United States District Court, W.D. Arkansas, Fort Smith Division
HOLMES, III CHIEF U.S. DISTRICT JUDGE.
a civil rights action filed by the Plaintiffs pursuant to 42
U.S.C. § 1983. Plaintiffs proceed pro se, and have filed
a motion for leave to proceed in forma pauperis (IFP).
to 28 U.S.C. § 1915(e)(2), the Court has the obligation
to screen any complaint in which an individual has sought
leave to proceed IFP. 28 U.S.C. § 1915(e)(2). On review,
the Court is to dismiss the complaint, or any portion of the
complaint, that is frivolous, malicious, or fails to state a
claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B).
filed their complaint on September 6, 2016. (Doc. 1). The
complaint centers on an allegation of child abuse against
Plaintiffs and action taken on that allegation by the State
and other government agencies and officials. They make the
following allegations against Defendants. The Crawford County
Sheriff's Office and Deputy Sheriff Branson Rule
“made a conflict of interest” when they knew the
family and did not file a police report. (Doc. 1, p. 1).
Governor Asa Hutchinson denied a notarized Freedom of
Information Act request. (Doc. 1, p. 1). Parkview elementary,
Principal Woods, and Superintendent Kerry Schneider made
false allegations and went to DCPS with “no
evidence.” (Doc. 1, p. 1). Debbie Pippen of Crawford
County DCPS “approved attack against wife and husband
repeatedly.” (Doc. 1, p. 1). Lisa Jensen denied Ashley
Schildt due process of law by filing with Hearing and
Appeals, and the hearing was overdue. (Doc. I, p. 1). Mayor
Bob Freeman ignored them as constituents. (Doc. 1, p. 1).
Alma primary school separated the Schildt children “for
own agenda to protect teachers and violate publics [sic]
right to know.” (Doc. 1, p. 2). Officer Terry
Hutchinson threatened Corey Schildt with charges then failed
to do his job. Officer Hutchinson further sat in on a school
meeting without parental permission and refused to leave.
(Doc. 1, p. 2). Plaintiffs list a number of Arkansas statutes
as part of their complaint, presumably implying that they
were violated by Defendants. (Doc. 1, p. 4).
did not indicate if they were proceeding against Defendants
in their individual capacity, official capacity, or both.
Plaintiffs did not state what remedy they were seeking by
filing this complaint.
§ 1983 complaint must allege that each Defendant, acting
under color of state law, deprived Plaintiff of "rights,
privileges or immunities secured by the Constitution and
laws" of the United States. 42 U.S.C. § 1983;
DuBose v. Kelly, 187 F.3d 999 (8th Cir. 1999).
Plaintiffs failed to allege any cognizable violations of any
right, privilege or immunity guaranteed by the Constitution
or federal law.
did not identify their Freedom of Information Act (FOIA)
claim as federal or state. However, they directed their
request to Arkansas Governor Asa Hutchinson. This permits an
inference that the request is based on the Arkansas FOIA.
Further, the denial letter included as an exhibit clearly
cites to a statutory exemption from the Arkansas FOIA as the
reason for denial. (Doc. 1-9). Violation of the Arkansas FOIA
is not cognizable under § 1983. See Taylor v.
Denniston, 111 Fed.App'x 864 (8th Cir. 2004)
(unpublished) (citing Walker v. Reed, 104 F.3d 156,
157 (8th Cir. 1997); see also, Chesterfield Dev.
Corp. v. City of Chesterfield, 963 F.2d 1102, 1105 (8th
Cir. 1992) (Even “[a] bad-faith violation of state law
remains only a violation of state law.”).
did not identify their claims as proceeding against
Defendants in their official capacity, individual capacity,
or both. Therefore, Plaintiffs' complaint must be
interpreted as proceeding against Defendants in their
official capacity alone. See Johnson v. Outboard Marine
Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“in
order to sue a public official in his or her individual
capacity, a plaintiff must expressly and unambiguously state
so in the pleadings, otherwise, it will be assumed that the
defendant is sued only in his or her official
§ 1983, a defendant may be sued in either his individual
capacity, or in his official capacity, or in both. In
Gorman v. Bartch, the Eighth Circuit Court of
Appeals (“Eighth Circuit”) discussed the
distinction between individual and official capacity suits.
As explained by the Gorman case:
Claims against government actors in their individual
capacities differ from those in their official capacities as
to the type of conduct that is actionable and as to the type
of defense that is available. See Hafer v. Melo, 502
U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). Claims
against individuals in their official capacities are
equivalent to claims against the entity for which they work;
they require proof that a policy or custom of the entity
violated the plaintiff's rights, and the only type of
immunity available is one belonging to the entity itself.
Id. 502 U.S. at 24B27, 112 S.Ct. at 361B62 (1991).
Personal capacity claims, on the other hand, are those which
allege personal liability for individual actions by officials
in the course of their duties; these claims do not require
proof of any policy and qualified immunity may be raised as a
defense. Id. 502 U.S. at 25B27, 112 S.Ct. at 362.
Gorman, 152 F.3d 907, 914 (8th Cir.1998).
“[R]igorous standards of culpability and causation must
be applied to ensure that the [county] is not held liable
solely for the actions of its employee” in cases where
a plaintiff claims a county has caused an employee to violate
the plaintiff's constitutional rights. Board of
County Commissioners, Oklahoma v. Brown, 520 U.S. 397,
Plaintiffs have not alleged any violation of the Constitution
or federal law by the customs or policies of any governmental
entity. Further, neither a State nor its officials acting in
their official capacities are “persons” under
§ 1983.” Will v. Michigan Dept. of State
Police, 491 U.S. 58, 71 (1989); Alsbrook v. City of
Maumelle,184 F.3d 999, 1010 (8th Cir. 1999) (“a
section 1983 suit cannot be brought against the
State”). Therefore, to ...