Ybarra v. Little River Detention Center

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

AMBER L. YBARRA, PLAINTIFF

v. Civil No. 4:23-cv-04046-SOH-CDC

LITTLE RIVER DETENTION CENTER;

GINA BUTLER, Jail Administrator; and

BOBBY WALRAVEN, Sheriff DEFENDANTS

MAGISTRATE’S REPORT AND RECOMMENDATION

Plaintiff Amber L. Ybarra, an inmate at the Little River County Detention Center

(LRCDC), filed the above-captioned civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff,

who is proceeding pro se, filed this action in the Eastern District of Arkansas. (ECF No. 1). The

Honorable U.S. Magistrate Judge Jerome T. Kearney for the Eastern District of Arkansas ordered

this matter be transferred to this District pursuant to 28 U.S.C. § 1406(a). (ECF No. 3). Upon

receipt and pursuant to the provisions of 28 U.S.C. § § 636(b)(1) and (3), the Honorable Susan O.

Hickey, United States Chief District Judge, referred this case to the undersigned for the purposes

of making a Report and Recommendation.

This Court previously granted Plaintiff’s in forma pauperis (IFP) application. (ECF No.

10). This matter is now before the Court for preservice screening under 28 U.S.C. § 1915A et

seq. of the Prisoner Litigation Reform Act (“PLRA”). Pursuant to 28 U.S.C. § 1915A, the Court

is required to screen any complaint in which a prisoner seeks redress from a governmental entity

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

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and for the reasons outlined below, the undersigned recommends that Plaintiff’s complaint be

dismissed without prejudice for failure to state a claim as a matter of law. 28 U.S.C.

§ 1915A(b)(1). Thus, the Court further recommends that Plaintiff’s Motion for Relief from

Order, (ECF No. 12), be denied as moot.

I. BACKGROUND

Plaintiff’s thirteen claims concern how the Defendants have responded to her grievances

while she has been incarcerated at the LRCDC.1 The first five claims concern grievances about

how the LRCDC has handled her legal mail. Plaintiff contends that she has requested the policy

stating that “the judge does not accept legal mail,” and copies of mail receipts showing that her

mail has been delivered, but the responses to those requests have been unsatisfactory. Plaintiff

says she has been told, for example, that her “mail has been sent to the address on it,” that the

grievance about her mail had already been answered, that she “cannot mail out anything to the

judge,” and “that [her] mail was dropped off at dispatch.” (ECF No. 7).

The next two claims involve her grievances about the absence of a curtain in the women’s

shower area. Id. According to Plaintiff, when she filed a grievance about this issue, she was told

that “[they] will get some.” Id. Plaintiff claims there are three cameras pointing directly at the

women’s shower area. Id. Plaintiff filed a second grievance about the same issue but has not

received any response.

The eighth claim involves Plaintiff’s grievance requesting to see the nurse about her

1 The Amended Complaint, (ECF No. 7), is the operative pleading in this matter. See Schlafly v.

Eagle Forum, 970 F.3d 924, 933 (8th Cir. 2020) (“Generally, an amended complaint supersedes

[sic] an original complaint and renders the original complaint without legal effect.”) (citing Acuity

v. Rex, LLC, 929 F.3d 995, 999 (8th Cir. 2019)).

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prescription. Id. Plaintiff says she was told her grievance would be forwarded to medical but

contends that LRCDC’s doctor, Dr. Darryl Elkins, did not adequately address her health concerns

when she saw him for a visit after complaining about allergies. Id. The ninth claim concerns

Plaintiff’s grievance requesting her pillow and a doctor’s prescription to address her migraines. Id.

Plaintiff contends she was asked when she received the prescription. Further, according to

Plaintiff, the LRCDC does not provide pillows to inmates, so she uses her rolled up jumpsuit as a

pillow. Id.

