United States District Court, E.D. Arkansas, Jonesboro Division
PROPOSED FINDINGS AND RECOMMENDATION
following proposed Recommendation has been sent to United
States District Judge D. P. Marshall Jr. You may file written
objections to all or part of this Recommendation. If you do
so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection, and (2) be
received by the Clerk of this Court within fourteen (14) days
of this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
Marcus Brian Lockhart filed a pro se complaint
pursuant to 42 U.S.C. § 1983 on February 25, 2019, while
incarcerated at the Craighead County Detention Center (Doc.
No. 2). Lockhart was ordered to file an amended complaint
describing why he believes he is currently in imminent danger
of serious physical injury, how each defendant violated his
constitutional rights, and whether he sues defendants in
their individual and/or official capacities. Doc. No. 3.
Lockhart filed his amended complaint on March 11, 2019,
indicating he is suing defendants in their official
capacities only. See Doc. No. 4. For the reasons
stated herein, Lockhart's claims should be dismissed for
failure to state a claim upon which relief may be granted.
docketing the complaint, or as soon thereafter as
practicable, the Court must review the complaint to identify
cognizable claims or dismiss the complaint if it: (1) is
frivolous or malicious; (2) fails to state a claim upon which
relief may be granted; or (3) seeks monetary relief against a
defendant who is immune from such relief. See 28
U.S.C. § 1915A. Rule 8 of the Federal Rules of Civil
Procedure requires only “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” In Bell Atlantic Corporation v.
Twombly, 550 U.S. 544, 555 (2007), the Court stated,
“a plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do. . . . Factual allegations must be enough to
raise a right to relief above the speculative level, ”
citing 5 C. Wright & A. Miller, Federal Practice
and Procedure § 1216, pp. 235-236 (3d ed. 2004). A
complaint must contain enough facts to state a claim to
relief that is plausible on its face, not merely conceivable.
Twombly at 570. However, a pro se
plaintiff's allegations must be construed liberally.
Burke v. North Dakota Dept. of Corr. & Rehab.,
294 F.3d 1043, 1043-1044 (8th Cir.2002) (citations omitted).
sues defendants in their official capacities. See
Doc. No. 4 at 2. Official capacity claims are
“functionally equivalent to a suit against the
employing governmental entity.” Veach v. Bartels
Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010).
Thus, a suit against the defendants in their official
capacities is in essence a suit against the County or city
itself. See Murray v. Lene, 595 F.3d 868 (8th Cir.
2010); Liebe v. Norton, 157 F.3d 574 (8thCir. 1998).
A municipality cannot be held liable on the basis of
respondeat superior, or simply by virtue of being
the employer of a tortfeasor. Atkinson v. City of
Mountain View, Mo., 709 F.3d 1201 (8th Cir. 2013).
Accordingly, the defendant county employees can only be held
liable in their official capacities in this case if Lockhart
can establish that a constitutional violation was committed
pursuant to “an official custom, policy, or practice of
the governmental entity.” Moyle v. Anderson,
571 F.3d 814, 817 (8th Cir. 2009).
complains that a leaking toilet in his cell creates an unsafe
condition and that defendant Black refuses to treat injuries
he sustained after falling on the wet floor. Doc. No. 4 at
6-8. Lockhart does not assert that a custom or policy of
Craighead County was the moving force behind the claimed
violations of his constitutional rights. Accordingly, his
complaint fails to state a claim upon which relief may be
granted and should be dismissed. Additionally, his
application to proceed in forma pauperis (Doc. No.
1) should be denied as moot.
reasons stated herein, it is recommended that:
1. Lockhart's complaint be dismissed without prejudice
for failure to state a claim upon which relief may be
2. Lockhart's application to proceed in forma
pauperis (Doc. No. 1) should be denied as moot.
3. Dismissal of this action count as a “strike”
within the meaning of 28 U.S.C. § 1915(g).
4. The Court certify, pursuant to 28 U.S.C. §
1915(a)(3), that an in forma pauperis appeal from
the order adopting this recommendation and accompanying