right is fundamental when it is “deeply rooted in this

Nation’s history and traditions, and implicit in the concept of ordered liberty, such that neither

liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702,

721 (1997)(cleaned up). With respect to the second determination, “the threshold question is

whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly

be said to shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833,

847 n.8 (1998). The conscience-shocking level is generally reached when the conduct is “intended

to injure in some way unjustifiable by any government interest.” Chavez v. Martinez, 538 U.S.

760, 775 (2003

At the screening stage, the Court did not read the Amended Complaint to be asserting a

substantive due process claim. However, now in response to the Motion to Dismiss, Plaintiff

asserts that he spent 25% of his time without access to the medical department due to CTC’s

“failure to turn back on the access to the kiosk and tablet.” (ECF No. 52 at 8). He maintains he

can prove this by obtaining computer records during discovery. Clearly, Plaintiff has a right to

adequate medical care which right is protected by the Fourteenth and Eighth Amendments.9

However, his right to access this medical care via an electronic kiosk does not constitute a

fundamental right. Further, Plaintiff indicates he spoke directly with the nurse and doctor and

asked for paper sick call request forms when he was unable to access the kiosk. (ECF No. 19 at

12).

Even if we assume CTC’s conduct in denying him access to the kiosk for significant

periods of time violated a fundamental right, it does not shock the conscience. Plaintiff clearly

had other means of requesting medical care that were not blocked by any action of CTC. No

plausible substantive due process claim has been stated. To the extent a substantive due process

claim has been asserted in the Amended Complaint, CTC’s Motion for Judgment on the Pleadings

should be granted as to this claim.

(4). Qualified Immunity

CTC next argues it is entitled to qualified immunity on this claim. CTC recognizes that as

a private entity it must first be determined whether it is entitled to assert qualified immunity under

§ 1983. (ECF No. 44 at 10). CTC compares itself to a shopkeeper who at common law also

engaged in public service when he stepped “behind a window in his shop to don his postman’s

hat.” Filarksy v. Delia, 566 U.S. 377, 385 (2012)(cleaned up). Specifically, CTC argues it “doffs

its private activities and steps behind the jailhouse bars to service inmates housed in the Union

County Jail with a modern telecommunications system.” (ECF No. 44 at 10).

However, CTC fails to discuss the impact, if any, of Davis v. Buchanan Cnty., Mo., 11

F.4th 604 (8th Cir. 2021), petition for cert. docketed, Munger et al v. Davis, et al., ___ U.S. ____

(Nov. 24, 2021), in which the Eighth Circuit held that contract medical care providers at a detention

9 CTC is not a named Defendant on the denial of medical care claim.

facility were not entitled to qualified immunity. Id. at 622. The Eighth Circuit, discussing the

Supreme Court opinions in Richardson v. McKnight, 521 U.S. 399 (1997) and Filarsky, noted the

availability of qualified immunity to state actors depended on application of two-factors: (1) the

historical availability of immunity; and (2) the weight of the policy reasons for affording protection

from suit under § 1983 Davis, 11 F.4th at 617. The three policy considerations are “avoiding

unwarranted timidity in performance of public duties, ensuring that talented candidates are not

deterred from public service, and preventing harmful distractions from carrying out the work of

government that can often accompany damages suits.” Id. at 620 (cleaned up). The Eighth Circuit

concluded that “[b]ecause this court has found no firmly rooted history of immunity, and the

purposes of qualified immunity, on balance, do not favor extending immunity, these medical

defendants, as employees of large firms systematically organized to perform a major

administrative task for profit, are not entitled to assert the defense of qualified immunity.” Id. at

622.

The question is not as easily resolved as suggested by CTC. To properly analyze whether

CTC is entitled to qualified immunity the Court needs more information about the relationship

between it and Union County. The Court must consider such matters as whether there is any

ongoing or direct supervision by the UCJ staff; whether CTC has any authority to terminate access

other than by direct order of command staff; whether CTC is required to carry insurance, etc. This

information is not available to the Court in conjunction with this Motion for Judgment on the

Pleadings. The Court must leave the issue of whether CTC is entitled to qualified immunity to a

later stage in this litigation. CTC’s Motion for Judgment on the Pleadings as to this claim should

be denied.