Regarding her tenth claim, Plaintiff contends that she filed a grievance requesting tissue

and received a “used roll of tissue.” Id. With respect to her eleventh claim, as the Court

understands it, Plaintiff filed a grievance because the LRCDC provides meals to inmates through

the “beanhole” or “flap.” Id. Plaintiff contends this practice is unprofessional. The twelfth claim

involves Plaintiff’s grievance against the facility for serving beans. Id. Plaintiff contends she

requested that the facility post the weekly menu in the pod, but was told the menu is the same

every day. Id. Finally, Plaintiff filed a grievance because she needed to speak to her parole officer

but was told that the “[they] cannot control what he does.” Id. Plaintiff claims the “administration,

officers, [and] sheriff” treat “her with malice and ill intent.” Id. She contends she is locked in her

cell for no reason and required to sit in the dark without a light, and that her request to move cells

was denied. Id. Plaintiff requests compensatory and punitive damages, injunctive relief, and

immediate release from custody. 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

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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). “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)).

III. LEGAL ANALYSIS

To state a claim under 42 U.S.C. § 1983, “a plaintiff must allege a violation of a

constitutional right committed by a person acting under color of state law.” Andrews v. City of

West Branch, Iowa, 454 F.3d 914, 918 (8th Cir. 2006) (emphasis added).

A. Claims against the Little River County Detention Center (LRCDC)

Plaintiff identifies the Little River County Detention Center (LRCDC) as a defendant to

this action. (ECF No. 7). A detention center, however, is not a “person” within the meaning of

§ 1983. See Owens v. Scott Cnty. Jail, 328 F.3d 1026, 1027 (8th Cir. 2003) (jails are not legal

entities amenable to suit); De La Garza v. Kandiyohi Cnty. Jail, 18 F. App’x 436, 437 (8th Cir.

2001) (affirming district court dismissal of county jail and sheriff’s department as parties because

they are not suable entities). Accordingly, all of Plaintiff’s claims against the Little River County

Detention Center should be dismissed.

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B. Claims against Gina Butler and Bobby Walraven

This leaves Plaintiff’s claims against Gina Butler, Jail Administrator, and Bobby Walraven,

Sheriff. Plaintiff’s claims against these defendants similarly fail but for an entirely different

reason: Plaintiff has failed to assert a plausible constitutional violation.

1. Grievance Procedure

The root of this action concerns Plaintiff’s dissatisfaction with the responses she has

received to her grievances while incarcerated at the LRCDC. (ECF No. 7). Plaintiff, however,

possesses no constitutional right to a grievance procedure. Buckley v. Barlow, 997 F.2d 494, 495

(8th Cir. 1993) (per curiam). Thus, to the extent that Plaintiff claims the Defendants did not

properly respond to her grievances, Plaintiff has failed to implicate a constitutional right. Id. (“[N]o

constitutional right was violated by the defendants’ failure, if any, to process all of the grievances

[plaintiff] submitted for consideration”). This claim should therefore fail as a matter of law.

2. Substance of Grievances

Turning to the substance of those grievances, Plaintiff fares no better. As the Court

understands it, Plaintiff’s grievances implicate several constitutional rights: (1) the right to send

and receive mail; (2) the right to adequate medical care; (3) the right to privacy; and (4) the right

for her conditions of pretrial confinement to be free from punishment.2 Each is addressed, in turn,

2 Publicly accessible Arkansas state court records show that Plaintiff is in custody pending state

criminal charges. See State of Arkansas v. Ybarra, 41CR-23-21 (Ark. 9th Cir. Div. 2) (AOC Court

Connect) (last visited June 26, 2023); see also See Stutzka v. McCarville, 420 F.3d 757, 760 n.2

(8th Cir. 2005) (court may take judicial notice of judicial opinions and public records). Plaintiff’s

reference to having a parole officer, see (ECF No. 7 at p. 5), suggests that her detention may also

relate to her status as a parolee. Because the Court has little information on her parole status, the

Court considers her conditions of confinement claims under the Due Process Clause of the

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below.

i. First Amendment

Plaintiff’s first five grievances concern the delivery of her mail. To be sure, “[i]nmates

clearly retain protections afforded by the First Amendment.” Thongvanh v. Thalacker, 17 F.3d 256

