United States District Court, W.D. Arkansas, Fayetteville Division
REV. TOM BROWN PLAINTIFF
MAYOR LIONELD JORDAN; CITY ATTORNEY KIT WILLIAMS; JANE DOE, Assistant City Attorney; CITY POLICE OFFICER CRAIG STOUT; CITY POLICE OFFICER B. KUCHENBECKER; CITY POLICE OFFICER R. SCHLEIFF; CHUCK RUTHERFORD, City Building Department Employee; JUDGE WILLIAM STOREY; SHERIFF TIM HELDER; JAIL STAFF JOHN AND JANE DOES; MICHAEL SCOTT LYONS, Flash Market #193 Manager; and FLASH MARKET OWNERS, names unknown DEFENDANTS
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
Reverend Tom Brown, filed this civil rights action pursuant
to 42 U.S.C. § 1983 alleging that his First, Fourth, and
Fourteenth Amendment rights have been violated. Plaintiff
also alleges violations of the Religious Freedom Restoration
Act (“RFRA”), 42 U.S.C. § 2000bb et
seq.; the Racketeer Influenced and Corrupt Organizations
Act (“RICO”), 18 U.S.C. §§ 1961-68; and
violations of the Arkansas Religious Freedom Restoration Act
(“ARFRA”), Ark. Code. Ann. § 16-123-402
et seq. He names as Defendants City of Fayetteville
Mayor Lioneld Jordan; Fayetteville City Attorney Kit
Williams; Jane Doe Assistant City Attorney; Fayetteville
Police Officers Craig Stout, B. Kuchenbecker, and R.
Schleiff; City of Fayetteville employee Chuck Rutherford;
Judge William Storey; Sheriff Tim Helder; John and Jane Doe
staff at the Washington County Detention Center; Michael
Scott Lyons, the Manager of Flash Market #193; and the Flash
Market owners. He is suing all Defendants in both their
individual and official capacities.
has filed an application to proceed in forma
pauperis (“IFP”) under 28 U.S.C. §
1915. Pursuant to 28 U.S.C. § 1915(e)(2), the Court has
the obligation to screen any complaint in which an individual
has sought leave to proceed IFP.
to the allegations of the Complaint (Doc. 1) and the unsigned
Amended Complaint (Doc. 11), Plaintiff is a minister of the
Rastafarian Faith and founder of the First Church of the
Magi, Inc. Plaintiff maintains that “[m]arijuana is the
sacrament of the Rastafarian faith.” Id.
October 17, 2016, Plaintiff was advocating for the passage of
two medical marijuana ballot issues by holding a large sign,
pictured below, at the corner of Futrall Avenue and Martin
Luther King Boulevard in Fayetteville, Arkansas.
election was scheduled for November 8, 2016. Prior to the
election, the Arkansas Medical Cannabis Act, also known as
Issue 7, referenced in the sign, was struck from the ballot
by a decision of the Arkansas Supreme Court issued on October
27, 2016. Benca v. Martin, 2016 Ark. 359. Issue 6,
also referenced in the above sign, was known as the Arkansas
Medical Marijuana Amendment and appeared on the November 8,
2016 ballot as an initiated constitutional amendment. Issue 6
alleges that on October 17, 2016, he positioned himself
between the curb and sidewalk just north of Flash Market
#193. Plaintiff indicates he was soon approached by Michael
Scott Lyons, who identified himself as the manager of the
Flash Market. According to Plaintiff, Lyons demanded to know
why Plaintiff was standing beside the road. Plaintiff
explained that he was advocating for the passage of the
Medical Marijuana Act. Lyons then demanded that Plaintiff
leave the location, or he would call the police.
thereafter, Plaintiff was approached by two police officers,
Officer Kuchenbecker and Officer Schleiff. Plaintiff asserts
that Lyons lied to the police dispatcher saying that
Plaintiff was begging on Flash Market property. Plaintiff
alleges Lyons also lied to the officers by claiming Plaintiff
moved to the sidewalk just prior to their arrival. Plaintiff
further alleges that “[b]ut for the lies of the Flash
Market Manager and the conspiracy to promote the illegal and
unconstitutional anti-begging law, the police would have
never arrived.” (Doc. 1, p. 13). Plaintiff maintains
the officers should have referred to video cameras on the
traffic signal lights to determine whether he had, in fact,
been standing on Flash Market property.
to Plaintiff, the officers demanded that he cease his
activities, or he would be arrested. Plaintiff told them he
had no identification on him and refused to provide the
officers with his date of birth so that they could verify his
identity. (Doc. 1-1 at 4). Plaintiff was arrested at
approximately 9:54 a.m., charged with obstruction of
governmental operations, and transported to the Washington
County Detention Center (“WCDC”). Plaintiff
refused to respond to questions about whether he wanted to
keep his sign, and it was thrown away at the Flash Market.
WCDC, the intake officer demanded that the Plaintiff verbally
answer his questions including providing his birth date,
social security number, and phone number. Plaintiff, relying
on his Miranda rights, remained silent. Plaintiff
maintains that he was then threatened with spending 72 hours
in an intake cell without access to a phone call or medicine.
Plaintiff continued to refuse to “verbally
answer” the intake officer's questions. (Doc. 1, p.
7). Plaintiff was placed in an intake cell and remained there
until late in the afternoon of October 18, 2016, when he was
moved to general population.
to Plaintiff, the intake cell was maintained at about 50
degrees. Plaintiff states he was sixty-nine years old,
weighed one hundred and forty-five pounds, was suffering from
“[p]rostate cancer symptoms, ” and had been
prescribed medication, supplied by the Veteran's
Administration, for the problem. Id. He alleges his
flannel shirt was taken and he was left with only a t-shirt
and his pants for clothing. Plaintiff asserts that he
suffered from the cold, was unable to sleep, and became
almost comatose. During this time, Plaintiff did not have his
medication and was unable to use a phone.
in population, Plaintiff maintains he was unable to use the
electronic kiosk because his glasses were taken, and
therefore he could not read the numbers on his identification
bracelet that he needed to use to access the kiosk and lodge
was arraigned before Judge William Storey the afternoon of
October 19, 2016. (Doc. 1-1, p. 16). Plaintiff indicates he
immediately asked for Judge Storey to recuse himself because
Plaintiff had “previously filed criminal charges
against Storey for taking a bribe in a case of one of
[Plaintiff's] church members.” Id.
According to Plaintiff, when he asked Judge Storey to recuse
himself, the judge laughed, said they had a colorful history,
entered a not guilty plea on Plaintiff's behalf, and set
bail at $500. Plaintiff alleges that when he then demanded
that he be released on his own recognizance, Judge Storey
“laughed again and said that he recused himself so that
he could not make that decision.” Id.
Amended Complaint (Doc. 11) for the most part adds
information to support his claims against Judge Storey.
Plaintiff states that beginning in 2003, he helped one of his
church members, Jeff Thomas, seek to have criminal charges
and an ethical complaint filed against Judge Storey. Thomas
had been arrested at the time, and Plaintiff believes that
Judge Storey wrongly revoked Thomas' bail; solicited a
bribe from Thomas; ordered the court clerk to falsify the
docket sheet to conceal the fact that Thomas had pleaded not
guilty “by reason of religious exercise”; denied
Thomas a valid defense without hearing testimony or other
evidence; and engaged in a conspiracy to use the civil
forfeiture laws to unlawfully seize Thomas's property.
Plaintiff maintains that due to his own involvement in
assisting Thomas with his criminal case, Judge Storey held a
grudge against Plaintiff.
admits in the Amended Complaint that since 2003, he has
confronted Judge Storey repeatedly in public and accused him
of taking bribes and falsifying court records. In
Plaintiff's view, Judge Storey's judicial acts on
October 19, 2016-entering a not guilty plea for Plaintiff and
setting his bail at $500-were done in retaliation for the
problems Plaintiff has caused Judge Storey beginning in 2003.
Plaintiff was arraigned on October 19, he was returned to the
WCDC. In the evening, he found he was unable to urinate due
to his “untreated prostate problems.” (Doc. 1, p.
9). He was provided with a catheter, and when he removed it,
he claims there was fresh blood on the tip. As this had never
happened before, Plaintiff asked for medical assistance. The
following day, October 20, 2016, Plaintiff attempted to
catheterize himself again, but he was unable to do so because
his ureter was blocked. Again when he removed the catheter,
it had fresh blood on it. Plaintiff renewed his request for
released on October 20, 2016, at approximately 2:00 p.m.
During the entire time he was incarcerated in the WCDC,
Plaintiff claims he was only allowed to make one phone call
to the City Attorney's office that was answered by an
assistant. Plaintiff advised the assistant to ask Williams if
he “really wanted the Plaintiff arrested and
jailed.” Id. Plaintiff did not hear back from
Williams' office while he was in jail.
respect to his request for medical assistance, he alleges
that he was not provided his medication or any medical care
prior to release. Plaintiff asserts he was going to be
released to the street despite not having any transportation.
