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Toney v. Cash

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

August 13, 2018

JAMES LEONARD TONEY PLAINTIFF
v.
SHERIFF MIKE CASH, CHIEF DEPUTY RICHARD TOLLISON, LIEUTENANT J. LINGO, SERGEANT M. MAHER, FORMER JAIL ADMINISTRATOR KEN FAFN, and FORMER AST. JAIL ADMTNSTRATOR T.J. BURNETT All of Hot Spring County Detention Center DEFENDANTS

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.

         This is a civil rights action provisionally filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2Oll), the Honorable Susan O. Hickey, United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation.

         The case is before the Court for preservice screening 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. § l9l5A(a).

         I. BACKGROUND

         Plaintiff filed his Complaint and Motion to Proceed in forma pauperis on May 3, 2018. (ECF No. 1). His Motion to Proceed in forma pauperis (IFP) was denied that same day pursuant to 28 U.S.C.A. 1915(g) because he had previously earned PLRA three-strike status and had not alleged he was currently under imminent danger of serious physical injury. (ECF No. 3). On June 18, 2018, the Court entered an Order rescinding the denial of IFP and granting IFP status as Plaintiff had provided evidence that he was the plaintiff in only two of the prior cases which constituted strikes. (ECF Nos. 7-10).[1]

         Plaintiff alleges his rights were violated while he was incarcerated in the Hot Spring County Detention Center (HSCDC). (ECF No. 1 at 4). He alleges that on September 17, 2017, he was denied access to the law library and access to legal help by Defendants Cash, Tollison, Fain and Burnett. (Id. at 5). He alleges Defendant Cash told him there were no plans to have a law library or law materials because "his jailers don't have time for that." Plaintiff alleges this caused him to be "worried sick" because he had been locked up for seven months with no way to help himself in court. Plaintiff names Defendants Tollison, Fain, and Burnett as the jail staff involved in this denial but does not describe the facts of their involvement.

         Plaintiff alleges he filed a grievance about the lack of access to the law library and legal help, and jailers retaliated against him fordoing so. Specifically, he alleges Defendant Cash called a meeting after which inmate mail rights and food portions were reduced by at least one-half for the entire jail, and all inmates were denied recreation for seven months. (Id. at 6, 12, 16). Plaintiff names Defendants Tollison, Fain, and Burnett as the jail staff involved in this retaliation but does not describe the facts of their involvement.

         Plaintiff alleges the facility lacked tuberculosis lights in the pods, which caused him to be worried about his health. (Id. at 6).

         Plaintiff proceeds against all Defendant in their official and personal capacity. (Id. at 5, 6, 12). He seeks compensatory and punitive damages. (Id. at 15).

         II. LEGAL STANDARD

         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. § l9l5A(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 apro 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 apro 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. Official ...


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