Owens v. Samuel

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

TOMMY OWENS PLAINTIFF

v. Civil No. 5:24-cv-05045-TLB-CDC

OFFICER JASMINE SAMUEL, Bentonville DEFENDANTS

Police Department; OFFICER KEVIN

LUKE, Springdale Police Department;

Springdale Police Department; and

GILVERTO GARCIA, Walmart Supercenter

Corporation

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed by Tommy Owens (“Owens”) pursuant to 42 U.S.C. §

1983. Owens proceeds pro se and in forma pauperis. He maintains his Constitutional rights were

violated when he was illegally detained; his person and vehicle were illegally searched; his

property was seized; and he was arrested by the Defendants.

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

pursuant to 28 U.S.C. § 1915A.1 Under § 1915A, the Court is required 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).

I. BACKGROUND

Owens filed this case on February 20, 2024. (ECF No. 1). He was directed to file an

Amended Complaint to cure deficiencies in the original Complaint. (ECF No. 6). Owens filed his

1 Enacted as part of the Prison Litigation Reform Act (“PLRA”).

Amended Complaint on March 7, 2024. (ECF No. 7). It is the Amended Complaint that is before

the Court for screening. (ECF No. 7).

On Sunday, September 10, 2023, Owens says he stopped at a Walmart Supercenter in

Benton County, Arkansas, to purchase a few items before he headed to Chicago, Illinois. (ECF

No. 7 at 6). At the time, he was driving a U-Haul truck. Id. Owens is apparently a truck driver

as he states he had dropped off a shipment on the previous Friday at a Springdale business and was

going to Chicago, Illinois to pick up a shipment. Id.

Owens was approached by Defendants Samuel, Luke, and Scallon. (ECF No. 7 at 6).

Owens was detained and questioned by the officers regarding the breaking and entering and theft

of money from registers at two Walmart stores. Id. Owens states he was told he met the

description of the suspect which was: black male; 5’10” to 6’3” in height; 36-50 years old; with

dreadlocks; and driving a U-Haul truck. Id. at 6 & 8. According to Owens, after he provided proof

of his identification, he was informed that a Walmart associate, Defendant Garcia had found

Owens’ name in Walmart’s database. Id. at 8.

Once Owens and Defendants Samuel, Luke, and Scallon, went to the U-Haul truck, it was

thoroughly searched. (ECF No. 7 at 9). Various items including money and electronics were

seized. Id. Owens was arrested and transported to the Lowell, Arkansas police station where he

was given his Miranda rights and exercised his right to remain silent. Id. Owens was then

transported to the Washington County Detention Center where he remains incarcerated. Id. at 1

& 9.

Owens objects to having been arrested with no citation or warrant. (ECF No. 7 at 10). He

also contends the affidavit of probable cause for the issuance of the post-arrest warrant was

deficient. Id. Specifically, he contends it contained no photographs, no social security number,

no indication of where he lived, no identification information, no signed Miranda statement, and

no description of the cash and property seized. Id.

As relief, Owens seeks compensatory and punitive damages. (ECF No. 7 at 11). He also

asks that Walmart be required to drop the criminal charges against him. Id. Finally, he seeks the

return of his personal property. Id.

II. LEGAL STANDARD

Under § 1915A, 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

frivolous, malicious, or fail to state a claim upon which relief may be granted, or (2) seeks

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. Spencer v. Rhodes, 656 F. Supp. 458, 464 (E.D.N.C. 1987); 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 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.” Jackson, 747 F.3d at 544 (cleaned up). However, the complaint must still allege

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

III. ANALYSIS

Publicly available Arkansas court records2 establish that Owens has been charged in the

Washington County Circuit Court with two counts of breaking or entering and one count of theft

of property of more than $1,000 but less than $5,000. State v. Owens, 72CR-23-2066.3 The

criminal information indicates the crimes occurred on or about September 9, 2023, at the Walmart

on Elm Springs Road (count 1) and at the Walmart on S. Pleasant Street (count 2). Id. Although

he is represented by counsel, Owens has filed pro se motions for dismissal, return of property, to

suppress evidence, and various other motions. Id. All appear to have been denied on the basis

that Owens is represented by counsel and all motions must be filed by his counsel. Id.

A. Claims Against Defendant Garcia

To establish a section 1983 claim, Owens must show that (1) he was deprived of a federal

constitutional or statutory right (2) by a person acting under color of State law. 42 U.S.C. § 1983.

Section 1983 “protects against acts attributable to a State, not those of a private person.” Lindke

v. Freed, ___ U.S. ___, 144 S. Ct. 756, ____ (2024). “To assess state action, this Court answers

two questions. First, whether the claimed deprivation resulted from the exercise of a right or

privilege having its source in state authority. Second, whether the party engaging in the

deprivation may be appropriately characterized as a state actor.” Roberson v. Dakota Boys & Girls

Ranch, 42 F.4th 924, 928 (8th Cir. 2022) (internal quotation marks and citations omitted). A

2 The Court may take judicial notice of public records. See e.g., Stutzka v. McCarville, 420

F.3d 757, 760 n.2 (8th Cir. 2005).

3 Arkansas Case Information. https://caseinfo.arcourts.gov/opad/case/72CR-23-2066 (last

visited April 2, 2024).

private individual who reports a crime, provides information to the police, responds to questions

by the police, and is a potential witness does not act under color of law and therefore cannot be

considered a State actor. See Logan v. Knight, Case No. 3:22-cv-03029, 2022 WL 2515174, *2

(W.D. Ark. June 15, 2022) (citing Moldowan v. City of Warren, 578 F.3d 351, 399 (6th Cir. 2009));

Wickersham v. City of Columbia, 481 F.3d 591, 598 (8th Cir. 2007) (“[T]he mere invocation of

state legal procedures, including police assistance, does not convert a private party into a state

actor”). Owens’ claims against Defendant Garcia are subject to dismissal.

B. Claims Against Defendants Samuel, Luke, and Scallon

Pursuant to Younger v. Harris, 401 U.S. 37 (1971), federal courts are required to abstain

from hearing cases when “(1) there is an ongoing state judicial proceeding which (2) implicates

important state interests, and when (3) that proceeding affords an adequate opportunity to raise the

federal questions presented.” Norwood v. Dickey, 409 F.3d 901, 903 (8th Cir. 2005) (citing Fuller

v. Ulland, 76 F.3d 957, 959 (8th Cir. 1996)). “If all three questions are answered affirmatively, a

federal court should abstain unless it detects ‘bad faith, harassment, or some extraordinary

circumstance that would make abstention inappropriate.’” Night Clubs, Inc. v. City of Ft. Smith,

Ark., 163 F.3d 475, 479 (8th Cir. 1998) (quoting Middlesex Cty. Ethics Comm. v. Garden State

Bar Ass’n, 457 U.S. 423, 435 (1982)).

In this case, all three questions are answered affirmatively. Owens makes no argument he

cannot raise his claims in the state criminal case. Owens has not identified any extraordinary

circumstances that suggest this Court should interfere with the state criminal case. Arkansas

clearly has an important interest in enforcing its criminal laws. There are important interests in

allowing state courts to administer their own cases. There is no reason Owens cannot raise his

federal claims in the state criminal case. Owens federal claims are intertwined with his state

criminal case. Abstention is appropriate in this case.

In cases where damages are sought, the Eighth Circuit, following applicable Supreme

Court precedent, has emphasized that traditional abstention principles generally require a stay as

the appropriate mode of abstention rather than a dismissal. Night Clubs, Inc., 163 F. 3d at 481. In

Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996), the Court said:

In those cases in which we have applied traditional abstention principles to damages

actions, we have only permitted a federal court to withhold action until the state

proceedings have concluded, that is, we have permitted federal courts applying

abstention principles in damages actions to enter a stay, but we have not permitted

them to dismiss the action altogether.

Id. at 730.

IV. CONCLUSION

Accordingly, it is recommended that:

• All claims against Defendant Garcia be DISMISSED WITHOUT

PREJUDICE and he be terminated as a Defendant; and

• The claims against Defendants Samuel, Luke, and Scallon be STAYED and

ADMINISTRATIVELY TERMINATED pending the resolution of Owens’

state criminal case. Owens will have thirty (30) days after the final resolution of

his pending criminal case to file a Motion to Reopen this case. Upon notice filed

by the Defendants, the failure of Owens to file the Motion by the deadline will

result in the summary dismissal of this case.

Status of Referral: The referral will terminate upon the filing of this Report and

Recommendation.

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.

RECOMMENDED this 3rd day of April 2024.

s/ Christy Comstock

CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE