Lee v. Escobar

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

LARRY MARTILLUS LEE PLAINTIFF

v. Civil No. 6:22-CV-06087-SOH-BAB

CO1 GLADYS ESCOBAR, Omega Unit,

Arkansas Division of Community Correction;

ARO ABIGAIL MORROW, Omega Unit,

Arkansas Division of Community Correction; DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed under 42 U.S.C. § 1983. (ECF No. 1). 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. Currently before the Court is Defendant’s Motion to Dismiss, (ECF No. 10),

and Plaintiff’s failure to obey a Court Order and failure to prosecute this case.

I. BACKGROUND

Proceeding pro se, Plaintiff filed this civil rights action on August 3, 2022, generally

alleging that he had been denied medical care while incarcerated at the Omega Technical Violation

Center in violation of his constitutional rights. (ECF No. 1). That same day, this Court granted his

application to proceed in forma pauperis (IFP) and directed the Plaintiff to inform the Court of

any new contact information within thirty (30) days of such a change, failing which it would be

recommended that this matter be dismissed without prejudice for failure to prosecute. (ECF No.

4). On September 14, 2022, this Order was returned as undeliverable and marked “released.” (ECF

No. 8).

The Defendants filed a Notice of Motion, Motion, and Memorandum in Support of Motion

to Dismiss on October 3, 2022, arguing that Plaintiff’s official capacity claims against the

Defendants were barred by sovereign immunity and his individual capacity claims were barred by

qualified immunity. (ECF Nos. 10 & 11). The Court issued an order on October 6, 2022, directing

Plaintiff to respond and reminding him of his responsibility to keep the court informed of his

current address. (ECF No. 12). This Order was returned undeliverable and marked “RTS—Not at

Facility” on October 14, 2022. The Court has received no updated address from the Plaintiff and

the deadline for doing so passed long ago. In fact, the Court has not received any communication

from Plaintiff since he initiated this action in August.

II. LEGAL STANDARD

In considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court

must accept as true all the factual allegations in the complaint and draw all reasonable inferences

in the plaintiff’s favor. Gorog v. Best Buy Co., 760 F.3d 787, 792 (8th Cir. 2014). The factual

allegations need not be detailed, but they must be sufficient “to raise a right to relief above the

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Further, the complaint

must “state a claim to relief that is plausible on its face.” Id. at 570. Although pro se complaints,

such as this one, are entitled to a liberal construction, Erickson v. Pardus, 551 U.S. 89, 94 (2007),

they must nevertheless contain specific facts in support of the claims it advances. Martin v.

Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).

III. ANALYSIS

Here, Plaintiff, who was an inmate at the Omega Unit of the Arkansas Division of

Community Correction (“ADCC”) when he initiated this lawsuit, alleges that Defendant Escobar

approached his barracks on or about June 17, 2022, and asked if anyone had “pill call.” (ECF No.

1). Plaintiff claims that even though he answered in the affirmative, Defendant Escobar told him

he did not have pill call, walked away, and never returned. Id. Plaintiff claims that he filed a

grievance against Defendant Escobar, but Defendant Morrow allowed her personal relationship

with Defendant Escobar to interfere with her professional responsibilities and directed the

grievance to “medical” when the grievance was clearly concerning Defendant Escobar. Id.

Plaintiff alleges that he requires antibiotics to treat an abscess in his mouth, and without them he

is in pain and fears that the infection will get into his bloodstream. Id. Plaintiff names the

defendants in both their official and individual capacities.

A. Official Capacity Claims

Defendants argue that Plaintiff’s official capacity claims against them fail as a matter of

law because, as state actors, they are entitled to sovereign immunity. (ECF No. 11). This Court

agrees. “Section 1983 provides no cause of action against agents of the State acting in their official

capacities.” Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012) (citing Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 64 (1989)). “The Eleventh Amendment bars such suits unless the State

has waived its immunity.” Will, 491 U.S. at 66. As the Defendants point out in their Motion to

Dismiss, the State of Arkansas has not waived immunity. (ECF No. 11 at 3). Accordingly,

Plaintiff’s official capacity claims fail.