B. First Amendment Retaliation Claim

(1). Allegations

Intermingled throughout the Amended Complaint are Plaintiff’s factual allegations

concerning retaliatory actions taken by Captain Mitcham and Sheriff Roberts in coordination with

CTC to deny him access to the telephone, kiosk, and his tablet. See e.g., (ECF No. 19 at 15).

Plaintiff says that Captain Mitcham on or about April 14th, April 21st, August 7th, and August

22nd, moved him to a windowless cell in retaliation for the exercise of his constitutional rights.

Id. Then, in conjunction with CTC, Plaintiff maintains they violated his rights when on each of

these occasions they denied him the “privileges of the Kiosk.” Id. Specifically, Plaintiff alleges

that CTC cut him off “from access [to] all communication” including communication with his

loved-ones and the means to file grievances and sick-call requests. Id. Plaintiff asserts this was

in “retaliation for an ongoing civil suit.” Id.

(2). Plausibility of the Claim

“The filing of a prison grievance . . . is protected First Amendment activity.” Lewis v.

Jacks, 486 F.3d 1025, 1029 (8th Cir. 2007). Filing a civil rights lawsuit is also an activity protected

by the First Amendment. Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 986 (8th Cir. 2011).

Generally, “[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). There is no independent injury requirement when

retaliatory conduct is involved. Dixon v. Brown, 38 F.3d 379, 380 (8th Cir. 1994).

To prevail on his retaliation claim, Plaintiff must demonstrate “(1) he engaged in a

protected activity, (2) CTC took adverse action against him 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 the exercise of the protected activity.” Spencer v. Jackson Cnty., 738 F.3d 907, 911 (8th Cir.

2013) (cleaned up). “This is an objective test: [t]he question is not whether the plaintiff [him]self

was deterred, though how plaintiff acted might be evidence of what a reasonable person would

have done.” Scheffler v. Molin, 743 F.3d 619, 621 (8th Cir. 2014).

CTC’s motion to dismiss is premised on the third element. CTC contends Plaintiff claim

fails because no retaliatory motive has been alleged. CTC maintains the “ongoing civil lawsuit”

mentioned by Plaintiff cannot serve as a retaliatory motive because CTC is not a party to that

lawsuit. (ECF No. 44 at 7). In opposition, Plaintiff argues CTC is a party to the ongoing suit in

this Court and refers the Court to Guirlando v. Norwood, et al., 1:21-cv-001015 (“Norwood”)

which was opened on March 25, 2021,10 in the Western District of Louisiana and transferred to

this Court by Order entered on March 31, 2021. (ECF No. 52 at 6). The Norwood case was opened

in this district on April 1, 2021. CTC is a named party.

CTC argues the Norwood case cannot be the civil action referred to in the Amended

Complaint filed in this case. It maintains the dates identified the Amended Complaint as occurring

in April and August “must have been in 2020.11” (ECF No. 55 at 3). CTC notes the surrounding

dates were in 2020 and the events could not have occurred in 2021 based on the March filing date

of the Norwood case. However, as previously noted by the Court, it cannot determine from the

Amended Complaint the dates of Plaintiff’s incarceration in the UCJ. The Court is not free to

assume the April and August dates were in 2020 as CTC suggests. Plaintiff has indicated that as

of April 30, 2020, because he was “detained for a very sufficient period of time he ha[d] an

enormous load of property, most of it legal work.” (ECF No. 19 at 14). Plaintiff estimated his

personal property bundle to have weighed over fifty pounds.

10 The Complaint was dated March 20, 2021. (ECF No. 1 at 25; 1:21-cv-01015).

11 Plaintiff was initially indicted in February of 2019. See supra n. 3.

Plaintiff has asserted a plausible retaliation claim against CTC. The Court further notes it

reads the Amended Complaint as also asserting the retaliatory actions were taken in response to

his having filed grievances—also a protected activity.

CTC also contends it is entitled to qualified immunity on this claim. However, the issue

of qualified immunity was addressed above and will not be repeated here. CTC’s Motion for

Judgment on the Pleadings on this claim should be denied.

C. State Law Negligence Claim

(1). Allegations

Plaintiff alleges that the UCJ Defendants failed “to use such care that is reasonable and

prudent and careful under similar circumstances with prisoners. The act[s] by named Defendants

include a broad range of failure that was the moving force behind the constitutional violation of

his rights.” (ECF No. 19 at 21).

(2). Plausibility of the Claim

CTC maintains the negligence claim fails for a number of reasons. Its foremost argument

is that it was explicitly excluded from the negligence claim by Plaintiff. In this regard, it relies on

the sentence of the Amended Complaint following the language quoted above;

The act by all named Defendants minus (CTC) and its representatives include but

not limited to failure to act, failure to protect, failure to supervise/train and

intentional infliction of emotional distress as well as depriving him of his funds by

sell[ing] him apps and music then taking it away without due process, as well as

charging him for commissary [items] that he never received.

(ECF No. 19 at 21). Despite the words “minus (CTC)” in the above sentence, the Court cannot

agree that Plaintiff has asserted no negligence claim against CTC. Plaintiff specifically refers to

actions attributed to CTC throughout the Amended Complaint including selling him a tablet, apps,

and music and then taking them away as well as charging him for commissary items he never

received.

“Under Arkansas law, in order to prevail on a claim of negligence, the plaintiff must prove

that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the

breach was the proximate cause of plaintiff’s injuries.” Woodruff v. Western Sizzlin of Russellville,

Inc., 606 S.W.3d 607, 609 (Ark. App. 2020). The determination of the duty of care owed is one

of law. Id.

CTC first argues that it had no duty to Plaintiff. (ECF No. 44 at 8). It argues it had no

relationship with the Plaintiff; instead, it states it merely operated and maintained the telephone

system and kiosk; it did not run the detention center; and had no duty to oversee the inmates. Id.

Even if some relationship exists, CTC asserts that “[i]t does not determine which inmates’ access

to the kiosk should be restricted.” Id. CTC contends any relationship “extends only to the use of

the telephone system and kiosk because CTC is not alleged to have any oversight or control of

Guirlando’s legal mail, tablet, or law-library access.” Id. at 9.

“Duty is a concept that arises out of the recognition that the relationship between

individuals may impose on one a legal obligation for the other.” Hadder v. Heritage Hill Manor,

Inc., 495 S.W.3d 628, 633 (Ark. App. 2016). Clearly, there was some type of a relationship

between the Plaintiff and CTC. Plaintiff has alleged that CTC not only provided access to the

telephone system, kiosk, and commissary but also sold him the tablet, apps, and music. In turn,

Plaintiff has alleged that CTC, working with UCJ personnel, repeatedly cut-off Plaintiff’s access

to these systems and products.

CTC’s argument that no relationship or duty exists is premised on information not presently

available to the Court. Without access to the terms of the contract or information regarding how

the system was in fact operated, the Court cannot determine what duty, if any, was owed to the

Plaintiff. CTC’s conclusory statements do not, and cannot, establish that it owed no duty to

Plaintiff.

Next, CTC argues its alleged acts of restricting Plaintiff’s access were not the proximate

cause of his injuries. (ECF No. 44 at 9). CTC points out that Plaintiff has alleged that it worked

in coordination with, or in conjunction with, UCJ officials. Id. In view of this, CTC contends “the

proximate cause of Guirlando’s alleged injuries is the prison officials’ decision to restrict his

access. CTC functioned only as an avenue for the prison officials’ allegedly negligent acts and is

therefore not the proximate cause of Guirlando’s alleged injuries.” Id.

