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Wilmoth v. Sharp

United States District Court, W.D. Arkansas, Hot Springs Division

February 27, 2018




         Plaintiff 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 Dismiss.[1] (ECF No. 30), and Plaintiff's Response, (ECF No. 40).

         I. BACKGROUND

         Plaintiff 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. 21).

         Plaintiff 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. program[2] when an unnamed Major accused him of being a homosexual and then “denied him the right to call the P.R.E.A.[3] 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).

         On 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 names:

Title Provided on Amended Complaint

Name(s) Provided on Complaint Addendum

ACC Director of 2015

Sheila Sharp

ACC Assistant Director of 2015

Jerry Bradshaw

ACC Warden of TVP in 2015

K. Brown

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

         The 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.

         On 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).

         On 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 No. 40-1).

         There 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.

         Accordingly, 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. § 1915A(a).


         Under 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. § 1915A(b).

         A claim 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).

         III. ANALYSIS

         A. April 2015 - Accusation of Homosexuality and PREA Hotline

         Plaintiff 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).

         Plaintiff's 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.

         To the 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).

         To the 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.

         B. April ...

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