United States District Court, E.D. Arkansas, Pine Bluff Division
following Recommended Disposition
("Recommendation") has been sent to United States
District Judge Billy Roy Wilson. Any party may file written
objections to this Recommendation. Objections must be
specific and include the factual or legal basis for
disagreeing with the Recommendation. An objection to a
factual finding must specifically identify the finding of
fact believed to be wrong and describe the evidence that
supports that belief.
original and one copy of the objections must be received by
the Clerk of this Court within fourteen (14) days of this
Recommendation. If no objections are filed, Judge Wilson can
adopt this Recommendation without independently reviewing all
of the evidence in the record. By not objecting, you may also
waive any right to appeal questions of fact.
Rodney Wilson McClanton ("McClanton") is a prisoner
in the Cummins Unit of the Arkansas Department of Correction
("ADC"). He has filed a pro se § 1983
Complaint and an Amended Complaint alleging that Defendants
violated his constitutional rights. Doc. 2 & 8.
Before McClanton may proceed with this action, the Court must
screen his allegations.
alleges that, on or about July 30, 2017, inmate Breelove saw
him masturbating in the shower; acted out what he saw
McClanton doing; and made vulgar comments about
McClanton's body. Id. McClanton contends that he
reported Breelove's comments and behavior to Defendant
Assistant Warden Musselwhite ("Musselwhite"), who
ordered an Internal Affairs investigation that was conducted
by Defendant John Doe ("Doe"). McClanton claims
that Doe never spoke to him about the incident and did not
give him a "stress test" to confirm the truth of
his allegations against Breelove. Doc. 2 at 4.
about September 6, 2017, Defendant Assistant Warden Bundit
("Bundit") told McClanton that the Doe's
investigation concluded and that his findings were
"inconclusive." Id. Bundit also said that
he thought Breelove was just "joking" and
"having some fun" with McClanton. Id. at
5. Bundit then refused to transfer McClanton or Breelove
to a different barrack. Id.
alleges that seeing Breelove in the barrack makes him
uncomfortable and causes him to "relive" the July
30, 2017 incident "again and again." Doc. 3 at
state a viable failure to protect claim, McClanton must plead
facts suggesting that: (1) objectively, there is a
substantial risk that Breelove will seriously harm him; and
(2) subjectively, Bundit, Musselwhite, and Doe knew of and
disregarded that substantial risk of serious harm. See
Walls v. Tadman, 762 F.3d 778, 782 (8th Cir. 2014);
Schoelch v. Mitchell, 625 F.3d 1041, 1046 (8th Cir.
the objective element, McClanton does not allege
that Breelove touched or physically harmed him on July 30,
2017, or that there is currently a substantial risk that
Breelove will do so sometime in the future. See Young v.
Selk, 508 F.3d 868 (8th Cir. 2007) (explaining that, to
satisfy the objective component, an inmate must plead facts
demonstrating that he is Aincarcerated under conditions
posing a substantial risk of serious harm); Howard v.
Everett, No. 99-1277EA, 2000 WL 268493, at *1 (8th Cir.
2000) (unpublished opinion) (explaining that sexually
harassing comments, absent contact or touching, do not rise
to the level of a constitutional violation). Instead,
McClanton admits that Breelove's July 30, 2017
behavior, albeit offensive, was an isolated incident. See
Lenz v. Wade, 490 F.3d 991, 995-96 (8th Cir. 2007)
(providing that Aa single incident, or series of isolated
incidents. does not constitute a substantial risk of harm);
Prater v. Dahm, 89 F.3d 538, 541 (8th Cir. 1996)
(explaining that threats and vulgar comments are common
as to the subjective component, McClanton does not
allege that Bundit, Musselwhite, and Doe ignored his
allegations against Breelove. Instead, McClanton admits that
they took his allegations seriously and ordered an internal
investigation. McClanton's disagreement with the results
of that investigation, or the manner in which it was
conducted, does not rise to the level of a constitutional
violation. See Schaub v. VonWald, 638 F.3d 905, 914
(8th Cir. 2011) (explaining that deliberate indifference,
which is "equivalent to criminal-law recklessness,
" requires a "callous disregard or reckless
McClanton alleges that Bundit, Musselwhite, and Doe violated
ADC policies and the Prison Rape Elimination Act
("PREA") by failing to conduct a more thorough
investigation. However, McClanton does not have a
constitutional right to enforce ADC policies. See
Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003).
Similarly, there is no private right of action under the
PREA, which is a statute that authorizes the federal
government to give grants to prisons and detention facilities
that implement procedures designed to reduce the number of
prison rapes. See Bowens v. Wetzel, No. 16-3036,
2017 WL 35712 (3rd Cir. Jan. 4, 2017) (unpublished opinion);
Krieg v. Steele, No. 13-11402, 2015 WL 1652327 (5th
Cir. Apr. 15, 2015) (unpublished opinion); LeMasters v.
Fabian, No. 09-702, 2009 WL 1405176 (D. Minn. May 18,
2009) (unpublished opinion).