# Klingensmith v. Cruz

> District Court, W.D. Arkansas · January 31, 2022

URL: https://www.frixlaw.com/law-library/cases/10632233

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** January 31, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

TYLER B. KLINGENSMITH          PLAINTIFF

v. Civil No. 5:19-cv-5185
5:20-cv-05015

DEPUTY ADRIAN CRUZ; LIEUTENANT
ROBIN HOLT; DEPUTY JOSEPH ALLEN;
DEPUTY MEGAN RUTLEDGE; DEPUTY
NICHOLAS GUERRERO;
LIEUTENANT RANDALL MCELROY;
SERGEANT JOE ADAMS; DEPUTY ANTHONY COBB;
SERGEANT BRADY; DETECTIVE MARK JORDAN;
JOHN DOE CAPTAIN; SERGEANT COGDILL;
BENTON COUNTY; JOHN DOE
SERGEANT WHO TOOK PICTURES; DEPUTY
ANTHONY COBB; and SERGEANT W. GUENTHER      DEFENDANTS

REPORT AND RECOMMENDATION

This is a civil rights action filed by Plaintiff Tyler Klingensmith pursuant to 42 U.S.C. §
1983. Plaintiff proceeds in this matter pro se and in forma pauperis. (ECF No. 1, 3). Separate
Defendant Mark Jordan has moved for summary judgment (ECF No. 195), and Plaintiff has
responded. (ECF Nos. 207, 211). Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)
(2011), the Honorable Timothy L. Brooks, United States District Judge, referred this case to the
undersigned for the purpose of making a Report and Recommendation on the pending Motion for
Summary Judgment.
I. BACKGROUND
A short history is helpful. Plaintiff filed his original Complaint in this matter on
September 27, 2019. (ECF No. 1). On January 14, 2020, Plaintiff filed a separate case,
Klingensmith v. Jordan, et al., 5:20-05015, involving largely the same Defendants and issues.
The two cases were consolidated on April 24, 2020. (ECF No. 127). At that time, the Court
noted that Plaintiff’s previous complaints were difficult to construe and contained “unnecessary
verbiage.” (ECF No. 127 at 2). The Court directed Plaintiff to file an amended complaint that
clearly and concisely sets forth his claims against each named Defendant. Plaintiff was limited

to completing the form complaint and attaching up to six additional pages, and in addition, he
was directed to provide the dates on which all events occurred and to assert a single cause of
action for each claim or count. (ECF No. 127).1
Plaintiff filed his Third Amended Complaint on May 14, 2020. (ECF No. 135). The
Court found Plaintiff’s Third Amended Complaint failed to comply with the Court’s earlier
Order entered on April 24, 2020, but despite Defendants’ arguments in separate Motions to
Strike (ECF No. 139, 142), the Court, seeking to “best serve the interests of justice and conserve
judicial resources,” declined to strike the Third Amended Complaint. (ECF No. 144). The Court
performed the necessary preservice screening pursuant to the Prison Litigation Reform Act

(“PLRA”), dismissing certain of Plaintiff’s claims without prejudice. See 28 U.S.C. § 1915A.
As set forth in the Court’s Memorandum Opinion and Order, the following of Plaintiff’s claims
remained for “further litigation:”
 Fourth Amendment claims against Defendants Shrum, Jordan, and Holt with respect
to Plaintiff’s alleged false allegations in arrest warrants as set forth in Claims 2, 3, 13
and 16.

 Fifth Amendment claims against Defendants Shrum, Jordan and Holt with respect to
the questioning of Plaintiff as described in Claim 4.

 Freedom of Information Act (FOIA) claims pursuant to Arkansas Code Annotated §§
25-19-101, et seq., against Defendants Holt, Rutledge, McElroy, and Jordan with

1 In the Order consolidating the cases, and to streamline matters, the Court terminated as moot all motions
pending as of April 24, 2020. (ECF No. 127).

respect to Plaintiff’s allegations that Defendants prevented his FOIA requests as set
forth in Claim 5.

 Failure to Protect claims against Defendants Cruz and Guerrero with respect to
Plaintiff’s allegations that he was assaulted by inmate R.B. as set forth in Claims 6, 8
and 12.

 Failure to protect claims against Defendants Brady and Allen with respect to
Plaintiff’s allegations that he was assaulted by inmate R.B. as set forth in Claims 9
and 12.

 First Amendment retaliation claims against Cogdill, Jordan, Adams, Holt, Guenther,
Rutledge, Brady, and Cobb with respect to Plaintiff’s allegations that he was
retaliated against for filing grievances as set forth in Claims 10 and 11.

 Fourth Amendment claim against Defendants Jordan and Shrum with respect to the
alleged illegal search of Plaintiff’s phone and alleged false statements in a search
warrant related to Plaintiff’s phone as set forth in Claim 14.

 Fourth Amendment claim against Defendant Jordan with respect to the alleged illegal
search of Plaintiff’s twitter account and alleged false statements in a search warrant
related to Plaintiff’s twitter account as set forth in Claim 15.

(ECF No. 144 at 10-11).2
Separate Defendant Jordan filed the instant Motion for Summary Judgment, seeking
dismissal of each of Plaintiff’s claims against him. (ECF No. 195). Plaintiff filed responsive
pleadings on June 8, 2021, and June 24, 2021. (ECF Nos. 207, 211). The Court notes that
Plaintiff’s filings included 814 pages, of which 705 pages are exhibits. While many of the
exhibits are entirely irrelevant to the Plaintiff’s claims and/or the issues presented by Defendant
Jordan’s Motion, the Court painstakingly has reviewed these documents in their entirety.
II. PLAINTIFF’S CLAIMS AGAINST DEFENDANT JORDAN
The Court also finds it useful to include a recitation of Plaintiff’s allegations against
Separate Defendant Jordan, using Plaintiff’s contexts and descriptions (including reference to

2 Defendant Shrum was dismissed without prejudice on December 7, 2020, because an accurate service
address was not provided by the Plaintiff and was otherwise unavailable to the Court. (ECF No. 167).
other individuals). The Court has not attempted to correct all grammatical errors as the substance
of Plaintiff’s claims is more important than the form.
In Claim 2 of the Third Amended Complaint, Plaintiff argues that Defendant Jordan and
others “conspired to swear to, press against and force prosecution” for a “false sex-offense and
others in order to obtain jurisdiction of my person in Indiana.” (ECF No. 135 at 5).

Claim 3 alleges that on January 27, 2018, Defendant Jordan
and Wiseman conspired to misrepresent, falsify, and omit the true and accurate
facts of my previous criminal history. They included arrests that resulted in no
criminal prosecution, conviction(s) and or legal disposition. The Aff’d was of no
legitimate reason other than to deny me to a fair and appropriate bond. The Aff’d
was used in a malicious and deceitful manner and stated “He has no known ties to
the area” which is a blaton (sic) lie to elude the judge into believing I’m a flight
risk. As well my ‘extensive history’ was fabricated to show by omission that I
would have more criminal history than is true. It includes offenses from when I
was under 18 years of age, and by omission leaves the impression that misd.
Convictions are possible felonies, as well omits the year of conviction to give the
impression that they were recent. There was no probable cause within the (4)
corners that would warrant legitimacy.

(ECF No. 135 at 6).
Plaintiff alleges in Claim 4, that Defendant Jordan and others
conspired to have Jordan act and impersonate a false representation of a
bondsman on Feb. 1st, 2018, in a deceitful attempt to withdraw information from
myself about the criminal investigation . . . at no point did Jordan notify me he
was police officer or notified me of my rights. . . . Defendants conspired to
question me under false pretenses after my arrest and I requested an attorney in an
attempt to withdraw inculpatory evidence by personal statement but I refused to
cooperate.

(ECF No. 135 at 9).
With respect to his FOIA claims, Plaintiff alleges in Claim 5 of the Third Amended
Complaint that he
filed several FOIA requests after Jordan came to the jail and told R. Holt to “make
his life hell”; I notified R. Holt, Rutledge and McElroy that I was not a felon and
provided the statute number of FOIA Requests; I mailed several requests to 1300
S.W. 14th St. 72712 through 4-2-18 until 8-20-18; I even had other people from
Indiana send requests; Rutledge stated R. Holt will not allow her to fulfill my
requests, but if a person from the outside mails one or brings it to the jail she can
do it without them finding out; but on 4-2-18 Rutledge returned my requests
unfulfilled; I sent several requests to McElroy . . . said it had been confirmed “you
cannot file an FOIA”; On several requests it stated “per Rainwater, Holt, and
Sexton . . . you cannot file an FOIA”, this is the same attorney Jordan emailed
prior to my arrest conspiring to . . . me after my arrest and was sent to BCDC
Administration as well; The defendants conspired to deny files, videos and other
items that would have been useful and evidence in a civil case and others and
attempted to hide behind their counsel and deny my FOIA requests because I
refused to cooperate with their false sex offense investigation.

(ECF No. 135 at 9).
Plaintiff’s Claim 10 alleges Defendant’s failure to protect in that
[b]etween 2-12-18 and 3-24-18 I filed several grievances on Adams, Holt, Cogdill
for keeping me on Ad. Seg. after Jordan made his threat towards me to Holt on 2-
1-18, “make his life hell”; On 3-24 Cogdill came to me and stated “your not
getting the picture, you need to do things our way or we’ll make you”; Cogdill
stated it was about my grievances; on 3-26 Jordan served a [null] warrant for a
twitter acct; and stated “you will be a sex offender for what you did”, “do you
know what they do to sex offenders?”; I was then locked in Ad. Seg. on 3-26 and
Chandler wrote a false discipline on 3-29 for showing naked in the shower, to
justify the Ad. Seg. transfer; I was left in Ad. Seg. until 8-23 after my conviction;
Adams made threat of intimidation and coercion to pursued me to cooperate;
Defendants conspired to retaliate by locking me in Ad. Seg. without due process
because I refused to cooperate in the investigation and filed grievances on this
matter.

(ECF No. 135 at 11).
Claim 11 has been construed by the Court as an allegation of a violation of Plaintiff’s
First Amendment right against retaliation following grievances and processes in the Benton
County Detention Center:
On Feb. 1st Jordan told Holt to “make his life hell”; Feb. 12th I went to civil court
with no prior notice of the hearing; the judge ordered in favor of the petitioner;
Jordan appeared and testified on behalf of petitioner; Adams, Cogdill kept me on
ad. seg. After the investigation but released R.B. into population; Jordan spoke to
Adams on . . . 5th & 6th about keeping me on Ad. Seg. and the assault; SRGT
Brady told me to lock back down to my cell on several occasions during allotted
rec time while doing law research; Cobb returned several letters I was sending to
the courts and the newspaper; Adams told me to go through Cogdill with Ad. Seg.
complaints; Cobb called me to . . . and stated “we didn’t thing you had it in you
to fight back”; on several requests and grievances Holt told me I cannot have a
notary or go to law library; on 4-12 Rutledge said R. Holt and others will not
allow you to do a FOIA or go to law library; On 4-1 Guenther used 6 officers to
invoke fear and intimidate me while she notarized my appeals and writs; Guenther
would only notarize what she wanted to notarize and confiscated several
witnesses forms/aff’d as well; I had to threaten Cruz on 3-30 (to sue him) so he
would allow me to type the writs; Ross wrote me a disciplinary the same day for
“complaining” about not getting a notary, but I had already received the notary
prior to the disciplinary; Defendants conspired to cause an untimely filing of
motions in circuit court by frustrating and impeding my access to the court
because I refused to cooperate in the investigation and . . . protested and appealed
the civil court rulings.

(ECF No. 135 at 12).
In Claim 13, Plaintiff contends that
on Jan. 15th through the 26th Jordan and Shrum conspired . . . to file a . . . probable
cause aff’d for a false sex offense to defeat the habeas corpus for myself in
Indiana. Once I was brought to Ark. and agreed to a plea on 7-29-18 I was
rearraigned on new charges that did not include the sexual extortion charge nor
plead to an offense on my personal jurisdiction waiver; . . . Jordan . . . conspired .
. . to defeat my habeas corpus proceedings in Indiana in an illegal manner so they
could illegally send me to prison.

(ECF No. 135 at 13).
Claim 14 describes one of Plaintiff’s Fourth Amendment claims:
On Jan. 26th I was arrested; for unlawful distribution and sexual extortion; Shrum
confiscated the alleged phone of mine upon arrest; Jordan and Shrum checked the
phone out of evidence several times to attempt to log into the phone; on several
occasions the phone was powered on and turned off by Jordan prior to a search
warrant; A search warrant was applied for in April that had statements of false
facts and omitted circumstances and facts; Clearly stated in court that they were
attempting to get access by warrant into the phone and online accts. on Feb 21st or
about; Defendants conspired to illegally search the phone prior to a warrant and
then filed a probable cause aff’d that had lies and omitted fact to obtain probable
cause to search the phone, and or obtained no probable cause within the four
corners of the aff’d.

(ECF No. 135 at 13).
Plaintiff’s Claim 15 asserts an additional Fourth Amendment claim:
On Jan. 26th I was arrested; for unlawful distribution of several images and sexual
extortion; On Feb. 21st or about clearly stated in court that they were attempting to
get access to the twitter acct; on March 26th or about a search warrant was applied
for; the facts were lies and info of Kaley’s phone numbers were falsified,
circumstances and facts were omitted; the email addresses belonged to Kaley; the
results were [null] in the warrant return; Defendants conspired with no legitimate
ends thereof, lied of facts and omitted facts and circumstances to/in the probable
cause aff’d and/or no probable cause existed within the aff’d of cause.

(ECF No. 135 at 13).
Finally, in Claim 16, Plaintiff alleges that
Jordan filed the aff’d of arrest . . . The Defendants conspired to send me to prison
for non-existent crimes that do not meet subject-matter jurisdiction contains no
(mens rea) culpable mental state and out of personal jurisdiction.

(ECF No. 135 at 13).
III. UNDISPUTED FACTS
After careful review of the submitted summary judgment pleadings, the Court finds that
the following facts are undisputed:
 On January 15, 2018, Defendant Mark Jordan, a detective for the Bentonville Police
Department, was assigned to investigate a domestic relations case against Tyler B.
Klingensmith involving his ex-girlfriend, Kaley Schwab. (ECF No. 197-1 at 1).
 The Bentonville Police Department is separate from the Benton County Detention
Center (“BCDC”) and is located at a different physical address. (ECF No. 197).
 Defendant Jordan does not work for the BCDC and has no authority to order any
discipline to an inmate housed there, nor to send or hold any inmate in
“administrative segregation.” (ECF No. 197-1 at 5).
 Plaintiff was arrested in Indiana on January 18, 2018 and
was held at the Marion County Jail in Indianapolis, Indiana following his arrest.
(ECF No. 197-2).
 Officer Colin Shrum served Plaintiff with probable cause warrant BVP2018-18 on the
following charges: Sexual Extortion, Financial Identity Fraud, Non-Financial
Identity Fraud, Terroristic Threats First Degree (two counts), and Unlawful
Distribution of Sexual Images. (ECF No. 197-3).

 Officer Shrum transported Plaintiff to the Bentonville Police Department and
conducted an interview. (ECF No. 197-3).
 Plaintiff signed a waiver that he understood his Miranda rights and agreed to speak to
Officer Shrum without an attorney. (ECF No. 197-3).
 Plaintiff was digitally photographed, fingerprinted, and booked into the Bentonville
Police Department. Upon completion of Plaintiff’s booking, Officer Shrum
transported Plaintiff to the BCDC. (ECF No. 197-1 at 1-2; 197-3).
 On March 12, 2018, as a result of probable cause warrant BVP2018-18, Plaintiff was
charged in the Benton County Circuit Court with Sexual Extortion, Fraudulent Use of

a Credit or Debit Card, Computer Fraud, Terroristic Threatening in the First Degree,
Unlawful Distribution of Sexual Images or Recordings, Harassing Communications,
Stalking in the Third Degree, and Violation of a Protective Order. (ECF No. 197-4).
 Defendant Jordan returned to the BCDC to serve search warrant returns on Plaintiff
on two separate occasions: Once on March 26, 2018, for a search warrant return for
Plaintiff’s Twitter account; and, again on May 3, 2018, for a search warrant return for
Plaintiff’s cell phone. (ECF No. 197-1 at 3; 197-6).
 On August 10, 2018, Plaintiff’s charges were amended to include Stalking in the
Second Degree, Terroristic Threatening in the First Degree, Financial Identity Fraud,

Unlawful Distribution of Sexual Images or Recordings, and Violation of a Protective
Order. (ECF No. 197-4; 197-5).
 On August 13, 2018, Plaintiff pled guilty to Stalking in the Second Degree,
Terroristic Threatening in the First Degree, Financial Identity Fraud, Unlawful
Distribution of Sexual Images and Recordings, and Violation of a Protective Order.

(ECF No. 177-3; 197-7).
 Plaintiff was sentenced to ten years in the Arkansas Department of Correction. (ECF
No. 197-7).
In the pleadings, there is considerable time spent by Plaintiff on allegations that
Defendant Jordan impersonated a bondsman and accessed Plaintiff’s storage building under that
ruse. The Court does not find these facts material to its decision, but notes the following facts
appear undisputed:
 On February 1, 2018, Defendant Jordan visited Morningstar Storage (where Plaintiff
allegedly had personal property stored) and picked up a copy of a release form for the

release of personal property. (ECF No. 197-1 at 3, 5).
 That same day, Jordan met with Plaintiff at the jail, and Plaintiff signed the release,
releasing the property in the storage unit to Morningstar. (ECF No. 197-1 at 3, 5).3
 The release form signed by Plaintiff states that he “hereby relinquishes all interest in
the personal property located in the Leased Space . . . and authorizes Morningstar to

3 It is alleged by Defendant Jordan but denied by Plaintiff that on January 30, 2018, during a
telephone conversation, Rhonda Stogsdill (Plaintiff’s mother), indicated to Defendant Jordan that
Plaintiff had personal property belonging to him and Kaley Schwab in a storage unit at
Morningstar Storage in Bentonville. Jordan alleges that Ms. Stogsdill told him that she spoke
with a representative from Morningstar and learned that she or Brianna Strong (the mother of
Plaintiff’s children), could retrieve the property if Plaintiff signed a release form. Jordan says he
told Ms. Stogsdill that – because no one at the jail would be likely to help her to get the release
form signed by her son – he would help her. (ECF No. 197-1 at 2-3). Plaintiff does not agree to
these particular facts and thus, they are disputed for purposes of F.R.Civ.P. 56; however, as
noted, the Court finds these facts immaterial to its analysis and recommendation herein.
dispose of said property in any manner it so chooses.” The release further states that
it was executed in consideration for forgiveness of debts owed on storage fees as a
final settlement of all remaining balances. (ECF No. 197-1 at 5).
 Defendant Jordan took the signed release form back to Morningstar on the same day

Plaintiff executed the release. (ECF No. 197-1). A Morningstar representative
signed the form as well. (ECF No. 197-1 at 5).
IV. LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the non-moving 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
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case founded on
speculation or suspicion is insufficient to survive a motion for summary judgment.” Id. (citing
Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985)). “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). For reasons set forth below, the
Court now recommends summary judgment be entered in favor of Defendant Jordan and
Plaintiff’s claims against him dismissed with prejudice.
V. DISCUSSION
A. Heck v. Humphrey – Fourth Amendment Claims
Defendant Jordan argues he is entitled to summary judgment with respect to each of

Plaintiff’s Fourth Amendment claims against him pursuant to Heck v. Humphrey, 512 U.S. 477
(1994). For the sake of analyzing this argument, Plaintiff’s Fourth Amendment claims against
Defendant Jordan generally fit into two categories: (1) Plaintiff’s allegations (Claims 2, 3, 12,
and 13) that Jordan either made, or conspired to make, false statements in affidavits for probable
cause with respect to Plaintiff’s Arkansas arrest; and (2) Plaintiff’s allegations (Claims 14 and
15) that Defendant Jordan was involved in an illegal search of his phone and Twitter account and
made false statements in search warrants related to his phone and Twitter accounts.
In Heck v. Humphrey, the Supreme Court held that a claim for damages for “allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid” is not cognizable until “the
conviction or sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such a determination, or called into question by a
federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. 477, 486-87. To the extent
Plaintiff contends that Defendant Jordan lacked probable cause to arrest Plaintiff, such a claim is
barred by Heck because Plaintiff ultimately pled guilty to an offense arising from his arrest.4 See

4 Of the offenses he was originally arrested for, Plaintiff ultimately pled guilty to Terroristic Threatening
in the First Degree, Class D Felony; Unlawful Distribution of Sexual Images or Recordings, Class A
Misdemeanor; and Violation of an Order of Protection, Class A Misdemeanor. (ECF No. 177-3; 197-7).
Plaintiff has not provided any evidence that his convictions have been invalidated by the highest state
court or in federal habeas proceeding.
also Sanders v. Fayetteville City Police Dep’t, 160 Fed. App’x. 542, 543 (8th Cir. 2005) (citing
Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (allegations that defendants lacked
probable cause to arrest the plaintiff and brought unfounded criminal charges challenged validity
of conviction and were Heck-barred)); Williams v. Schario, 93 F.3d 527, 529 (8th Cir. 1996)(per
curium)(false testimony and malicious prosecution claims are Heck-barred where they

necessarily imply invalidity of conviction or sentence). Cf. Thurmond-Green v. Hodges, 128 Fed.
Appx. 551 (8th Cir. 2005); and Whitehead v Garrett, 2012 WL 3939967 (E.D. Missouri, Sept.
10, 2012). Under this body of law, Plaintiff may not employ the civil rights statutes as a
substitute for habeas corpus relief. In other words, Plaintiff cannot seek relief pursuant to §
1983 which would undermine or potentially invalidate his criminal charges, convictions, and
subsequent confinement. See e.g., Edwards v. Balisok, 520 U.S. 641, 648 (1997); Preiser v.
Rodriquez, 411 U.S. 475, 500 (1973) (habeas corpus is the sole federal remedy for prisoners
attacking the validity of their conviction or confinement).
As this Court previously has recognized, it may instead be Plaintiff’s intent to assert these

Fourth Amendment claims against Defendant Jordan on the basis of alleged false allegations or
false statements in his arrest warrant.5 (ECF No. 144 at 10-11). Such as claim is not specifically
barred by Heck and should instead be reviewed pursuant to the Supreme Court’s analysis
provided in Franks v. Delaware, 438 U.S. 154 (1978). See Odom v. Kaizer, 638 Fed. Appx. 553,
(8th Cir. 2016). The problem with Plaintiff’s theory is that throughout his summary judgment
papers, Plaintiff makes only broad, general allegations with respect to his claim of false
statements by Defendant Jordan. Plaintiff identified no particular untruth attributable to
Defendant Jordan in his Affidavit in Support of Probable Cause; rather, Plaintiff’s claim appears

5 Defendant Jordan’s Affidavit of Probable Cause to Obtain an Arrest Warrant is located at ECF No. 211-
4 at 67 - 79.
premised upon a conspiratorial arrest based, in turn, upon unspecified false information provided
by Plaintiff’s ex-girlfriend and other non-parties to this action. Once again problematic for
Plaintiff is a lack of any proof concerning a conspiracy involving Defendant Jordan.
Generally, to prove a § 1983 conspiracy claim, a plaintiff must show that the defendant
(1) conspired with others to deprive him or her of a constitutional right; (2) at least one of the

alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) the overt
act injured the plaintiff. Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999). While “the plaintiff
need not show that each participant knew the exact limits of the illegal plan . . . [he] must show
evidence sufficient to support the conclusion that the defendants reached an agreement to deprive
the plaintiff of constitutionally guaranteed rights.” White v. McKinley, 519 F.3d 806, 816 (8th
Cir. 2008) (cleaned up). “To advance past the summary judgment stage, [Plaintiff] must allege
with particularity and specifically demonstrate material facts that the defendants reached an
agreement.” Reasonover v. St. Louis Cnty., Mo., 447 F.3d 569, 582 (8th Cir. 2006) (cleaned up)
(affirming grant of summary judgment on plaintiff's § 1983 claim where plaintiff presented “no

specific material facts, circumstantial or otherwise, that the officers formed an agreement to
violate [the plaintiff's] constitutional rights”).
Plaintiff presents no proof that Defendant Jordan conspired with others to deprive
Plaintiff of a constitutional right in this regard or that any co-conspirator engaged in an overt act
in furtherance of the alleged conspiracy. Viewing the evidence in a light most favorable to
Plaintiff, no reasonable juror could infer the existence of a conspiracy with respect to Plaintiff’s
Fourth Amendment claims. For these reasons, summary judgment is recommended with respect
to any claims by Plaintiff that Defendant Jordan violated Plaintiff’s constitutional rights by
including false statements in the affidavit supporting his arrest.
Summary judgment is also appropriate with respect to Plaintiff’s contention that
Defendant Jordan violated his Fourth Amendment rights when he conducted an illegal search
and/or illegally obtained a search warrant for his phone and twitter accounts. Although
Defendant Jordan contends summary judgment is appropriate because the claims are barred
under Heck, according to Heck, because of doctrines like independent source, inevitable

discovery, and harmless error, damages suits for an unreasonable search may lie even if the
challenged search produced evidence that was introduced in a state criminal trial resulting in a
conviction. Heck, 512 U.S. at 487 n. 7; see also Moore v. Sims, 200 F.3d 1170-72 (8th Cir.
2000).
Nonetheless, while Plaintiff’s search claims are not specifically barred by Heck, they are
subject to dismissal under the holdings of Heck. As stated by the Supreme Court in footnote 7 of
Heck, “[i]n order to recover compensatory damages . . . the [section] 1983 plaintiff must prove
not only that the search was unlawful, but that it caused him actual, compensable injury.” Heck,
512 U.S. at 487 n. 7. See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308

(1986). Here, Plaintiff had already been arrested and was in custody at the time of the execution
of the search warrants. Further, and importantly, Plaintiff does not allege that any incriminating
evidence was seized as a result of the alleged unlawful search of his phone and twitter accounts.
Plaintiff simply has not alleged any injury stemming from the alleged unlawful search by
Defendant Jordan.
For the reasons stated above, Defendant Jordan is entitled to summary judgment with
respect to each of Plaintiff’s Fourth Amendment claims.
B. Fifth Amendment Claim
In claim 4 of his Third Amended Complaint, Plaintiff contends Defendant Jordan and
others “conspired to have Jordan act and impersonate a false representation of a bondsman on
Feb. 1st, 2018, in a deceitful attempt to withdraw information from myself about the criminal
investigation . . . at no point did Jordan notify me he was police officer or notified me of my
rights. . . . Defendants conspired to question me under false pretenses after my arrest and I
requested an attorney in an attempt to withdraw inculpatory evidence by personal statement, but

I refused to cooperate.” (ECF No. 135 at 9).
In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme Court held
that the Fifth Amendment privilege against self-incrimination prohibits the admission into
evidence of statements given by a suspect during a “custodial interrogation.” In general, once an
individual invokes his right to counsel custodial interrogation must cease. Moran v. Burbine, 475
U.S. 412, 433 n.4 (1986). However, if statements obtained during a custodial interrogation are
not used against a party, there is no constitutional violation. Davis v. City of Charleston, 827
F.2d 317, 322 (8th Cir. 1987). “[A] litigant cannot maintain an action under § 1983 based on a
violation of the Miranda safeguards.... [Th]e remedy for a Miranda violation is the exclusion of

