Thornton v. Walker

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

THOMAS DEREK THORNTON PLAINTIFF

v. Civil No. 4:22-CV-04114

JACKIE RUNION; MARK LOUIS;

J. WALKER; CAPTIAN ADAMS;

LIUETENANT MILLER; SERGEANT

GUTHERIE; SERGEANT HENDERSON;

SERGEANT GOLDEN; SERGEANT MOORE;

SERGEANT WALKER;DEPUTY SMITH;

NURSE KING; NURSE CHELSEY;

DEPUTY ROBERTS; DEPUTY HALL;

DEPUTY HADLEY; SERGEANT HANNING;

and NURSE LISA DEFENDANTS

REPORT AND RECOMMENDATION

Plaintiff, Thomas Derek Thornton, currently an inmate of the Miller County Detention

Center (“MCDC”), filed this action pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and

in forma pauperis. 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.

The case is before the Court for preservice screening under the provisions of 28 U.S.C. §

1915A(a). Pursuant to § 1915A(a), 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 filed his original Complaint and Motion for Leave to Proceed in forma pauperis

(“IFP Motion”) on November 28, 2022. (ECF No. 1). The Court granted Plaintiff’s IFP Motion

on the same date. (ECF No. 3). On December 16, 2022, the Court directed Plaintiff to file an

Amended Complaint, (ECF No. 6), which he did on December 30, 2022 (ECF No. 7).

In his Amended Complaint, Plaintiff alleges four claims against eighteen Defendants.

(ECF No. 6). In Claim One, Plaintiff claims Captain Adams, Sergeant Golden, Sergeant Gutherie,

Lieutenant Miller, Sergeant Hanning, Warden Walker, Sheriff Runion, Under Sheriff Mark Louis,

and Sergeant Henderson all violated his due process rights under the Fourteenth Amendment.

(ECF No. 1, p. 8). Plaintiff states:

7/16/21 I begin to have shortness of breath and being dizzy for hours at a time

10/25/21 I begin spitting up blood at night as well as doing (sic) the daytime hours

A written request was written to each of the defendants in July of 2022 about this issue

with no response on 8/30/21 I advise admin G. Officer, whom I believe to be Sgt. Golden

that their was black mold in showers around or about 7/9/21-8/9/21 as well

I begin to have shortness of breath and dizzy spell, for hours at a time

I begin spitting up blood

I started having headaches

Id. at 8-9. Plaintiff alleges these claims against the stated MCDC employees in their official

capacities only. Id. at 9. When prompted to describe the policy, custom, or widespread practice

which caused the complained of action Plaintiff responded:

MCDC policy states upon request from inmates supplies will be given. I request for the

supplies every morning on some days Im told their (sic) are several items missing other

days only given a broom. No chemicals no mor, nor scrub brushes

Id. at 9.

In Claim Two, Plaintiff claims Sergeant Gutherie, Sergeant Golden, and Captain Adams

all violated his Fifth and Fourteenth Amendments from July 27, 2021 and August 14, 2021. Id. at

10. Plaintiff asserts:

Money ($67 - $72) was taken from my commissary account over a period of 2 weeks.

Capt. Adams was told about this as well as Sgt. Golden, and Sgt. Gutherie 10/28/21 did

receive my money back even after a full investigation by Capt. Adams was done.

Mentally stress, emotionally stress (sic) fatigue

(ECF No. 1, p. 10). Plaintiff asserts Claim Two against the MCDC employees named in their

official capacities only. When prompted to explain the policy, custom, or widespread practice

that caused the asserted violation, Plaintiff responded:

Policy states that inmates in custody are the responsibility of the Government officials

(State/County) who custody they are in, as well as the 14th Amendment.

Id. at 11.

In Claim Three, Plaintiff asserts Sergeant Walker (Kitchen supervisor), Sergeant Gutherie,

Nurse King, Nurse Chelsey, Nurse Lisa, Deputy Hall, and Deputy Hadley all violated his First

Amendment, Due Process and Fourteenth Amendment rights. (ECF No. 1, p. 11). Specifically,

Plaintiff claims:

5/6/22 – 7/16/22

Fed pork (ham/hotdogs/corndogs/ribs(7/4/22) forced to become vegetarian just to be pork

free. Deputy Hall and Hadley called Kitchen to get other tray informed Nurse King, Nurse

Chelsey, Nurse Lisa, Sgt. Gutherie, Sgt. Walker on or between 5/9/22-7/15/22 [emotional]

stress, physical stomach pains (due to not eating)

Id. at 12. Plaintiff asserts this claim against the listed employees of MCDC in their official

capacities only. Id. When prompted to list the custom, policy, or widespread practice that

violated his rights, Plaintiff responded: “Rejected my request to be pork free due to religion (free

exercise clause.” Id.

In his Claim Four, Plaintiff alleges Deputy Smith, Deputy Roberts, Sergeant Walker,

Deputy Hadley, Deputy Hall, Sergeant Gutherie, Sergeant Golden violated his Due Process and

Fourteenth Amendment rights. (ECF No. p. 13). Specifically, Plaintiff claims:

On Aug 18th & Aug 19th, 21 Fed cold breakfast

On or about July 16th 22, Sept 9th, 22 fed cold lunch & dinner on several different occasion

I told Dep Smith that the breakfast was cold on or about Aug 18th, 19th 2021 informed Dep

Roberts as well. Wrote to Sgt. Walker on or about July 16th told Dep. Hall that food was

Cold as well as Dep Hadley that Lunch was cold.

Having issues using the . . . (illegible), loss of appetite, stomach aches, headaches as well.

(ECF No. 1, p. 13). Plaintiff alleges this claim against the named MCDC employees in their

official capacity only. Id. at 14. The Plaintiff’s official capacity claims related to Claim Four

are illegible on his Amended Complaint.

II. APPLICABLE STANDARD

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).

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).

“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)). However, even a pro se Plaintiff must allege specific

facts sufficient to support a claim. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).

III. DISCUSSION

Plaintiff’s claims shall be dismissed for failure to state a claim if it appears beyond a doubt

the Plaintiff’s complaint can prove no set of facts to support the plaintiff’s purported cause of

action. See Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 740 (8th Cir. 2001). The

facts set forth in Plaintiff’s Complaint, for claims Two and Four, do not support any plausible

cause of action for relief under 42 U.S.C. § 1983. Additionally, Plaintiff has failed to allege any

policy, custom, or widespread practice of MCDC caused his constitutional rights to be violated in

Claims One and Three.

As an initial matter, the Court notes while Plaintiff lists Sergeant Moore as a Defendant in

his Complaint, (ECF No. 1, p. 5), he fails to allege any complaints against Sergeant Moore.

Merely listing a Defendant in a complaint is insufficient to support a claim against the Defendant.

Krych v. Hvass, 83 Fed. Appx. 854, 855 (8th Cir. 2003) (citing Potter v. Clark, 497 F.2d 1206,

1207 (7th Cir. 1974) (per curiam) (“court properly dismissed pro se complaint that was silent as to

defendant except for his name appearing in caption)). Even in an official capacity suit under

section 1983, “a plaintiff must show either that the official named in the suit took an action

pursuant to an unconstitutional governmental policy or custom ... or that he or she possessed final

authority over the subject matter at issue and used that authority in an unconstitutional manner.”

Sexton v. Wayne, 4:13CV3171, 2014 WL 1767472, at *1 (D. Neb. May 2, 2014) (quoting Nix v.

Norman. 879 F.2d 429, 433 (8th Cir. 1989)).

