Wilson v. Jenkins

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

JOSHUA DAVID WILSON PLAINTIFF

v. Civil No. 5:21-cv-05166

MATT JENKINS, Officer ACC DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Before the Court is a Motion to Dismiss filed by Defendant Matt Jenkins. (ECF No. 30).

Plaintiff has not responded and the time to do so has expired. 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 the motion to the undersigned for the purpose of making a Report and Recommendation.

I. BACKGROUND

Plaintiff, Joshua David Wilson (“Wilson”), currently an inmate of the Arkansas

Department of Corrections, filed this 42 U.S.C. § 1983 action pro se on September 21, 2021. (ECF

No. 1). Wilson’s application to proceed in forma pauperis was granted on October 15, 2021. (ECF

No. 5). At the time he filed this lawsuit, Wilson was incarcerated in the Benton County Detention

Center (“BCDC”).

In his Complaint, Wilson described Defendant Jenkins as a “Probation and Parole” officer

with the “ACC [in] Rogers AR.” (ECF No. 1, p. 1). He sued Defendant Jenkins in both his official

and personal capacities. Id. Wilson indicated that at the time of alleged incident, he was “in jail

for other reasons (e.g., alleged probation violation, etc.),” and he stated: “Also for last 3 years

ongoing illegally charging me fees.” Id. at p. 3.

Wilson describes his claim as follows:

“My probation officer at ACC since my PLEA agreement on 9-4-2018 has made

me pay 35.00/monthly probation fees and told me ‘anybody can GET DISABILITY

IF THEY WANTED,’ AS REASON FOR REFUSING TO WAIVE MY FEES. I

have struggled tremendously with my several legal disabilities and my ability to

survive on limited income. Plus pay fines and fees monthly. I feel I was

discriminated against.”

Id. at p. 4. Wilson asks the Court for a “refund of all paid fees in rears (sic) and waivor (sic) of

future probation fees.” Id. at p. 5.

On October 27, 2021, the undersigned entered a Report and Recommendation

recommending that Wilson’s claims against the Arkansas Community of Correction (“ACC”) and

the State of Arkansas be dismissed with prejudice, but that Wilson’s claims against Defendant

Jenkins proceed. (ECF No. 8).1 On November 18, 2021, Judge Brooks entered an Order adopting

the Report and Recommendation in its entirety. (ECF No. 11).

On March 29, 2022, Defendant Jenkins filed the instant Motion to Dismiss arguing in part:

(1) Wilson’s claims against him in his official capacity are barred by sovereign immunity; (2)

Wilson’s claims for monetary damages against him in his individual capacity are barred by

qualified immunity; (3) Wilson failed to state a claim for injunctive relief because no action alleged

amounts to a constitutional violation; and (4) Wilson’s Complaint should be dismissed pursuant to

Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. (ECF No.

30).

That same day, the Court ordered Plaintiff to file a response to Defendant Jenkins’ motion

by April 19, 2022, or the case would be dismissed, without prejudice, pursuant to Local Rule

5.5(c)(2). (ECF No. 32). Plaintiff did not respond, and the order was not returned to the Court as

undeliverable. On April 27, 2022, the Court entered an order directing Wilson to show cause as

1 There was also some confusion as to whether Wilson was suing Benton County. All claims against Benton County

were dismissed on February 14, 2022. (ECF No. 26).

to why he failed to comply with the Court’s order for him to file a response to Defendant Jenkins’

motion to dismiss. (ECF No. 35).

On May 18, 2022, Plaintiff filed a Response to the show cause order stating:

“I had no money to pay for postage is why I failed to respond and obey the Courts

order. ADC does not provide postage even on legal mail. Also I’ve been refused

opportunity to review video evidence sent to me on DVD for other cases. ADC

considers it contraband a confiscated the DVD for to be disposed of. Thank you.

(ECF No. 36).2

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).

2 The Court could dismiss Wilson’s claims simply based on his failure to comply with the Court’s order directing him

to file a Response to the instant motion. Local Rule 5.5 (c)(2) states in pertinent part: “It is the duty of any party not

represented by counsel to promptly notify the Clerk and the other parties to the proceedings of any change in his or

her address, to monitor the progress of the case, and to prosecute or defend the action diligently . . . If any

communication from the Court to a pro se plaintiff is not responded to within thirty (30) days, the case may be

dismissed without prejudice. Any party proceeding pro se shall be expected to be familiar with and follow the Federal

Rules of Civil Procedure.” Id. Instead, the Court will address the instant motion on the merits.

III. DISCUSSION

A. Official Capacity Claims

Under § 1983, a defendant may be sued in either his individual capacity, or in his official

capacity, or claims may be stated against a defendant in both his individual and official capacities.

Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998). 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). “[I]t is well established that a municipality [or 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 liability

on the part of Defendant Jenkins under § 1983, Wilson “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).

Defendant Jenkins was an employee of the ACC, an agency of the State of Arkansas when

the alleged incidents occurred. Claims against the ACC and the State of Arkansas are subject to

dismissal because these entities are not subject to suit under § 1983. Claims against the State of

Arkansas are barred by Eleventh Amendment immunity. See Campbell v. Arkansas Department

of Correction, 155 F.3d 950, 962 (8th Cir. 1998) (the ADC is entitled to sovereign immunity);

Morstad v. Dep't of Corr. & Rehab., 147 F.3d 741, 743–44 (8th Cir. 1998) (Eleventh Amendment

immunity bars § 1983 lawsuit against state agency or state official in official capacity even if state

entity is the moving force behind deprivation of federal rights).

Accordingly, I recommend that all of Wilson’s official capacity claims be dismissed with

prejudice.3

B. Individual Capacity Claims

In his Complaint, Wilson generally alleges Defendant Jenkins discriminated against him

by refusing to waive his court ordered probations fees. He also states he was having a difficult

time financially and Defendant Jenkins should have waived his fees. Plaintiff does not identify

which federal statute or constitutional provision Defendant Jenkins allegedly violated.

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.

The Equal Protection Clause of the Fourteenth Amendment provides that no State shall

“deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend

XIV, § 1. The purpose of the Equal Protection Clause “is to secure every person within the State’s

jurisdiction against intentional and arbitrary discrimination.” Engquist v. Or. Dep’t of Agric., 553

U.S. 591, 611 (2008) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per

curiam)).

Only deliberate discrimination is actionable under the Equal Protection Clause. Personnel

3 The Court also notes claims against the ACC and the State of Arkansas, when they were listed as separate Defendants,

were dismissed by the Court with prejudice for the same reasons set forth herein. See Report and Recommendation,

(ECF No. 8), adopted in its entirety, November 18, 2021, (ECF No. 11).

Adm’r. v. Feeney, 442 U.S. 256, 273 (1979); Washington v. Davis, 426 U.S. 229, 239-48 (1976).

“Discriminatory purpose can be proved with various kinds of direct and circumstantial evidence,

but it is most often proved with evidence that similarly situated inmates were treated differently.”

Lewis v. Jacks, 486 F.3d 1025, 1028 (8th Cir. 2007). However, even when someone is not found

to be similarly situated to others, he is entitled to a determination of whether the distinction is

arbitrary or rationally related to a legitimate penological objective. Bills v. Dahm, 32 F.3d 333,

336 (8th Cir. 1994) (citing Parham v. Hughes, 441 U.S. 347 (1979)).

The Court finds that Wilson’s conclusory allegations of discrimination by Defendant

Jenkins fail to state a claim under Fed. R. Civ. P. 12(b)(6). First, Wilson entered into a Plea

Agreement and signed a Probation Agreement in his criminal case in the Circuit Court of Benton

County, Arkansas, Division 1, Case No. CR-20-2754.4 The Plea Agreement specifically requires

Wilson to pay a supervision fee of $35.00 per month to the Department of Community Punishment.

In addition, Wilson has not set forth any facts to support his conclusion that Jenkins had some

authority to waive those fees. Moreover, Wilson does not allege Defendant Jenkins intentionally

treated him differently from anyone – much less others who were similarly situated. He simply

claims Jenkins discriminated against him because he refused to waive fees when he asked him to.

Accordingly, I recommend that Wilson’s individual capacity claims against Defendant

Jenkins be dismissed without prejudice.

IV. CONCLUSION

For the foregoing reasons, it is recommended that Defendant Jenkins’ Motion to Dismiss

(ECF No. 30) be GRANTED. Specifically, the undersigned recommends that Wilson’s official

4 These documents are publicly available on Arkansas Court Connect http://caseinfo.arcourts.gov, last accessed

September 1, 2022.

capacity claims be DISMISSED WITH PREJUDICE and Wilson’s individual capacity claims

be DISMISSED WITHOUT 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 September 2022.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE