Dellinger v. Butler

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

MICHAEL DELLINGER PLAINTIFF

v. Civil No. 4:22-CV-04115-SOH-BAB

BOBBY WALRAVEN, Sheriff, Little River County;

GINA BUTLER, Jail Administrator, Little River County;

MARIAN HOPKINS, Correctional Officer, Little River County Jail;

DR. ELKINS, Little River County Jail; and

LITTLE RIVER COUNTY JAIL ADMINISTRATION,

DEFENDANTS.

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff Michael Dellinger filed the above-captioned pro se civil rights action under 42

U.S.C. § 1983 for an incident that allegedly occurred when he was a pretrial detainee at the Little

River County Detention Center (LRCDC), Ashdown, Arkansas.1 (ECF Nos. 2 & 9) 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 purposes of making a Report and

Recommendation. This Court previously granted Plaintiff’s application to proceed in forma

pauperis (IFP). (ECF No. 6)

This matter is now before the Court for preservice screening under the provisions of the

Prison Litigation Reform Act (“PLRA”).2 Pursuant to 28 U.S.C. § 1915A, the Court has the

1 Plaintiff was subsequently convicted and sentenced on state criminal charges. See State v.

Dellinger, 41CR-22-64 (Ark. Cir. Ct., May 6, 2022); State v. Dellinger, 41CR-22-88 (Ark. Cir.

Ct. June 27, 2022) (Ark. Court Connect) (last visited Jan. 17, 2023). Plaintiff is now a prisoner at

the North Central Unit state prison in Calico Rock, Arkansas. (ECF No. 9 at p. 1).

2 After this Court filed its initial Report and Recommendation, (ECF No. 10), Plaintiff filed a

motion to amend the Complaint or, in the alternative, to extend the deadlines for filing an objection.

(ECF No. 11). This Court granted Plaintiff’s motion to amend, denied as moot his motion to extend

the deadlines for filing an objection, and vacated the Report and Recommendation. (ECF No. 16).

1

obligation to 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). Upon that review and

for the reasons outlined below, this Court recommends that Plaintiff’s claims against Dr. Elkins

and Jail Administrator Gina Butler in their individual capacities proceed and all other claims be

dismissed without prejudice.

I. BACKGROUND

Plaintiff initially filed his Complaint in the Eastern District of Arkansas. (ECF No. 2)

Venue, however, is proper in the judicial district where “any defendant resides” or where “a

substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b).

Although Plaintiff is now a prisoner at the North Central Unit, an Arkansas state prison in the

Eastern District of Arkansas, Plaintiff’s claims arose from his pretrial detention at the LRCDC,

which is in this District. Accordingly, the Eastern District of Arkansas properly transferred

Plaintiff’s Complaint to this District. (ECF No. 3).

Upon transfer, this Court ordered Plaintiff to file an Amended Complaint on this District’s

court-approved § 1983 form. (ECF No. 7). The Court received Plaintiff’s amended complaint,

but the claims and defendants are slightly different from those articulated in the original complaint.

Rather than direct Plaintiff to submit a second amended complaint, however, this Court construes

Plaintiff’s claims by reading the original complaint and First Amended Complaint together. See

Kirr v. North Dakota Public Health, 651 F. App’x 567, 568 (8th Cir. 2016) (concluding that pro

se plaintiff’s original complaint and two amendments “should have been read together” as

In response, Plaintiff filed a notice with the Court asking to proceed with the First Amended

Complaint as the operative document. (ECF No. 17). Plaintiff’s First Amended Complaint is

therefore back again before this Court for preservice screening pursuant to 28 U.S.C. § 1915A(a).

2

constituting his complaint); Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir. 1999) (per curiam) (pro

se complaint must be liberally construed and plaintiff clearly intended for amended complaint to

be read together with original complaint).

First, Plaintiff alleges that when he was arrested in July 2022, he had his insulin to treat his

diabetes with him. (ECF No. 2 at p. 4). According to Plaintiff, he paid for the insulin with his

own money, but when he arrived at the LRCDC, the defendants broke it, leaving him in custody

without any insulin. (ECF No. 2 at p. 4). In his amended complaint, Plaintiff specifically alleges

that Dr. Elkins broke his insulin. (ECF No. 9 at p. 4).

Second, Plaintiff claims that on July 25, 2022, his blood sugar levels registered at about

500 and he passed out, because Dr. Elkins refused him medical treatment. (ECF No. 9 at p. 4).

Plaintiff claims that an ambulance was called to respond to the situation. Id. Plaintiff alleges that

earlier in the day, Dr. Elkins tried to give him someone else’s insulin; in his original complaint he

identifies the insulin as originally belonging to Correctional Officer Marian Hopkins. (ECF No.

2 at p. 4). Plaintiff claims that his blood sugar levels continued to fluctuate from as low as 54 to

as high as 595, but Dr. Elkins denied him any treatment. Id. According to Plaintiff, if blood

sugar levels exceed 240, the body risks going into “diabetic ketoacidosis,” which causes a diabetic

coma. (ECF No. 9 at p. 4). Although Plaintiff contends that he eventually received new

medication, he was required to pay for it even though he was told he would not have to pay because

he was not liable. Id.

Third, Plaintiff claims that he wrote Jail Administrator Gina Butler several grievances

about being denied proper medical care, but she neglected to do anything about it. (ECF No. 9 at

p. 6). Finally, Plaintiff claims that Little River Sheriff Walraven failed to provide him with proper

3

medical care in violation of his constitutional rights. Plaintiff names all the defendants in their

official and individual capacities and requests compensatory damages for his medical bills and

legal fees and punitive damages for pain and suffering. (ECF No. 9 at p. 9). In his original

complaint, Plaintiff also requests injunctive and declaratory relief. (ECF No. 2 at p. 5).

II. LEGAL STANDARD

Under PLRA, the Court is obligated to review 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).

A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989). 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). A pro se complaint, moreover, is to be

given liberal construction, meaning “that if the essence of an allegation is discernable, even though

it is not pleaded with legal nicety, then the district court should construe the complaint in a way

that permits the layperson’s claim to be considered within the proper legal framework.” Stone v.

Harry, 364 F.3d 912, 915 (8th Cir. 2004). However, “they still must allege sufficient facts to

support the claims advanced.” Id. at 914 (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.

1989)).

III. DISCUSSION

The essential elements of a § 1983 claim are “(1) that the defendant(s) acted under color of

state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally

4

protected federal right.” Schmidt v. City of Bella Vista, 557 F.3d 564, 571 (8th Cir. 2009). To

state a claim, moreover, the plaintiff must establish that each defendant “personally violated

plaintiff’s constitutional rights.” Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir. 2014) (citation

omitted).

A. Property Loss

Plaintiff’s first claim concerns the loss of his property: specifically, his insulin medication.

(ECF Nos. 2 & 9). The Due Process Clause of the Fourteenth Amendment provides that “[n]o

state shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S.

Const. Amend. XIV, § 1. Courts have interpreted procedural due process considerations as

imposing “constraints on governmental decisions which deprive individuals of ‘liberty’ or

‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth

Amendment.” Walters v. Wolf, 660 F.3d 307, 311 (8th Cir. 2011) (quoting Mathews v. Eldridge,

424 U.S. 319, 332 (1976)). Assuming, without deciding, that Plaintiff has a recognized property

interest in his insulin, the question, then becomes what process Plaintiff is owed for the loss of that

property.

In answering this question, the Supreme Court has usually held that “the Constitution

requires some kind of hearing before the State deprives a person of liberty or property.” Zinermon

v. Burch, 494 U.S. 113, 127 (1990). “In some circumstances, however, the Court has held that a

statutory provision for a post deprivation hearing, or a common-law tort remedy for erroneous

deprivation, satisfies due process.” Id. at 128. The Supreme Court has held, moreover, that such

circumstances include “cases where the predicate deprivation is, or is akin to, a tortious loss of a

prisoner’s property resulting from a random unauthorized act by a state employee—versus some

5

established state procedure.” Walters, 660 F.3d at 312 (quoting Parratt v. Taylor, 451 U.S. 527,

541 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986)).

“The loss of property . . . is in almost all cases beyond the control of the [government], in most

cases it is not only impracticable, but impossible, to provide a meaningful hearing before the

deprivation.” Id.

This is exactly one such case. Assuming Plaintiff has a property interest in his insulin and

Dr. Elkins deprived him of his property when he broke his insulin, a post-deprivation hearing is

all the process Plaintiff is due. 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). Arkansas law provides such a post-deprivation remedy through an action for

conversion. See e.g., Elliott v. Hurst, 817 S.W.2d 877, 880 (Ark. 1991) (cause of action for

conversion lies where distinct act of dominion is exerted over property in denial of owner’s right).

Accordingly, Plaintiff’s claim concerning the loss of his insulin does not establish a cognizable

§ 1983 claim. The Court therefore recommends that this claim be dismissed without prejudice.

B. Medical Indifference

Plaintiff also claims that Dr. Elkins denied him proper medical care. As a pretrial detainee

at the time, Plaintiff’s right to medical care arises out of the Fourteenth Amendment.” Jackson v.

Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014). Because the Fourteenth Amendment “affords

pre-trial detainees at least as much protection as the Eighth Amendment does to convicted

prisoners,” Grayson v. Ross, 454 F.3d 802, 808 (8th Cir. 2006), courts apply the Eighth

Amendment’s “deliberate indifference” standard in determining whether there has been a

constitutional violation in delaying a pretrial detainee’s access to medical care. Id.

