United States District Court, E.D. Arkansas, Western Division
JOHNNY EARL SCOTT JR. PLAINTIFF
DOC HOLLADAY DEFENDANT
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
Johnny Earl Scott Jr., an inmate at the Pulaski County
Detention Facility, filed a pro se complaint
pursuant to 42 U.S.C. § 1983 on October 23, 2017 (Doc.
No. 1). Scott 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. Scott also complains that he did not receive a
tuberculosis (TB) shot for ten days. Because Scott's
original complaint did not allege enough facts to determine
if he had stated a claim for relief, the Court ordered Scott
to file an amended complaint setting forth facts describing
how and when the named defendant allegedly violated
Scott's constitutional rights and how Scott was injured
by the defendant's actions. See Doc. No. 4.
Scott subsequently filed an amended complaint. See
Doc. No. 5.
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 Scott's complaint and amended
complaint, the Court finds Scott fails to allege sufficient
facts to state a claim upon which relief may be granted, as
explained below, and recommends that Scott'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. Scott claims that he suffered mental
abuse while awaiting his TB test or shot, which was not
administered for at least 10 days after his incarceration at
the Pulaski County Detention Facility. Scott also alleges
that the jail was not appropriately staffed to ensure the
prisoners' safety. Finally, Scott alleges his cell toilet
was sometimes stopped up. The Court construes Scott'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, Scott 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,
lack of security, or the occasional plugged toilet. Scott
generally describes other inmates beating on their doors with
no guard present but provides no details specifically
describing an unsafe environment. See Doc. No. 5 at
1. Further, with respect to his claim that the toilet was
occasionally stopped up, he alleges insufficient facts to
show that he was denied the minimal civilized measure of
life's necessities. See Wilson v. Seiter, 501
U.S. 294, 295 (1991) (“The Constitution does not
mandate comfortable prisons and only those deprivations
denying the minimal civilized measure of life's
necessities are sufficiently grave to form the basis for an
Eighth Amendment violation.”).
while Scott alleges the conditions cause his mental abuse, he
describes no specific 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
Scott'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