# Allen v. Helder

> District Court, W.D. Arkansas · February 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10632259

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** February 14, 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

JOE M. ALLEN PLAINTIFF

v. Civil No. 5:22-cv-05016

SHERIFF TIM HELDER, Washington County,
Arkansas; PROSECUTOR MATT DURRETT;
PROSECUTOR DENNIS DEAN; and ATTORNEY
HUGH SHOWALTER DEFENDANTS

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Timothy L.
Brooks, 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 for preservice screening of
the Complaint (ECF No. 1) under 28 U.S.C. § 1915A. Pursuant to § 1915A, the Court has the
obligation to screen any complaint in which a prisoner seeks redress from a governmental entity
or officer or employee of a governmental entity.
I. BACKGROUND
Plaintiff, Joe M. Allen (“Allen”), currently an inmate of the Washington County Detention
Center (“WCDC”), filed this civil rights action under 42 U.S.C. § 1983. Allen proceeds pro se
and in forma pauperis (“IFP”).
According to the allegations of the Complaint (ECF No. 1), Allen has been incarcerated in
the WCDC since February 28, 2020. Id. at 4. Allen indicates he currently has five criminal cases
pending against him in the Washington County Circuit Court:
(1). State v. Allen, 72CR-19-485, filed on February 19, 2019. The information charges
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Allen with one count of felony possession of a Schedule I or II controlled substance, one count of
felony tampering with physical evidence, one misdemeanor count of possession of a Schedule IV
controlled substance, and one misdemeanor count of refusal to submit to arrest;
(2). State v. Allen, 72CR-19-2774, filed on October 23, 2019. The information charges

Allen with one felony count of possession of a Schedule II controlled substance, one felony count
of possession of a Schedule I or II controlled substance, and one felony count of possession of
drug paraphernalia;
(3). State v. Allen, 72 CR-19-2781, filed on October 23, 2019. The information charges
Allen with one felony count of possession of a Schedule II controlled substance, one felony count
of possession of a Schedule I or II controlled substance, and one misdemeanor count of resisting
arrest;
(4). State v. Allen, 72CR-19-3018, filed on November 19, 2019. The information
charges Allen with one felony count of first degree terroristic threatening and one felony count of
failure to appear; and

(5). State v. Allen, 72CR-19-3392, filed December 31, 2019. The information charges
Allen with one felony count of failure to appear at a revocation hearing.1
Allen maintains he has been wrongfully incarcerated for two years “without due process
of law, without a fair, speedy, public trial by jury, and under excessive high bonds.” (ECF No. 1
at 4-5). Allen says his petitions for habeas corpus and motions to dismiss filed pursuant to Rule
28.1(b)(c) of Arkansas Rules of Criminal Procedure have been denied through the negligent

1 This information is publicly available on the criminal court docket sheets.
https://caseinfo.arcourts.gov/cconnect/PROD/public/ck_public_qry_cpty.cp_personcase_details_idx (accessed
February 11, 2022).
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practices of the Defendants. Id. at 5-6. Allen asserts Defendants have violated his civil rights
under the First, Fifth, Sixth, Eighth and Fourteenth Amendments as well as in violation of 18
U.S.C. §§ 241-242.2 Id. at 6. Allen says the WCDC’s request and grievance system as well as
the “electronic video court law practice” is being used against him by the Defendants in an effort

to deprive him of his constitutional and statutory rights. Id. at 6-7.
As relief, Allen seeks compensatory and punitive damages as well as injunctive relief.
Specifically, he asks that he be released from custody and be compensated on a per-day basis for
the period of his incarceration. Allen also requests that he be allowed to proceed to a jury trial.
II. LEGAL STANDARD
Under § 1915A, the Court is obligated to screen the case prior to service of process being
issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are
frivolous, malicious, or fail to state a claim upon which relief may be granted, or (2) seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989). An action is malicious when the allegations are known to be
false, or it is undertaken for the purpose of harassing or disparaging the named defendants rather
than to vindicate a cognizable right. In re Tyler, 839 F.2d 1290, 1293-94 (8th Cir. 1988); Spencer
v. Rhodes, 656 F. Supp. 458, 464 (E.D.N.C. 1987). A claim fails to state a claim upon which
relief may be granted if it does not allege “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

2 18 U.S.C. §§ 241-242 are federal criminal statutes making unlawful certain deprivations of civil rights and
conspiracies to deprive individuals of civil rights. No private cause of action exists. See e.g., Durso v. Summer
Brook Preserve Homeowner’s Ass’n, 641 F. Supp. 2d 1256 (M.D. Fla. 2008).
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“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.” Jackson, 747 F.3d at 544 (cleaned up). However, the complaint must still allege
specific facts sufficient to support a claim. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.
1985).
III. DISCUSSION
Section 1983 provides a federal cause of action for the deprivation, under color of law, of
a citizen’s “rights, privileges, or immunities secured by the Constitution and laws” of the United
States. In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) each
defendant acted under color of state law, and (2) that he or she violated a right secured by the

constitution. West v. Atkins, 487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th
Cir. 1999).
A. Sheriff Tim Helder
To establish personal liability of the supervisory defendant, [Allen] 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)). Allen makes no such allegations against Sheriff
Helder.

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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). In
this case, Allen’s official capacity claims against Sheriff Helder are treated as claims against
Washington County. “[I]t is well established that a [county] cannot be held liable on a respondeat

superior theory, that is, solely because it employs a tortfeasor.” Atkinson v. City of Mountain
View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). To establish municipal liability under section
1983, “plaintiff must show that a constitutional violation was committed pursuant to an official
custom, policy, or practice of the governmental entity.” Moyle v. Anderson, 571 F.3d 814, 817
(8th Cir. 2009) (citation omitted). To establish the existence of an unconstitutional policy, the
Plaintiff must point to “a deliberate choice of a guiding principle or procedure made by the
municipal official who has final authority regarding such matters.” Mettler v. Whitledge, 165
F.3d 1197, 1204 (8th Cir. 1999). Plaintiff fails to identify any custom, policy, or practice
of Washington County which violated his constitutional rights. All scheduling in criminal cases
is done by the assigned Washington County Circuit Court Judge.

B. Prosecutors Matt Durrett and Dennis Dean
Allen’s claims against Prosecutors Matt Durrett and Dennis Dean must be dismissed
because prosecutors are immune from suit. The United States Supreme Court in Imbler v.
Pachtman, 424 U.S. 409, 431 (1976), established the absolute immunity of a prosecutor from a
civil suit for damages under 42 U.S.C. § 1983 “in initiating a prosecution and in presenting the
State’s case.” Id. at 427. This immunity extends to all acts that are “intimately associated with
the judicial phase of the criminal process.” Id. at 430; see also Buckley v. Fitzsimmons, 509 U.S.
259 (1993) (Prosecutor acting as an advocate for the state in a criminal prosecution is entitled to

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absolute immunity while a prosecutor acting in an investigatory or administrative capacity is only
entitled to qualified immunity).
Allen has failed to allege Prosecutors Durrett and Dean engaged in any conduct other than
actions taken in connection with their duties as prosecuting attorneys. Accordingly, Prosecutors

Durrett and Dean and entitled to absolute immunity. See also Brodnicki v. City of Omaha, 75 F.3d
1261 (8th Cir. 1996) (County prosecutors were entitled to absolute immunity from suit). Allen’s
individual capacity claims against the prosecuting attorneys fail as a matter of law.
C. Sovereign Immunity
Allen’s official capacity claims against Prosecutors Durrett and Dean are subject to
dismissal. In Arkansas, prosecuting attorneys are officers of the state. Ark. Const. amend. 80,
§20.
The Eleventh Amendment provides that “[t]he Judicial 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). “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)).

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This bar exists whether the relief sought is legal or equitable. Papasan v. Allain, 478 U.S.
265, 276 (1986). Furthermore, “neither a State nor its officials acting in their official capacity
are ‘persons’ under § 1983.” Will, 491 U.S. at 71.
Exceptions to the reach of the Eleventh Amendment exist only when the state has

unequivocally waived its immunity or Congress has abrogated the immunity. Hutto v. Finney,
437 U.S. 678, 693 (1978). The State of Arkansas has not waived its sovereign immunity. See
e.g., Hadley v. North Ark. Cmty. Tech. Coll., 76 F.3d 1437, 1438 (8th Cir. 1996). Nor did
Congress abrogate sovereign immunity when enacting § 1983. Quern v. Jordan , 440 U.S. 332,
345 (1979). The official capacity claims against Prosecutors Durrett and Dean are therefore
barred by the Eleventh Amendment.
D. Public Defender Showalter
Public Defender Showalter represents Allen in his state court criminal proceedings.
Defender Showalter is not subject to suit under § 1983. Defender Showalter is not acting under
color of state law while representing Allen in his criminal proceedings. Polk County v. Dodson,

454 U.S. 312, 324 (1981) (neither public defenders nor privately retained defense counsel act under
color of state law when performing a lawyer’s traditional functions as counsel to a defendant in
criminal proceedings); Myers v. Vogel, 960 F.2d 750, 750 (8th Cir. 1992)(same). A § 1983 claim
cannot be brought for ineffective assistance of counsel or legal malpractice. Polk, 454 U.S. at
324; see also Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985)(wide range of functions even
when performed badly fall within the scope of Polk). Accordingly, Allen has failed to state a
cognizable claim under § 1983 against Defender Showalter.

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E. Speedy Trial
The remedy for alleged speedy trial violations is the filing of a motion to dismiss the charge
in the appropriate court. Ark. R. Crim. P. 28.1. Allen is directed to raise this issue in the
Washington County Circuit Court. While Allen alleges he has filed motions to dismiss and

petitions for the writ of habeas corpus in the above cited criminal cases, the docket sheets reflect
that Allen just filed a petition for writ of habeas corpus in each of these cases on January 26, 2022.
Habeas corpus relief is not available in a suit under § 1983. Preiser v. Rodriguez, 411
U.S. 475, 489 (1973). Although a pretrial detainee may seek habeas corpus relief under 28 U.S.C.
§ 2241 in federal court, he may do so only after exhausting his state law remedies. Braden v. 30th
Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973). As noted, Allen has just filed his request
for habeas relief in state court.
IV. CONCLUSION
For these reasons, it is recommended that:
(1) the Complaint be DISMISSED WITHOUT PREJUDICE as the claims asserted are
frivolous, are against persons immune from suit, and fail to state claims upon which relief may
be granted, pursuant to 28 U.S.C. § 1915A;

(2) Plaintiff/Petitioner is warned that, in the future, this dismissal may be counted as a
strike for purposes of 28 U.S.C. § 1915(g) and thus, the Clerk is directed to place a § 1915(g)
strike flag on the case for future judicial consideration; and

(3) The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
dismissal would not be taken in good faith.

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
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the district court.
DATED this 14th day of February 2022.
/s/ Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632259. Public record. Not legal advice.