United States District Court, E.D. Arkansas, Western Division
PROPOSED FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to United States District Judge D.P. Marshall Jr. You may
file written objections to all or part of this
Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your
objection, and (2) be received by the Clerk of this Court
within fourteen (14) days of this Recommendation. By not
objecting, you may waive the right to appeal questions of
Patrick Pearson, who is currently held at the Arkansas
Department of Correction (ADC), Ouachita River Unit, filed a
pro se complaint pursuant to 42 U.S.C. § 1983
on October 23, 2017, while incarcerated at the Pulaski County
Detention Facility (Doc. No. 2). Pearson sues Jail
Administrator Doc Holladay and claims there is a lack of
security at the jail in that one guard attends to 150 inmates
in two separate living quarters at times. Pearson also
complains that he did not receive a tuberculosis (TB) shot
for two weeks. Because Pearson's original complaint did
not allege enough facts to determine if he had stated a claim
for relief, the Court ordered Pearson to file an amended
complaint setting forth facts describing how and when the
named defendant allegedly violated Pearson's
constitutional rights and how Pearson was injured by the
defendant's actions. See Doc. No. 4. Pearson
subsequently filed an amended complaint. See Doc.
law requires courts to screen prisoner complaints. 28 U.S.C.
§ 1915A, 1915(e)(2). Claims that are legally frivolous
or malicious; that fail to state a claim for relief; or that
seek money from a defendant who is immune from paying damages
should be dismissed before the defendants are served. 28
U.S.C. § 1915A, 1915(e)(2). Although a complaint
requires only a short and plain statement of the claim
showing that the pleader is entitled to relief, the factual
allegations set forth therein must be sufficient to raise the
right to relief above the speculative level. See
Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corporation v.
Twombly, 550 U.S. 544, 555 (2007) (“a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment]to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. . . .”).
Although a pro se complaint is construed liberally,
it must contain enough facts to state a claim to relief that
is plausible on its face, not merely conceivable.
liberally construed both Pearson's original complaint and
his amended complaint, the Court finds Pearson fails to
allege sufficient facts to state a claim upon which relief
may be granted, as explained below, and recommends that
Pearson's complaint be dismissed without prejudice.
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that the conduct of 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.
42 U.S.C. § 1983. Pearson claims that he should have
been tested for TB within 72 hours, but was instead tested 14
days after his incarceration at the Pulaski County Detention
Facility. Pearson also alleges that the jail was not
appropriately staffed to ensure the prisoners' safety.
The Court construes Pearson's complaints as describing an
Eighth Amendment claim based on unsafe prison conditions.
treatment a prisoner receives in prison and the conditions
under which he is confined are subject to scrutiny under the
Eighth Amendment.” Helling v. McKinney, 509
U.S. 25, 31 (1993). Prison officials must provide humane
conditions of confinement as well as adequate food, clothing,
shelter, and medical care, and they “must ‘take
reasonable measures to guarantee the safety of the
inmates.'” Farmer v. Brennan, 511 U.S.
825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S.
517, 526-527 (1984)). To state an Eighth Amendment claim
based on lack of safety, Pearson must allege that he was
incarcerated under conditions posing a substantial risk of
serious harm. Id. He must also show that defendant
“both knew of and disregarded an excessive risk to
[his] health and safety.” Holden v. Hirner,
663 F.3d 326, 341 (8th Cir.2011). Such conduct is,
“akin to criminal recklessness, which demands more than
negligent misconduct.” Popoalii v. Correctional
Med. Servs, 512 F.3d 488, 499 (8th Cir. 2008) (internal
quotation marks and citations omitted).
provides no facts to support his allegations that he was
subjected to a substantial risk of harm from a TB infection
or a lack of security. To support his complaint, Pearson
attaches a statement by another prisoner that generally
describes other inmates who needed medical help or banged on
their doors but provides no details specifically describing
an unsafe environment. See Doc. No. 5 at 3.
Furthermore, Pearson alleges no injury as a result of his
possible exposure to TB or the alleged lack of security.
Because a § 1983 action is a type of tort claim, general
principles of tort law require that a plaintiff suffer some
actual injury before he can receive compensation. See
Irving v. Dormire, 519 F.3d 441, 448 (8th Cir. 2008)
(citing Carey v. Piphus, 435 U.S. 247, 253-55
(1978)). See also 42 U.S.C. § 1997e(e)
(requiring a prisoner to show an actual physical injury as
opposed to mental or emotional injury to sustain a claim for
Pearson's complaints regarding the Defendant's
failure to follow jail policy is insufficient to state a
constitutional claim. See Gardner v. Howard, 109
F.3d 427, 430 (8th Cir. 1997) (holding that “there is
no § 1983 liability for violating prison
policy.”); Williams v. Nix, 1 F.3d 712, 717
(8th Cir. 1992) (“[T]he mere violation of a state law
or rule does not constitute a federal due process