(8th Cir. 1994) (quoting Thornburgh v. Abbott, 490 U.S. 401 (1989)). “This includes the right to

send and receive mail.” Id. (citing Thornburgh v. Abbott, 490 U.S. 401 (1989)). With one

exception, however, Plaintiff, does not allege that Defendants failed to send her mail. Instead,

she complains they did not provide her with proof that they sent her mail. The Court finds no

grounds to support Plaintiff’s apparent contention that her constitutional right to send mail extends

to requiring proof that her mail has been sent or delivered. See, e.g., Shields v. Long, No. 4:06-cv-

682 (CEJ), 2010 WL 3908609, at *4 (E.D. Mo. Sept. 30, 2010) (finding that defendants are entitled

to summary judgment on Section 1983 claim alleging defendants delayed or fail to return the

receipts and signature cards for certified mail where plaintiff did not allege that the intended

recipients did not receive the mail and did not identify that he suffered any harm). Accordingly,

because Plaintiff’s claim that the Defendants failed to provide her with proof of delivery of her

mail does not implicate a constitutional right, it should likewise be dismissed.

The one exception is Plaintiff’s contention that she attempted to send “legal mail,” but was

told “[she] cannot mail out anything to the judge.” (ECF No. 7 at p. 2). Where Plaintiff does not

specify whether she is suing the defendants in their individual or official capacities, or both, the

Court construes the claims as being against the defendants in their official capacity. Johnson v.

Fourteenth Amendment, which provides “at least as great” protection to pretrial detainees as the

Eighth Amendment affords to convicted prisoners. See Morris v. Zefferi, 601 F.3d 805, 809 (8th

Cir. 2010) (quoting Owens v. Scott Cnty. Jail, 328 F.3d 1026, 1027 (8th Cir. 2003)).

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Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). An official capacity claim is a claim

against the official’s employer, in this case Little River County. Id.

A political subdivision – such as Little River County – “may be held liable for the

unconstitutional acts of its officials or employees when those acts implement or execute an

unconstitutional policy or custom of the subdivision.” Id. at 535-36 (citing Mettler v. Whitledge,

165 F.3d 1197, 1204 (8th Cir. 1999)). “A policy is an official policy, a deliberate choice of a

guiding principle or procedure made by the municipal official who has final authority regarding

such matters.” Mettler, 165 F.3d at 1204 (citing Ware v. Jackson Cnty., 150 F.3d 873, 880 (8th

Cir. 1998)). Alternatively, “custom or usage” is demonstrated by:

(1) The existence of a continuing, widespread, persistent pattern of unconstitutional

misconduct by the governmental entity's employees;

(2) Deliberate indifference to or tacit authorization of such conduct by the

governmental entity's policymaking officials after notice to the officials of that

misconduct; and

(3) Th[e] plaintiff['s] injur[y] by acts pursuant to the governmental entity's custom,

i.e., [proof] that the custom was the moving force behind the constitutional

violation.

Ware, 150 F.3d at 880.

Here, however, Plaintiff fails to establish any facts suggesting that the officials acted

pursuant to policy when they did not send her mail to the judge. Further, Plaintiff appears to be

describing a single instance where this happened – one instance falls short of establishing a

“pattern of unconstitutional misconduct” necessary to plead a plausible official capacity claim.

Accordingly, this claim should also fail.3

3 Even if the Court construed Plaintiff’s claims as against the defendants in their individual

capacities, these claims should fail. To establish an individual capacity claim “the plaintiff must

show that the official, acting under color of state law caused the deprivation of a federal right.”

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ii. Medical Care

Recognizing that pro se pleadings are to be liberally construed, this Court views Plaintiff’s

grievances about her prescriptions – claims eight and nine – as claims alleging that the Defendants

acted with deliberate indifference to her medical needs in violation of the Eighth Amendment.

Grayson v. Ross, 454 F.3d 802, 808 (8th Cir. 2006) (applying the Eighth Amendment’s deliberate-

indifference standard to pretrial detainee’s claims that he was denied adequate medical care).

The “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 [she] 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). Here, Plaintiff’s claims involve her requests to see medical personnel

about prescriptions. (ECF No. 7 at p. 3). Even if Plaintiff has alleged sufficient facts showing that

she has an “objectively serious medical need” related to prescription medication, Plaintiff has not

established any facts showing that the Defendants deliberately disregarded those needs. Indeed,

Plaintiff alleges Defendants responded to her grievance requesting to see the nurse about her

prescription by forwarding it to medical personnel, see (ECF No. 7 at p. 3), and inquired further

about her prescription for migraine medication. Id. She alleges no facts that her requests to be

Handt v. Lynch, 681 F.3d 939, 943 (8th Cir. 2012) (citing Kentucky v. Graham, 473 U.S. 159, 166

(1985)); see also 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.”). Put

another way, it is not enough for a plaintiff seeking relief from a defendant in the defendant’s

individual capacity to allege that his rights were violated; the plaintiff must instead allege that his

rights were violated by the defendant. Here, however, Plaintiff does not establish any facts

specifying which, if any, defendant would not send her mail to the judge. Any individual capacity

claims against these defendants would therefore also fail.

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seen by medical personnel to address these issues were denied or otherwise ignored. Accordingly,

to the extent that Plaintiff claims Defendants deliberately disregarded her medical needs in

violation of her constitutional rights, such a claim should fail.4

iii. Right to Privacy

This Court next considers Plaintiff’s grievances about the lack of a curtain in the women’s

shower area. (ECF No. 7 at p. 3). While, if true, such conditions are unfortunate, the Court finds

these claims do not rise to the level of a constitutional violation.

The United States Court of Appeals for the Eighth Circuit has held that inmates do not have

a constitutionally protected privacy right preventing them from being observed by guards of the

opposite sex. Bell v. Conard, 749 F.App’x 490, 491 (8th Cir. 2019) (affirming preservice

dismissal and holding that “prison officials did not violate a clearly established constitutional right

by allowing female guards to monitor Bell through surveillance cameras”) (citing Timm v. Gunter,

917 F.2d 1093, 1102 (8th Cir. 1990) (“Whatever minimal intrusions on an inmate's privacy may

result from [opposite-sex] surveillance, whether the inmate is using the bathroom, showering, or

sleeping in the nude, are outweighed by institutional concerns for safety and equal employment

opportunities.”)). Further, in Robinson v. Boulier, 121 F.3d 713, 1997 WL 546035 (8th Cir. 1997)

4 Plaintiff also claims that Dr. Elkins did not provide her with proper medical care for her allergies.

(ECF No. 7 at p. 3). Dr. Elkins is not named as a defendant to this action. This claim should

therefore be dismissed for that reason alone. But even if he were, Plaintiff has failed to state a

plausible medical indifference claim against him. For a claim of deliberate indifference, “the

prisoner must show more than negligence, more even than gross negligence, and mere

disagreement with treatment decisions does not rise to the level of a constitutional violation.”

Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.1995). Deliberate indifference is akin to

criminal recklessness, which demands more than negligent misconduct. Olson v. Bloomberg, 339

F.3d 730, 736 (8th Cir.2003). Here, Plaintiff clearly believes that Dr. Elkins should have done

more to address her allergies. But she has not established any facts establishing that her

disagreement with his treatment decisions rises to the level of medical indifference.

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(unpublished table opinion), the Eighth Circuit concluded that prison policy permitting female

guards to observe male inmates in the shower and toilet areas did not violate plaintiff’s

constitutional right to privacy. Id. at *1-2. Accordingly, the Court finds that Plaintiff’s claim that

there is no shower curtain in the women’s shower area does not amount to a constitutional violation

and this claim should be dismissed.

iv. Conditions of Confinement

Finally, the Court considers Plaintiff’s remaining grievances – being denied a pillow, being

given a “used roll of tissue,” getting her meal tray through the “beanhole” or “flap,” being offered

the same food menu 7 days a week, and being told that the LRCDC does not control her parole

officer – as claims related to her conditions of confinement.

Under the Fourteenth Amendment, “a pretrial detainee’s constitutional rights are violated

if the detainee’s conditions of confinement amount to punishment.” Morris v. Zefferi, 601 F.3d

805, 809 (8th Cir. 2010) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)). There are two ways

to determine whether conditions of confinement rise to the level of punishment. First, “a plaintiff

could show that the conditions were intentionally punitive.” Stearns v. Inmate Servs. Corp., 957

F.3d 902, 907 (8th Cir. 2020) (quoting Bell, 441 U.S. at 538). Alternatively, “if there is no

expressly demonstrated intent to punish, the plaintiff could also show that the conditions were not

reasonably related to a legitimate government purpose or were excessive in relation to that

purpose.” Id. (quoting Bell, 441 U.S. at 538-39).

In considering conditions of confinement claims, courts view the “totality of the

circumstances of [plaintiff’s] confinement and not any particular condition in isolation.” Stearns,

957 F.3d at 909. However, “[n]ot every disability imposed during pretrial detention amounts to

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punishment in the constitutional sense.” Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996).

“There is a de minimis level of imposition with which the Constitution is not concerned.” Id.

In this case, Plaintiff’s claims are simply de minimis. Plaintiff does not allege she is being

denied meals or that they do not meet daily caloric or nutritional requirements. Cf. Campbell v.

Cauthron, 623 F.2d 503, 508 (8th Cir. 1980) (finding diet of two sweet rolls and coffee for

breakfast and frozen “TV” dinners for the noon and evening meals to be constitutionally

inadequate). Instead, she complains about the how the meals are being delivered and that the

menu does not vary. Further, although a pillow may certainly be more comfortable than a rolled-

up jumpsuit, Plaintiff has not demonstrated that, under the totality of the circumstances, the

LRCDC policy of not providing pillows amounts to punishment in the constitutional sense. Cf.

Villanueva v. George, 659 F.2d 851, 854 (8th Cir. 1981) (concluding that jury could have

reasonably concluded that plaintiff’s conditions of confinement were punitive where plaintiff was

kept in his small cell for seventy-two hours without opportunity for exercise or shower and cell

was infested with insects and housed rodents).

Although Plaintiff complains the LRCDC responded to her request to speak to her parole

officer by saying that the LRCDC does not “control him,” (ECF No. 7 at p. 5), Plaintiff has not

established that the LRCDC prevented her from communicating directly with her parole officer.

Finally, Plaintiff does not claim that she experienced a filthy cell for an extended period or that

she was denied basic hygiene items. Cf. Beaulieu v. Ludeman, 609 F.3d 1017, 1045 (8th Cir. 2012)

(detention centers must provide pretrial detainees with “reasonably adequate sanitation, personal

hygiene, and laundry privileges, particularly over a lengthy course of time.”). Therefore,

considering the totality of the circumstances, the Court finds that Plaintiff’s allegation that she was

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given a “used roll of tissue,” (ECF No. 7 at p. 4), insufficient to establish a plausible constitutional

violation. The Court’s conclusion that Plaintiff has asserted merely de minimis violations – if any

– is further buttressed by the fact that Plaintiff does not allege that these conditions of confinement

caused her to suffer any injury. See Smith v. Copeland, 87 F.3d 265 (8th Cir. 1996) (pretrial

detainee’s claim that he was exposed to raw sewage in his isolation cell for four days did not rise

to the level of constitutional significance where detainee failed to establish that he suffered any

injury from the exposure, and he declined an opportunity to clean the mess himself). Thus,

Plaintiff’s conditions-of-confinement claims should similarly fail.5

IV. CONCLUSION

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

recommends that: (1) Plaintiff’s Amended Complaint (ECF. No. 7) be DISMISSED WITHOUT

PREJUDICE for failure to state a claim; (2) Plaintiff’s Motion for Relief from Order, (ECF No.

12), be DENIED as MOOT; and (3) Plaintiff be 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 be 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

5 Plaintiff also claims “denial of fair trial” and requests “release from custody.” (ECF No. 7 at p.

1, 6). Such a claim—and corresponding request for relief—is not cognizable as § 1983 claim

because it necessarily imply the invalidity of her conviction and present confinement. See Heck v.

Humphrey, 512 U.S. 477, 487 (1994).

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the district court.

DATED this 26" day of June 2023.

CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE

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