Brown v. Jordan

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.

         Plaintiff, 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.

         Plaintiff 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.

         I. BACKGROUND

         According 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.

         On 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.

         (Image Omitted)

         The 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 passed.

         Plaintiff 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.

         Shortly 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.

         According to Plaintiff, the officers demanded that he cease his activities, or he would be arrested. Plaintiff told them he had no identification on him^[1] 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. Id.

         At the 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^[2] 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.

         According 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.

         While 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 a grievance.

         Plaintiff was arraigned before Judge William Storey the afternoon of October 19, 2016. (Doc. 1-1, p. 16).^[3] 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.

         Plaintiff's 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.

         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.

         After 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 medical assistance.

         He was 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.

         With 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.

         On 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 Attorney.

         According 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's claims.

         Subsequently, 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 the meeting.

         With 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 Exercise.” Id.

         Plaintiff 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.

         Further, 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.

         II. LEGAL STANDARD

         Under 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).

         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 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)).

         III. DISCUSSION

         A. Section 1983 Claims

         Section 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).

         1. Free ...