United States District Court, W.D. Arkansas, Harrison Division
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
a civil rights action filed pursuant to 42 U.S.C. §
1983. Plaintiff proceeds pro se and in forma
pauperis ("IFP"). Under the provisions of the
Prison Litigation Reform Act ("PLRA"), the Court is
obligated 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: (a) are 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). A
claim is frivolous if "it lacks an arguable basis either
in law or fact." Neitzke v. Williams, 490 U.S.
319, 325 (1989). 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 Atlantic 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)).
begins his narration with his 2007 incarceration in the
Baxter County Jail on a charge of second degree battery.
Plaintiff believes his right to a fair trial was violated. He
also believes the prosecutor was maliciously prosecuting him.
His first trial on the battery charges ended in a hung jury.
His January 2007 trial on an arson charge also ended in a
hung jury. A week before the second trial, Plaintiff alleges
he was in a fight with fellow inmates John Lipe, a jail house
snitch, and Jerry Martin. Plaintiff states he was removed
from the general population and put into a holding cell.
Following the arson trial, Plaintiff indicates he was put
back into a holding cell. Plaintiff alleges the prosecutor
ordered the jailers to put Plaintiff back in general
in an effort to get out of general population, alleges he
pretended to throw a punch at Inmate Howard Johnson. Officer
Alkire came to break up the fight and Plaintiff contends the
officer deliberately tripped him. All three of them went to
the ground. At this time, John Lipe and Jerry Martin came up
and started to "stomp and kick" at the Plaintiff
and Johnson. Johnson was taken to the hospital and diagnosed
with a broken jaw in two places. Surgery had to be performed
on Johnson. Plaintiff was charged with second degree assault
as a result of this incident. As a result of the assault
charge, Plaintiff was unable to make bail. The prosecutor
also filed a motion to have Plaintiff tried as a habitual
offender which increased Plaintiffs bond from $25, 000 to
alleges the assault charge was tried in May 2007. The
prosecuting attorney entered x-rays of Johnson's jaw from
the day of the incident. Plaintiff asserts another x-ray was
admitted over his objection as it had no identification of
who took it or when it was taken. Years later, Plaintiff
alleges he discovered that: there were other x-rays of
Johnson's jaw that showed Johnson had a broken jaw months
before the incident with Plaintiff; a statement made by a
fellow inmate against the Plaintiff was coerced; and a
statement of an inmate that would have exonerated Plaintiff
was withheld. Plaintiff states he learned all of this during
discovery, in a civil case filed by Johnson against him.
2010 and 2012, Plaintiff was paroled from the Arkansas
Department of Correction ("ADC") and then was
incarcerated in Ohio. When he violated his parole, he was
again incarcerated in the ADC in 2012. At some point,
Plaintiff had filed a habeas corpus action with the Baxter
County Circuit Court, based on the newly discovered evidence
related to the May 2007 assault conviction. However, within a
few weeks of filing this action, Plaintiff was released on
of 2014, while in Branson, Missouri, Plaintiff was arrested.
While in jail in Branson, Plaintiff alleges he filed a
federal habeas corpus action which was denied. In the State
of Arkansas' reply to the habeas action, Plaintiff
learned that the Baxter County Circuit Court had granted a
hearing on his habeas corpus action in 2010. Plaintiff says
he was not notified of the hearing and his Due Process rights
were violated. Had he been returned to Baxter County,
Plaintiff believes his state habeas corpus petition would
have been granted and the conviction reversed. Plaintiff
indicates his habeas corpus action was assigned to Judge
Putman who had presided over the criminal case initially.
According to Plaintiff, Judge Putman realized he had made a
mistake when he allowed the police into the room where the
jury was deliberating. Plaintiff also maintains Judge Putman
now knew that Johnson had committed perjury.
relief in the instant case, Plaintiff asks to be returned to
Baxter County so his state habeas corpus action can now be
heard. He also wants to be compensated in the amount of ten
million dollars for the years he has been falsely imprisoned.
complaint is subject to dismissal for a number of reasons.
First, the State of Arkansas may not be sued in federal
court. The claims are barred by the Eleventh Amendment.
Will v. Michigan Dept. of State Police, 491 U.S. 58
(1989). "The Eleventh Amendment bars suits against a
State by citizens of that same State in federal court."
Williams v. Missouri, 973 F.2d 599, 599 -600 (8th
Cir. 1992) (citing Papasan v. Main, 478 U.S. 265,
276 (1986)). "This bar exists whether the relief sought
is legal or equitable.'" Id. (quoting
Papasan, 478 U.S. at 276). "Congress did not
abrogate constitutional sovereign immunity when enacting the
law that was to become section 1983." Burk v.
Beene, 948 F.2d 489, 493 (8th Cir. 1991) (citing
Quern v. Jordan, 440 U.S. 332, 342 (1979)).
Plaintiff may not use the civil rights statutes as a
substitute for habeas corpus relief. In other words, he
cannot seek declaratory or injunctive relief relating to his
confinement and/or conviction in a § 1983 action.
See, e.g., Edwards v. Balisok, 520 U.S. 641, 648
(1997); Heck v. Humphrey, 512 U.S. 477, 483-89
(1994); Preiser v. Rodriquez, 411 U.S. 475, 500
(1973) (habeas corpus is the exclusive remedy for prisoners
attacking the validity of their conviction or confinement).
neither the Baxter County Sheriffs Department nor the
Mountain Home Police Department are subject to suit. The
Sheriffs Department and Police Department are buildings and
not persons or a legal entities subject to suit under §
1983. See, e.g., Dean v. Barber, 951 F.2d 1210, 1214
(11th Cir. 1992) ("[s]heriffs departments and police
departments are not usually considered legal entities subject
to suit"); Powell v. Cook County Jail,
814 F.Supp. 757 (N.D. III. 1993) (jail not subject to suit);
Marsden v. Fed. Bureau of Prisons, 856 F.Supp. 832,
836 (S.D.N.Y. 1994) ("jail is not an entity that is
amenable to suit"); In re Scott County Master
Docket, 672 F.Supp. 1152, 1163 n.1 (D. Minn. 1987)
(sheriffs department is not a legal entity subject to suit),
affd, Myers v. Scott County, 868 F.2d 1017 (8th Cir.
the majority, if not all, of his claims are also barred by
the statute of limitations. Section 1983 does not contain its
own statute of limitations. Instead, causes of action under
§ 1983 are governed by "the most appropriate or
analogous state statute of limitations." Goodman v.
Lukens Steel Co.,482 U.S. 656, 660 (1987) (§ 1981
case); see also Wilson v. Garcia,471 U.S. 261, 268
(1985) (§ 1983 case); Bell v. Fowler, 99 F.3d
262, 265-266 (8th Cir. 1996) (§ 1985 case). In Arkansas,
this is the three-year personal injury statute of
limitations, Ark. Code Ann. 16-56-105(3) (2016). See
Miller v. Norris,247 F.3d 736, 739 (8th Cir. 2001)
(Ark. Code Ann. § 16-56-105(3) is the statute of