B. Individual Capacity Claims

Defendants argue that the individual-capacity claims also fail. Defendants seeking

dismissal of a § 1983 action based on the qualified-immunity doctrine “must show that they are

entitled to qualified immunity on the face of the complaint.” Carter v. Huterson, 831 F.3d 1104,

1107 (8th Cir. 2016). “Under the doctrine of qualified immunity, a court must dismiss a complaint

against a government official in his [or her] individual capacity that fails to state a claim for

violation of clearly established statutory or constitutional rights of which a reasonable person

would have known.” Hager v. Ark. Dep’t of Health, 735 F.3d 1009, 1013 (8th Cir. 2013). In

determining whether defendants have qualified immunity, the Court asks: “(1) whether the facts

shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether

that right was clearly established at the time of the defendant’s alleged misconduct.” Brown v. City

of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009). A § 1983 plaintiff can defeat a claim of

qualified immunity only if the answer to both questions is yes. Pearson v. Callahan, 555 U.S.

223, 236 (2009).

1. Deliberate Indifference To A Serious Medical Need

The Court views Plaintiff’s claim as alleging deliberate indifference to a serious medical

need in violation of his constitutional rights. “Deliberate indifference to serious medical needs of

prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth

Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail on such a claim, Plaintiff

must show that: “(1) he had an objectively serious medical need; and (2) [defendants] knew of and

disregarded that need.” De Rossitte v. CorrectCare Solutions, LLC, 22 F.4th 796, 802 (8th Cir.

2022). An objectively serious medical need is one that has been “diagnosed by a physician as

requiring treatment or one so obvious that even a layperson would easily recognize the necessity

for the doctor’s attention.” Id. (quoting Barton v. Taber, 908 F.3d 1119, 1124 (8th Cir. 2018))

(internal quotations omitted). “The second subjective element requires [the defendants] to have

recognized that a substantial risk of harm existed and known that their conduct was inappropriate

in light of that risk.” Id. (quoting Shipp v. Murphy, 9 F.4th 694, 703 (8th Cir. 2021)). This

subjective standard “is akin to criminal recklessness, requiring more than negligence.” Id. (quoting

Blair v. Bowersox, 929 F.3d 981, 987-88 (8th Cir. 2019)).

In this case, Plaintiff’s claim fails both prongs. First, even when liberally construed, the

Complaint fails to establish that Plaintiff was experiencing an “objectively serious medical need.”

Although Plaintiff claims that he had a mouth abscess, Plaintiff fails to allege any facts suggesting

that he had been diagnosed with mouth abscess by a medical professional or that his condition was

so obvious that a layperson would have recognized that it required attention. Cf. Hartsfield v.

Colburn, 371 F.3d 454, 456 (8th Cir. 2004) (describing suffering “extreme pain from loose and

infected teeth, which caused blood to seep from [plaintiff’s] gums, swelling, and difficulty eating

and sleeping as a need for medical attention obvious to a layperson).

Second, even if Plaintiff established that he was experiencing an objectively serious

medical need, the Complaint fails to establish that Defendant Escobar “knew of but deliberately

disregarded [it].” Jackson v. Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014). Although Plaintiff

claims that he told Defendant Escobar that he had “pill call,” the Complaint does not allege that

Plaintiff informed Defendant Escobar that he had a mouth abscess or that he was in pain or that he

feared the infection would travel into his blood stream. Furthermore, the “deliberate indifference”

standard requires a mental state “akin to criminal recklessness.” Jackson, 756 F.3d at 1065. In this

Court’s view, the allegations in the Complaint, even taken as true, do not amount to a showing that

Defendant Escobar’s actions—by failing to either dispense Plaintiff’s antibiotic or circle back and

verify whether he had “pill call”—“were so inappropriate as to evidence intentional maltreatment

or a refusal to provide essential care.” Cf. Jackson, 756 F.3d at 1066-67 (concluding that doctor’s

failure to conduct a thorough medical exam of detainee’s surgical wound was tantamount to

medical malpractice and did not satisfy the deliberate indifference standard necessary to impose

§ 1983 liability). Thus, Plaintiff’s claim against Defendant Escobar in her individual capacity fails

as a matter of law.

