United States District Court, W.D. Arkansas, Harrison Division
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED/STATgS DISTRICT JUDGE.
has filed this case pursuant to 42 U.S.C. § 1983. He
proceeds pro se. He has submitted a Motion to
Proceed In Forma Pauperis ("IFP") (Doc.
1). The case is before the Court for preservice screening
under the provisions of the Prison Litigation Reform Act
("PLRA"). Pursuant to 28 U.S.C. § 1915A, the
Court has the obligation to screen any complaint in which a
prisoner seeks redress from a governmental entity or officer
or employee of a governmental entity. 28 U.S.C. §
is incarcerated in the Boone County Detention Center
("BCDC"). According to the allegations of the
Complaint (Doc. 2), on September 7, 2017, at approximately
3:00 p.m., Plaintiff was on lock-down for tier-management.
Sergeant Rhine came to his cell and escorted him out to the
hall located between pod control and the pod door. Sergeant
Rhine indicated they needed to discuss statements made
between Officer Decker and the Plaintiff.
the hallway, Plaintiff alleges Sergeant Rhine began cussing
at him and using derogatory terms. In response, Plaintiff
states he merely asked for a § 1983 complaint form. As
they were returning to the pod, Plaintiff alleges Sergeant
Rhine said he would show the Plaintiff who was boss. When
Plaintiff was a few feet from his cell door, he states
Sergeant Rhine sprayed him from the back with oleoresin
capsicum ("OC") spray. Plaintiff maintains he did
nothing to provoke this.
alleges he started to take a shower but was handcuffed and
taken to the front of the jail to speak with the jail
administrator, Jason Day. Plaintiff states he was told that
the reason he was sprayed was due to his cussing and refusal
to lock down. Plaintiff states it was Sergeant Rhine who
removed him from lock down.
filed a grievance about the incident and also asked for a
copy of the video. Jason Day responded that Plaintiff was
sprayed for refusing to lock down. Jason Day also indicated
the incident was not caught on camera. Plaintiff appealed the
grievance and his appeal was denied by Jason Day.
the 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:
(1) are frivolous, malicious, or fail to state a claim upon
which relief may be granted; or, (2) seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
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." BellAtl. 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)).
1983 provides a federal cause of action for the deprivation,
under color of law, of a citizen's "rights,
privileges, or immunities secured by the Constitution and
laws" of the United States. In order to state a claim
under 42 U.S.C. § 1983, plaintiff must allege that the
defendant acted under color of state law and that he violated
a right secured by the Constitution. West v. Atkins,
487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007,
1009 (8th Cir. 1999). The deprivation must be intentional;
mere negligence will not suffice to state a claim for
deprivation of a constitutional right under § 1983.
Danieis v. Williams, 474 U.S. 327 (1986);
Davidson v. Cannon, 474 U.S. 344 (1986).
claims against Sheriff Moore are subject to dismissal. The
only time Sheriff Moore is mentioned in the Complaint is when
he is listed as a Defendant. A claim of deprivation of a
constitutional right cannot be based on a respondeat
superiortheory of liability. See Monell v. New York
City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
'The general responsibility ... for supervising the
operation of a [facility] is not sufficient to establish
personal liability." Estate of Rosenberg by
Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995).
"[A] bare allegation that someone in supervisory
authority has been deliberately indifferent, without any
specification of that person's contact in fact with the
plaintiff, [or] even an explicit charge of inadequate
training or supervision of subordinates, is [not] sufficient
to state a [§ 1983] claim." Id.; see also
Parrish v. Bail, 594 F.3d 993, 1001 (8th Cir. 2010).
a supervisor is not involved in day-to-day operations, his
personal involvement may be found if he is involved in
"creating, applying, or interpreting a policy" that
gives rise to unconstitutional conditions. In requiring a
plaintiff to allege that each defendant was personally
involved in the deprivation of his constitutional rights, we
assess each defendant relative to his authority over the
claimed constitutional violation. Jackson v. Nixon,747 F.3d 537, 544 (8th Cir. 2014) (internal quotations marks
and citations omitted). ...