James v. Kelley

          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)(2011), 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. § 1915A(a).

         I. BACKGROUND

         Plaintiff 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.^[1](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).

         Plaintiff 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).

         Plaintiff 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.

         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. § 1915A(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 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).

         III. ANALYSIS

         A. Official Capacity Claims

         1. Monetary Damages

         Plaintiff 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 ...