Lawson v. Garner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

JERMAINE LAWSON PLAINTIFF

v. Civil No. 6:22-CV-06111-SOH-MEF

LT TOBEY GARDNER, Gurdon Police Department DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, Jermaine Lawson, a prisoner, filed this civil rights action pursuant to 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.

Plaintiff was convicted of state criminal charges and, at the time his Complaint was filed,

he was serving his prison sentence at the Clark County Detention Center (“CCDC”) in

Arkadelphia, Arkansas. (ECF No. 1, pp. 1-2). In a separate order, this Court granted Plaintiff’s

in forma pauperis (“IFP”) application. (ECF No. 3). This matter is now before the Court for

preservice review under the provisions of the Prison Litigation Reform Act (“PLRA”). Pursuant

to 28 U.S.C. § 1915A, the Court must screen any complaint in which a prisoner seeks redress from

a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

For the reasons discussed below, it is recommended that the personal capacity claim against

Lieutenant Gardner for alleging pointing a gun at Plaintiff during a traffic stop proceed and that

all other claims be dismissed. 28 U.S.C. § 1915A(b)(1).

I. BACKGROUND

According to Plaintiff, on January 12, 2021, he was driving southbound on Highway 67

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from Gurdon, Arkansas towards Little Mo’s Liquor Store when he observed Lieutenant Gardner

traveling northbound on Highway 67 behind a log truck. (ECF No. 1, pp. 4-6). Plaintiff

contends that he was approximately 1.5 miles past the school zone when Lieutenant Gardner

stopped his pursuit of the log truck and maneuvered to get behind him. Id. Plaintiff alleges that

he noticed that Lieutenant Gardner had his lights on, signaling Plaintiff to stop, approximately one

mile after he initially passed him. Id. Plaintiff admits he drove another half mile and then pulled

over at Little Mo’s Liquor Store. Id. Plaintiff claims that he was accused of speeding, but that

there is no radar or dash cam video to substantiate this accusation.

Plaintiff alleges that when Lieutenant Gardner exited his vehicle, he had his weapon

pointed at him. (ECF No. 1, p. 6). Plaintiff contends that Lieutenant Gardner then ordered him

out of his car, handcuffed him, and searched him without consent. Id. Plaintiff claims that

Lieutenant Gardner ultimately handed him over to Roy Bethel, an agent on the narcotics task force,

who took him into custody. Id. at p. 8. Plaintiff alleges that no one advised him of his rights for

2-3 days after he was taken into custody. Id. According to Plaintiff, Roy Bethel had no

knowledge of the traffic stop and his passenger, Lamont Glascow, was not mentioned in the police

report. Id. Plaintiff contends that he was afraid for his life during this encounter. Id.

Plaintiff claims that the traffic stop, search, and seizure violated his constitutional rights.

(ECF No. 1, pp. 4, 6, 7). Plaintiff identifies Lieutenant Gardner as a defendant in both his official

and individual capacities. Id. at pp. 5, 7, 8. Plaintiff claims that Lieutenant Gardner knows him

personally and that his behavior during this encounter was motivated by personal animus. Id. at

pp. 5, 7. Plaintiff requests compensatory and punitive damages for his lost income due to his

incarceration and the emotional distress he suffered from having a gun pointed at him and being

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separated from his family. Id. at p. 9. He requests release from incarceration and that this matter

be investigated and that the results of this investigation be shared with his appellate lawyer, among

others. Id. He also seeks “a clean record of my past 20 years.” Id.

A review of the publicly accessible state court records system shows that because of the

January 12, 2021, traffic stop, Plaintiff was charged by criminal information with multiple felony

charges, including unlawful drug and firearm possession. See State v. Jermaine Lawson, Case

No. 10CR-21-15 (9th East Cir. Div. 1 Jan. 27, 2021).1 See also Stutzka v. McCarville, 420 F.3d

757, 760 n.2 (8th Cir. 2005) (court may take judicial notice of judicial opinions and public records).

A jury found Plaintiff guilty of all charges and he was initially sentenced to a term of imprisonment

of 792 months and then resentenced to a term of imprisonment of 780 months. See Sentencing

Order, State v. Lawson, Case No. 10CR-21-15 (Aug. 26, 2022); see also Amended Sentencing

Order, Lawson, Case No. 10CR-21-15 (Nov. 9, 2022). Plaintiff has appealed to the Arkansas

Court of Appeals from the judgment against him. See Notice of Appeal, Lawson, Case No. 10CR-

21-15 (Sept. 23, 2022). It appears that this appeal remains pending. Id.

