PRO SE
APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT [NO. 40CV-18-58]
HONORABLE JODI RAINES DENNIS, JUDGE
Dexter
Harmon, pro se appellant.
Leslie
Rutledge, Att'y Gen., by: Rosalyn Middleton, Ass't
Att'y Gen., for appellee.
SHAWN
A. WOMACK, ASSOCIATE JUSTICE
Dexter
Harmon sued Arkansas prison officials under the Arkansas
Civil Rights Act and state tort law for allegedly depriving
him of a nutritionally adequate diet that is safe for
consumption. He filed suit against Appellees in their
official and individual capacities. The circuit court
concluded that Harmon's complaint was barred by sovereign
and statutory immunity and failed to state facts upon which
relief could be granted. The court dismissed the action and
issued a strike. We affirm the dismissal but reverse the
strike.
I.
During
the relevant time period, Harmon was incarcerated at the
Varner Supermax Unit of the Arkansas Department of Correction
(ADC). In his pro se complaint, Harmon alleged that Appellees
failed to comply with an ADC administrative regulation and
unit policy concerning the food service at Varner Supermax.
He sought to hold Appellees liable for negligence and for
cruel and unusual punishment under the Arkansas Civil Rights
Act. He requested injunctive and declaratory relief and
reimbursement of costs.
According
to the complaint, Appellees consistently served small
portions of cold and unappetizing food. Harmon claimed he was
provided nutritionally inadequate, poorly seasoned, and
"regularly unappealing" food that "tastes
nasty." He also alleged that meals were delivered by
unqualified prison employees who had not been trained in food
service. He stated that employees did not wash their hands,
had poor personal hygiene, appeared sick, and wore their
regular uniforms while handling food. Harmon further
complained that the food was not kept at acceptable
temperatures. He accused Appellees of being deliberately
indifferent to these concerns by refusing to thoroughly
investigate his grievances and refusing to properly oversee
food distribution. As a result, Harmon alleged that he was
afraid to eat the food because he believed it was
contaminated and placed him at risk of contracting a
foodborne illness. According to Harmon, he consequently
suffered emotional harm, weight loss, energy loss, and
fatigue.
The
circuit court granted Appellees' motion to dismiss. The
court concluded that the complaint was barred by sovereign
and statutory immunity and failed to state facts upon which
relief could be granted.[1] The court also issued a strike under
Arkansas Code Annotated section 16-68-607 (Supp. 2017). This
appeal followed.
II.
On
appeal, Harmon contends that his complaint provided
sufficient factual allegations to establish an exception to
sovereign immunity, preclude application of statutory
immunity, and satisfy our fact-pleading requirement.
According to Harmon, his complaint provided factual
allegations showing that Appellees' conduct violated the
state constitution's prohibition against cruel and
unusual punishment under the Arkansas Civil Rights Act and
constituted negligence under state tort law. He asks that we
reverse the dismissal of his complaint and the circuit
court's issuance of a strike.
When
reviewing the circuit court's decision to grant a motion
to dismiss, we treat the facts alleged in the complaint as
true and view them in the light most favorable to the
plaintiff. See Banks v. Jones, 2019 Ark. 204, at 3,
575 S.W.3d 111, 114. All reasonable inferences are resolved
in favor of the complaint, and the pleadings are liberally
construed. Id. Under our fact-pleading requirement,
a complaint must state facts in order to entitle the pleader
to relief. Id. Mere conclusions will not suffice.
Id. We review a motion to dismiss for abuse of
discretion. Id. But whether a party is immune from
suit is purely a question of law and is reviewed de novo.
Id.
A.
The
Arkansas Constitution unequivocally provides that "[t]he
State of Arkansas shall never be made defendant in any of her
courts." Ark. Const. art. 5, § 20. We have extended
sovereign immunity to state agencies and employees sued in
their official capacities. See Williams v. McCoy,
2018 Ark. 17, at 3, 535 S.W.3d 266, 268. Sovereign immunity
accordingly extends to claims against Appellees in their
official capacities as ADC employees. See Fegans v.
Norris, 351 Ark. 200, 206-07, 89 S.W.3d 919, 924 (2002)
(per curiam). In determining whether the doctrine of
sovereign immunity applies, the court must decide whether a
judgment for the plaintiff will operate to control the action
of ...