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Stewart v. Starkey

United States District Court, W.D. Arkansas, Hot Springs Division

March 22, 2016




Plaintiff, Phillip Dewayne Stewart, filed this case pro se pursuant to 42 U.S.C. § 1983 on June 5, 2015, in the Eastern District or Arkansas. (Doc. 2). It was properly transferred to this District on July 22, 2015. (Doc. 3).

The case is before me for preservice screening under the provisions of the Prison Litigation Reform Act. Pursuant to 28 U.S.C. § 1915A, the Court shall review complaints in civil actions in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).


Plaintiff is currently incarcerated in the Arkansas Department of Correction (“ADC”), Varner Unit. In his complaint, Plaintiff alleges Defendants Wendy Kelly and Marshal Reed violated his constitutional rights by “failing to correct” a disciplinary charge filed against him on December 6, 2013, by Defendant Starkey.[1] (Doc. 2, pp. 13, 22). Plaintiff alleges Defendant Threlkeld wrongfully punished him by forwarding his disciplinary charge to the disciplinary hearing officer rather than dismissing the charge. (Doc. 2, p. 32). He alleges Defendant Banister wrongfully punished him, assigning him restrictions on telephone, visitation, and commissary. (Doc. 2, p. 36). Plaintiff alleges Defendant Starkey unlawfully questioned him about his December 18, 2013, grievance regarding the disciplinary charge during a routine cell search on February 5, 2014. He alleges this questioning lengthened the time of the routine cell search, thereby encroaching on his leisure time. (Doc. 2, pp. 9-12).

Plaintiff attached a copy of the disciplinary action and the subsequent grievances to his complaint. The disciplinary charge underlying this case was written by Sergeant Kevin Starkey on December 6, 2013, and is based on events which occurred on December 4, 2013. (Doc. 2, pp. 39-40). The charges were failure to obey an order, insolence to a staff member, and out of place of assignment. (Doc. 2, p. 39). The circumstances listed in the original incident report were as follows:

On above date and while working in the garden Farm Zone 1, Cpl. Williams took the squad to a water break. Inmate Stewart, P. #151956 was trying to use the bathroom facing the parking lot. Cpl. Williams told him to step across the road. Inmate then tried to go on the picking crates. He then moved him over by the trailer and he used the bathroom. I, Sgt. Starkey could hear him saying something about a lawsuit. Inmate then went across the road and sat down. Major pulled up, I was talking to Major. Inmate Stewart got up, came across the road and tried to walk upon myself and Major sitting in the truck. I backed my horse up and [a]sked what he was doing. Inmate said “I am going to talk to Major.” I gave him a direct order to stop. He became belligerent. Major stepped out, placed him in cuffs and hauled him in. End of statement.

(Doc. 2, p. 46). A disciplinary hearing action was conducted on December 17, 2013. The decision from that hearing, dated December 19, 2013, affirmed all charges except the out of place of assignment. (Doc. 2, pp. 39-40). Plaintiff wrote grievance OR-13-01624 on December 18, 2013. (Doc. 2, p. 43). On February 17, 2014, Defendant Kelley found his appeal to be without merit. (Doc. No. 2, p. 47).

Plaintiff wrote grievance OR-14-00136 on February 5, 2014. (Doc. 2, p. 42). He alleged Defendant Starkey came to his cell, accompanied by Sergeant Turner, to do a routine search of the cell. He alleged Defendant Starkey harassed him about the grievance he wrote against him in December, and “chewed out” his cellmate by asking him if he was Plaintiff’s lawyer. He alleges these questions prolonged the time used for the cell search. He also alleges Defendant Starkey told him “I got something for you, wait until you come to field utility.” Id. He alleges this cell search “took away from [his] reading, writing, and visiting in the day room with others. And he threatened me.” Id. Plaintiff stated Sergeant Turner was present and “very professional” during the search. Id. In his response to the grievance, Defendant Starkey stated this was a routine search, but admitted “he asked inmate Stewart how he could lie on [a] grievance.” He also stated Plaintiff’s cellmate “started telling him policy and what [he] could do.” He states he then asked the other inmate “if he was a lawyer and where he worked.” He stated he did not threaten either of the inmates in the cell. (Doc. 2, p. 42). Plaintiff appealed the denial of this grievance. On April 1, 2014, Defendant Kelley found his appeal to be without merit. (Doc. 2, p. 48).

Plaintiff requests $200, 000 in punitive damages and $200, 000 in compensatory damages. (Doc. 2, p. 4).


Pursuant to the screening provisions of the PLRA, the Court must determine whether the causes of action stated in Plaintiff’s Complaint (1) are frivolous or malicious, (2) fail to state claims upon which relief may be granted, or (3) seek monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915(A). A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a defendant, acting under color of state law, deprived him of a right, privilege, or immunity secured by the United States Constitution or by federal law. West v. Atkins, 487 U.S. 42, 48 (1988).


A. Defendants Threlkeld, Reed, Kelley, and ...

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