II. LEGAL STANDARD

Under the PLRA, the Court is obliged 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) seek monetary

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

In reviewing whether a complaint (or portion thereof) states a claim for which relief may

be granted, this Court must accept the complaint’s factual allegations as true and draw all

1 AOC Public CourtConnect Production, https://caseinfo.arcourts.gov/ (last visited Nov. 29, 2022).

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reasonable inferences in the Plaintiff’s favor. Varga v. U.S. Nat’l Bank Ass’n, 764 F.3d 833, 838

(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). The complaint must “state a claim to relief that is plausible on its face.” Id. at 570. Pro

se complaints are to be construed liberally, but they must still allege enough facts to support the

claims advanced. Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (citing cases).

Plaintiff’s requests for relief are addressed, in turn, below.

III. LEGAL ANALYSIS

A. Plaintiff’s Claim for Damages Due to His Incarceration is Heck-barred

Plaintiff’s claim for compensatory damages for lost income due to his incarceration is

governed by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that:

[i]n order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983 plaintiff must prove that 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. A

claim for damages bearing that relationship to a conviction or sentence that has not

been so invalidated is not cognizable under § 1983.

512 U.S. at 486-87 (footnote omitted). The Supreme Court, however, carved out a narrow

exception to Heck for claims alleging a violation of the Fourth Amendment prohibition against

unreasonable searches and seizures. Specifically, the Court explained that:

A suit for damages attributable to an allegedly unreasonable search may lie even if

the challenged search produced evidence that was introduced in a state criminal

trial resulting in the § 1983 plaintiff’s still-outstanding conviction. Because of

doctrines like independent source and inevitable discovery, and especially harmless

error, such a § 1983 action, even if successful would not necessarily imply that the

plaintiff’s conviction was unlawful.

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512 U.S. at 487 n.7. Plaintiff’s claim alleging that Lieutenant Gardner unlawfully stopped and

searched his person falls into this small category of cases: if Plaintiff successfully demonstrated

that the search was unlawful, this result would not necessarily imply the invalidity of his

convictions because the state could argue, for example, that the evidence would have been

discovered through some other lawful means. See Moore v. Sims, 200 F.3d 1170, 1172 (8th Cir.

2000) (concluding that plaintiff’s unlawful-seizure claim was not barred by the Heck favorable

termination rule).

Having concluded that Plaintiff’s “unlawful-search-and-seizure” claim is not barred by the

Heck favorable termination rule, however, does not end the analysis because Heck nevertheless

precludes a claim for compensatory damages in this small category of cases unless the plaintiff

proves “not only that the search was unlawful, but that it caused him actual, compensable injury,

which [ . . . ] does not encompass the ‘injury’ of being convicted and imprisoned (until his

conviction has been overturned).” Id. Accordingly, pursuant to Heck, Plaintiff cannot request

compensatory damages for lost income due to his incarceration until or unless his conviction has

been overturned. Because Plaintiff’s conviction has not been overturned, his claim for

compensatory damages for lost income stemming from his incarceration fails as a matter of law.

B. Plaintiff’s Request for Immediate Release Fails under Preiser

In addition to compensatory damages for lost income due to his incarceration, Plaintiff also

requests immediate release from custody. (ECF No. 1 at 9-10). This claim is barred pursuant to

Preiser v. Rodriguez, 411 U.S. 475, 490 (1973).

In Preiser, the Supreme Court held that a prisoner in state custody cannot use a § 1983

action to challenge “the fact or duration of his confinement.” 411 U.S. 475, 489 (1973). Rather,

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“a state prisoner challenging the fact or duration of his physical imprisonment and seeking a

determination that he is entitled to immediate or speedier release has a federal remedy only through

a writ of habeas corpus . . . .” See Otey v. Hopkins, 5 F.3d 1125, 1131 (8th Cir. 1993) (citing

Preiser, 411 U.S. at 500).

Here, Plaintiff reports that he “feels[s] that [he] should not be incarcerated” and requests

his “freedom.” (ECF No. 1 at 9-10). Plaintiff also requests “a clean record of [his] past 20

years.” Id. at 10. These claims for relief specifically target the fact of his conviction, and,

pursuant to Preiser, a § 1983 claim is not the appropriate vehicle to pursue such relief.2

Accordingly, Plaintiff’s claims for immediate release and a “clean record” fail.

C. Plaintiff’s Claim for Damages for Emotional Distress

Plaintiff’s remaining claim for money damages is for the emotional distress he purportedly

suffered from Lieutenant Gardner pointing his gun at him. (ECF No. 1 at 9). Recognizing that

pro se complaints are to be liberally construed, Stone v. Henry, 364 F.3d 912, 915 (8th Cir. 2004),

this Court views this claim as alleging that Lieutenant Gardner used excessive force during the

January 12, 2021, traffic stop.

In determining whether a police officer’s conduct amounts to constitutionally

impermissible “excessive force,” courts consider “whether the amount of force used was

objectively reasonable under the particular circumstances.” Shekleton v. Eichenberger, 677 F.3d

361, 366 (8th Cir. 2012). Courts, moreover, “evaluate the reasonableness of an officer’s use of

force from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.” Masters v. City of Independence, Missouri, 998 F.3d 827, 835 (8th Cir. 2021)

2 Plaintiff is cautioned, moreover, that before he pursues federal habeas relief, he must first exhaust his state court

remedies. 28 U.S.C. § 2254(b)(1).

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(quoting Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009) (internal quotations

omitted)).

Plaintiff alleges that after Lieutenant Gardner pulled him over for speeding, he drew his

gun and pointed it at him. (ECF No. 1 at pp. 6, 8, 9). Plaintiff claims that Lieutenant Gardner

knows him from previous encounters and that his conduct during the traffic stop was motivated by

personal bias against him. Id. at pp. 5, 7, 8. Plaintiff further claims that he was afraid for his life

“due to all these acts going on in the world to date [and] with these false accusations [he] feel[s]

that he could have pulled the trigger and got away with murder ....” Id. at 8. Bearing in mind

that for the purposes of preservice screening the Court must assume as true the allegations in the

Complaint, the Court finds Plaintiff has established a plausible excessive force claim.3

D. Claims Against Lieutenant Gardner in his Official Capacity Fail

Plaintiff identifies Lieutenant Gardner as a defendant in his personal and official capacities.

An official capacity claim against a defendant is the equivalent to a claim against the municipal

entity who employs him, here, Clark County, Arkansas. See Rogers v. City of Little Rock, Ark.,

152 F.3d 790, 800 (8th Cir. 1998). To sustain such a claim, a plaintiff must establish that the

alleged constitutional violation resulted from “(1) an official municipal policy, (2) an unofficial

custom, or (3) a deliberately indifferent failure to train or supervise.” Corwin v. City of

Independence, Mo., 829 F.3d 695, 699 (8th Cir. 2016).

Here, Plaintiff fails to establish a plausible claim against Lieutenant Gardner in his “official

3 Plaintiff also asks that the January 12, 2021, traffic stop be investigated. (ECF No. 1 at 9). To the extent that

Plaintiff is requesting that the court conduct its own investigation into the constitutionality of Plaintiff’s search and

seizure on January 12, 2021, Plaintiff misapprehends the role of the federal courts. Article III of the United States

Constitution only allows federal courts to consider actual, ongoing cases or controversies. Preiser, 422 U.S. at 401.

(“The exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy.”).

This court has no authority to exceed its limited powers by, for example, conducting its own investigations.

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capacity.” Plaintiff does not claim that Clark County, Arkansas harmed him due to an

unconstitutional policy or custom. Further, he does he allege any facts suggesting that such an

unconstitutional policy or custom exists. Doe ex rel. Doe v. School Dist. of City of Norfolk, 340

F.3d 605, 614 (8th Cir. 2003) (concluding that the deficiency with plaintiff’s complaint is in the

“complete absence of allegations, reference, or language by which one could begin to draft an

inference that the conduct complained of” resulted from an unconstitutional policy or custom).

By contrast, Plaintiff specifically alleges that Lieutenant Gardner’s conduct during their encounter

was motivated by personal bias. Finally, Plaintiff fails to establish that his harm was the result

of a deliberately indifferent failure to train or supervise. To show deliberate indifference, a

plaintiff must show that the municipality “had notice that its procedures were inadequate and likely

to result in a violation of constitutional rights.” Larson by Larson v. Miller, 76 F.3d 1446, 1454

(8th Cir. 1996). Plaintiff makes no such showing here. Accordingly, Plaintiff’s official capacity

claim fails as a matter of law.

IV. CONCLUSION

In sum, having reviewed Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A, the

undersigned recommends that the following claims be dismissed:

1. Plaintiff’s claim for money damages for lost income due to his incarceration;

2. Plaintiff’s claim to be released from custody and to have a “clean record”; and

3. Plaintiff’s claims against Lieutenant Gardner in his official capacity.

By separate order, this Court will direct the U.S. Marshal Service to serve the Complaint

on Defendant Lieutenant Gardner in his personal capacity as to the remaining claim: that

Lieutenant Gardner used excessive force in pointing the gun at Plaintiff during the traffic stop on

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January 12, 2021, causing Plaintiff emotional distress.

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 1st day of December 2022.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE

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