evidence of any compelled self-incrimination, not a section 1983 action.” Hannon v. Sanner, 441
F.3d 635, 636 (8th Cir. 2006) (internal quotation marks and citations omitted).
Plaintiff’s Fifth Amendment claim is fatally flawed. It is undisputed that Plaintiff pled
guilty to multiple offenses, including offenses for which he was arrested prior to any custodial
interrogation by Defendant Jordan. Plaintiff has presented no evidence that information obtained
by Defendant Jordan during his alleged unconstitutional custodial interrogation of Plaintiff was
ever used against Plaintiff in his criminal case, and accordingly, there can be no Fifth
Amendment violation. Davis v. City of Charleston, 827 F.2d 317, 322 (8th Cir. 1987). Summary
judgment is appropriate with respect to Plaintiff’s Fifth Amendment Claim.
C. Arkansas Freedom of Information Act
In claim 5 of his Third Amended Complaint, Plaintiff complains of irregularities with
respect to the requests he submitted under Arkansas’ Freedom of Information Act. (ECF No.
135 at 9). Unfortunately, violations of the Arkansas Freedom of Information Act are not
cognizable under § 1983. See Taylor v. Denniston, 111 Fed.Appx. 864 (8th Cir. 2004) (citing

Walker v. Reed, 104 F.3d 156, 157 (8th Cir 1997); see also, Chesterfield Dev. Corp. v. City of
Chesterfield, 963 F.2d 1102, 1105 (8th Cir. 1992) (Even “[a] bad-faith violation of state law
remains only a violation of state law.”). Plaintiff’s Arkansas FOIA claim is subject to dismissal.
D. First Amendment Retaliation
Liberally construing certain statements contained in Claims 10 and 11 of Plaintiff’s Third
Amended Complaint, the Court will consider them First Amendment retaliation claims. With
respect to Defendant Jordan, Plaintiff asserts that Jordan made threats to “make his life hell” and
then discussed with other Benton County Defendants keeping Plaintiff in administrative
segregation. (ECF No. 135 at 11, 12). Plaintiff contends that following Jordan’s “make his life

hell” statement, he was subjected to adverse actions including being kept in administrative
segregation, and being denied privileges such as a notary public, law library access, legal mail,
and FOIA materials.
First, it is the general rule that “mere verbal threats made by a state-actor do not
constitute a § 1983 claim.” Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992).
Second, and more importantly, it is undisputed that Defendant Jordan does not work for the
Benton County Detention Center where Plaintiff was housed in administrative segregation.
(ECF No. 197-1 at 5). Defendant Jordan’s employer – the Bentonville Police Department – is
located at a different address and is an entirely separate governmental entity from the BCDC.
(ECF No. 197). Defendant Jordan had no authority whatsoever to assign Plaintiff to
administrative segregation, keep Plaintiff in administrative segregation, or deny Plaintiff
privileges while being housed at the BCDC. And third, to the extent Plaintiff contends a
conspiracy involving Defendant Jordan caused a violation of his First Amendment rights,
Plaintiff has not met his burden. Other than bare allegations, Plaintiff presents no direct or

circumstantial evidence of any agreement between Defendant Jordan and others at BCDC to
deprive Plaintiff of his First Amendment rights through retaliation. See Reasonover v. St. Louis
Cnty., Mo., 447 F.3d 569, 582 (8th Cir. 2006) (“To advance past the summary judgment stage,
[Plaintiff] must allege with particularity and specifically demonstrate material facts that the
defendants reached an agreement.”). Although the Court properly construed Plaintiff’s pleadings
liberally, the Court cannot set aside or ignore the pleading requirements, and summary judgment
is appropriate with respect to this First Amendment retaliation claim.
E. Qualified Immunity
Defendant Jordan alternatively argues that he is entitled to qualified immunity with

respect to Plaintiff’s claims against him. The Court, having determined the facts pled do not
support a constitutional violation, finds that Defendant Jordan is entitled to qualified immunity
with respect to each of Plaintiff’s claims. See, e.g., Krout v. Goemmer, 583 F.3d 557, 564 (8th
Cir. 2009) (unless the facts make out a violation of a constitutional right the Defendant is entitled
to qualified immunity).
VI. CONCLUSION
For the reasons set forth herein, it is recommended that the Motion for Summary
Judgment (ECF No. 195) of Defendant Jordan be GRANTED and that Plaintiff’s claims against
Defendant Jordan be DISMISSED WITH PREJUDICE.
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.

DATED this 31st day of January 2022.
Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632233. Public record. Not legal advice.