United States District Court, E.D. Arkansas, Pine Bluff Division
DON MERCELEANY R. MAXWELL/ G-DOFFEE, ADC #108778 PLAINTIFF
DEANNE JACKSON, Classification Officer, M.S.U.; et al. DEFENDANTS
KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE
the Court are the Proposed Findings and Recommendations
(“Recommendations”) submitted by United States
Magistrate Judge Joe J. Volpe (Dkt. No. 5). Plaintiff Don
Merceleany R. Maxwell/G-Doffee (“Mr. Maxwell”)
filed timely his objections to the Recommendations (Dkt. No.
6). After careful consideration of the Recommendations, Mr.
Maxwell's objections, and a de novo review of
the record, the Court concludes that the Recommendations
should be, and hereby are, approved and adopted in their
entirety as this Court's findings in all respects (Dkt.
Court writes separately to address Mr. Maxwell's
objections. Mr. Maxwell states that the Court should hear
evidence regarding the alleged deletion of camera footage for
all three incidents, rather than just the inmate attack on
November 15, 2016 (Dkt. No. 6, ¶ 3). He argues that
these three incidents should be considered together as
evidence of an unconstitutional custom (Id.,
¶¶ 3-4). In addition, Mr. Maxwell maintains that it
would be convenient for the Court to rule on the merits of
the March 23, 2016, and July 11, 2016, failure to protect
claims as well “to avoid [the] confusion [of] piece
meal litigation relitigating the same facts ¶ 3 separate
§1983 action suits” (Id., ¶ 3).
Recommendations, Judge Volpe recommends dismissal of Mr.
Maxwell's claims related to the March 23, 2016, and July
11, 2016, attacks because Mr. Maxwell did not suffer physical
injury on either occasion (Dkt. No. 5, at 3). Judge Volpe
made this recommendation assuming, without deciding, that Mr.
Maxwell has established a factual connection sufficient to
satisfy Federal Rule of Civil Procedure 20(a)(2)
(Id.). Mr. Maxwell states that his lack of physical
injury from these attacks should not prevent his claims (Dkt.
No. 6, ¶ 6). He states that “inmates having a
knife like object, [and] getting out of th[ei]r cells by
staff to attempt to stab plaintiff” are examples of
“extreme conditions that deprive inmates of a civilized
measure of life's necessities” such that an Eighth
Amendment claim is raised pursuant to Irving v.
Dormire, 519 F.3d 441, 446 (8th Cir. 2008) (Dkt. No. 6,
Irving, plaintiff Irving stated that police officers
opened the cell doors of another inmate so that the inmate
could strike Irving in the face, injuring his nose and jaw
and causing him breathing difficulties for two months. 519
F.3d at 445. In their defense, the officers asserted that
Irving's injuries did not support a § 1983 claim due
to their lack of seriousness. Id. at 447-48. 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.”
Id. at 448. These claims “require a
compensable injury to be greater than de
minimus.” Id. The Eighth Circuit Court of
Appeals concluded that Irving had suffered more than a de
minimus injury, one sufficiently serious to justify a
damages award, no matter how nominal and permitted his claim
to proceed. Id.
though Irving does not aid Mr. Maxwell under the
circumstances, this Court does acknowledge that there are
instances in which verbal threats are sufficient to violate
the Constitution; however, those instances are rare.
Id. at 448. Only when a state official has engaged
in a “brutal” and “wanton act of
cruelty” is a § 1983 action appropriate in the
absence of physical harm. Id. In Burton v.
Livingston, the court found such a violation when
plaintiff alleged that a police officer pointed a gun at his
head and told him to run so that the officer could kill him.
791 F.2d 97, 99-100 (8th Cir. 1986). In Hopson v.
Fredericksen, however, the court rejected such a
constitutional claim when an officer allegedly uttered a
racial slur and threatened to knock the plaintiff's teeth
out. 961 F.2d 1374, 1379 (8th Cir. 1992).
though the incidents Mr. Maxwell alleges are troubling and
constitute highly inappropriate conduct if true, Mr. Maxwell
cannot maintain a § 1983 action regarding the March 23,
2016, and July 11, 2016, incidents. While Mr. Maxwell has
alleged that officers opened cell doors to allow prisoners to
assault Mr. Maxwell, Mr. Maxwell has not stated that he
suffered actual injury because of these two incidents. In
addition, the related threats made by officers against Mr.
Maxwell do not rise to the level of the “brutal”
or “wanton acts of cruelty” sufficiently serious
to implicate the Eighth Amendment in the absence of physical
injury. Mr. Maxwell alleges only that defendants “made
threats &/or voiced dislike about plaintiff Mr. G-Doffee
making a lawsuit. . . or disapproved [of his] plea of
innocence” (Dkt. No. 6, ¶ 6). These allegations of
mere dislike or disapproval are not enough to constitute an
actionable “brutal” and “wanton act of
Mr. Maxwell objects to the dismissal of his claims against
Princess M. Smith/G-Doffee (“Ms. Smith”). Mr.
Maxwell contends that he should be permitted to sue Ms. Smith
pursuant to § 1983 as a member of a conspiracy with
Tucker Maximum Security Unit staff (Dkt. No. 6, at 9-10). Mr.
Maxwell is correct that, on occasion, a private citizen may
be considered a state actor for conspiring with the State and
its agents. McNally v. Pullitzer Pub. Co., 532 F.2d
69, 75 (8th Cir. 1976). However, even weighing Mr.
Maxwell's allegations in his favor, he has not stated a
claim against Ms. Smith/G-Doffee under § 1983. This is
because Mr. Maxwell's conspiracy allegations against Ms.
Smith/G-Doffee revolve around her alleged conspiracy with
other inmates, who are also private citizens (Dkt. No. 6, at
9). Mr. Maxwell states that the only reason Ms.
Smith/G-Doffee visits Mr. Maxwell's unit is to “see
other male inmates on the visitation day/yard. . . TO PLAN
& DISCUSS with these other violent inmates. . . how &
when to try & kill plaintiff. . . .”
(Id.). Accordingly, Mr. Maxwell's claims against
Ms. Smith are not actionable under § 1983, and Mr.
Maxwell's claims against her must be dismissed.
Court therefore orders that:
1. Mr. Maxwell is allowed to proceed on his failure to
protect claims against defendants Duke and Doe (“Boot
Camp Tour Guide”) concerning the alleged inmate attack
on November 15, 2016, as well as his related due process
claims against defendants Burl, Stout, Barnes, and Bentley
concerning video footage of the attack.
2. All other claims are dismissed without prejudice from this
3. Defendants Jackson, Walker, Brown, Johnson, Lee, Byers,
Engstrom, Hunter, McNutt, Gardner, Mitchell, Jack, Miller,
Madden, Shines, Polk, and Princess M. Smith/G-Doffee are
dismissed without prejudice as defendants from this action.
Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that an in forma pauperis appeal from this Order
adopting the ...