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. 11)
from United States Magistrate Judge Mark E. Ford. Plaintiff
proceeds in this 42 U.S.C. §1983 action pro se
and in forma pauperis. Upon review, the Magistrate
recommended that Plaintiff's complaint be dismissed
without prejudice. Plaintiff has filed two separate timely,
written Objections (ECF Nos. 12, 13) to the Report and
Recommendation. The matter is now ripe for consideration.
filed separate objections to clarify the two distinct and
separate incidents that form the basis of his complaint. In
the first objection (ECF No. 12), Plaintiff states that on
December 26, 2017, while he was detained in the Garland
County Detention Center (GCDC), another detainee named
Peacock ran up behind him and punched him in the head,
knocking Plaintiff to the floor unconscious. According to
GCDC policy, Peacock should have been be restricted to his
cell, and it was a violation of GCDC policy for Peacock to be
let out of his cell while Plaintiff was in the sub-day room.
The same day as the assault, Plaintiff wrote an inmate
request to separate defendant Jennifer Tonseth, and asked her
to investigate the assault and file charges against Peacock.
According to Plaintiff he gave the written inmate request to
Corporal Sowell who assured Plaintiff that he
“personally would get the request to where it needed to
go, ” (Obj. Incident 1, ECF No. 12, Dec. 20, 2019 at
2.) Plaintiff complains that although the GCDC Inmate
Handbook provides that an inmate request is to be responded
to within forty-eight (48) hours, excluding weekends and
holidays, Plaintiff never received a response or answer and
the written inmate request was never returned. On January 30,
2018, Plaintiff wrote out a grievance about the assault and
gave it to Sergeant Carter. Deputy Crow responded to the
grievance on February 7, 2018. The grievance was logged but
not processed because Plaintiff failed to fill out the
grievance form completely. Specifically, Plaintiff failed to
answer the question asking whether he had attempted an
informal resolution to resolve the problem. When the
grievance response was returned, Plaintiff showed it to
Sergeant Carter who advised him that the assault would
probably not be investigated even if the grievance form was
filled in completely. Plaintiff did not file any more
requests or grievances about the assault incident. A
disciplinary investigation of the assault was performed by
Corporal Retford at which time Detainee Peacock admitted
being a gang member, and he assaulted Plaintiff at the
direction of higher up gang members.
the incident with Peacock, Plaintiff has been diagnosed with
post-traumatic stress disorder and prescribed anxiety
medication. Plaintiff alleges his constitutional rights were
violated when separate defendant Jennifer Tonseth refused and
neglected to respond to Plaintiff's inmate request as
required by GCDC policy; GCDC officials violated his rights
by failing to protect him in the restricted housing unit;
GCDC officials failed to treat Plaintiff with fairness and
violated his right to due process.
review, the Court finds that the Magistrate properly
considered all issues raised in Plaintiff's First
Objection except the “failure to protect” claim.
A failure to protect claim falls under the purview of the
Eighth Amendment. A prison official may be held liable under
the Eighth Amendment for acting with deliberate indifference
to inmate health or safety only if he knows the inmate faces
a substantial risk of serious harm and disregards that risk
by failing to take reasonable measures to abate it.
Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994). Plaintiff's amended complaint does
not specifically mention an Eighth Amendment claim (ECF No.
9). In addition, neither the Amended Complaint nor
Plaintiff's First Objection allege facts showing that
defendants knew Plaintiff faced a substantial risk of serious
harm from Detainee Peacock and disregarded it. Accordingly,
this Court finds that Plaintiff has failed to allege any
plausible Eighth Amendment violation.
Second Objection (ECF No. 13), Plaintiff states that without
being given any reason or explanation his cell was searched
on August 13, 2018 and five (5) letters, including two marked
“legal mail, ” were confiscated. Plaintiff was
not given a receipt for the seized property. When
Plaintiff's cell was searched a second time the following
day on August 14, 2018, five photographs of Plaintiff's
family and children were taken, and Plaintiff was not given a
receipt for the photographic property.
filed Inmate Grievances for the seizures of the letters and
the photographs. On August 15, 2018, Plaintiff's criminal
case came on for hearing before the Honorable Marcia
Hearnsberger, Garland County Circuit Judge. While in the
judge's chambers, Plaintiff raised the issue of his
seized property. At this time, separate defendant Garland
County Prosecutor Joseph P. Graham told Judge Hearnsberger
that he “did contact Jennifer Tonseth of C.I.D. about
the incident but his orders were not to seize the
Plaintiff's property but to only copy and return the
property to the Plaintiff.” (Obj. Incident 2, ECF No.
13, Dec. 20, 2019.) On August 22, 2018, separate defendant A.
Mann determined Plaintiff's grievances were partially
valid, finding that Plaintiff's mail and five pictures
“had been removed from Plaintiff's cell at the
request of Criminal Investigation Division (C.I.D.) without
any receipt provided.” (Am. Compl., ECF No. 9 at 19.)
Defendant Mann also reported that upon his inquiry CID
advised him that Plaintiff's property had been seized and
the items would be considered evidence until after the
adjudication of the criminal case. Defendant Mann concludes,
“This response should enclose the appropriate amount of
information to account for those items and, in return, be
observed as a receipt.” (Id.) The
response/receipt was delivered to Plaintiff on September 7,
the start of his jury trial on October 22, 2018, while in
Judge Hearnsberger's chambers, Plaintiff made a motion to
suppress evidence and return seized property. Judge
Hearnsberger “refused to have a hearing on the motion
but the Prosecutor Joseph P. Graham stated that he was not
going to use any of the Plaintiff's seized property as
evidence.” (ECF 13 at 4.) While under oath at
Plaintiff's jury trial, Separate defendant Tonseth
admitted Plaintiff's property had been seized for
evidence and that she had the pictures and property.
contends that Defendants violated his Fourth Amendment rights
and seized the property without probable cause. Plaintiff
also asserts that separate Defendant Tonseth violated Rule
15.4 of the Arkansas Rules of Criminal Procedure by not
reporting in writing “the fact and circumstances of the
seizure, with a list of things to the court before which the
defendant will be brought in for first appearance.”
Plaintiff objects to the Report and Recommendation because it
only addresses the search of Plaintiff's
cell. Plaintiff points out that the report fails to consider
the issue of whether Plaintiff's Fourth Amendment right
to be free from unreasonable seizure was violated, because
Defendants lacked probable cause to confiscate his property,
and because Tonseth did not report in writing the facts and
circumstances of the seizure pursuant to ARCP Rule 15.4.
first clause of the Fourth Amendment provides that the
‘right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches and
seizures shall not be violated…'” U.S.
v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80
L.Ed.2d 85 (1984). A seizure of property occurs “when
there is some meaningful interference with an
individual's possessory interests in that
property.” Id. While the Defendants'
assertion of control over Plaintiff's letters and photos
may have constituted a “seizure, ” the seizure
was not unreasonable. The Supreme Court has ruled that
prisoners have no legitimate expectations of privacy, and the
Fourth Amendment proscription against unreasonable search and
seizure is inapplicable in a prison cell. Hudson v.
Palmer, 468 U.S. 517, 527, 104 S.Ct. 3194, 3201, 82
L.Ed.2d 393 (1984). For this reason, it was not necessary to
establish probable cause prior to the seizure. While the
failure to provide a written receipt for the property may
have been unreasonable, that defect was cured when Defendant
Mann delivered the response/receipt on September 7, 2018.
Accordingly, Plaintiff has failed to state a claim for
unreasonable seizure under the Fourth Amendment.
conducted a de novo review of the portions of the report and
recommendation to which Plaintiff has objected, 28 U.S.C.
636(b)(1), this Court finds Plaintiff's Objections offer
neither law nor fact requiring departure from the
Magistrate's findings. Accordingly, the report and
recommendation (ECF No. 11) is proper, contains no clear
error, and should be and hereby is ADOPTED IN ITS ENTIRETY.
THEREFORE ORDERED that Plaintiff's Amended Complaint
should be and hereby is DISMISSED WITHOUT PREJUDICE pursuant
to 28 U.S.C. §§1915(e)(2)(B)(i-iii) and 1915A(a).
The Clerk ...