United States District Court, W.D. Arkansas, Harrison Division
MICHAEL ALLEN WILLIAMS, SR. PLAINTIFF
CODY CASSELL, Parole/Probation Officer, Arkansas Community Corrections; BRIAN ZINI, Assistant Area Manager, Arkansas Community Corrections; and ARKANSAS BOARD OF PROBATION DEFENDANTS
OPINION AND ORDER
TIMOTHY L. BROOKS JUDGE
a civil rights case filed by the Plaintiff, Michael Allen
Williams, Sr., under the provisions of 42 U.S.C. § 1983.
Williams proceeds pro se and in forma
pauperis ("IFP"). He is incarcerated in the
Searcy County Detention Center ("SCDC").
Prison Litigation Reform Act ("PLRA") modified the
IFP statute, 28 U.S.C. § 1915, to require the Court to
screen complaints for dismissal under § 1915(e)(2)(B).
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. § 1915(e)(2)(B).
to the allegations of the Complaint (Doc. 2), Plaintiff
reported to his probation officer, Cody Cassell, on February
8, 2017. Cassell first asked if Williams had paid his
probation fees. Williams responded that he had a money order
in his pocket to pay the fees. Next, Cassell asked if
Williams had a job. Williams replied that he had applied at
four different businesses and provided the name of each
business. Cassell responded by telling Williams he was a liar
and all he ever did was lie.
alleges Cassell then said something that really shocked him.
Williams alleges Cassell said: "If you don't get a
job I will shoot you in the face! If I have to work for a
living then you do too!" Williams states he was so
shocked he did not know what to say. Williams asserts that
"[t]he look in his face when he said that to me
convinced me without a doubt that he meant exactly what he
said." Williams says he was then told to get out of
Cassell's office. Williams alleges four other individuals
were present. Williams brings only official capacity claims.
the PLRA, the Court is obligated to screen a case prior to
service of process being issued. A claim is frivolous when 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 Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court
bears in mind, however, that when "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
threats do not constitute a constitutional violation."
Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir.
1985). Similarly, taunts, name calling, and the use of
offensive language does not state a claim of constitutional
dimension. McDowell v. Jones, 990 F.2d 433, 434 (8th
Cir. 1993) (inmate's claims of general harassment and of
verbal harassment were not actionable under § 1983).
exception is recognized "when the state official engaged
in a brutal and wanton act of cruelty even though no physical
harm was suffered." Irving v. Dormire, 519 F.3d
441, 448 (8th Cir. 2008) (internal quotation marks and
citation omitted). In Burton v. Livingston, 791 F.2d
97, 99-100 (8th Cir. 1986), the court found Burton had stated
a constitutional claim where the officer pointed a gun at
Burton's head and told him to run so that the officer
would have an excuse to shoot him. The court stated that
"a prisoner retains at least the right to be free from
the terror of instant and unexpected death at the whim of his
... custodians." Id. at 100. In Hopson v.
Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992), the
court found no constitutional claim was stated when the
officers seated in the front seat threatened to knock out the
back-seat occupant's teeth if he did not start talking.
"The officers did not threaten Hopson's life, nor
did they raise any fist or weapon to Hopson or otherwise take
any action to make the threat seem credible."
Irving, 519 F.3d at 449.
Irving, over a period of several months, the
officers opened Irving's cell door so other inmates could
attack him; provided an inmate with a razor so he could use
it as a weapon to assault Irving; offered to pay inmates to
assault Irving; threatened to kill Irving or have him killed;
told Irving that they would get him sooner or later; told
Irving they wanted him dead; and, referred to Irving as a
snitch to incite inmates to assault Irving. Irving,
519 F.3d at 445. The court held that the actions were
sufficiently serious to implicate the Eighth Amendment given
their ongoing nature, the concrete affirmative efforts to
persuade inmates to assault Irving, the efforts to arm
Irving's enemies, and referring to Irving as a snitch. It
held that "[t]he repeated and credible threats against
Irving, if proved to be true, constituted brutal and wanton
acts of cruelty that served no legitimate penological purpose
and posed a substantial risk of serious harm to living's
future health." Id. at 449-450.
Plaintiff has alleged only the single statement unaccompanied
by any affirmative action and no weapon was present.
Moreover, the statement was made in front of a number of
witnesses. This is not the type of conduct that has been held
sufficient to state a constitutional claim.
respect to Brian Zini, other than listing him as a Defendant,
Plaintiff has made no factual allegations against him. An
individual may not be held liable under § 1983 merely
because he occupies a supervisory position. See e.g.,
Choate v. Lockhart, 7 F.3d 1370, 1376 (8th Cir. 1993)
(supervisor can incur liability in two ways: "for their
personal involvement in a constitutional violation, or when
their corrective inaction amounts to deliberate indifference
to or tacit authorization of the violative practices").
respect to the Arkansas Board of Probation, the court will
assume Plaintiff is referring to either the Arkansas
Corrections Board orthe Arkansas Parole Board. In either
event, both are agencies of the State of Arkansas and are not
subject to suit. Official capacity claims against state
agencies are the equivalent of claims against the State of
Arkansas. Monroe v. Arkansas State Univ., 495 F.3d
591, 594 (8th Cir. 2007) (the State and its agencies are