Harris v. Payne

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

JAY LLOYD HARRIS PLAINTIFF

v. Civil No. 6:21-cv-06143

DIRECTOR DEXTER PAYNE,

Arkansas Division of Correction (ADC);

CHIEF DEPUTY DIRECTOR MARSHALL D. REED, ADC;

JOHN DOE MEDICAL DIRECTOR, ADC; and

JOHN DOE MENTAL HEALTH DIRECTOR, ADC DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, Jay L. Harris (“Harris”), filed this civil rights action pursuant to 42 U.S.C. § 1983.

He proceeds pro se and in forma pauperis. 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 the Motion to Dismiss (ECF No. 9) filed by ADC Director Dexter Payne and ADC

Deputy Director Marshall D. Reed.1 Harris has responded (ECF No. 13) to the Motion.

I. BACKGROUND

Harris is currently incarcerated in the Ouachita River Unit (“ORU”) of the Arkansas

Division of Correction (“ADC”). (ECF No. 1 at 2). He is serving a 40-year sentence. Id. at 3.

According to the allegations of the Complaint, the ADC has a “lights out” policy which on

1 The remaining two Defendants, the ADC medical director and the ADC mental health director, have not yet been

identified. Director Payne and Deputy Director Reed were directed (ECF No. 6) to identify these individuals when

they responded to the Complaint but have not yet done so.

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weekdays is from 10:30 p.m. to 4:30 a.m., a mere six hours. (ECF No. 1 at 4). During this time,

Harris says his sleep is interrupted for disciplinary court, legal mail delivery, morning pill call, and

breakfast. Id. With respect to the morning pill call, Harris asserts that inmates are faced with a

choice between medication and sleep. Id. at 8. Similarly, at breakfast call, he indicates he is

faced with a choice between nutrition and sleep. Id. at 10.

Harris alleges that uninterrupted sleep is required to maintain proper physical and mental

health and recovery. (ECF No. 1 at 5). Harris maintains that limiting the amount of

uninterrupted sleep inmates get constitutes physical and mental torture via sleep deprivation and

violates the Eighth Amendment. Id. at 4-5. He notes that the night shift staff works from 6:30

p.m. until 6:30 a.m. which gives them four hours before lights out and two hours after lights out

to accomplish the tasks at issue. Id. at 5.

Harris has sued the Defendants in both their individual and official capacities. (ECF No.

1 at 4). As relief, Harris requests compensatory and punitive damages. Id. at 7. He also asks

that the policy or its manner of implementation be adjusted to allow for a “Proper Nights Rest of

Uninterrupted Sleep.” Id.

II. APPLICABLE STANDARD

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)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted)). “A claim has

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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. 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).

“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)). This means “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.” Id. at 544.

III. DISCUSSION

Defendants Payne and Reed argue that they are entitled to the dismissal of this case on

three separate grounds. First, they argue sovereign immunity bars the claims against them in their

official capacities. Second, they argue the claims against them are, at best, based on their

supervisory positions within the ADC which is an insufficient basis for liability. Third, they argue

they are entitled to qualified immunity. Defendants Payne and Reed maintain they are entitled to

dismissal of this case and ask that the dismissal be counted as a strike for purposes of 28 U.S.C. §

1915(g).

A. Sovereign Immunity

Defendants’ first argument is that Harris’ claims are barred by the Eleventh Amendment

and principles of sovereign immunity. The Eleventh Amendment provides that “[t]he Judicial

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power of the United States shall not be construed to extend to any suit in law or equity, commenced

or prosecuted against any one of the United States.” U.S. Const. amend XI. “The Eleventh

Amendment confirms the sovereign status of the States by shielding them from suits by individuals

absent their consent.” Frew ex re. Frew v. Hawkins, 540 U.S. 431, 437 (2004). “[A] suit against

a state official in his or her official capacity is not a suit against the official but rather is a suit

against the official’s office. As such, it is no different from a suit against the state itself.” Will

v. Michigan Dep’t. of State Police, 491 U.S. 58, 71 (1989) (citation omitted). The ADC is an

agency of the State of Arkansas. Campbell v. Arkansas Dep’t. of Corr., 155 F.3d 950, 962 (8th

Cir. 1998). Further, “neither a State nor its officials acting in their official capacity are ‘persons’

under § 1983.” Will, 491 U.S. at 71.

“Eleventh Amendment jurisprudence is well-settled: ‘a suit by private parties seeking to

impose a liability which must be paid from public funds in the state treasury is barred by the

Eleventh Amendment.’” Burk v. Beene, 948 F.2d 489, 492 (8th Cir. 1991) (quoting Edelman v.

Jordan, 415 U.S. 651, 663 (1974)). “Federal courts may not award retrospective relief, for

instance, money damages or its equivalent, if the State invokes its immunity.” Frew, 540 U.S. at

437.

