United States District Court, W.D. Arkansas, Hot Springs Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.
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)(2011), the Honorable Susan O.
Hickey, United States District Judge, referred this case to
the undersigned for the purpose of making a Report and
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. § 1915A(a).
filed his Complaint on October 15, 2018. (ECF No. 1). The
Court entered an Order directing Plaintiff to file an Amended
Complaint on October 16, 2018. (ECF No. 6). Plaintiff did so
on October 29, 2018. (ECF No. 7). Plaintiff is currently
incarcerated in the Arkansas Department of Correction
(“ADC”) Ouachita River Unit. He alleges his
constitutional due process rights were violated in connection
with a disciplinary charge and conviction received at the
Unit on May 11, 2018. (ECF No. 7 at 5). Specifically,
Plaintiff alleges that Defendant Ashcraft never presented him
with a waiver of disciplinary hearing form to be signed in
front of a witness and did not give him a copy of that form,
both in violation of ADC policy and practice.(Id.). He
alleges this violated his right to be present and heard at
the disciplinary hearing. (Id. at 5-6). Plaintiff
alleges that Defendants Faust, Jackson, and Lawrence failed
to confirm Plaintiff's signature on the waiver form in
violation of ADC policy and practice. (Id. at 6). He
alleges that when he filed a complaint, Defendant Ashcraft
claimed he failed to appear at the disciplinary hearing.
(Id. at 8, 10). Finally, Plaintiff alleges that
Defendant Ashcraft's response to Defendant Clemons
regarding his informal grievance “resulted in
confirmation by Mindy Shell's Memorandum that no formal
grievance was recorded.” (Id. at 7).
submitted several documents with his Complaint. The appeal
form for his disciplinary charge indicates he waived the
right to appeal. (ECF No. 7-1). A letter attached to this
document indicates he waived his attendance at the
disciplinary charge hearing and therefore cannot appeal. (ECF
No. 7-2). A copy of the ADC disciplinary policy indicates an
inmate may waive their right to appear in Disciplinary Court
in writing or through behavior. (Id. at 2).
Plaintiff provided a copy of a unit level grievance form
dated May 25, 2018 and received by Defendant Clemons. The
form did not have an assigned number. He grieves his reduced
class and restrictions due to the disciplinary conviction and
states he did not appear at a hearing and did not waive his
right to a hearing. The response by Defendant Ashcraft states
he was put on a lay-in list the day of the hearing and put on
standby. It further states he was called out several times
that morning and he “did not show up to Court at all
which made you a failure to appear.” (ECF No. 7-3). A
request form dated August 5, 2018, indicates Plaintiff
requested a reply to his grievance by the Wardens, and was
told there were no grievances received from him since January
of 2018. (ECF No. 7-4 at 1). A Memorandum by Defendant Shell
dated August 30, 2018, states she can find no formal
grievances from him in the eOMIS system concerning his
disciplinary conviction. (Id. at 3).
proceeds against all Defendants in their personal and
official capacity. (ECF No. 7 at 5-7). Plaintiff seeks
compensatory and punitive damages. He also seeks
“declaratory injunctive/prospective relief” to
“brake [sic] patterns to punish.” (Id.
at 7). The Court will interpret this statement as a claim for
prospective injunctive relief regarding Plaintiff's
procedural due process rights to be present at future
disciplinary hearings for charges against him.
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.
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 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)). Even a
pro se Plaintiff must allege specific facts
sufficient to support a claim. Martin v. Sargent,
780 F.2d 1334, 1337 (8th Cir. 1985).
Official Capacity Claims
seeks monetary damages against Defendants for his claims.
“Claims against individuals in their official
capacities are equivalent to claims against the entity for
which they work.” Gorman v. Bartch, 152 F.3d
907, 914 (8th Cir.1998). The Defendant in this case are all
employees of the ADC. Thus, Plaintiff's official capacity
claim against the Defendants is a claim against the ADC.
Id. The ADC is a state agency. See Fegans v.
Norris,351 Ark. 200, 206, 89 S.W.3d 919 (2002). States
and state agencies are not “persons” subject to
suit under § 1983. Howlett v. Rose, 496 U.S.
356 (1990); Will v. Mich. Dept. of State Police, 491
U.S. 58 (1989); McLean v. Gordon, 548 F.3d 613, 618
(8th Cir. 2008). “This bar exists whether the relief
sought is legal or equitable.” Williams v.
Missouri,973 F.2d 599, 599 -600 (8th Cir. 1992)
(citing Papasan v. Allain,478 U.S. 265, 276