2. Grievance Procedure

Defendants argue that Plaintiff’s claim against Defendant Morrow for her alleged failure

to process correctly his grievance against Defendant Escobar fails as a matter of law. This Court

agrees.

“To state a claim under section 1983, a plaintiff must allege the violation of a right secured

by the Constitution and laws of the United States . . . .” Buckley v. Barlow, 997 F.2d 494, 495 (8th

Cir. 1993). Here, Plaintiff claims that Defendant Morrow did not properly process his grievance

against Defendant Escobar. Yet, there is no “federal constitutional liberty interest in having state

officers follow state law or prison officials follow prison regulations.” Phillips v. Norris, 320 F.3d

844, 847 (8th Cir. 2003) (citing Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996)).

Rather, “any liberty interest must be an interest in the nature of the prisoner’s confinement, not an

interest in the procedures by which the state believes it can best determine how he should be

confined.” Id. (internal quotations omitted). Further, it is well-established that “[a prison]

grievance procedure is a procedural right only, it does not confer any substantive right upon the

inmates.” Id. (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)). Accordingly, federal

courts have held that failure to process grievances, without more, is not actionable under section

1983. See Buckley, 997 F.2d at 495; see also Dockery v. Houston, 229 F. App’x 428, 428 (8th Cir.

2007) (inmates cannot “sue [under § 1983] for allegedly false statements in a grievance response”);

Lomholt v. Holder, 287 F.3d 683, 684 (8th Cir. 2002) (per curiam) (the denial of grievances does

not establish a substantive constitutional claim); Moore v. Thurber, 105 F.3d 663, 663 (8th Cir.

1997) (unpublished table opinion) (holding that the “district court properly dismissed as frivolous

[plaintiff’s] claim that his constitutional rights were violated when [prison officials] failed to

adhere to its grievance regulations”). Because Plaintiff has failed to articulate that Defendant

Morrow violated some recognized constitutional right, this Court recommends that Plaintiff’s

individual capacity claim against Defendant Morrow be dismissed for failure to state a claim.

C. Failure to Prosecute

Finally, Plaintiff’s failure to comply with this Court’s orders and failure to prosecute this

case provides an independent basis to recommend dismissal of this action without prejudice. A

pro se litigant is not excused from complying with substantive and procedural law. See Burgs v.

Sissel, 745 F.2d 526, 528 (8th Cir. 1984). The local rules state 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.

Local Rule 5.5(c)(2).

Additionally, the Federal Rules of Civil Procedure specifically contemplate dismissal of a

case on the grounds that the plaintiff failed to prosecute or failed to comply with orders of the

court. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (stating that

the district court possesses the power to dismiss sua sponte under Rule 41(b)). Pursuant to Rule

41(b), a district court has the power to dismiss an action based on “the plaintiff’s failure to comply

with any court order.” Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (emphasis added).

Plaintiff has failed to keep the Court apprised of his current address as required by Local

Rule 5.5(c)(2). Plaintiff has also failed to comply with the Court’s orders requiring him to maintain

updated contact information with the Court. (ECF No. 4 & 12). Thus, Plaintiff has failed to

prosecute this matter. Accordingly, pursuant to Federal Rule of Civil Procedure 41(b) and Local

Rule 5.5(c)(2), this Court also recommends that Plaintiff’s Complaint be dismissed without

prejudice for failure to comply with the Court’s Local Rules and Orders and failure to prosecute

this case.

IV. CONCLUSION

For the reasons discussed above, it is recommended that: : (1) Defendant’s Notice of

Motion and Motion to Dismiss for Failure to State a Claim (ECF No. 10) be GRANTED; (2)

Plaintiff’s Complaint (ECF. No. 1) be DISMISSED WITHOUT PREJUDICE for failure to state

a claim and failure to prosecute; and (3) Plaintiff 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.

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 9th day of November 2022.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE