Raper v. Maxwell

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

JAMES M RAPER, JR. PLAINTIFF

v. Civil No. 4:21-cv-04067

TINA MAXWELL; J. MINORS; and

ROSE BRAYLEE DEFENDANTS

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

JAMES MATHIS RAPER, JR. PLAINTIFF

v. Civil No. 4:21-cv-04070

TINA MAXWELL, Warden, Southwest Arkansas

Community Corrections (“SWACCC:”); J MINORS,

Assistant Warden, SWACCC; and ROSE BRAYLEE, also

Known as Rose Braley Commissary Prison Contract Provider, SWACCC DEFENDANTS

REPORT AND RECOMMENDATION

Before the Court is a Motion to Dismiss filed by Defendants Tina Maxwell and J. Minors.

(ECF No. 24). Plaintiff has filed a Response in opposition to the motion. (ECF No. 28). Pursuant

to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, Chief

United States District Judge, referred the instant motion to the undersigned for the purpose of

making a Report and Recommendation.

I. BACKGROUND

Plaintiff filed his original Complaint on October 14, 2021. (ECF No. 1). That same day

Plaintiff was directed to file an Amended Complaint. (ECF No. 2). He did so on October 26, 2021.

(ECF No. 4). After reviewing the Amended Complaint, the Court directed Plaintiff to file a Second

Amended Complaint to further clarify his claims. (ECF No. 11). On November 29, 2021, Plaintiff

filed a Second Amended Complaint. (ECF No. 12).1

Plaintiff is currently incarcerated in the Arkansas Division of Corrections – North Central

Unit. His claims in this lawsuit stem from alleged civil rights violations while he was incarcerated

in the Southwest Arkansas Community Correction Center (“SWACCC”). Plaintiff named the

following Defendants in the Second Amended Complaint: Asa Hutchinson – Governor of the State

of Arkansas; Tina Maxwell – “Former Warden” at the SWACCC; J. Minors – “Warden/Former

Assistant Warden” at the SWACCC; Rose Braley2 – an employee of Keefe Coffee International

described by Plaintiff as “Head Commissary”; and Keefe Coffee International (“Keefe”). (ECF

No. 12, pp. 1, 3). Plaintiff sues Defendants in both their individual and official capacities and is

seeking compensatory and punitive damages. Id. at p. 7.

On January 6, 2022, the Court entered a Report and Recommendation recommending: (1)

the individual capacity claims against Defendants Maxwell, Minors and Braley proceed; (3) the

individual capacity claims against Defendants Hutchinson and Keefe be dismissed for failure to

state a claim; and (3) the official capacity claims against all Defendants be dismissed for failure

to state a claim. (ECF No. 18). On February 9, 2022, the Honorable Susan O. Hickey adopted the

Report and Recommendation in toto. (ECF No. 22).

In Claim One, Plaintiff identifies Defendants Maxwell, Minors, and Braley as the

Defendants involved and describes the claim as “Facility failed to protect 300 resident ‘myself’

from a deadly disease”. (ECF No. 12, p. 4). He claims on September 1, 2021, “Rose Braylee –

Infected/brought in Covid to facility and infected residents…Tina Maxwell/J. Minors failed to

1 On December 8, 2021, the Court consolidated the instant lawsuit with another lawsuit filed by Plaintiff – Case 21-

4070 – because the Court determined the lawsuits involved common questions of law and fact. (ECF No. 14).

2 Defendant Braley is incorrectly identified in the case caption as Rose Braylee. (ECF No. 29).

protect wards of state from deadly disease. Caused unknown fear; PTSD; loss of taste and smell”.

Id.

In Claim Two, Plaintiff identifies Maxwell and Minors as the Defendants involved and

describes his claim against them as “offered vaccinations that never came till after disease spread”.

He states this occurred between “June – Oct 2021”. (ECF No. 12, p. 5). Plaintiff goes on to state,

“Had vaccines and even bragged on TV about step taken. Even after COVID ravaged building

once they allowed employee to infect entire building AGAIN.” Id.

In Claim 3, Plaintiff identifies Braley as the Defendant involved and states in September

of 2021, “Rose Braylee came to work without mask and positive for COVID according to prison

records. She went to every floor spreading the disease. Every resident here had to tested negative.”

(ECF No. 12, p. 6).

On pages 8 and 9 of the Second Amended Complaint, Plaintiff describes the following

“Facts of Complaint” in relevant part as follows:

A) Rose Braylee, an employee with Keefe Coffee Company; infected the ‘residents’ at

[SWACCC] with COVID 19 D strain. She has access to every resident in the building.

B) …

C) Tina Maxwell, then Warden of SWACCC, had already experienced a COVID outbreak

early in January but did nothing to prevent a second outbreak.

D) J. Minors, Assistant Warden now acting Warden, also did nothing to prevent second

outbreak in facility.

E) Attempts to get help was met with being sprayed with Lysol by the counselors of facility…

F) All parties played an active/coverup role in the second COVID 19 D outbreak in facility.

G) …Vaccine was finally administered after disease ran through building.

H) …

I) I can neither taste nor smell what I could before because of Covid 19 strain D…

(ECF No. 12, pp. 8-9).

On March 15, 2022, Defendants Maxwell and Minors filed a Motion to Dismiss arguing

Plaintiff failed to state any claim against them under Claims 1 or 2 of the Second Amended

Complaint, Plaintiff does not provide any specific factual allegations against them, and even if

what Plaintiff has alleged is true, he fails to state a claim for relief for failure to protect or failure

to provide medical care relating to Covid 19. (ECF No. 24). In addition, Defendants argue they are

entitled to qualified immunity, Plaintiff does not identify what actions they failed to take to protect

him from Covid-19, Defendants were not personally involved or responsible for Plaintiff’s Covid-

19 vaccination, and they are not medical providers and cannot vaccinate Plaintiff or withhold

vaccines from Plaintiff. (ECF No. 25, pp. 4-7).

In response Plaintiff argues Defendants Maxwell and Minors “INACTION and ignoring of

protective steps that is the issue. The inability to protect wards of the state can be just as deadly,

as hand on direct action.” (ECF No. 28). Plaintiff goes on to state, “Having vaccinations available

by the defendants, but never administering them. This is failure to protect from Covid-19.” Id. In

addition, Plaintiff states Defendants were negligent when they “were either unable or unwilling to

enforce” [SWACCC’s] policies and procedures for preventing the spread of Covid-19 such as

wearing face masks. Plaintiff argues Defendants Maxwell and Minors did not make Defendant

Braley wear a mask when she was at the SWACCC. Id. at pp. 3-4.

II. APPLICABLE LAW

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

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 determining whether an action fails to state a claim upon which relief can be granted,

the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the

complaint that are not entitled to the assumption of truth. Ashcroft, 566 U.S. 678. These include

“legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are]

supported by mere conclusory statements.” Id.. Second, the Court must determine whether the

complaint states a plausible claim for relief. Id. at 679. A plaintiff is required to plead facts that

show more than the “mere possibility of misconduct.” Id.

III. DISCUSSION

“Liability under section 1983 requires a causal link to, and direct responsibility for, the

deprivation of rights. To establish personal liability on the part of a defendant, [the plaintiff] 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) (citation and

internal quotation marks omitted).

As an initial matter, Plaintiff was given two opportunities by the Court to state his claims

against Defendants. The law is clear to establish individual capacity liability Plaintiff must write

short, plain statements in his complaint telling the Court: the constitutional rights the Plaintiff

believes were violated; the name of the Defendants who violated the right; exactly what the

Defendants did or failed to do; how the action or inaction of the Defendants is connected to the

violation of the constitutional rights; and what specific injury the Plaintiff suffered because of the

misconduct of the Defendants. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976); Fed. R.

Civ. P. 8.

Construing Plaintiff’s allegations liberally the Court permitted Plaintiff to proceed against

Defendants Maxwell and Minors in their individual capacity. After reviewing Plaintiff’s

allegations against these Defendants for a third time considering the instant motions, Plaintiff’s

Responses, and the law cited by the parties the Court now recommends Plaintiff’s claims against

Defendants Maxwell and Minors be dismissed for failure to state claim.

First, Plaintiff’s allegations that Defendants Maxwell and Minors “failed to protect wards

from Covid-19” are too broad and generalized to implicate any of the “rights, privileges, or

immunities” protected by § 1983. Covid-19 is a disease caused by a novel coronavirus that began

infecting humans in late 2019. Frazier v. Kelley, 460 F. Supp. 3d 799, 810 (E.D. Ark. 2020). The

World Health Organization declared Covid-19 a pandemic on March 11, 2020. Id. The Covid-19

pandemic has created a public health emergency. Id. In addition, Covid-19 has proven highly

contagious in congregate environments such as nursing home facilities, cruise ships, naval aircraft

carriers, and prisons. Id. There is no cure for Covid-19, and once contracted it can have life-

threatening consequences, particularly for people who have certain underlying medical conditions,

have a disability, or are over the age of 50. Id. The incubation period for Covid-19 is typically five

days but can vary from as short as two days to an infected individual never developing symptoms.

Id. There is evidence that transmission can occur before the development of infection from infected

individuals who remain asymptomatic or never develop symptoms. Id.

In Frazier, 460 F. Supp. 3d 799, 836 (E.D. Ark. 2020), several inmates sued the Arkansas

Department of Community Corrections (“ADCC”) alleging the defendants failed to protect them

against Covid-19. The defendants identified many actions they took in response to Covid-19

beginning in April of 2020 including implementing procedures to encourage social distancing,

decreasing incoming residents into ADCC facilities, providing cleaning supplies to residents and

tasking an assigned team of residents with responsibility for cleaning, testing of staff and residents

for Covid-19, providing soap and water to residents, providing alcohol and non-alcohol-based

hand sanitizer to residents, quarantining of residents, and issuing two masks per resident with the

expectation that staff and residents all will wear masks. Id. at p. 824.3 In addressing the plaintiffs’

motion for a preliminary injunction the court in Frazier stated, “at this stage of the proceedings,

the record evidence suggests that, over time, defendants have adopted policies and practices in

response to Covid-19.” Id. This Court will take judicial notice of these Court records. See Fed. R.

Evid. 201; see also Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (noting the district court correctly

took judicial notice of public court records).

In Claim One, Plaintiff does not identify what actions, if any, Defendant failed to take to

protect him from Covid-19. Instead, he states Defendants “did nothing to prevent second outbreak

in facility.” (ECF No. 12, p. 8). These allegations are conclusory and do not meet the requirement

for pleading a cause of action set out under Iqbal. Likewise, in Claim Two of the Second Amended

Complaint Plaintiff fails to state any facts supporting the conclusory allegation that Defendants

Maxwell and Minors were responsible for withholding Plaintiff’s Covid-19 vaccination. Plaintiff

describes Maxwell and Minors as “former warden” and “assistant warden” in the Second Amended

Complaint. He does not provide any facts to demonstrate, nor does he allege, these Defendants

had any personal involvement in administering or withholding vaccines.

For the same reason, Plaintiff’s allegations in Claim Two that these Defendants failed to

provide him with medical care because they failed to provide him with the Covid-19 vaccine also

fails. Even if Defendants had any authority over or involvement in the administration of or

distribution of vaccines, any failure to do so would constitute negligence at most. Plaintiff has not

3 A more detailed description of the measures taken by the ADCC can be found at pages 823-828.

provided the Court with any facts to demonstrate either Maxwell or Minors were deliberately

indifferent to his medical needs. In fact, in his Response Plaintiff specifically states,

“Defendants…failed to protect…they did this either out of negligence or the legal inability to

discipline a non-state employee [for not wearing a mask].” (ECF No. 28, p. 3). The law is clear,

negligence is not actionable under § 1983. Daniels v. Williams, 474 U.S. 327 (1986); Estelle v.

Gamble, 429 U.S. 97 (1976).

IV. CONCLUSION

For the foregoing reasons, I recommend Defendants Maxwell and Minors’ Motion to

Dismiss (ECF No. 24) be granted and all Plaintiff’s claims against them 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 6th day of May 2022.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE