United States District Court, W.D. Arkansas, Hot Springs Division
HOLMES, III, CHIEF U.S. DISTRICT JUDGE
proceeds in this matter pro se and in forma
pauperis pursuant to 42 U.S.C. § 1983. Currently
before the Court is Defendant Sheila Sharp, Jerry Bradshaw,
Robert Wiley, Aaron Hewitt, and David Brooks's Motion to
No. 30), and Plaintiff's Response, (ECF No. 40).
filed his Complaint in the Eastern District of Arkansas on
May 12, 2015. (ECF No. 2). It was transferred to this
District on June 2, 2015. (ECF No. 7). Plaintiff filed a
Motion for Preliminary Injunction on June 8, 2015. (ECF No.
10). This Motion was denied, and Plaintiff was ordered to
file an Amended Complaint on November 12, 2015. In the Order,
Plaintiff was advised that he must use the Court-approved
form for his Amended Complaint, and that the Amended
Complaint would supersede his Original Complaint. (ECF No.
11). After repeated issues with mail being returned to the
Court, including two instances when Plaintiff failed to keep
the Court apprised of his current address, Plaintiff filed
his First Amended Complaint on December 8, 2016. (ECF No.
did not utilize the Court-approved Complaint form sent to him
for his First Amended Complaint, and did not indicate if he
was proceeding against the Defendants in their official or
personal capacities. In his Amended Complaint, Plaintiff
alleged that, in the summer of 2015, he was housed in the
Arkansas Community Correction (ACC) T.V.P.
an unnamed Major accused him of being a homosexual and then
“denied him the right to call the
hotline.” (ECF. No. 21 at 3). Plaintiff further alleged
that an unnamed Sergeant assaulted him when he was wearing
handcuffs, and he was denied medical treatment for the
assault by unnamed staff. Plaintiff alleges he was then sent
to the Arkansas Department of Correction (ADC), where he was
again denied his right to call the P.R.E.A. hotline and
denied medical care. Plaintiff alleges he requested mental
health treatment at the ADC and was denied mental health
treatment by unnamed ADC “mental health doctors.”
(Id.) Plaintiff stated he did not know the names of
the Defendants and “reserves the right to add more
Defendants and names after discovery is complete.”
(Id. at 4).
December 9, 2016, the Court entered an Order directing
Plaintiff to complete an Addendum to provide names for
Defendants previously identified only by job title and, in
some cases, the year 2015. (ECF No. 22). Plaintiff filed the
Addendum to his Amended Complaint on December 16, 2016. (ECF
No. 23). In the Addendum, Plaintiff provided the following
Title Provided on Amended Complaint
Name(s) Provided on Complaint Addendum
ACC Director of 2015
ACC Assistant Director of 2015
ACC Warden of TVP in 2015
ACC Assistant Warden of TVP in 2015
ACC Major of TVP in 2015
ACC Sergeant of TVP
Garner, Hewitt, Brooks, “I do not know the name
of all officers”
ACC Mental Health Doctor of 2015
ADC Mental Health Doctors
Do not know name
Court entered an Order directing the Clerk to amend the
Defendant names, to the extent possible, on December 19,
2016. (ECF No. 24). In his Addendum, Plaintiff was given the
opportunity to provide additional detail or clarification to
his claims. Plaintiff provided only one date, and linked only
one claim to one named Defendant. Specifically, Plaintiff
alleged that he was “ass[a]ulted twice by ACC
person[n]el on two different incidents once on 4-19-2015 and
once by Sgt. Garner.” Plaintiff again did not indicate
if he was proceeding against the Defendants in their official
or personal capacities.
February 15, 2017, the Court entered an Order directing
service on Defendants. (ECF No. 25). On February 27, 2017,
the summons were returned unexecuted on Defendants Garner,
Havard, and Kitrell. (ECF No. 27).
March 7, 2017, the served Defendants filed a Motion to
Dismiss. (ECF No. 30). On November 14, 2017, the Court
entered an Order directing Plaintiff to respond to the
Motion. (ECF No. 35). On January 26, 2018, after two
extensions, Plaintiff submitted a cover sheet labelled
“Response” and a proposed Second Amended
Complaint, utilizing portions of a form from the Eastern
District of Arkansas. (ECF No. 40, 40-1). The Response states
that Plaintiff “still does not have all the names of
the Defendants.” (ECF No. 40). Plaintiff's proposed
Second Amended Complaint appears to add a number of new
Defendants, either by name or title, as well as several new
dates and new alleged incidents, several of which occurred
after the initial filing of this case. Plaintiff also checked
the box indicating he would like to proceed against
Defendants in both their official and personal capacity. (ECF
is some question as to whether a Plaintiff may respond to a
Motion to Dismiss with an Amended Complaint - particularly
when he has already been permitted the opportunity to amend
and given an Addendum to aid in clarifying his previous
amendment. See Fischer v. Minneapolis Pub. Schools,
792 F.3d 985, n. 4 (8th Cir. 2015); Morgan Distribg. Co.,
Inc. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir.
1989) (“[I]t is axiomatic that a complaint may not be
amended by the briefs in opposition to a motion to
dismiss.”); but see Pure Country, Inc. v. Sigma Chi
Fraternity, 312 F.3d 952, 956 (8th Cir. 2002) (holding
that it was procedural error to ignore the motion to amend
because Pure Country's motion to amend rendered moot
Sigma Chi's motion to dismiss the original complaint)).
Keeping in mind the liberal construction to be afforded
pro se Plaintiffs, and following the directive of
the Eighth Circuit in Pure Country, the Court will
permit Plaintiff to file his Second Amended Complaint and
deny Defendants' Motion to Dismiss (ECF No. 30) as MOOT.
The Clerk is DIRECTED to rename Plaintiff's Response
Supplement (ECF 40-1) as his Second Amended Complaint and
file it on the docket as such.
the Court will screen Plaintiff's Second Amended
Complaint as required 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.
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.” Bell Atlantic 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)). Even a
pro se Plaintiff must allege specific facts
sufficient to support a claim. Martin v. Sargent,
780 F.2d 1334, 1337 (8th Cir. 1985).
April 2015 - Accusation of Homosexuality and PREA
was transferred from the Benton County Detention Center to
the Arkansas Community Correction (ACC) Technical Violator
Center on March 9, 2015. (ECF No. 40-1 at 11). At some point
in April 2015, Plaintiff alleges Major Wiley accused him of
being a homosexual and of engaging in homosexual acts with
another inmate, then denied him his right to call the PREA
hotline. (Id.). Plaintiff alleges he then told
Warden K Brown, and Asst. Warden Havard about the incident
with Wiley, but nothing was done, and he was still denied his
right to call PREA hotline. (Id. at 11-12).
allegations regarding a PREA Hotline fail to state a claim
upon which relief may be granted. Section 1983 does not
create any substantive rights. Rather, it provides a remedy
for violations of constitutional rights or rights created
under federal law. Tarsney v. O' Keefe, 225 F.3d
929, 939 (8th Cir. 2000). While there appear to be no Eighth
Circuit decisions on point, it is clear the PREA does not
create such a cause of action pursuant to § 1983.
“[O]ther courts addressing this issue have found that
the PREA does not establish a private cause of action . . .
.” Krieg v. Steele, 599 Fed.Appx. 231, 232
(5th Cir.) (per curiam), cert. denied, 136 S.Ct. 238
(2015). See also Diamond v. Allen, No. 7:14- CV-
124, 2014 WL 6461730, at *4 (M.D. Ga. Nov. 17, 2014) (citing
cases); Amaker v. Fischer, No. 10- CV- 0977, 2014 WL
4772202, at *14 (W.D.N.Y. Sept. 24, 2014) (noting that
“ every court to address the issue has determined that
PREA cannot support such a cause of action by an
inmate”); Simmons v. Solozano, No. 3:14CV-
P354- H, 2014 WL 4627278, at *4 (W.D. Ky. Sept.16, 2014)
(holding that the PREA creates no private right of action).
Here, Plaintiff has cited no case in support of his position;
therefore, any claim raised under the PREA is properly
dismissed as frivolous.
extent Plaintiff alleges that Defendant Wiley verbally
harassed him, this allegation also fails to state a claim.
“Verbal 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).
extent Plaintiff's allegations could be construed as a
failure of a grievance system, Plaintiff's allegation
that Defendant Brown and Havard failed to do anything does
not state a claim. "[P]risoners have the constitutional
right to petition the Government for redress of their
grievances, which includes a reasonable right of access to
the courts." Hudson v. Palmer, 468 U.S. 517,
523 (1984)(citing Johnson v. Avery, 393 U.S. 483
(1969)). However, it is well-settled that inmates have no
substantive constitutional right in detention center
officials following grievance procedures. See e.g.,
Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (no
constitutional violation in failing to process all of the
grievances submitted by a prisoner); see also Phillips v.
Norris, 320 F.3d 844, 847 (8th Cir. 2003) (no federal
constitutional liberty interest in having prison officials
follow state law or prison regulations). Plaintiff's
constitutional right of access to the courts was not impinged
by Defendants Brown and Havard, as is demonstrated by
Plaintiff's filing of this action.