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Markcum v. Tallant

United States District Court, W.D. Arkansas, Texarkana Division

September 13, 2019



          Susan O. Hickey Chief United States District Judge.

         This is a civil rights action filed by Plaintiff, Michael Eugene Markcum, pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. The case is before the Court for preservice screening under the provisions of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915A. Pursuant to the PLRA, the Court has the obligation to screen any complaint in which a prisoner seeks redress from a governmental entity, officer, or employee.

         I. BACKGROUND

         Plaintiff filed his Complaint on August 30, 2019. (ECF No. 1). His application to proceed in forma pauperis was granted that same day. (ECF No. 3). Plaintiff has named Jana Tallant- the Jail Administrator at the Howard County Jail (“HCJ”); Lacey Grace-a jailer at the HCJ; Brian McJunkins-the Sheriff of Howard County; and Amy Marion-the Chief of Police, as Defendants in this action.

         Plaintiff describes his claim as “leaving us in a cell while there was 6ft of water around the coming under the doors exposing us to sewer water[.]” (ECF No. 1, p. 4). He goes on to state that on July 16, 2019:

[Jana Tallant] give Lacey Grace order to move us in a cell that only holds 10 men all together it was 22 of us. Left us there while the hole jail flooded. Its here job to have a evacuaction plan she did'nt have one…we walked in ankle deep sewer water, while cars and trucks were floating in front of the jail. We were held in the cell from 7:00A.M. to 3:30p.m…[Lacey Grace] would not help us to get dry clothes or move us to another cell or provide clean up chemicals or mop. Just laughed and went back up front…[Brian McJunkins] He prison us in A10 man cell with 20 men in it while standing in ankle deep sewer water for hours. And then give his jailer orders to feed us standing in sewer water with no gloves or hairnet…[Amy Marion] is chief of police here, It's her job to help provide a sufficient jail. As far as evacuaucation plan for floods emergencyies she did'nt do her job[.]”

(Id. at pp. 4-7).

         For his official capacity claim Plaintiff alleges, “no emergency plan to help move us standing in sewer water. No. clean clothes . . . feed us sandwiches standing in sewer water . . . no hairnets or gloves. Had to wear our nasty clothes for 4 day straight[.]” (Id. at pp. 5-6). Plaintiff also alleges “after they moved us to another jail 9 days later they brought us back to the same cell didn't paint the walls or redo the floors or even bleach anything[.]” (Id. at p. 6). As a result, Plaintiff states, he suffered “scariest feelings in the world to know that I was going to die from drowning . . . [Defendants] put inmates at or a risk of catching any kind of diseases[.]” (Id. at pp. 10-11).

         On September 3, 2019, Plaintiff filed a document which was entered by the Clerk of Court as a Supplement to his Complaint. (ECF No. 6). In this Supplement, Plaintiff alleges he was denied medical care on June 20, 2019, by Guard Turner Reed, Jailer Ethan Nowlen, Jailer Dalton Potter and Defendant Jana Tallant.

         The Court takes judicial notice of a news report documenting that on July 15, 2019, the remnant of Tropical Storm Barry made its way through Arkansas. The storm dropped 8.47 inches of rainfall on Nashville, Arkansas-where the HCJ is located. The report states, “Inmates from the Howard County jail were evacuated Tuesday afternoon. Seven inmates were moved to Department of Correction sites while the rest were bused to the Sevier County jail in De Queen.”[1]While this report differs from Plaintiff's account of the flood and the alleged lack of evacuations, there is no question the flooding occurred, and that Defendants were not responsible for such flooding


         Under the PLRA, the Court is obligated to screen cases 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).

         However, conclusory allegations with no supporting factual averments are insufficient to state a claim upon which relief can be based. Allen v. Purkett, F.3d 1151, 1153 (8th Cir. 1993); see also Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). “[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out ...

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