Rogers v. Silva

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

LEONARD LEE ROGERS PLAINTIFF

v. Civil No. 3:23-cv-03034-TLB-MEF

BOONE COUNTY, ARKANSAS;

BOONE COUNTY SHERIFF’S DEPARTMENT;

GOVERNOR SARAH SANDERS;

PRESIDENT JOE BIDEN, United States;

ASSISTANT JAIL ADMINISTRATOR JASON SILVA;

SHERIFF MARTIN, Boone County, Arkansas;

SERGEANT HARP, Boone County Detention Center (BCDC);

DETENTION OFFICER MS. P., BCDC;

OFFICER TREAT, BCDC;

OFFICER LANCE COTTRELL, BCDC;

OFFICER BRANDON COTTRELL, BCDC;

CORPORAL HONEYMAN, BCDC;

JUDGE PUTTMAN, Boone County, Arkansas;

INVESTIGATOR MS. ISABELL;

CORPORAL ADMIRE, BCDC; JANE DOE, BCDC;

OFFICER MIXON, BCDC; OFFICER PHILLIPS, BCDC;

OFFICER BIGNER, BCDC; SERGEANT B, BCDC;

TURN KEY MEDICAL, Medical Care Provider for

Boone County, Arkansas;

JAIL ADMINISTRATOR JASON DAY, BCDC; and

OFFICER MRS. TREAT DEFENDANTS

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff, Leonard Lee Rogers (“Rogers”), currently an inmate of the Boone County

Detention Center (“BCDC”), has filed a civil rights action under 42 U.S.C. § 1983. He proceeds

pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the

Honorable Timothy L. Brooks, 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 the Prison

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Litigation Reform Act (“PLRA”). Pursuant to 28 U.S.C. § 1915A, 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. 28 U.S.C. § 1915A(b).

I. BACKGROUND

Rogers filed this action on August 15, 2023. (ECF No. 1). The Complaint was deficient.

While Rogers had named numerous Defendants, he failed to assert factual allegations stating how

each personally violated his federal constitutional rights, and for this reason he was directed to file

an Amended Complaint. (ECF No. 3). Rogers was given explicit instructions on what an

Amended Complaint must contain. Id. More specifically, he was told that in the Amended

Complaint, he must write short, plain statements telling the Court: (1) the constitutional right he

believes was violated; (2) the name of the Defendant who violated the right; (3) exactly what the

Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected to the

violation of his constitutional rights; and, (5) what specific injury he suffered because of that

Defendant’s conduct. He was again cautioned he must affirmatively link the conduct of each

named Defendant with the specific injury he suffered. Id. Rogers timely filed his Amended

Complaint (ECF No. 6), and it is now the operative pleading. Rogers has sued the Defendants in

both their individual and official capacities. Id.

In Claim One, Rogers alleges he has been subjected to cruel and unusual punishment

because “for the last 50 days I have watched a[n] Inmate Relationship sexual assault between

Officer Treat and Inmate Croom.” (ECF No. 6 at 10-11). Rogers says he has witnessed Officer

Treat grab Croom’s “nipples” and has heard him say the following: “nice buns,” “do you like

boats,” “I love pussy,” and “I’ll see you next year.” Id. at 11. Rogers asserts that an inmate

cannot consent to an Officer’s doing such things, and that making him view it is unacceptable. Id.

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Rogers urges that: a voice stress analysis be done on Officer Treat and Croom; Officer Treat be

terminated; and a public statement and apology be issued. Id. Rogers also asks that all charges

against him be dismissed. Id. He maintains Boone County, Sheriff Martin, Administrator Day,

Assistant Administrator Silva, Sergeant Harp, Officer Mrs. P., Officer Mrs. Treat, and Officer

Lance Cottrell have allowed this conduct. Id. at 10. Further, Rogers alleges Turn Key has failed

to provide him and the other inmates with mental health care. Id. at 11. Rogers contends the

Governor is responsible for not ensuring the staff was trained on the Prison Rape Elimination Act

(PREA); the President for providing funds to Boone County to combat the PREA, but then failing

to ensure the Department of Justice properly investigates the PREA claims. Id. Rogers,

however, does not indicate that he filed a PREA complaint.

In Claim Two, Rogers contends the food he is served is inadequate. (ECF No. 6 at 23).

He says he has been told there is a food budget yet they are forced to eat beans, sandwiches, hot

dogs, and have to pay for their own cheeseburgers. Id. While inmates are fed like this, he says

the staff gets steak, baked potatoes, salads, and red Kool-Aide. Id. Rogers questions whether

Sheriff Martin is embezzling money and why staff do not have to pay for their meals. Id. He

lists multiple Defendants as those involved in this claim. Id.

In Claim Three, Rogers says his conditions of confinement violate his constitutional rights.

(ECF No. 6 at 11). Rogers alleges the Boone County Sheriff's Office is discriminating against

him by treating him as a convicted sex offender when he is a pretrial detainee. Id. Rogers says:

“The Judge has not sentenced me nor have the guards been made into correctional officers to

correct my alleged difference.” Id. Rogers maintains the sex offenders are not properly

classified and assigned. Rogers then names Officer Lance Cottrell, Sergeant Harp, Officer

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Brandon Cottrell, Investigator Isabell, Jane Doe, Officer Mrs. P., Corporal Admire,1 Sergeant B.,

Officer Phillips, Officer Bigner, Sergeant B., Turn Key Medical, Administrator Day, Assistant

Administrator Silva, and Sheriff Holloway. Id. Rogers says the County received federal grants

and money to separate sex offenders. Id. He states they are housed upstairs, treated differently,

and staff “never change the tv shows.”2 Id. Rogers alleges this treatment violated his

constitutional rights. Id. Finally, Rogers states he fears retaliation by the 309 inmates, the

sheriff’s deputies, the Sheriff, and jailers. Id.

In Claim Four, Rogers alleges Officer Lance, Assistant Administrator Silva, Administrator

Day, and Sheriff Martin are violating his First Amendment rights by “marking up the paper and

blacking out all the women, kids, and cows.” (ECF No. 6 at 15). Rogers again points out he has

not been convicted and says he is being treated as if the Defendants were “the Judge and Jury.”

Id. Rogers requests a court order directing Defendants to stop blacking out portions of the paper

and that Officer Lance be fired. Id. Rogers then lists the following Defendants: Boone County,

Boone County Sheriff’s Department, Governor Sanders, President Biden, Assistant Administrator

Silva, Sheriff Martin, Sergeant Harp, Officer Mrs. P., Officer Treat, Officer Lance Cottrell,

Corporal Honeyman, Judge Puttman, Investigator Isabell, Corporal Admire, Jane Doe, Officer

Mixon, Officer Phillips, Officer Bigner, Sergeant B., and Turn Key Medical. Id.

In Claim Five, Rogers alleges Administrator Day and Sheriff Martin are violating his First

Amendment rights by denying him access to books. (ECF No. 6 at 16). Rogers says this conduct

1 In places this name is spelled Corporal Admire and in others Corporal Admierer. As Rogers

only lists one version or the other, the Court assumes it is two different spellings of one name.

2 While inmates have a right to access to the news, there is no freestanding right to watch the

television or listen to the radio. Temple v. Dahm, 905 F. Supp. 670, 674 (D. Neb. 1995).

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also denies his “6th amendment and 14th amendment of due process” and constitutes cruel and

unusual punishment. Id. He asks that he be granted access to books. Id. If he is denied access

to a book, he requests he be given an explanation in accordance with the “Boone county manual

000393.” Id. Rogers then lists the following Defendants: Boone County, Boone County

Sheriff’s Department, Governor Sanders, President Biden, Assistant Administrator Silva, Sheriff

Martin, Sergeant Harp, Officer P., Officer Treat, Officer Lance Cottrell, Corporal Honeyman,

Judge Puttman, Ms. Isabelle, Corporal Admire, Jane Doe, Officer Mixon, Officer Phillips, Officer

Bigner, Sergeant B., and Turn Key Medical. Id.

In Claim Six, Rogers alleges they were not allowed any haircuts the last weekend of May

2023. (ECF No. 6 at 17). Rogers asks that they be given back “monthly haircuts.” Id. Rogers

then lists the following Defendants: Boone County, Boone County Sheriff’s Department,

Governor Sanders, President Biden, Assistant Administrator Silva, Sheriff Martin, Sergeant Harp,

Officer Mrs. P., Officer Treat, Officer Lance Cottrell, Corporal Honeyman, Judge Puttman,

Investigator Isabell, Corporal Admire, Jane Doe, Officer Mixon, Officer Phillips, Officer Bigner,

Sergeant B., and Turn Key Medical. Id.

In Claim Seven, Rogers alleges:

Everytime I call she is so hateful to me[.] She called here once and asked for me,

when [I] got to the phone in the Bubble she told me to stop writing my Public

Defender and if [I] didn’t stop calling [I] could just get a paid attorney for which

[I] do not have the money for that[.] [A]lso every time [I] schedule a certain time

and day for my Public Defender to call me it’s always on a [T]uesday the day he’s

in court[.] [I]’ve been scheduled 9 times now and I’ve lit[e]rally talked to my

Public defender 1 time and seen him 1 time and I’ve been here since February 02-

07-2022. I really need to talk to my Public Defender to find out what[‘]s going

on[.] [A]lso she the secretary came up here to show me some DVD of my alleged

victim that supposed to be between me and my attorney[.] I really don’t know

what to do at this point. (ECF No. 6 at 18).

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For resolution of this issue, Rogers stated he needs to see his public defender as soon as

possible. (ECF No. 6 at 18). Rogers then lists the following Defendants: Boone County, Boone

County Sheriff’s Department, Governor Sanders, President Biden, Assistant Administrator Silva,

Sheriff Martin, Sergeant Harp, Mrs. P., Officer Treat, Officer Lance Cottrell, Officer Branden

Cottrell, Corporal Honeyman, Judge Puttman, Investigator Isabell, Corporal Admire, Jane Doe,

Officer Mixon, Officer Phillips, Officer Bigner, Sergeant B., and Turn Key Medical. Id.

For relief, Rogers asks for the following: (1) a public apology; (2) to be separated according

to federal regulations; (3) to see his public defender as soon as possible; (4) for the staff to pay for

the meals they received and will continue to receive; (5) for the Sheriff to publicly apologize to

the Daily Times on all news stations in the area; (6) for federal officers to review court documents

and jail records; (7) for the Internal Revenue Service to do an audit on all employees; (8) for

charges to be brought against the Defendants who need it; and (9) an investigation into how the

jail has kept its’ accreditation. (ECF No. 6 at 19).

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). A

claim fails to state a claim upon which relief may be granted if it does not allege “enough facts to

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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)). This means “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.” Id. at 544. 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

Section 1983 provides a federal cause of action for the deprivation, under color of law, of

a citizen’s “rights, privileges, or immunities secured by the Constitution and laws” of the United

States. In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) each

defendant acted under color of state law, and (2) that he or she violated a right secured by the

constitution. West v. Atkins, 487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th

Cir. 1999).

A. President Biden3

1. Absolute Immunity

President Biden “as the chief constitutional officer of the Executive Branch” is “entitled to

3 Section 1983 does not apply to federal officials. Instead, claims against federal officials are

brought pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)

(recognizing for the first time an implied action for damages against federal officials alleged to

have violated a citizen’s constitutional rights).

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absolute immunity from damages liability predicated on his official acts.” Nixon v. Fitzgerald,

457 U.S. 731, 749 (1982). In Fitzgerald, the Supreme Court stated that “[i]n view of the special

nature of the President’s constitutional office and functions, we think it appropriate to recognize

absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his

official responsibility.” Id. at 756. Rogers has not alleged any personal, private, or unofficial

conduct on the part of President Biden that might suggest absolute immunity is not applicable.

Clinton v. Jones, 520 U.S. 681, 694 (1997) (immunity does not extend to “unofficial conduct” or

conduct “beyond the scope of any action taken in an official capacity”). Therefore, President

Biden enjoys absolutely immunity from Rogers’ claims in this action. Further, no plausible claim

has been stated against President Biden because the BCDC receives federal funding in connection

with PREA.

2. Individual Capacity Claim

Claims brought under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)

are treated the same as § 1983 suits against state officials. There can be no respondeat superior

liability—that is, no vicarious liability based solely on an employment relationship. Ashcroft v.

Iqbal, 556 U.S. 662, 676 (2009). Instead, “a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has violated the Constitution.” Rogers

has made no such allegations against President Biden.

B. Governor Sanders

1. Sovereign Immunity

The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not

be construed to extend to any suit in law or equity, commenced or prosecuted against any one of

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the United States.” U.S. Const. amend XI. “The Eleventh Amendment confirms the sovereign

status of the States by shielding them from suits by individuals absent their consent.” Frew ex re.

Frew v. Hawkins, 540 U.S. 431, 437 (2004). “[A] suit against a state official in his or her official

capacity is not a suit against the official but rather is a suit against the official’s office. As such,

it is no different from a suit against the state itself.” Will v. Michigan Dep’t. of State Police, 491

U.S. 58, 71 (1989) (citation omitted). “Eleventh Amendment jurisprudence is well-settled: ‘a suit

by private parties seeking to impose a liability which must be paid from public funds in the state

treasury is barred by the Eleventh Amendment.’” Burk v. Beene, 948 F.2d 489, 492 (8th Cir.

1991) (quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974)).

This bar exists whether the relief sought is legal or equitable. Papasan v. Allain, 478 U.S.

265, 276 (1986). Furthermore, “neither a State nor its officials acting in their official capacity are

‘persons’ under § 1983.” Will, 491 U.S. at 71.

Exceptions to the reach of the Eleventh Amendment exist only when the state has

unequivocally waived its immunity or Congress has abrogated the immunity. Hutto v. Finney,

437 U.S. 678, 693 (1978). The State of Arkansas has not waived its sovereign immunity. See

e.g., Hadley v. North Ark. Cmty. Tech. Coll., 76 F.3d 1437, 1438 (8th Cir. 1996). Nor did

Congress abrogate sovereign immunity when enacting § 1983. Quern v. Jordan, 440 U.S. 332,

345 (1979). The official capacity claims against Governor Sanders are, therefore, barred by the

Eleventh Amendment.

2. Declaratory and Injunctive Relief

To the extent the Amended Complaint (ECF No. 6) seeks declaratory relief in various

forms, including a public apology, the request is barred by sovereign immunity. The exception to

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Eleventh Amendment immunity, created by the doctrine of Ex Parte Young, 209 U.S. 123, 155-56

(1908), which allows a party to seek prospective injunctive relief in federal court against state

officials in their official capacities, does not apply to requests for declaratory relief establishing

past violations of federal law. Verizon Maryland, Inc., v. Public Serv. Comm’n of Maryland, 535

U.S. 635, 646 (2002).

3. Individual Capacity Claim

To the extent Rogers attempts to assert an individual capacity claim against Governor

Sanders, his claim also fails. Liability under § 1983 requires personal involvement. Frederick v.

Motsinger, 873 F.3d 641, 646 (8th Cir. 2017). A claim of deprivation of a constitutional right

cannot be based on a respondeat superior theory of liability. See Monell v. Dep’t. of Soc. Servs.,

436 U.S. 654, 694 (1978).

Rogers has failed to allege that Governor Sanders had any “personal involvement in, or

direct responsibility for, a deprivation of his constitutional rights.” Clemmons v. Armontrout, 477

F.3d 962, 967 (8th Cir. 2007). The mere fact that the BCDC may receive some state funds is

insufficient to establish a “causal connection between any action [on Governor Sanders’ part] and

the alleged deprivation” of Rogers’ rights. Kohl v. Casson, 5 F.3d 1141, 1149 (8th Cir.

1993). Rogers has failed to state a plausible individual capacity claim against Governor Sanders.

C. Boone County Sheriff’s Department

A Sheriff's Department is not a person subject to suit under § 1983. De La Garza v.

Kandiyohi Cty. Jail, Corr. Inst., 18 F. App’x 436, 437 (8th Cir. 2001) (unpublished) (county jail

and sheriff department not subject to suit under § 1983); Ketchum v. City of W. Memphis, Ark.,

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974 F.2d 81, 82 (8th Cir. 1992) (city police department and paramedic services “are not juridical

entities suable as such ... [t]hey are simply departments or subdivisions of the City government”).

D. Judge Puttman4

Judge Putman is immune from suit. “Few doctrines were more solidly established at

common law than the immunity of judges for liability for damages for acts committed within their

judicial jurisdiction.” Pierson v. Ray, 386 U.S. 547, 553-54 (1967). The Supreme Court “has

pronounced and followed this doctrine of the common law for more than a century.” Cleavinger

v. Saxner, 474 U.S. 193, 199 (1985) (citation omitted). Judicial immunity is only overcome in

two narrow situations: (1) if the challenged act is non-judicial; and (2), if the action, although

judicial in nature, was taken in the complete absence of all jurisdiction. Mireles v. Waco, 502

U.S. 9, 11 (1991). Id. Moreover, “[a] judge will not be deprived of immunity because the action

he took was in error, was done maliciously, or was in excess of his authority; rather, he will be

subject to liability only when he has acted in the clear absence of all jurisdiction.” Stump v.

Sparkman, 435 U.S. 349, 356-57 (1978) (citations omitted). Thus, any claim for damages is

barred. Furthermore, § 1983 precludes injunctive relief against a judicial officer “for an act or

omission taken in such officer’s judicial capacity . . . unless a declaratory decree was violated or

declaratory relief was unavailable. 42 U.S.C. § 1983. No plausible claim is stated against Judge

Putman.

E. Sheriff Martin, Assistant Jail Administrator Silva, and Administrator Day

An individual may be sued under § 1983 in both his individual and his official capacity.

4 Presumably, Rogers is referring to the Honorable John Putman, Fourteenth Judicial Circuit,

Division 3, presiding in Baxter, Boone, Marion, and Newton Counties.

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“Claims against individuals in their official capacities are equivalent to claims against the entity

for which they work; they require proof that a policy or custom of the entity violated the plaintiff’s

rights, and the only type of immunity available is one belonging to the entity itself.” Gorman v.

Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted).

1. Official Liability Claims

“Section 1983 liability for a constitutional violation may attach to a municipality if the

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) (citations omitted). “It is only when the execution of the

government’s policy or custom [or failure to train its’ employees]. . . inflicts the injury that the

municipality may be held liable under § 1983.” City of Canton, Ohio v. Harris, 489 U.S. 378,

385 & 388 (1989) (citations and internal quotation marks omitted) (recognizing for the first time

that a municipality’s failure to train its’ employees could subject it to liability “where the failure

to train amounts to deliberate indifference to the rights of persons with whom the police come into

contact”).

Rogers utilized the court-approved form in filing his Amended Complaint. (ECF No. 6).

The form provides an area under each claim for the plaintiff to “describe the custom, policy, or

widespread practice that you believe caused the violation of your constitutional rights.” See e.g.,

Id. at 9. Instead of describing a custom, policy, or practice, Rogers wrote the resolution he sought.

Id. Rogers makes no argument that any of the BCDC policies are unconstitutional.

The next method of establishing municipal liability is through the existence of an unofficial

custom:

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[A] plaintiff may establish municipal liability through an unofficial custom of the

municipality by demonstrating (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) that plaintiff was injured by acts pursuant to the governmental

entity’s custom, i.e., that the custom was a moving force behind the constitutional

violation.

Corwin, 829 F.3d at 700 (citation and internal quotation marks omitted).

