United States District Court, W.D. Arkansas, Hot Springs Division
T. DAWSON SENIOR U.S. DISTRICT JUDGE
Court has received a Report and Recommendation (ECF No. 80)
from United States Magistrate Judge Barry A. Bryant.
Plaintiff, proceeding pro se, filed the underlying
civil rights action pursuant to 42 U.S.C. § 1983 against
the Housing Authority of the City of Hot Springs, Arkansas,
Richard Herrington, Barbara Baer, Kenya Tate and Police
Officer Sam Spencer, in their official and individual
capacities, alleging her federal constitutional rights were
violated when she was wrongfully evicted from federally
subsidized public housing. (ECF No. 1.) Defendant Sam
Spencer, the sole remaining defendant in this
case, filed a Motion to Dismiss on the grounds
that Plaintiff has failed to allege a constitutional
violation. (ECF No. 70.) Plaintiff filed a Response in
Opposition to the Motion. (ECF No. 79) After consideration,
the Magistrate issued a report recommending that the Motion
to Dismiss be granted. Plaintiff filed timely filed
objections to the report. (ECF No. 81.) This matter is now
ripe for review.
complaint, Plaintiff alleges that, beginning in or around
2010, she participated in the Public Housing Program with the
Housing Authority of the City of Hot Springs. (Compl. ¶
2.) Plaintiff alleges that the Public Housing Program
receives funding from the U.S. Department of Housing and
Urban Development. Due to her level of income, Plaintiff was
not required to pay rent and received a utility allowance.
Plaintiff claims she was a model tenant. Id.
about November 15, 2012, Plaintiff received a Notice of
Termination letter from the Housing Authority advising her to
surrender and deliver possession of the premises. The reason
for the termination was “failure to pay rent and other
charges in the amount of: $8.18 Rent, Utility,
Maintenance.” (Compl. 27.) On or about this same day,
Plaintiff also received from the Housing Authority a Notice
to Quit demanding that she leave the premises or be charged
with Failure to Vacate. The Notice to Quit was sent for the
same $8.18 utility overage. (Compl. 28.) Plaintiff requested
a grievance hearing.
grievance hearing was held on or about November 26, 2012.
(Compl. ¶¶23, 24.) Plaintiff alleges that while at
the hearing, Defendant Officer Spencer demanded Plaintiff
disconnect her phone call to her aunt and threatened to
arrest Plaintiff and place her children with the
“Department of Children Services.” (Compl.
¶15, 38.) At the end of the nine-minute grievance
hearing, Plaintiff was charged with failure to vacate and
ordered to appear in the Garland County District Court on
December 11, 2012. (Compl. ¶¶24, 29, 38, 56.) The
Arkansas Criminal Citation was issued by Defendant Officer
Sam Spencer. Id.
records provided by Plaintiff show that she appeared at the
hearing in the District Court and pleaded not guilty. (Comp.
16.) A trial of the matter was set for December 13, 2012.
Id. Plaintiff was found guilty at the trial, and
sentencing was set for December 21, 2012. Id. At the
trial, the District Court, Judge Ohm presiding, entered a No.
Contact Order and ordered Plaintiff to leave the premises by
5:00 P.M. on December 20, 2012. (Compl. 15.) Plaintiff was
informed that if she vacated the premises by the deadline,
the Court would “nol pros” the charge. (Compl.
16-18.) On December 21, 2012, Plaintiff returned to the
Garland County District Court, Judge Switzer presiding, and
reported that she had vacated the premises. (Id. at
17.) The case was nolle prossed. Id.
Magistrate concluded that the facts alleged in
Plaintiff's Complaint do not support any plausible cause
of action for relief against Defendant Spencer. He recommends
that the Motion to Dismiss be granted, and because all other
defendants and claims have been resolved either by settlement
or order, the case be dismissed in its entirety.
Court has conducted a de novo review of those
portions of the report and recommendation to which Plaintiff
has objected. 28 U.S.C. 636(b)(1). Plaintiff's objections
offer neither law nor fact requiring departure from the
Magistrate's findings. The Report and Recommendation is
proper, contains no clear error, and is ADOPTED IN ITS
THEREFORE ORDERED that Officer Sam Spencer's Motion to
Dismiss (ECF No. 70) is GRANTED.
FURTHER ORDERED that this case is DISMISSED WITHOUT
Plaintiff's claims against
Defendants Barbara Baer and Kenya Tate were dismissed without
prejudice on March 29, 2018. ECF No. 44. On January 18, 2019,
Plaintiff's claims against Separate Defendants Hot
Springs Housing Authority and Richard Herrington ...