Villarreal v. Watson

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

JUSTIN AARON VILLARREAL PLAINTIFF

v. Civil No. 4:23-cv-04106-SOH-BAB

SERGEANT JOSHUA WATSON;

MAJOR VICKI WALKER; and DEFENDANTS

JOHN MINERS

REPORT AND RECOMMENDATION

Plaintiff, Justin Aaron Villarreal, currently an inmate of the Arkansas Department of

Corrections Ouachita River Unit, 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 Section 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 7, 2023. (ECF Nos. 1, 2). The Court granted Plaintiff’s IFP

Motion on the same day. (ECF No. 3).

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At all times relevant to the claims in this matter, Plaintiff was a convicted inmate at

Southwest Arkansas Community Correction Center (“SWACCC”) in Texarkana, Arkansas. In

his Complaint, Plaintiff alleges three claims1 against Defendants, Sergeant Joshua Watson, Major

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Vicki Walker, and Warden John Miners.

In Claim One, Plaintiff claims all Defendants intentionally placed him in harms way by

allowing Defendant Watson to be assigned to Plaintiff’s housing unit even though Plaintiff has a

separate civil action pending against him. Plaintiff claims Defendant Watson is “harassing me

and threatening me.” Plaintiff also alleges Defendants Walker and Miners were aware of this

behavior before they assigned him to Plaintiff’s housing unit. (ECF No. 1, p. 4).

In Claim Two, Plaintiff alleges a claim of harassment against only Defendant Watson.

Plaintiff claims he has continuously been “harassed and threatened” by Defendant Watson since

filing the separate case against him. Defendant Watson told Plaintiff: “I am going to hurt you and

make your life suck.” (ECF No. 1, p. 6).

In Claim Three, Plaintiff claims Defendants Walker and Miners were negligent in their

placement of Defendant Watson as supervisor over Plaintiff’s housing unit at SWACCC. (ECF

1 Plaintiff’s claims are specifically listed as: Claim One for “Intentional Placing In Harms Way;”

Claim Two for “Harassment;” and Claim Three for “Negligence of duty.” (ECF No 1, pp. 4-9).

While Plaintiff does state in his factual assertions that he has a previous case filed against

Defendant Watson and the verbal harassment alleged here escalated after the filing of the previous

case, Plaintiff does not provide the Court with any indication he is asserting a retaliation claim

against Defendant Watson. There is no assertion of a First Amendment violation and no factual

allegations of chilling Plaintiff’s separate case prosecution. Accordingly, even given a liberal

construction as a pro se Complaint, the Court does not consider Plaintiff’s Complaint to assert a

claim of retaliation. See Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004) (to establish a First

Amendment retaliation claim under Section 1983 a plaintiff must show: “(1) he engaged in a

protected activity, (2) the government official took adverse action against him that would chill a

person of ordinary firmness from continuing the activity, and (3) the adverse action was motivated

at least in party by the exercise of the protected activity.”).

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No. 1, p. 8).

Plaintiff claims these actions by Defendants violated his 8th and 14th Amendment rights

as well as his rights under the “Residents Bill of Rights.”2 (ECF No. 1, p. 8). Plaintiff seeks

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compensatory and punitive damages as relief in this matter. Id. at 9.

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).

2 The Plaintiff does not offer any explanation of the “Residents Bill of Rights.” Without any

further information, the Court must presume it is an internal policy of SWACC or the Arkansas

Department of Community Corrections regarding the rights of inmates in their facilities.

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III. DISCUSSION

The facts set forth in Plaintiff’s Complaint against Defendants do not support a plausible

cause of action for relief under 42 U.S.C. § 1983. See Schaller Tel. Co. v. Golden Sky Sys., Inc.,

298 F.3d 736, 740 (8th Cir. 2001) (explaining a plaintiff’s claim should be dismissed for failure to

state a claim if it appears beyond a doubt the complaint can prove no set of facts to support his

purported cause of action.)

Plaintiff’s Complaint, while separated into three claims, relies wholly on the same actions

of Defendant Watson. The crux of all three of Plaintiff’s claims are Defendant Watson’s verbal

threats and harassment. It is well established that “[v]erbal threats do not constitute a

constitutional violation.” Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir. 1985). Similarly,

taunts, name calling, and the use of offensive language does not state a claim of constitutional

dimension. McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993) (inmate's claims of general

harassment and of verbal harassment were not actionable under Section 1983); O'Donnell v.

Thomas, 826 F.2d 788, 790 (8th Cir. 1987) (verbal threats and abuse by jail official did not rise to

the level of a constitutional violation). Accordingly, Plaintiff’s Claim Two for harassment against

Defendant Watson clearly fails to state a cognizable constitutional violation claim.

Similarly, Plaintiff’s Claim One and Three appear to allege failure-to-protect claims.

Specifically, that Defendants Walker and Miners should have prevented Defendant Watson’s

verbal harassment and threats against Plaintiff or Defendants Walker and Miners were negligent

in placing Defendant Watson in charge of Plaintiff’s housing unit. An Eighth Amendment claim

for failure to protect is comprised of two elements: (1) first, an “inmate must show that [he] is

incarcerated under conditions posing a substantial risk of serious harm” Farmer v. Brennan, 511

U.S. 825, 834 (1994); (2) second, Plaintiff must establish that the Defendants recklessly

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disregarded that risk. Jackson v. Everett, 140 F.3d 1149, 1151 (8th Cir. 1998). The prison

official's state of mind is measured by a subjective, rather than an objective standard. Farmer,

511 U.S. at 838-839. “The subjective prong of deliberate indifference is an extremely high

standard that requires a mental state of more than gross negligence,” namely, a “mental state akin

to criminal recklessness.” Saylor v. Nebraska, 812 F.3d 637, 644 (8th Cir. 2006) (citations and

quotations omitted); see also Kulkay v. Roy, 847 F.3d 637, 643 (8th Cir. 2017) (explaining “mere

negligence or inadvertence does not rise to the level of deliberate indifference.”)

Here, as already explained, the alleged harm (verbal threats and harassment) does not rise

to the level of a constitutional violation. The Court does not find the verbal threats and harassment

posed a substantial risk of serious harm to Plaintiff’s health or safety. Accordingly, Plaintiff has

failed to establish the first element of a failure-to-protect claim, and he has failed to state a

cognizable constitutional violation claim against Defendants Walker and Miners.3

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It is also well settled that inmates do not have a constitutional right to enforce compliance

with internal prison rules or regulations. See Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003)

(“there is no federal constitutional liberty interest in having . . . prison officials follow prison

regulations”); Gardner v. Howard, 109F.3d 427, 430 (8th Cir. 1997) (violating prison policy does

not per se implicate Section 1983 liability). Accordingly, Plaintiff’s claim that Defendants’

actions violate the “Residents Bill of Rights,” also fails to state a cognizable constitutional

violation.

Finally, Plaintiff asserts his claims against Defendants in both their individual and official

3 While the Court need not address the second element of Plaintiff’s failure to protect since the

first element was not satisfied, the Court does note the allegation of Defendants negligent conduct

also cannot satisfy the high deliberate indifference standard of the Eighth Amendment. See

Kulkay v. Roy, 847 F.3d 637, 643 (8th Cir. 2017).

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capacities. However, without a cognizable constitutional violation alleged, there can be no

official capacity claim against Defendants. See 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)).

IV. CONCLUSION

For these reasons, it is recommended that Plaintiff’s Complaint (ECF No. 1) be dismissed

without prejudice for failure to state a claim under 28 U.S.C. § 1915A(b)(1).

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 5th day of December 2023.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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