In reviewing Rogers’ claims, the Court must liberally construe his allegations and weigh

all factual allegations in his favor. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (Court must

liberally construe the facts unless they are clearly baseless—those that are fanciful, fantastic, and

delusional). In Claim Two, Rogers has alleged a plausible official capacity claim based on the

BCDC’s pattern or practice of providing substandard meals to detainees while providing detention

personnel with superior meals. In Claim Three, Rogers alleges that he is discriminated against

because he is a pretrial detainee and that sex offenders are improperly classified and assigned.

The Court believes a plausible official capacity claim is stated in Claim Three. In Claim Four, a

plausible official capacity claim is stated based on Rogers’ allegations that the newspapers are

“marked up” or areas are blacked-out before being given to inmates. Finally, in Claim Five,

Rogers’ assertion that he is being denied access to books and given no explanation states a

plausible official capacity claim. In finding that plausible official capacity claims are stated, the

Court makes no comment on the strength of these claims and whether they will survive a summary

judgment motion.

2. Individual Liability Claims

The next question, then, is whether Rogers has asserted plausible individual capacity

claims against Sheriff Martin, Assistant Administrator Silva, or Administrator Day. “[A] general

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responsibility for supervising the operations of a [detention center] is insufficient to establish the

personal involvement required to support liability.” Camberos v. Branstad, 73 F.3d 174, 176 (8th

Cir. 1995). In other words, “[p]rison administrators cannot be held liable on a vicarious liability

theory for the acts of their subordinates absent factual allegations of personal participation,

direction, or acquiescence in those acts and omissions.” Walker v. Missouri Bd. of Prob. &

Parole, 586 F. Supp. 411, 413 (W.D. Mo. 1984). Except for Claim Two (in which Rogers alleges

Sheriff Martin is embezzling funds meant to feed the inmates), Rogers has alleged no facts

suggesting any personal involvement on the part of Sheriff Martin, Assistant Administrator Silva,

or Administrator Day. While Rogers’ allegation that Sheriff Martin is embezzling funds

designated to feed inmates may seem improbable, the Court is not free to dismiss such an

allegation. Denton v. Hernandez, 504 U.S. 25, 33 (1992).5 No plausible individual liability

claims are stated against Assistant Administrator Silva or Administrator Day.

F. Claim One—Exposure to Sexual Harassment

Croom is the victim of the alleged sexual harassment and not a party to this case. Rogers

may not assert a claim on her behalf. See 28 U.S.C. § 1654; Lewis v. Lenc-Smith Mfg. Co., 784

F.2d 829, 830 (7th Cir. 1986) (a person who is not a licensed attorney may not represent another

individual in federal court). Because he was not the victim of the harassment, Rogers has failed

to assert a plausible sexual harassment claim. See e.g., Freitas v. Ault, 109 F.3d 1335, 1338 (8th

Cir. 1997) (sexual harassment can never serve a legitimate penological interest and may in certain

5 “Some improbable allegations might properly be disposed of on summary judgment, but to

dismiss them as frivolous without any factual development is to disregard the age-old insight that

many allegations might be ‘strange, but true; for truth is always strange, Stranger than fiction.’”

Id. (quoting Lord Byron, Don Juan, canto XIV, stanza 101 (T. Steffan & W. Pratt eds. 1977)).

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circumstances constitute the unnecessary and wanton infliction of pain in violation of the Eighth

Amendment). Similarly, because Rogers expressed no fear that he would be subjected to sexual

harassment, no plausible failure to protect claim is stated. See e.g., Schoelch v. Mitchell, 625 F.3d

1041 (8th Cir. 2010) (inmate must show he was incarcerated under conditions posing a substantial

risk of serious harm and defendant was deliberately indifferent to the risk of harm); Buckner v.

Hollins, 983 F.2d 119, 112 (8th Cir. 1993) (deliberate indifference test is applicable to allegations

that prison guards or officials failed to protect an inmate from attack by prison guards).

The only other possible claim would be a conditions of confinement claim. Pretrial

detainees may not be subjected to conditions of confinement that are punitive in effect. Bell v.