“Proximate cause is defined as that which in a natural and continuous sequence, unbroken

by any efficient intervening cause, produces the injury, and without which the result would not

have occurred.” TMG Cattle Co., Inc. v. Parker Commercial Spraying, LLC., 540 S.W.3d 754,

757 (Ark. App. 2018)(cleaned up). Circumstantial evidence may be used to show proximate cause

“and such evidence is sufficient . . . if the facts proved are of such a nature and are so connected

and related to each other that the conclusion therefrom may be fairly inferred. Proximate causation

is usually an issue for the jury to decide.” Id.

The Court cannot determine whether proximate cause exists on the basis of a motion for

judgment on the pleadings. Plaintiff has asserted a plausible negligence claim against CTC and

the Motion for Judgment on the Pleadings should be denied as to this claim.

(3). Statutory Immunity

CTC’s final argument is that it is immune from liability under Arkansas Code Annotated

§ 19-10-305. (ECF No. 44 at 14). CTC points out that the scope of statutory immunity under this

section is even broader than qualified immunity as it requires allegations that it (1) acted with

malicious intent and (2) acted outside the scope of its employment. (ECF No. 44 at 14-15).

CTC erroneously relies on § 19-10-305 which applies only to officers and employees of

the State of Arkansas. The statutory immunity provision applicable here is found in Arkansas

Code Annotated § 21-9-301(a) "all counties, municipal corporations, school districts, public

charter schools, special improvement districts, and all other political subdivisions of the state" are

granted immunity “from liability and from suit for damages except to the extent that they may be

covered by liability insurance.” This immunity applies to agents and employees of the political

subdivisions when they are sued in their official capacities. City of Caddo Valley v. George, 9

S.W.3d 481, 484 (Ark. 2000). It contains no requirement that the Plaintiff allege malicious intent

or that the defendant acted outside the scope of its employment. While the immunity does not

apply to civil rights claims under federal legislation and intentional or malicious acts or omissions,

Doe v. Baum, 72 S.W. 3d 476 (Ark. 2002), it clearly applies to negligence claims. City of Caddo

Valley, 9 S.W.3d at 485 (“to the extent of the city’s liability coverage, they are not immune from

suit and may be found liable for negligence”). The issue of whether CTC has liability insurance

that would cover any negligent acts is one that will be determined during discovery.

D. Nature of a Motion for Judgment on the Pleadings

As noted above, the Court applies the same standard on a motion for judgment on the

pleadings as it would on a Rule 12(b)(6) motion for failure to state a claim. Westcott v. City of

Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). In considering such a motion the Court should view

all facts pleaded by the nonmoving party as true and grant all reasonable inferences in favor of that

party. Poehl v. Countrywide Home Loans, Inc., 528 F.3d 1093, 1096 (8th Cir. 2008). Here CTC

asks the Court to consider the truthfulness of or weigh the facts, either alleged in the Amended

Complaint or as assumed by CTC in the instant Motion. This is not the standard, the Court should

not consider or weigh the facts alleged at this stage of the proceeding other than to take the facts

alleged in the Amended Complaint as true and determine whether a viable claim has been made.

To do otherwise would convert this Motion for Judgment on the Pleadings to a motion for summary

judgment.

IV. CONCLUSION

For the reasons stated above, I recommend the Motion for Judgment on the Pleadings (ECF

No. 43-converted from a Motion to Dismiss) should be GRANTED IN PART and DENIED IN

PART. Specifically, the Motion should be:

1. Denied as to the Fourteenth Amendment Procedural Due Process claim;

2. Granted as to the Fourteenth Amendment Substantive Due Process claim;

3. Denied for lack of a sufficient record on CTC’s claim it is entitled to qualified immunity;

4. Denied as to the First Amendment Retaliation claim;

5. Denied as to the Negligence claim; and

6. Denied as to CTC’s claim for statutory immunity under Arkansas law.

The parties have fourteen (14) days from receipt of the Report and Recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court.

IT IS SO ORDERED this 14th day of January 2022.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE