The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
MALCOLM HATTER, JR. PLAINTIFF
# 13093-23
v. 4:24CV00540-JM-JTK
ERIC S. HIGGINS, et al. DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The following recommended disposition (“Recommendation”) has been sent to United
States District Judge James M. Moody, Jr. Any party may file written objections to all or part of
this Recommendation. If you do so, those objections must: (1) specifically explain the factual
and/or legal basis for your objections; and (2) be received by the Clerk of this Court within fourteen
(14) days of this Recommendation. By not objecting, you may waive the right to appeal questions
of fact.
DISPOSITION
I. Introduction
Malcom Hatter, Jr. (“Plaintiff”) is in custody at the Pulaski County Detention Center. He
filed this pro se action under 42 U.S.C. ' 1983 against Pulaski County Sheriff Eric Higgins and
Deputy Washington. (Doc. No. 2). Plaintiff also filed a Motion to Proceed In Forma Pauperis,
which was granted. (Doc. Nos. 1, 3). The Court screened Plaintiff’s Complaint pursuant to the
Prison Litigation Reform Act (“PLRA”) and found Plaintiff’s allegations failed to state a claim on
which relief may be granted. (Doc. No. 3). The Court gave Plaintiff the chance to file an Amended
Complaint to cure the defects in his pleading, along with detailed instructions as to the information
any Amended Complaint should contain. (Id.). Plaintiff has filed his Amended Complaint. (Doc.
No. 4). The Court will now continue screening Plaintiff’s claims.
II. Screening
The PLRA requires federal courts to screen prisoner complaints seeking relief against a
governmental entity, officer, or employee. 28 U.S.C. ' 1915A(a). The Court must dismiss a
complaint or portion thereof if the prisoner has raised claims that: (a) are legally frivolous or
malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief
from a defendant who is immune from such relief. 28 U.S.C. ' 1915A(b).
An action is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Whether a plaintiff is represented by counsel or is appearing
pro se, his complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent,
780 F .2d 1334, 1337 (8th Cir.1985).
An action fails to state a claim upon which relief can be granted if it does not plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). In reviewing a pro se complaint under ' 1915(e)(2)(B), the Court must give
the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972).
The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged
are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32 (1992).
III. Facts and Analysis
Plaintiff’s original statement of claim, in its entirety, read:
On May 4, 2024, 3:15 p.m., while in my cell in a locked down unit, T unit, inmate
L. Green was out [of] his cell with a weapon, the broom stick, beating on my
window trying to break it. When he could not break it he went and got some mase
pepper spray and sprayed the whole can under my door, which almost killed me.
I’m allergic to pepper spray and had a bad allergic reaction to the pepper spray. I
suffered from this for about 30 mins before help came. I fear for my life and need
to be released A.S.A.P. for this gross neglect in Pulaski County locked down unit
T.
(Doc. No. 2 at 4).
The Court explained to Plaintiff that his Complaint failed to state a claim because: he made
no allegations of fact against Defendant Higgins or Washington; he did not allege that a policy or
custom was the driving force behind the alleged violation of his rights; negligence alone is not
sufficient to state a claim under § 1983; and Plaintiff cannot seek release in this § 1983 action.
(Doc. No. 3 at 4-5).
The Court advised Plaintiff that in his Amended Complaint he should provide specific facts
against each named Defendant in a simple, concise, and direct manner, including dates, times, and
places if possible and explain the reasons for an official capacity claim, among other instructions.
(Id. at 5-6).
In his Amended Complaint, Plaintiff sued Eric Higgins and Deputy Washington
(collectively, “Defendants”) in their personal and official capacities. (Doc. No. 4 at 1-2).
Plaintiff’s statement of claim reads:
On May 4, 2024, 3:15 p.m., while in my cell in lock down unit T unit Marte L.
Green was out [of] his cell with a weapon, the broom stick, beating on my window
trying to break it. When he could not break it he went and got some mase pepper
spray and sprayed the whole can under my door which almost killed me. I’m
allergic to pepper and had a bad allergic reaction to the pepper spray. I suffered
from this about 40 mins before help came. I fear for my life and need to be released
A.S.A.P. for this gross neglect in Pulaski County locked down Unit T.
(Id. at 4).
Plaintiff seeks damages and release. (Id. at 5).
Plaintiff’s allegations, which are basically a verbatim reproduction of Plaintiff’s statement
of claim in his original Complaint, fail for the reasons set out below.
A. Official Capacity Claims
Plaintiff sued Defendants in their personal and official capacities seeking damages only.
“A suit against a government officer in his official capacity is functionally equivalent to a suit
against the employing governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254,
1257 (8th Cir. 2010). Accordingly, Plaintiff’s official capacity claims against Defendants are the
equivalent of claims against Pulaski County.
To establish municipal liability, a plaintiff must prove that an official municipal policy,
deliberately indifferent failure to train or supervise, or unofficial custom caused the constitutional
injury. Corwin v. City of Independence, Missouri, 829 F.3d 695, 699 (8th Cir. 2016) (citing
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); City of Canton, Ohio v. Harris, 489 U.S.
378, 389 (1989). Plaintiff has not alleged that a policy or custom was the driving force behind the
alleged violation of his rights. As such, Plaintiff cannot establish liability against Pulaski County.
B. Personal Capacity Claims
Plaintiff brought suit under 42 U.S.C. § 1983. “Liability under § 1983 requires a causal
link to, and direct responsibility for, the alleged deprivation of rights.” Madewell v. Roberts, 909
F.2d 1203, 1208 (8th Cir. 1990). “Because vicarious liability is inapplicable to . . . § 1983 suits, a
plaintiff must plead that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.” Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Bare allegations void of factual enhancement are
insufficient to state a claim for relief under § 1983. See Iqbal, 556 U.S. at 678.
Plaintiff named Eric Higgins and Washington as Defendants but made no allegations of
fact against either of them. Because Plaintiff made no factual allegations against Defendants,
Plaintiff failed to state a claim against Defendants on which relief may be granted. Id.
C. Negligence
Plaintiff mentions “gross neglect.” (Doc. No. 4 at 4). But “[m]ere negligence is not
sufficient to support a cause of action under § 1983.” Davis v. Hall, 992 F.2d 151, 153 (8th Cir.
1993).
D. Release from Custody
Plaintiff seeks release from custody. (Doc. No. 4 at 5). When a prisoner challenges “the
very fact or duration of his physical imprisonment, and the relief he seeks is a determination that
he is entitled to immediate release or speedier release from imprisonment, his sole federal remedy
is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). To the extent Plaintiff
seeks release, he may obtain that relief only through a writ of habeas corpus. The Court cannot
grant that relief in this civil rights action.
IV. Conclusion
IT IS, THEREFORE, RECOMMENDED that:
1. This action be DISMISSED without prejudice for failure to state a claim on which
relief may be granted;
2. The Court recommend1 that this dismissal count as a “strike” for purposes of
28 U.S.C. § 1915(g);2 and
1 The number of strikes a plaintiff has accrued may be determined only by looking
backwards to past dismissals; 28 U.S.C. § 1915(g) leaves the effective decision to the later tribunal.
Gonzalez v. United States, 23 F. 4th 788, 789-91 (8th Cir. 2022).
2 Title 28 U.S.C. § 1915(g) provides as follows: “In no event shall a prisoner bring a civil
action or appeal a judgment in a civil action or proceeding under this section if the prisoner has,
on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.”
3. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis
appeal from any Order adopting these recommendations and accompanying Judgment would not
be taken in good faith.
Dated this 14 day of August, 2024. :
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE