# Ross v. Johnson

> District Court, E.D. Arkansas · June 4, 2025

URL: https://www.frixlaw.com/law-library/cases/11089835

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** June 4, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

JOHN CALEB ROSS PLAINTIFF
ADC # 156069

v. 4:25CV00428-BSM-JTK

ANTONIO D. JOHNSON, JR., et al. DEFENDANTS

PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The following recommended disposition has been sent to United States District Judge
Brian S. Miller. 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
John Caleb Ross (“Plaintiff”) is in custody at the Tucker Unit of the Arkansas Division of
Correction (“ADC”). He filed a pro se civil action under 42 U.S.C. § 1983, as well as 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 asked Plaintiff
for additional factual details about his claims. (Doc. No. 4). Plaintiff was given the opportunity
to file an Amended Complaint to cure the deficiencies in his pleading. (Id.). Plaintiff has filed
his Amended Complaint. (Doc. No. 6). The Court will now continue screening his 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). See also 28 U.S.C.
§ 1915(e) (screening requirements).
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. Discussion
A. Plaintiff’s Amended Complaint
Plaintiff’s Amended Complaint is the operative pleading in this case. (Doc. No. 6). In
his Amended Complaint, Plaintiff sued Tucker Unit Deputy Warden Antonio D. Johnson, Jr., East
Arkansas Regional Unit Warden Kenyon Randle, Captain Etherly, and ADC Director Dexter
Payne (collectively, “Defendants”) in their personal and official capacities under 42 U.S.C. § 1983.
(Doc. No. 6 at 1-2). Plaintiff’s alleges Defendants have failed to protect him from an Aryan
group that put a hit out on him. He also brings conditions of confinement claims.
The history of the friction between Plaintiff and the Aryan group dates back to March 2021
when Plaintiff was threatened by a Tyler Standridge. (Id. at 4). When Plaintiff was later placed

in custody at the Dallas County, Arkansas, Detention Center, another inmate asked Plaintiff if he
knew Tyler Standridge. (Id.). The other inmate was a member of W.A.R., an Aryan gang. (Id.).
Plaintiff overheard the other inmate tell someone that Plaintiff has “a battery charge against one
of their bro’s kids.” (Id. at 5). Plaintiff also overhead the other inmate say that “they have money
on [Plaintiff’s] head.” (Id.). Plaintiff told the guards what he had heard and was transferred to
the Hot Spring County Jail, and then to the Pine Bluff Unit of the ADC where he remained problem
free until May 2022. (Doc. No. 6 at 5).
In May 2022, Plaintiff was transferred to the Barbara Ester Unit of the ADC. (Id.). One
day in December 2022, Plaintiff recognized his victim’s father as an inmate housed in the same
building as Plaintiff. (Id.). Plaintiff says that same day he noticed a group of Aryans sharpening

objects on the ground. (Id.). Plaintiff alerted staff to the issue and was moved to another
building. (Id.). Plaintiff says that while he was laying down he heard other inmates saying that
the Aryans would kill Plaintiff for what he had done. (Id. at 6). Plaintiff spoke to a captain about
this problem and claims the captain told Plaintiff there was nothing that could be done if Plaintiff
had not been in an altercation. (Doc. No. 6 at 6). But within a couple of days Plaintiff was
transferred to the East Arkansas Regional Unit (“EARU”). (Id.).
After only a few hours at the EARU, another inmate told Plaintiff that the Aryans were
planning to stab Plaintiff. (Id.). After the lights were turned off in the barracks, Plaintiff “noticed
two Aryans go under their racks and get something [that Plaintiff] knew was a weapon.” (Id.).
Plaintiff told staff and was taken to the infirmary. (Id.).
On January 7, 2023, Plaintiff was placed in restraints and placed in a bull pen in
Max/Isolation at the EARU. (Id.). Defendant Etherly kept Plaintiff in the bull pen, a space large

enough only to sit down, for two days. (Doc. No. 6 at 6, 10). During that time, Plaintiff had to
urinate on the ground and sleep in the same area. (Id. at 6).
On January 9, 2023, Plaintiff was placed in a cell. (Id. at 7). In February 2023, Plaintiff
complained to Defendant Payne about his situation. (Id.).
On or around March 23, 2023, Plaintiff was transferred to the Grimes Unit where he refused
population and was asked to write his first witness statement. (Id.). Plaintiff was placed in a cell
in isolation. (Id.). Plaintiff wrote to Defendant Payne requesting that he be placed in protective
custody. (Doc. No. 6 at 7). Shortly after that, a Captain Baker asked Plaintiff for the name of
Plaintiff’s victim’s father. (Id.). Plaintiff could provide only the name of his victim. (Id.). Not
long after this Plaintiff was transferred to the Tucker Unit where he is currently incarcerated.

(Id.).
When Plaintiff arrived at the Tucker Unit, he refused to go to population. (Id.). Plaintiff
then wrote his second witness statement explaining that he could not do so because his victim’s
father is N.A.E., an Aryan group, and N.A.E. has a hit out on Plaintiff. (Id.). Plaintiff was taken
to isolation. (Doc. No. 6 at 7-8). In June, 2023, Plaintiff received 48-hour relief and called home.
(Id. at 8). During the call Plaintiff’s father told him that Defendant Payne explained Plaintiff was
not receiving help with his situation because Plaintiff had told two different stories about his
circumstances. (Id.). Plaintiff maintains that is not correct. (Id.).
Plaintiff then wrote Defendant Payne and internal affairs. (Id.). Defendant Johnson
called Plaintiff to his office, where the two were joined by Defendant Randle. (Id.). Defendant
Johnson laughed at Plaintiff’s letter and asked Plaintiff to write a witness statement. (Doc. No. 6
at 8). Plaintiff did so, and Defendant Randle asked Defendant Johnson if Plaintiff’s victim’s are

in EOMIS. (Id.). Defendant Johnson responded in the affirmative. (Id.). Plaintiff believes
Defendants Randle and Johnson “knew who [Plaintiff’s] victim’s father was because [Plaintiff]
know[s] his ex and his kid are on his phone and visitation list.” (Id.). But Plaintiff could identify
his victim’s father only as “David.” (Id. at 9). Defendants Randle and Johnson explained to
Plaintiff that his victim’s father could not be placed on Plaintiff’s enemy alert list because there
was not sufficient information to identify him. (Id.).
Sometime in the period of September to December, 2023, Tyler Standridge, who is also
N.A.E., went to Isolation and told Plaintiff that he could not hide forever because Standridge “and
his bros” were waiting for Plaintiff. (Doc. No. 6 at 9).
Plaintiff says that between February 2023 and December 2023, he wrote Defendant Payne

at least 5 times asking for help. (Id.). Plaintiff complains that Defendant Payne only forwarded
Plaintiff’s letter to the warden, but never came and spoke to Plaintiff and never conducted a real
investigation. (Id.).
Sometime between October 2024 and December 2024, Plaintiff refused an “afflicted
person” as his cellmate and as a result Defendant Johnson placed Plaintiff on behavior control
where “they” took Plaintiff’s sleeping bag and forced Plaintiff to sleep in nothing but boxers on a
concrete slab without a blanket. (Id. at 9-10).
Plaintiff explains that he is “currently housed in restricted housing and it’s the only place
[he is] safe and feel[s] safe.” (Id. at 11). He says the guards there understand his situation and
“act like they care so they have allowed [Plaintiff] to stay in a cell with an individual [Plaintiff]
know[s] and [who] is not a threat.” (Id.). Regardless, Plaintiff is still “getting wrote up for not
going to population.” (Doc. No. 6 at 11).
Plaintiff seeks damages and asks to be placed in a one-man cell in protective custody, have

his restrictions lifted, and have his class restored. (Id. at 12).
B. Official Capacity Claims
Plaintiff sued Defendants in their official capacities seeking damages, among other relief.
“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 damages claims against
Defendants are the equivalent of claims against the state of Arkansas and are barred by Eleventh
Amendment. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989).
The Eleventh Amendment does not bar prospective injunctive relief. Pursuant to Ex Parte
Young, an individual may sue a state official in his or her official capacity for prospective

injunctive relief to remedy ongoing violations of federal law. Ex Parte Young, 209 U.S. 123, 149-
50 (1908). But to establish liability in an official capacity suit under § 1983, a plaintiff must
demonstrate that a defendant took action pursuant to an unconstitutional policy or custom. Hood
v. Norris, 189 F. App’x 580 (8th Cir. 2006) (citation omitted). Because Plaintiff has not alleged
that a policy or custom was the driving force behind the alleged violations of his rights, Plaintiff’s
official capacity claims for injunctive relief also fail.
C. 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.
1. Qualified Immunity
Qualified immunity shields a government official from liability when his conduct does not
violate “clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is a question
of law, not a question of fact. McClendon v. Story County Sheriff's Office, 403 F.3d 510, 515
(8th Cir. 2005). Thus, issues concerning qualified immunity are appropriately resolved on
summary judgment. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (the privilege is “an
immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is
effectively lost if a case is erroneously permitted to go to trial.”).

To determine whether defendants are entitled to qualified immunity, courts generally
consider two questions: (1) whether the facts alleged or shown, construed in the light most
favorable to the plaintiff, establish a violation of a constitutional or statutory right; and (2) whether
that right was so clearly established that a reasonable official would have known that his or her
actions were unlawful. Pearson v. Callahan, 555 U.S. 223, 232 (2009).1 “‘A clearly established
right is one that is sufficiently clear that every reasonable official would have understood that what

1Courts are “permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.” Nelson, 583 F.3d at 528 (quoting Pearson v. Callahan, 555 U.S. at
236).
he is doing violates that right.’” Thurmond v. Andrews, 972 F.3d 1007, 1012 (8th Cir. 2020)
(internal citation omitted). In considering whether a right is clearly established, courts do not look
at precedent “at a high level of generality.” Id. Instead, courts “look for a controlling case or a
robust consensus of cases of persuasive authority. There need not be a prior case directly on point,

but ‘existing precedent must have placed the statutory or constitutional question beyond debate.’”
Id. (internal citation omitted). A defendant is entitled to qualified immunity only if no reasonable
fact finder could answer both questions—whether the facts alleged or shown, construed in the light
most favorable to the plaintiff, establish a violation of a constitutional or statutory right and
whether that right was so clearly established that a reasonable official would have known that his
or her actions were unlawful—in the affirmative. Nelson v. Correctional Medical Services, 583
F.3d 522, 528 (8th Cir. 2009).
2. Conditions of Confinement Claims
Plaintiff complains that on January 7, 2023, Defendant Etherly placed Plaintiff in the bull
pen in the EARU. The bull pen was only large enough for Plaintiff to sit. Plaintiff had to urinate

and sleep in the bull pen. He remained in the bull pen under those conditions for two days. (Doc.
No. 6 at 6, 10).
“Any analysis of confinement conditions must be based on the totality of the
circumstances.” Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989). In some situations,
exposure to raw sewage may constitute a violation of an inmate’s Eight Amendment rights. Smith
v. Copeland, 87 F.3d 265, 268-69 (8th Cir. 1996). The length of time an inmate remains in “harsh
conditions is a critical factor” when considering if a constitutional violation occurred. Id. at 269.
For example, the United States Court of Appeals for the Eighth Circuit found no violation under
the Due Process Clause or Eighth Amendment where a pretrial detainee was housed in an isolation
cell with an overflowing toilet for a period of four days. Id.
Here, Defendant Etherly placed Plaintiff in the bull pen where he remained for two days.
Plaintiff explained in his Amended Complaint that he told Defendant Etherly about his problem

with the Aryans and asked Defendant Etherly not to place him in a cell with Aryans. (Doc. No.
6 at 6). According to Plaintiff, Defendant Etherly “told [Plaintiff] he’s got [Plaintiff] that he has
been doing his job long enough.” (Id.). Considering Plaintiff’s concern for his safety, Defendant
Etherly’s response that he’s “got Plaintiff,” and the brief period Plaintiff remained in the bull pen,
Defendant Etherly would be entitled to qualified immunity on Plaintiff’s claim.
Plaintiff also complains after Defendant Johnson placed Plaintiff on behavior control,
“they” took his sleeping bag and forced him to sleep on a concrete slab while he was wearing only
boxers. (Doc. No. 6 at 9-10). As explained above, liability under 42 U.S.C. § 1983 is based on
an individual’s actions. Because Plaintiff made these allegations against a group of people –
“they” – it is unclear who the purported wrongdoers are. Further, Plaintiff did not plead facts

sufficient enough to suggest a constitutional violation. For example, he did not explain how long
he was on behavior control or any other additional factors indicative of deliberate indifference by
Defendant Johnson. As such, these allegations fail to state a claim on which relief may be granted.
3. Failure to Protect
The Eighth Amendment protects inmates against the infliction of cruel and unusual
punishments which in turn obligates prison officials to take reasonable steps to protect inmates
from violence by other inmates. U.S. Const. amend. VIII; Farmer v. Brennan, 511 U.S. 825, 832–
33, 114 S.Ct. 1970 (1994). To establish failure to protect, a plaintiff must show that there was a
substantial risk of harm to him, and that prison officials were deliberately indifferent to that
substantial risk. Axelson v. Watson, 999 F.3d 541, 546 (8th Cir. 2021). “[T]hreats between
inmates are common and do not, under all circumstances, serve to impute actual knowledge of a
substantial risk of harm.” Prater v. Dahm, 89 F.3d 538, 541 (8th Cir.1996). And an inmate’s
“general fear for his safety” does not necessarily establish that a defendant “acted with deliberate

indifference by not placing him in protective custody.” Johnson v. Kelley, No.
519CV00242BRWJJV, 2021 WL 800843, at *4 (E.D. Ark. Feb. 9, 2021) (citation omitted), report
and recommendation adopted, No. 519CV00242BRWJJV, 2021 WL 797108 (E.D. Ark. Mar. 2,
2021), aff’d, 855 F. App’x 313 (8th Cir. 2021). But an inmate “does not have to await the
consummation of threatened injury to obtain preventive relief.’” Farmer, 511 U.S. at 845.
Plaintiff alleges Defendants failed to sufficiently protect him from the threat to his life.
The Court finds that the allegations in Plaintiff’s Amended Complaint fail to state a failure to
protect claim on which relief may be granted. After Plaintiff first complained about the victim’s
father being in the Ester Unit with Plaintiff, Plaintiff was transferred to the East Arkansas Regional
Unit, then the Grimes Unit, and then the Tucker Unit. Each time Plaintiff complained, he was

transferred. At the Tucker Unit, Defendants Johnson and Randle asked Plaintiff for the name of
Plaintiff’s victim’s father. Plaintiff was able to recall only the first name “David.” Defendants
Johnson and Randle said the first name only was insufficient to determine who should be placed
on Plaintiff’s enemy alert list.
Plaintiff says he is “being treated wrong and punished for seeking help.” (Doc. No. 6 at
10). The Court notes, however, that Plaintiff acknowledges that he refused instruction to go to
population and refused to have a cellmate. As a result, Plaintiff received over 50 disciplinaries
and was placed in Isolation. Plaintiff did not identify who wrote the disciplinaries. The Court is
not aware of clearly established precedent finding a violation of protected rights under these
circumstances. Consequently, Defendants are entitled to qualified immunity on this point.
Further, Plaintiff was placed in Isolation. Plaintiff’s placement in Isolation protected his safety.
Plaintiff is now in restrictive housing, “the only place [he is] safe and feels safe.” (Doc. No. 6 at
11).

4. Due Process
As to the relief sought, Plaintiff asks to have his class restored and restrictions lifted. (Id.
at 12). Plaintiff has no protected liberty interest in his class. Moody v. Daggett, 429 U.S. 78, 88
n.9 (1976) (class level). Further, placement in punitive isolation with loss of commissary,
visitation, and telephone privileges generally is not an atypical and significant hardship. Kennedy
v. Blankenship, 100 F.3d 640, 642-43 & n.2 (8th Cir. 1996). Plaintiff does not make allegations
of fact regarding the restrictions placed on him. As currently pled, Plaintiff’s Amended
Complaint does not state a due process claim on which relief may be granted.
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 recommend2 that this dismissal count as a “strike” for purposes of
28 U.S.C. § 1915(g).3

2 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).

3 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
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 4" day of June, 2025. :
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE

imminent danger of serious physical injury.”
12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11089835. Public record. Not legal advice.