United States District Court, E.D. Arkansas, Northern Division
KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE
the Court are the Proposed Findings and Recommendations
submitted by United States Magistrate Judge Jerome T. Kearney
(Dkt. No. 10). Plaintiff Johnny Wright filed untimely
objections to the Proposed Findings and Recommendations (Dkt.
No. 11). Although Mr. Wright's objections are untimely,
the Court will consider them. After a review of the Proposed
Findings and Recommendations and Mr. Wright's objections,
as well as a de novo review of the record, the Court
adopts the Proposed Findings and Recommendations as its
findings in all respects (Dkt. No. 10).
Wright's original complaint complained about alleged
racial discrimination and purported excessive force during an
incident in which defendants threated to spray Mr. Wright
with mace (Dkt. No. 2, at 4). Judge Kearney entered an Order
noting that Mr. Wright's original complaint failed to
state a cognizable claim for relief, but Judge Kearney gave
Mr. Wright an opportunity to file an amended complaint (Dkt.
No. 8, at 4). Mr. Wright then filed the operative complaint,
which alleges, pursuant to 42 U.S.C. § 1983, that
defendants used excessive force and denied him access to the
prison law library (Dkt. No. 9, at 4-5).
Wright objects to the Proposed Findings and Recommendations
by reiterating the facts of the incident in question and by
noting that, at the time of the incident, Mr. Wright was in
the process of litigating a separate case (Dkt. No. 11, at
3). Even assuming these allegations are true, the Court
agrees with the Proposed Findings and Recommendations that
Mr. Wright has failed to allege facts sufficient to state a
claim upon which relief can be granted. First, Mr.
Wright's claim that he was denied access to the law
library fails because he does not allege that defendants
“hindered his efforts to make a legal claim” or
caused injury to a legal claim. Lewis v. Casey, 518
U.S. 343, 351 (1996); see Bear v. Fayram, 650 F.3d
1120, 1125 (8th Cir. 2011) (finding that petitioner could not
show that alleged shortcomings in the law library hindered
his ability to pursue a legal claim).
the Court concludes that the allegations in Mr. Wright's
amended complaint are not sufficient to state a cognizable
claim of use of excessive force under the Eighth Amendment.
To state such a claim upon which relief can be granted, a
plaintiff must set forth facts showing that the alleged force
was not used “in a good faith effort to maintain or
restore discipline” but rather was used
“maliciously and sadistically for the very purpose of
causing harm.” Arnold v. Groose, 109 F.3d
1292, 1298 (8th Cir. 1997) (quoting Whitley v.
Albers, 475 U.S. 312, 320-21 (1986)). While allegations
of verbal threats, taunts, name calling, or the use of
offensive language alone do not support claims for use of
excessive force, an exception is recognized “when the
state official engaged in a brutal and wanton act of cruelty
even though no physical harm was suffered.” Compare
Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir. 1985)
(finding that verbal threats do not constitute a
constitutional violations) and McDowell v. Jones,
990 F.2d 433, 434 (8th Cir. 1993) (finding that claims of
general harassment were not actionable), with Irving v.
Dormire, 519 F.3d 441, 448-49 (8th Cir. 2008) (holding
that, under certain circumstances, death threats are
example, in certain situations, threatening prisoners with
weapons has been found to constitute an excessive use of
force. Burton v. Livingston, 791 F.2d 97, 99-100
(8th Cir. 1986) (finding that allegation that an officer
pointed a gun at plaintiff's head and told him to run
stated a constitutional claim); Smith v. Helder,
Civil No. 5:17-cv-05164, 2017 WL 4099499, at *4 (E.D. Ark.
Sept. 15, 2017) (holding that plaintiff asserted a plausible
claim by alleging that he was handcuffed, placed on his
knees, and a taser emitting a red light was placed at the
back of his head and back). However, in another case, the
Eighth Circuit Court of Appeals held that plaintiff failed to
state a constitutional claim upon which relief could be
granted when plaintiff alleged that officers in the front
seat of a patrol car threatened to knock out the back-seat
occupant's teeth. Hopson v. Fredericksen, 961
F.2d 1374, 1378 (8th Cir. 1992).
although Mr. Wright alleges conduct on the part of defendants
which if true was unprofessional and even perhaps violated
Arkansas Department of Correction policy, Mr. Wright does not
allege that defendants threatened his life or that they
raised a weapon against him in such a way to make a credible
threat of physical force. He does not allege acts qualifying
as malicious or sadistic or acts purportedly done for the
very purpose of causing harm, not to restore discipline.
Rather, Mr. Wright alleges that he was placed on his knees
and asked to follow a series of commands issued by defendant
Richard Fry while defendant Jason Thorne shook a can of mace.
Mr. Wright does not allege that either defendant used
threatening language or pointed the can of mace at him. The
Court concludes that Mr. Wright's allegations are not
sufficient under controlling law to support a claim that
defendants used excessive force against Mr. Wright.
therefore ordered that:
1. Mr. Wright's amended complaint is dismissed without
prejudice for failure to state a claim upon which relief can
be granted (Dkt. No. 9).
2. Dismissal of this action constitutes a
“strike” within the meaning of the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. §
3. The Court certifies, pursuant to 28 U.S.C. §
1915(a)(3), that an in forma pauperis appeal from
this Order and the accompanying Judgment dismissing this
action would not be taken in good faith.
4. Mr. Wright's pending motions for status are denied as