Plaintiff further asserts he was passing blood, and the
stains were visible on his jail clothing. Plaintiff insisted
that an ambulance be called to transport him to the hospital.
Eventually, an ambulance was called and transported Plaintiff
to Washington Regional Medical Center where a Foley catheter
was inserted. Plaintiff maintains that he went to the local
VA hospital the next day where he was told he had an
infection and was prescribed antibiotics, as well as opiate
pain medication due to complications from the Foley catheter.
Plaintiff alleges the Foley catheter was not removed until
approximately two weeks later, limiting Plaintiff's
activities in the meantime.
October 21, 2016, Plaintiff received a phone call from City
Attorney Williams during which Williams allegedly apologized
for the arrest, said that no charges would be filed, and
suggested that they proceed to an informal resolution of
Plaintiff's claims of “illegal arrest, tortious
confinement, deliberate medical indifference and other
issues.” (Doc. 1, p. 10). Plaintiff indicates he
received the same message from the Washington County
to Plaintiff, on two separate occasions two officers of the
Fayetteville Police Department came to his house without a
warrant or probable cause and asked what compensation he
wanted for the sign that was thrown away. Plaintiff claims he
told them that the extended denial of his right to advocate
for the passage of the Medical Marijuana Act and for his
religion (which advocates using marijuana in religious
services), as well as his illegal arrest and his tortious
confinement also needed to be addressed by the proper
officials. The officers allegedly refused to consider
Plaintiff filed a complaint with the Fayetteville Police
Department and sent documents entitled “Notice of
Tort” to Mayor Jordan, Sheriff Helder, and Washington
County Judge Joseph Wood. On March 2, 2017, Plaintiff
attended a meeting with the Fayetteville City Attorney's
Office to pursue an informal resolution of his claims.
Plaintiff alleges he was advised that “nothing would be
done or admitted by the City.” (Doc. 1, p. 11).
Plaintiff states that the County Attorney failed to attend
respect to city employee Chuck Rutherford, Plaintiff alleges
that on July 10, 2018, Rutherford entered Plaintiff's
property and left “an application for attendance at
Farmers Market.” (Doc. 1, p. 14). Plaintiff maintains
that Rutherford's actions constituted an illegal entry on
Plaintiff's property and threatened Plaintiff for
exercising his First Amendment right to speak at the
Fayetteville Farmers Market. To Plaintiff, Rutherford's
entry on his property demonstrated “the ongoing nature
of the City Employee's cum Business leaders RICO
conspiracy in violation of Religious Establishment and
also maintains his arrest on October 16, 2016, was done in
violation of an order the undersigned entered on April 8,
2016, in the case of Rev. Tom Brown v. Arkansas
Department of Finance & Administration, No.
5:15-CV-05213 (Doc. 71) (“the DFA case”). The
Arkansas Department of Finance and Administration
(“DFA”) had at the time adopted a ban on
solicitation activities, which had the effect of precluding
Plaintiff from soliciting signatures for the Medical
Marijuana ballot initiative outside the Revenue Office in
Fayetteville. This Court eventually found that the DFA's
limitation on solicitation speech did not violate
Plaintiff's rights. In its order, the Court noted that
the “ban does not prevent Rev. Brown from canvassing in
other public forums, such as on city sidewalks, in plazas, or
in parks. Similarly, Rev. Brown is still free to express to
others his ideas about marijuana use, his religious faith,
and the benefits of signing the ballot initiative he
supports.” Id. at 23. It is this quoted
passage from the order in the DFA case that Plaintiff cites
to in his instant Complaint, in making the argument that his
arrest allegedly violated an order of this Court.
Plaintiff maintains that Officer Stout, a Defendant in the
case at bar, filed an affidavit in the DFA case that
contained falsified and perjured statements and documents.
the IFP statute, 28 U.S.C. § 1915, the Court is
obligated to screen a 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) seek monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915 (e)(2)(B).
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 Atl. 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)).
Section 1983 Claims
1983 provides a federal cause of action for the deprivation,
under color of law, of a citizen's “rights,
privileges, or immunities secured by the Constitution and
laws” of the United States. To establish a claim under
§ 1983, Plaintiff must show that the Defendants: (1)
acted under color of state law; and (2) caused the
deprivation of a right established by the Constitution of
laws of the United States. Montano v. Hedgepeth, 120
F.3d 844, 848 (8th Cir. 1997).