6

The Eighth Amendment “deliberate-indifference” standard involves objective and

subjective components. See Jolley v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000). Specifically,

“the plaintiff must demonstrate (1) that he suffered from objectively serious medical needs and

(2) that the prison officials actually knew of but deliberately disregarded those needs.” Dulany v.

Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). To be objectively serious, “a medical need must

have been diagnosed by a physician as requiring treatment or must be so obvious that even a

layperson would easily recognize the necessity for a doctor’s attention.” Jackson, 756 F.3d at 1065

(quoting Scott v. Benson, 742 F.3d 335, 339-40 (8th Cir. 2014)). To evince “deliberate

indifference” under the second prong, moreover, the Plaintiff must “show more than negligence,

more even than gross negligence.” Id. (quoting Fourte v. Falkner Cnty., 746 F.3d 384, 387 (8th

Cir. 2014)). “An inmate must demonstrate that a prison doctor’s actions were so inappropriate as

to evidence intentional maltreatment or a refusal to provide essential care.” Id. at 1066 (quoting

Dulany v. Carnahan, 132 F.3d 1234, 1240-41 (8th Cir. 1997)).

For the purposes of preservice screening under 28 U.S.C. § 1915A(a), this Court cannot

conclude that Plaintiff has not established a medical indifference claim against Dr. Elkins as a

matter of law. Therefore, this Court does not recommend that this claim be dismissed at this stage

of the proceedings.

C. Jail Administrator Gina Butler

Turning now to Plaintiff’s claims against Jail Administrator Gina Butler, liability in a

§ 1983 case is personal. See Frederick v. Motsinger, 873 F.3d 641, 646 (8th Cir. 2017). In a

§ 1983 action, “a plaintiff must plead that each Government-official defendant, through the

official’s own individual actions, has violated the constitution.” Ashcroft v. Iqbal, 556 U.S. 662,

7

129 (2009). Accordingly, “a supervising officer can be liable for an inferior officer’s

constitutional violation only if he directly participated in the constitutional violation, or if his

failure to train or supervise the offending actor caused the deprivation.” Parrish v. Ball, 594 F.3d

993, 1001 (8th Cir. 2010) (quoting Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997)).

To be liable for violating a person’s constitutional rights on a “failure to supervise” theory,

the plaintiff must show that the defendant: “(1) received notice of a pattern of unconstitutional acts

committed by subordinates; (2) demonstrated deliberate indifference to or tacit authorization of

the offensive acts; (3) failed to take sufficient remedial action; and (4) that such failure proximately

caused [plaintiff’s] injury.” Id. at 1002 (citing Jane Doe A v. Special Sch. Dist. of St. Louis Cnty.,

901 F.2d 642, 645 (8th Cir. 1990)). Further, a supervisor’s failure to train may be subject to

§ 1983 liability where “the failure to train amounts to deliberate indifference to the rights of

persons with whom the police came into contact.” Id. (quoting Otey, 121 F.3d at 1156)). In such

a case, the plaintiff must show that the alleged failure to train “actually caused” the constitutional

deprivation.” Id.

Here, Plaintiff does not allege that Jail Administrator Gina Butler failed to provide him

with proper medical care; rather, as the Court understands it, he alleges that she failed to do

anything about his allegedly constitutionally deficient medical care when he brought the problem

to her attention through the grievance process. (ECF No. 9 at p. 6). At this stage in the

proceedings, the Court does not recommend that this claim be dismissed as a matter of law. In

making this recommendation, this Court intimates no opinion about the merits of such a claim.

D. Official Capacity Claims Against Dr. Elkins and Jail Administrator Gina Butler

Plaintiff, however, names Dr. Elkins and Jail Administrator Gina Butler as defendants in

8

their individual and official capacities. (ECF No. 2 at p. 5; ECF No. 9). An official capacity claim

is the functional equivalent of a suit against the defendant’s employer, or, in this case, Little River

County. See Rogers v. City of Little Rock, Ark., 152 F.3d 790, 800 (8th Cir. 1998). To sustain

such a claim, a plaintiff must allege the existence of a custom or policy that was the moving force

behind the alleged constitutional violations. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691

(1978). Plaintiff’s complaint falls short. There are no allegations that either Dr. Elkins or Jail

Administrator Gina Butler was acting pursuant to policy or custom in purportedly denying Plaintiff

medical care in violation of his constitutional rights. Thus, no official capacity claim has been

plead in the complaint. Accordingly, it is recommended that any claim against Dr. Elkins and

Gina Butler in their official capacities be dismissed.

E. Claims Against Little River County Sheriff Bobby Walraven, Correctional

Officer Marian Hopkins, and Little River County Jail Administration

Plaintiff’s complaint names Little River County Sheriff Bobby Walraven, Correctional

Officer Marian Hopkins, and Little River County Jail Administration as defendants. Claims

against these defendants should be dismissed as a matter of law.

First, Plaintiff alleges that Sheriff Walraven failed to provide him with proper care. (ECF

No. 9 at 8). Even after reading the two pleadings together, Plaintiff does not offer any specific,

particularized facts suggesting how Sheriff Walvraven allegedly violated his constitutional rights.

Such broad, conclusory allegations are insufficient to state a claim under § 1983. Martin v.

Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (“Although it is to be liberally construed, a pro se

complaint must contain specific facts supporting its conclusions.”). Moreover, the theory of

respondeat superior—that Sheriff Walraven, as a supervisor, is generally responsible for the torts

of his subordinates—is not a basis for liability under 42 U.S.C. § 1983. Keeper v. King, 130 F.3d

9

1309, 1314 (8th Cir. 1997) (quoting Kulow v. Nix, 28 F.3d 855, 858 (8th Cir. 1994)). Similarly,

Plaintiff’s general allegation that “jail administration,” an entity purportedly consisting of multiple

jail personnel, violated his constitutional rights is not sufficiently specific as to who in Jail

Administration did what in alleged violation of his constitutional rights to state a plausible § 1983

claim. See also Owens v. Scott Cnty. Jail, 328 F.3d 1026, 1027 (8th Cir. 2003) (a jail is not a

person subject to suit under § 1983).

Finally, although Plaintiff alleges that Dr. Elkins gave him the insulin that originally

belonged to Correctional Officer Marian Hopkins, he fails to allege how this defendant was

directly involved in or responsible for the alleged violation of his constitutional right to proper

medical care. See Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006) (“Liability under §

1983 requires a causal link to, and direct responsibility for, the deprivation of rights.”).

Accordingly, the Court recommends that any claims against these defendants—Little River

County Sheriff Bobby Walraven, Correctional Officer Marian Hopkins, and the Little River

County Jail Administration—be dismissed for failure to state a claim as a matter of law. 28

U.S.C. § 1915A(b)(1).

F. Injunctive and Declarative Relief

Finally, in addition to compensatory and punitive damages, Plaintiff requests injunctive

and declarative relief. (ECF No. 2 at p. 5).

1. Injunctive Relief

In considering a motion for injunctive relief, courts consider: “(1) the threat of irreparable

harm to the movant; (2) the state of balance between this harm and the injury that granting the

injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the

10

merits; and (4) the public interest.” Dataphase Sys. Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th

Cir. 1981) (en banc)). “At base, the question is whether the balance of equities so favors the

movant that justice requires the court to intervene to preserve the status quo until the merits are

determined.” Id. at 113.

Here, it is undisputed that Plaintiff is no longer being detained at the LRCDC. (ECF No. 9

at pp. 1-2). Accordingly, Plaintiff is no longer subject to the purportedly unconstitutional

conditions that gave rise to his complaint. Thus, it cannot be said that Plaintiff currently faces

irreparable harm absent court intervention. See Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th

Cir. 2003) (noting that failure to show irreparable harm “is an independently sufficient ground

upon which to deny a preliminary injunction.”). Therefore, this Court recommends that Plaintiff’s

request for injunctive relief be denied as moot.

2. Declaratory Relief

This Court views Plaintiff’s request for “declaratory relief” as a request for a declaratory

judgment. “A declaratory judgment is meant to define the legal rights and obligations of the parties

in anticipation of some future conduct, not simply proclaim liability for a past act.” Justice

Network, Inc. v. Craighead Cnty., 931 F.3d 753, 764 (8th Cir. 2019) (quoting Lawrence v.

Kuenhold, 271 F. App’x 763, 766 (10th Cir. 2008) (emphasis in the original)). “Thus, declaratory

relief is limited to prospective declaratory relief.” Id. at 764.

Here, again, because Plaintiff has transferred to a different facility, he is no longer subject

to the same conditions that gave rise to the complaint. Accordingly, prospective relief is no remedy

at all. This Court, therefore, recommends that Plaintiff’s request for declaratory relief be denied as

moot.

11

IV. CONCLUSION

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

recommends that: Plaintiff’s claims be DISMISSED WITHOUT PREJUDICE, EXCEPT –

1. Plaintiff’s medical indifference claim against Dr. Elkins in his individual capacity;

2. Plaintiff’s “failure to train or supervise” claim against Jail Administrator Gina Butler in her

individual capacity.

This Court further recommends that Plaintiff’s request for Injunctive and Declaratory Relief be

DENIED AS MOOT.

The parties have fourteen 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 18th day of April 2023.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

12