Wolfish, 441 U.S. 520, 535 (1979) (Detainee’s conditions of confinement violate the Due Process

Clause of the Fourteenth Amendment if they amount to punishment of the detainee). Conditions

of confinement must be humane and ensure the basic necessities of adequate food, clothing,

shelter, medical care, and safety. See e.g., Wilson v. Seiter, 501 U.S. 294, 303 (1991); Beaulieu

v. Ludeman, 690 F.3d 1017, 1045 (8th Cir. 2012). In considering whether a conditions of

confinement claim states a sufficiently serious deprivation the Court considers, among other

things, the duration of alleged inhumane condition. Exposure to certain conditions such as

excessive noise, light, disease, or chemicals can support a valid constitutional claim provided the

exposure is of sufficient duration and/or of sufficient severity. See e.g., Murphy v. Dowd, 975

F.2d 1229, 1234 (8th Cir. 1992) (subjecting a prisoner to a few hours of periodic loud noises that

merely annoy, rather than injure the prisoner does not demonstrate a disregard for the prisoner’s

welfare); Williams v. Jackson, 600 F.3d 1007 (8th Cir. 2010) (exposure to harmful ultraviolet light

caused by removing the shield designed to protect from the light); Chocate v. Runion, No. 4:20-

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cv-04109, 2022 WL 3908836 (W.D. Ark. Aug. 30, 2022) (exposure to COVID-19 insufficient to

state a claim where facility adopted extensive policies and procedures to deal with the threat);

Johnson v. Boyd, 676 F. Supp. 2d 800 (E.D. Ark. 2009) (no claim stated from exposure to

chemicals from professional exterminator where ventilation system was working). The Court,

however, cannot say at this stage of the litigation that the daily exposure to a guard sexually

assaulting another prisoner, as Rogers alleges, can never state a claim of constitutional dimension.

Rogers has, therefore, stated a plausible claim.

The question becomes: who has Rogers asserted a plausible claim against? Clearly,

Officer Treat, since he is the alleged harasser. With respect to Turn Key Medical, Rogers only

asks that it be directed to provide mental health care to the inmates. Rogers does not allege Turn

Key denied his requests for mental health care or otherwise violated the constitution with respect

to this claim. Moreover, Rogers also lists Sheriff Martin, Assistant Administrator Silva, Sergeant

Harp, Mrs. P., and Mrs. Treat, stating only that they have allowed this conduct to occur. This is

insufficient. Section 1983 requires proof of an affirmative causal connection between the actions

of each Defendant and the constitutional deprivation at issue. Thus, the only plausible claim is

against Officer Treat.

G. Claim Two—Inadequate Diet

The Court has already found that Rogers has stated a plausible individual and official

capacity claim against Sheriff Martin and plausible official capacity claims against Assistant

Administrator Silva, and Administrator Day. However, Rogers once again takes the “shotgun”

approach to naming Defendants; he names Sergeant Harp, Mrs. P., Officer Treat, Officer Cottrell,

Corporal Honeyman, Mrs. Isabell, Corporal Admire, Officer Mixon, Officer Phillips, Officer

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Bigner, Sergeant B., and Turn Key Medical. He fails to allege any personal involvement of these

Defendants regarding the provision of an alleged inadequate diet; he also fails to allege that they

had any authority to change the diet. No plausible claim is stated against these Defendants.

H. Claim Three—Sex Offender Classification, Assignment, and Discrimination

A plausible official capacity claim has been stated against Sheriff Martin, Assistant

Administrator Silva, and Administrator Day. However, Corporal Cottrell, Sergeant Harp, Officer

Bryant, Corporal Admire, Sergeant B., and Officer Phillips are also named as Defendants. Rogers

does not allege that any of these Defendants were involved in the creation of the classification or

assignment policies, applied the policies in an improper manner, or personally discriminated

against him. No plausible claims are stated against these Defendants.

I. Claim Four—First Amendment Rights to Newspaper

The Court believes a plausible official capacity claim has been stated against Sheriff

Martin, Assistant Administrator Silva, and Administrator Day. Rogers also names as Defendants

on this claim Sergeant Harp, Mrs. P., Officer Treat, Officer Cottrel, Corporal Honeyman, Ms.

Isabell, Corporal Admire, Officer Mixon, Officer Phillips, Officer Bigner, Sergeant B., and Turn

Key Medical. Once again, he fails to allege any personal involvement on their part, that they have

the authority to stop the practice, or that they had any part in implementing the practice. This is

simply insufficient to state plausible claims against them.

J. Claim Five—First Amendment Right to Access to Books

Plausible official capacity claims have been made against Sheriff Martin, Assistant

Administrator Silva, and Administrator Day. However, Rogers also names as Defendants

involved in this claim Sergeant Harp, Officer P., Officer Treat, Officer Cottrell, Corporal

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Honeyman, Ms. Isabell, Corporal Admire, Officer Mixon, Officer Phillips, Officer Bigner,

Sergeant B., and Turn Key Medical. Rogers fails to allege that any of these Defendants were

personally involved in adopting the policy which denied him access to books, personally denied

him access to books, or had any authority to change the policy. No plausible claims have been

asserted against these Defendants.

K. Claim Six—Not Allowed Haircuts the Last Weekend of the Month

Rogers asks that the inmates be given back their monthly haircuts. At the time Rogers

filed the Amended Complaint, inmates had only been denied the monthly haircuts on one occasion.

“[T]here is no clearly established constitutional right to a haircut.” Simmons v. Lanigan,

No. 16-4215, 2021 WL 1712577, *6 (D.N.J. Apr. 30, 2021) (cleaned up). An allegation that an

inmate has been denied a haircut falls far short of that necessary to state a constitutional violation.

Stevenson v. Lubbock Cty. Sheriff’s Dep’t., No. 93-1532, 1993 WL 347322, *1 (5th Cir. Aug. 20,

1993); see also Russell v. Helder, No. 5:15-cv-05082, 2016 WL 4014106, *5 (W.D. Ark. June 28,

2016) (failure to receive shave or haircut unless inmate had court insufficient to state an

unconstitutional condition of confinement claim). No plausible claim is stated in Claim Six.

L. Claim Seven—Inability to Meet with His Public Defender

No plausible claim is stated against any of the named Defendants. Instead, Rogers

indicates it is a secretary at the public defender’s office who is impeding his access and only

scheduling his appointment for days the attorney is in court. Personal involvement is essential to

§ 1983. Rogers does not allege that any of the named Defendants played any part in scheduling

his appointments with his public defender, precluded him from making appointments, or interfered

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in any way with the public defender’s access to Rogers. No plausible claim is stated in Claim

Seven.

IV. CONCLUSION

For these reasons, it is recommended that:

• All claims against President Biden be dismissed.

• All claims against Governor Sanders be dismissed.

• All claims against the Boone County Sheriff’s Department be dismissed.

• All claims against Judge Puttman be dismissed.

• All individual capacity claims against Assistant Administrator Silva and

Administrator Day be dismissed.

• Except for Claim Two, the remaining individual capacity claims against Sheriff

Martin be dismissed.

• Claim Six be dismissed.

• Claim Seven be dismissed. And,

• All claims against the following Defendants should be dismissed: Sergeant Harp;

Officer Mrs/Ms. P; Officer Lance Cottrell; Officer Brandon Cottrell; Corporal

Honeyman; Investigator Ms. Isabell; Corporal Admire; Jane Doe; Sergeant B.;

Turn Key Medical; Officer Mixon, Officer Bigner, Officer Phillips, and Officer

Mrs. Treat.

This leaves for later adjudication the individual capacity claim against Officer Treat (Claim

One), the individual capacity claim against Sheriff Martin (Claim Two), and the official capacity

claims against Sheriff Martin, Jail Administrator Day, and Assistant Administrator Silva (Claims

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One through Five). By separate Order the Amended Complaint will be served on these four

Defendants.

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 15th day of September 2023.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE

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