It is clear Harris may not seek relief in the form of monetary damages from the Defendants

in their official capacities, however, Defendants Payne and Reed overstate their position by

arguing that Harris is not entitled to any form of relief against them. The ADC officials appear

to disregard the fact that Harris has asked for relief in the form of a prospective modification of

the existing policy or in its manner of implementation. Under the exception set forth in Ex Parte

Young, 209 U.S. 123 (1908), “a private party can sue a state officer in his official capacity to enjoin

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a prospective action that would violate federal law.” 281 Care Comm. v. Arneson, 638 F.3d 621,

632 (8th Cir. 2011). The exception is necessary to “permit the federal courts to vindicate federal

rights.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984).

“In determining whether this exception applies, a court conducts a straightforward inquiry

into whether [the] complaint alleges [1] an ongoing violation of federal law and [2] seeks relief

properly characterized as prospective.” Church v. Missouri, 913 F.3d 736, 747-48 (8th Cir. 2019)

(cleaned up). Here, Harris has named the Director and Deputy Director in charge of the ADC in

whose custody he is being held. The issue concerns the ADC’s own internal policy and the

implementation of the same. Harris alleges an ongoing violation of federal law. The relief

requested encompasses a claim for prospective injunctive relief.

Therefore, although Defendants Payne and Reed in their official capacities may not be held

liable for monetary damages, Harris’ claim for prospective injunctive relief against an ongoing

violation of federal law may proceed. Defendants Payne and Reed are not entitled to dismissal of

the entire Complaint based on sovereign immunity.

B. Supervisory Liability Claims

The Court next considers Defendants’ argument that there is no basis on which they be

held individually liable for the alleged constitutional violations. “To establish personal liability

of the supervisory defendant, [Harris] must allege specific facts of personal involvement in, or

direct responsibility for, a deprivation of [his] constitutional rights.” Clemmons v. Armontrout,

477 F.3d 962, 967 (8th Cir. 2007) (quoting Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir.

2006)); see also Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) (“general responsibility for

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supervising the operations of a prison is insufficient to establish personal involvement required to

support [§ 1983] liability”).

A defendant in a § 1983 suit cannot be held vicariously liable for the acts of another.

Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010). In other words, Defendants Payne and Reed

may not be held liable for the constitutional violations of a subordinate based solely on the

employment relationship. Id. Clearly, neither of the Defendants participated directly in the

alleged constitutional violations; nor were directly involved in the implementation of the policy.

However, the lights out policy is an ADC-wide policy. Defendants Payne and Reed occupy

positions where they would serve as final policy makers for the ADC.

Additionally, as to the implementation of the policy, and as Harris correctly points out, he

filed several grievances about the policy and the way it is implemented. These grievances were

reviewed by the Defendants, and they did nothing to stop the alleged ongoing violations of Harris’

constitutional rights. While generally supervisors’ after-the-fact participation in reviewing

grievances is “an insufficient basis to establish ‘personal knowledge’ for purposes of § 1983,”

White v. Farrier, 849 F.2d 322, 327 (8th Cir. 1988), there are instances where supervisors may be

held liable “when their corrective inaction amounts to deliberate indifference or tacit authorization

of the violative practices,” Landford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010). See also

Parrish v. Ball, 594 F.3d 993, 1002 (8th Cir. 2010) (supervisors can be held liable if they “[r]eceive

notice of a pattern of unconstitutional acts committed by subordinates” but “[f]ailed to take

sufficient remedial action”).

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The allegations in this case are sufficient to assert plausible supervisory liability claims

against Defendants Payne and Reed. They are not, therefore, entitled to dismissal of the

individual capacity claims.

C. Qualified Immunity

Defendants’ final argument is that they are entitled to qualified immunity. Defendants

correctly set forth the broad outlines of the doctrine of qualified immunity in their brief, however,

their sole argument in support of their entitlement to qualified immunity is that the “Complaint

contains no allegations of wrongdoing on behalf of the ADC Defendants.” (ECF No. 10 at 8).

The Court has already rejected this argument and determined that Harris has stated a plausible

supervisory liability claim against Defendants Payne and Reed. Nevertheless, having asserted a

right to qualified immunity, the Court must consider whether Defendants Payne and Reed are

entitled to assert this defense.

“Government officials performing discretionary functions, generally are shielded from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). “The qualified immunity standard ‘gives ample room for mistaken

judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the

law.’” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341-

43 (1986)).

Defendants are entitled to dismissal of individual capacity claims under Rule 12(b)(6) if

they show that they are “entitled to qualified immunity on the face of the complaint.” Kulkay v.

Roy, 847 F.3d 637, 642 (8th Cir. 2017). Thus, they are “entitled to qualified immunity unless

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[Harris] has plausibly stated both (i) a claim for violation of his [Eighth Amendment right not to

be subjected to unconstitutional conditions of confinement]; and (ii) that the right was clearly

established at the time of the alleged violation.” Vandevender v. Sass, 970 F.3d 972, 974-75 (8th

Cir. 2020). “District courts may consider these two questions in any order, but may not deny

qualified immunity without answering both questions in the plaintiff’s favor.” Walton v. Dawson,

752 F.3d 1109, 1116 (8th Cir. 2014) (cleaned up).

To establish that conditions of confinement violate the Eighth Amendment, a prisoner must

show the alleged deprivation is “objectively, sufficiently serious,” resulting in “the denial of the

minimal civilized measure of life’s necessities,” and that prison officials were deliberately

indifferent to “an excessive risk [to the inmate’s] health or safety.” Farmer v. Brennan, 511 U.S.

825, 834 (1994). Negligence or even gross negligence is insufficient to establish deliberate

indifference; rather, “deliberate indifference requires a highly culpable state of mind approaching

actual intent.” Choate v. Lockhart, 7 F.3d 1370, 1374 (8th Cir. 1993).

“’[S]leep is critical to human existence, and conditions that prevent sleep have been held

to violate the Eighth Amendment.’” Walton, 752 F.3d at 1120 (quoting Walker v. Schult, 717

F.3d 119, 125 (2d Cir. 2013)). Not all allegations of difficulty sleeping are sufficient to state a

claim under the Eighth Amendment. See e.g., Key v. McKinney, 176 F.3d 1083, 1086 (8th Cir.

1999) (allegations that being in restraints which made it “more difficult to sleep and relieve

himself,” when lasting only for 24 hours did not show a “serious deprivation of ‘the minimal

civilized measure of life’s necessities”). Here, however, Harris has alleged that during the daily

six-hour period when lights are out his sleep is interrupted for disciplinary court, legal mail

delivery, morning pill call, and breakfast. His allegations of sleep deprivation are sufficient to

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state a plausible Eighth Amendment claim.2 Thus, the Court answers the first question in the

qualified immunity analysis “yes.”

The Court must now determine whether it is clearly established that sleep deprivation via

multiple interruptions constitutes a violation of the Eighth Amendment. “‘Clearly established’

means that, at the time of the officer’s conduct, the law was ‘sufficiently clear’ that every

reasonable official would understand that what he is doing is unlawful.” District of Columbia v.

Wesby, ___ U.S. ___, 138 S. Ct. 577, 589-90 (2018) (cleaned up). A “high degree of specificity”

is required.” Id. at 590.

As stated by the Eighth Circuit:

for a right to have been clearly established at the time of the alleged violation, there

must have existed circuit precedent that involves sufficiently similar facts to

squarely govern [Defendants’] conduct in the specific circumstances at issue, or, in

the absence of binding precedent, . . . a robust consensus of cases of persuasive

authority constituting settled law. At the end of day, qualified immunity protects

all but the plainly incompetent or those who knowingly violate the law, permitting

liability only for the transgression of bright lines, not for violations that fall into

gray areas.

Perry v. Adams, 993 F.3d 584 (8th Cir. 2021) (cleaned up).

As noted above, the Eighth Circuit has recognized a general right against sleep deprivation.

See also Walker, 717 F.3d at 126 (2d Cir. 2013) (“[S]leep is critical to human existence, and

conditions that prevent sleep have been held to violate the Eighth Amendment”); Harper v.

Showers, 174 F.3d 716, 720 (5th Cir. 1999) (“[S]leep undoubtedly counts as one of life’s basic

needs. Conditions designed to prevent sleep, then, might violate the Eighth Amendment”);

Mammana v. Federal Bureau of Prisons, 934 F.3d 368, 374 (3d Cir. 2019) (Eighth Amendment

2 Whether Harris’ claim could survive a summary judgment motion is an entirely different matter. See e.g., Bargo v.

Hobbs, No. 5:13-cv-00191, 2014 WL 2740297 (E.D. Ark. June 17, 2014)(“There is no indication that the lighting

schedule or the various ‘calls’ at the Varner Unit are designed to interrupt inmate sleep”).

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claim adequately stated where plaintiff alleged as a result of conditions of confinement “he could

‘hardly sleep,’ and when he did fall asleep he would ‘wake up frequently shivering,’ all of which

caused him ‘to suffer physical and psychological harm’”). This broadly stated right is not,

however, framed to the level of specificity required by the Supreme Court. Instead, the question

is whether an inmate is entitled to a period of sleep uninterrupted by activities at the prison.

Framed this way, there is no clearly established right. See e.g., Bargo v. Hobbs, No. 5:13-cv-

00191, 2014 WL 2740297 (E.D. Ark. June 17, 2014) (“[E]ven if this Court were to determine that

Plaintiff has a right to additional lights out time, or that he has a right to dictate a prison schedule

that essentially mandates a period of time that inmates cannot be moved or attended to, that right

is not clearly established”). Defendants are, therefore, entitled to qualified immunity on the

individual capacity claims against them.

IV. CONCLUSION

For these reasons, it is recommended that the Motion to Dismiss (ECF No. 9) be

GRANTED IN PART AND DENIED IN PART.

Specifically, it is recommended that the Motion be:

(1) GRANTED with respect to all claims for monetary damages;

(2) DENIED with respect to the claims for prospective injunctive relief against ongoing

violations of federal law; and,

(3) GRANTED with respect all individual capacity claims asserted against Director Payne

and Deputy Director Reed.

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

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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.

DATED this 19th day of January 2022.

/s/ Mark E. Ford

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE

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