United States District Court, W.D. Arkansas, Hot Springs Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
BARRY A. BRYANT U.S. MAGISTRATE JUDGE.
this Court is Defendant, Officer Sam Spencer's, Motion To
Dismiss. ECF No. 70. Plaintiff has responded to this Motion.
ECF No. 79. Pursuant to the provisions of 28 U.S.C. §
636(b)(1) and (3) (2005), the Honorable Robert T. Dawson
referred this motion to this Court for the purpose of making
a report and recommendation. This Court, having reviewed the
parties arguments and briefing, recommends Defendant, Sam
Spencer's, Motion To Dismiss (ECF No. 70) be
August 21, 2017, Plaintiff filed a pro se Complaint
alleging claims on behalf of herself and her minor children
T.P Jr., T.P., and K.P. against Defendants alleging her civil
rights were violated through an eviction from a public
housing unit. ECF No. 1. According to Plaintiff's Complaint,
beginning in 2010, Plaintiff participated in the Public
Housing Program with the Housing Authority of the City of Hot
Springs. ECF No. 1, ¶ 21. In 2011, Plaintiff received
two minor write ups, but had not been late on her rent.
Id. However, in 2012, Plaintiff failed to pay a
$8.18 balance on her utility bill. ECF No. 1, ¶ 22.
November 6, 2012, Zena Vagnini, an occupancy specialist at
the Housing Authority, notified Plaintiff by letter she had
to leave the premises by November 20, 2012, due to the
failure to pay $8.18 for rent, utility and maintenance. ECF
No. 1, Pg. 27. Plaintiff requested a grievance hearing which
was scheduled for November 28, 2012. ECF No. 1, ¶ 23,
24. According to the Complaint, while at the grievance
hearing, Defendant Spencer issued Plaintiff a “Failure
to Vacate” citation; threatened Plaintiff with arrest
and the possibility of having her children placed in the
custody of the State; and told her to disconnect her phone
call to her aunt during the hearing. ECF No. 1, ¶ 15,
24, 38, 56. Following the grievance hearing, Plaintiff
appeared in Garland County District Court and was found
guilty on the Failure to Vacate citation. ECF No. 1, Pgs.
16-18. On December 21, 2012, the citation was nolle prosed
upon notice that Plaintiff had vacated the premises.
a civil rights action filed by the Plaintiff pursuant to 42
U.S.C. § 1983. Defendant Spencer filed a Motion to
Dismiss under Fed.R.Civ.P. 12(b)(6) contending Plaintiff
failed to state a claim upon which relief can be granted or
because Officer Spencer is entitled to qualified immunity.
ECF. No. 70.
12(b)(6) provides that a motion to dismiss should be granted
on a plaintiff's claim if he “fail[s] to state a
claim upon which relief can be granted.” A complaint
should be dismissed for failure to state a claim if it
appears beyond a doubt the plaintiff's complaint can
prove no set of facts to support the plaintiff's
purported cause of action. Schaller Tel. Co. v. Golden
Sky Sys., Inc., 298 F.3d 736, 740 (8th Cir. 2001). In
determining whether to dismiss this action under Rule
12(b)(6), the Court will assume the facts alleged in
Plaintiff's Complaint are correct and will draw
reasonable inferences from the facts in favor of the
allegations in the Complaint. Turner v. Holbrook,
278 F.3d 754, 757 (8th Cir. 2002); In re Navarre Corp.
Sec. Litig., 299 F.3d 735, 738 (8th Cir. 2002).
order to state a claim under 42 U.S.C. § 1983, a
plaintiff must allege that the defendant acted under color of
state law and that he violated a right secured by the
Constitution. West v. Atkins, 487 U.S. 42 (1988);
Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.
1999). The deprivation must be intentional; mere negligence
will not suffice to state a claim for deprivation of a
constitutional right under § 1983. Daniels v.
Williams, 474 U.S. 327 (1986); Davidson v.
Cannon, 474 U.S. 344 (1986).
facts set forth in Plaintiff's Complaint do not support
any plausible cause of action for relief under 42 U.S.C.
§ 1983 against Defendant Spencer. To begin with,
Defendant Spencer's issuing a “Failure to
Vacate” citation did not violate Plaintiffs
constitutional rights. Officer Spencer did not arrest her or
deprive her of any property. Plaintiff does not identify any
constitutional right that was infringed when Officer Spencer
issued the citation to Plaintiff. See Goff v. Bise,
173 F.3d 1068, 1072 (8th Cir.1999) (identifying as the
plaintiff's burden to “assert a violation of a
constitutional right” on a § 1983 claim). Even
viewing Plaintiff's submissions in the most favorable
light, Plaintiff has not shown how Officer Spencer's
issuance of a Failure to Vacate citation violated her
also alleges Officer Spencer threatened to arrest her,
threatened to place her children into the custody of the
State, and told her to stop talking on the phone during the
grievance hearing. “Verbal threats do not constitute a
constitutional violation.” Martin v. Sargent,
780 F.2d 1334, 1339 (8th Cir. 1985). Similarly, taunts, name
calling, and the use of offensive language does not state a
claim of constitutional dimension. McDowell v.
Jones, 990 F.2d 433, 434 (8th Cir. 1993). A threat
constitutes an actionable constitutional violation only when
the threat is so brutal or wantonly cruel as to shock the
conscience and amount to a severe invasion of personal
security and autonomy. Wise v. Pea Ridge Sch. Dist.,
855 F.2d 560 (8th Cir. 1988). While Plaintiff may have felt
uncomfortable as a result of Defendant Spencer's
comments, his words do not rise to the level of a
upon the foregoing, Officer Sam Spencer's, Motion To
Dismiss (ECF No. 70) should be GRANTED. As
noted above, all other defendants and claims have been
resolved either by settlement or Order. Accordingly, I
recommend this case be dismissed in its entirety.
parties have fourteen (14) days from receipt of this Report
and Recommendation in which to file written objections
pursuant to 28 U.S.C. § 636(b)(1). The failure to file
timely objections may result in waiver of the right to appeal
questions of fact. The parties are reminded that objections
must be both timely and specific to trigger d ...