Secondly, Plaintiff’s Claim Two relating to the inappropriate debits from his commissary

account, fails to state a cognizable claim under Section 1983. Plaintiff has adequate post-

deprivation remedies in the Arkansas state court to regain his property. See Elliot v. Hurst, 307

Ark. 134, 817 S.W.2d 877, 880 (1991) (cause of action for conversion lies where a distinct act of

dominion is exerted over property in denial of owner's right). Therefore, Plaintiff's allegations do

not rise to the level of a constitutional violation. See Hudson v. Palmer, 468 U.S. 517, 533 (1984)

(intentional deprivation of property does not violate due process when meaningful post-deprivation

remedy is available under state law); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994)

(negligent or intentional deprivation of prisoner's property fails to state a claim under § 1983 if

state had adequate post-deprivation remedy).

Next, Claim Four also fails as a matter of law because Plaintiff has no constitutional right

to hot meals. Prisoners are guaranteed a reasonably adequate diet. Rust v. Grammar, 858 F.2d

411, 414 (8th Cir. 1988). The provision of only cold food does not violate the Constitution. See

Brown-El v. Delo, 969 F.2d 644, 648 (8th Cir. 1992) (“We agree with the district court that Brown-

El’s claim that his constitutional rights were violated when he was served cold food is frivolous.”);

Smith v. Copeland, 892 F. Supp. 1218, 1229 (E.D. Mo. 1995) (holding that diet of only cold food,

in and of itself, does not offend the Constitution), aff’d, 87 F.3d 265 (8th Cir. 1996).

Additionally, since Plaintiff has failed to state a cognizable claim related to the facts in

Claim Four, it is irrelevant that his official capacity portion of this claim was illegible on his

Amended Complaint. Without stating facts that implicate the constitution, Plaintiff cannot state

an official capacity claim. Without a constitutional violation by the individual employee, there

can be no official capacity claim against the employer. Morris v. Cradduck, 954 F.3d 1055, 1060

(8th Cir. 2020) Sanders v. City of Minneapolis, Minn., 474 F.3d 523, 527 (8th Cir. 2007) (citing

City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).

Lastly, the right to a pork free diet, and safe living conditions are protected rights under

the Constitution. See e.g., Beaulieu v. Ludeman, 690 F.3d 1017, 1045 (8th Cir. 2012) (jails must

provide reasonably adequate sanitation to detainees); Kind v. Frank, 329 F.3d 979, 981 (8th Cir.

2003) (inmates are entitled to food that is sufficient to keep them in good health, and satisfies the

dietary laws of their religion). However, Plaintiff only alleged his Claim One and Claim Three

against the named MCDC employees in their official capacities. 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, Plaintiff's official capacity

claims against the MCDC employees are treated as claims against Miller County. See Murray v.

Lene, 595 F.3d 868, 873 (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 Miller County's 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). Plaintiff has failed to allege any policy, custom

or widespread practice of Miller County caused his deprivation of a pork free tray, the black mold,

or the lack of cleaning supplies in the MCDC.

Accordingly, Plaintiff’s Claim One and Three, as they are official capacity claims only,

against Captain Adams, Sergeant Golden, Lieutenant Miller, Sergeant Hanning, Warden Walker,

Sheriff Runion, Under Sheriff Mark Louis, Sergeant Henderson, Sergeant Walker (kitchen

supervisor), Sergeant Gutherie, Nurse King, Nurse Chelsey, Nurse Lisa, Deputy Hall, and Deputy

Hadley also fail to state plausible claims.

V. CONCLUSION

For these reasons, it is recommended that Plaintiff Complaint be dismissed for failure to

state a claim under 28 U.S.C. § 1915A(b)(1). Specifically:

(1) Plaintiff’s Claims Two and Four against all named defendants be dismissed with

prejudice;

(2) Plaintiff’s Claims One and Three against all named defendants be dismissed without

prejudice; and

(3) Sergeant Moore be dismissed without prejudice as no claim was stated against him.

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 13th day of February 2023.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE