Jones v. Griffin et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
AIDEN JONES 	PLAINTIFF
v. 	Civil No. 2:25-cv-02015-TLB-MEF
TIM GRIFFIN
(Arkansas Attorney General) and
PROSECUTING ATTORNEY STEVEN G. HIGGINS
(Johnson County, Arkansas) 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed under 42 U.S.C. § 1983. Pursuant to the provisions of 28
U.S.C. §§ 636(b)(1) and (3), the Honorable Timothy L. Brooks, Chief United States District Judge,
referred this case to the undersigned for the purpose of making a Report and Recommendation.
Currently before the Court is Plaintiff’s Motion for Temporary Injunction (ECF No. 24), Plaintiff’s
Motion for a Hearing on the Motion for Temporary Injunction (ECF No. 40), and Defendants’
Motion to Dismiss. (ECF No. 28).
I. 	BACKGROUND
Plaintiff filed his Complaint and his first Motion for Emergency Temporary Injunction or
Temporary Restraining Order on February 19, 2025. (ECF Nos. 1, 6). Plaintiff alleges that his
First and Fourteenth Amendment rights were violated when he was charged with cyberbullying
pursuant to Ark. Code Ann. § 5-71-217 for criticizing the actions of public officials and threatening
them with lawsuits. (Id.). Plaintiff appears to raise both facial and “as-applied”0F
1 challenges to the
statute, stating that the statute’s wording is vague and overbroad, does not give notice of proscribed
1 Plaintiff references the application of the statute to him in his Complaint, but he does not use the
phrase “as-applied” until his Motion for Emergency Injunction and Temporary Restraining Order.
The Court will construe these documents to mean that Plaintiff intended to bring both a facial and
“as-applied” challenge to the cyberbullying statute.
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conduct, and results in arbitrary enforcement. 	(Id. at 7, 9). 	Plaintiff states that he has been
“deterred from engaging in protected activity online” due to the statute, but he does not identify
any specific activity. (Id. at 7). He alleges that he has been “sitting in jail for nine months” because
of the interaction of this pending charge and his other cases, based on a probation revocation. (Id.
at 5). 	Plaintiff states that: “Judge Capp presides over misdemeanor offences, S. Judge Fred
Kirkpatrick is presiding over mine, Steve Higgins enforces/prosecutes on behalf of Arkansas. . . .”
(Id. at 5). 	Plaintiff proceeds against Defendants in their official capacities only. 	(Id. at 5, 9).
Plaintiff seeks injunctive and declaratory relief. (Id. at 11).
Review of Plaintiff’s state court docket, and his other cases in this District, indicate that
Plaintiff was charged with harassment and cyberbullying in State v. Aiden Jones, Case No. CKC-
24-172. That case was dismissed, apparently based on a plea agreement in another case, on May
9, 2025.1F
2 The dismissal order does not indicate if the case was dismissed with or without prejudice,
and it does not reference the case in which Plaintiff pled guilty.
Plaintiff’s case underwent mandatory preservice screening, and his facial and “as-applied”
challenges to Ark. Code Ann. § 5-71-217 against Defendants Griffin and Higgins remained for
further review. (ECF No. 21). All other claims and Defendants were dismissed. (Id.). Plaintiff’s
first Motion for Emergency Injunction and Temporary Restraining (ECF No. 6) was denied as
moot based on the dismissal of the charges against him in State v. Aiden Jones, Case No. CKC-
24-172. (Id.).
Plaintiff filed his second and currently pending Motion for Temporary Injunction on July
17, 2025. (ECF No. 24). He asks that this Court issue an injunction preventing Defendants from
enforcing § 5-71-217 against him pending the outcome of this case. He argues the prior dismissal
2 State docket information publicly available on the Internet at SearchAR Courts.
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of his underlying state cyberbullying case does not prevent the “ongoing threat of enforcement”
under the statute. (Id. at 2).
Defendants filed a Response to the Motion on August 11, 2025 (ECF No. 27), and then a
Motion to Dismiss on August 13, 2025 (ECF No. 28). 	They provide additional information
concerning Plaintiff’s related state cases:
Plaintiff Aiden Smith, a convicted felon, was charged with one
count of Cyberbullying in violation of § 5-71-217 after sending
numerous intimidating and threatening direct messages on social
media to Harrisburg police officers and their spouses. At the time
Plaintiff was charged with Cyberbullying, he was on probation for a
different charge related to harassment of an ex-girlfriend. 	As a
result of the Cyberbullying charge, Plaintiff spent several months in
jail awaiting the outcome of his different criminal cases. On May 9,
2025, he pled guilty to First Degree Criminal Mischief, a Class C
felony, and 	agreed to 	the underlying facts 	for his probation
revocation. 	In exchange the Cyberbullying charge was dismissed.
The underlying facts for Plaintiff's probation revocation included
the facts that led to him being charged with Cyberbullying.
(ECF No. 29 at 2). They also provide a copy of Plaintiff conditions of suspended conditions of
sentence in 26CR-23-330 and 36CR-24-87. This includes a provision that Plaintiff shall have no
contact with “Ashley Zachery, Baleigh Zachery, Stacey Zachery, Josiah Masterson, Jonah
Masterson, Corey Yarbrough, Nathan Warren, Bryan Syfert, Francisco Moreno nor any of their
family/household members.” (ECF No. 29-2 at 2).
Defendants raise the same arguments based on the merits of the claims for both the
Response to the Motion for Emergency Temporary Injunction and the Motion to Dismiss. (ECF
Nos. 27, 29). First, they argue that Defendants are not the proper Defendants and are entitled to
sovereign immunity. (ECF No. 29 at 3-4). Specifically, they argue that Defendant Griffin, as the
Arkansas Attorney General, is not granted any specific enforcement authority under the statute,
and general law enforcement powers are insufficient to support Plaintiff’s claims. (Id. at 4). They
also argue that, as the deputy prosecuting attorney, Defendant Higgins can only act under the
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authority of the elected prosecutor of the Fifth District. He lacks the authority to prosecute Plaintiff
under this statute on his own authority. 	(Id.). 	Thus, they assert, neither Defendant Griffin nor
Defendant Higgins are proper Defendants in this case. (Id.).
Second, Defendants argue that Plaintiff lacks standing to bring his claims. (ECF No. 29 at
6). 	Specifically, they argue he lacks standing “because the original criminal charge against the
Plaintiff has been dismissed, the statute of limitations has passed, and he has not alleged that he
plans to take action that allegedly violates the statute or that he would do so but for the statute.”
(Id.). They stress that Plaintiff’s Complaint only mentions past conduct. (Id.).
Third, Defendants argue Plaintiff’s claims are barred by the Heck doctrine. (ECF No. 29
at 6-7). 	They note that “Plaintiff’s probation was revoked as a result of his violation of the
cyberbullying charge. Plaintiff also agreed to the underlying facts that led to the revocation. (Id.).
Because finding that the cyberbullying statute is unconstitutional as it applies to him would
invalidate that revocation, the claim is Heck barred.” 	(Id.). 	“Because a finding that the
Cyberbullying statute is unconstitutional would necessarily invalidate a period of Plaintiff's
confinement, Heck bars Plaintiff's claims.” (Id. at 8).
Fourth, Defendants argue that § 5-71-217 does not violate the First Amendment. (ECF No.
29 at 8). They note that Plaintiff’s Complaint does not contain specific instances of speech that
Plaintiff claims is constitutionally protected speech covered by the statute. 	(Id.). 	They further
note that, in the context of the criminal code, the words used in the statute are either “fighting
words” or words the present “a grave or imminent threat.” That speech has never been subject to
the First Amendment. (Id. at 9). They note that other Arkansas criminal statutes use the same or
similar phrases and have long been in place and upheld as constitutional. (Id. at 9-10).
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Fifth, they argue the statute is not unconstitutionally vague. (ECF No. 29 at 9). They again
note that the “terms used in the statute are used in other parts of Arkansas’ criminal code, some
for many years, and have not been found to be vague.” (Id. at 11).
Plaintiff filed a Response to the Motion to Dismiss on August 15, 2025. (ECF No. 30).
He argues Defendants arguments are baseless, flawed, and inaccurate. (Id.). He also filed a Reply
to Defendants Response in Opposition to his Motion for Temporary Injunction on August 18,
2025. (ECF No. 31).
Defendants filed Motion to Strike his Reply on September 10, 2025. (ECF No. 34). They
argued that Plaintiff’s Reply contained at least 24 erroneous or non-existent citations and quotes
and appeared to have been written by an artificial intelligence model. (Id. at 35). Plaintiff filed a
Response in Opposition to the Motion to Strike on October 6, 2025. 	(ECF No. 36). 	Because
Plaintiff admitted that he had used an AI model and further admitted that he had violated Federal
Rule of Civil Procedure Rule 11, his Reply to the Response to the Temporary Injunction (ECF No.
31) was stricken on October 31, 2025. (ECF No. 37). In the Order striking the Response, Plaintiff
was warned that “any future filings submitted to this Court in violation of Federal Rule 11 will
result in the filing being struck and additional disciplinary sanctions considered.” (Id. at 2).
Plaintiff filed an Amended Reply without the Court’s permission on November 10, 2025.
(ECF No. 39). He then filed a Motion for Hearing on the Temporary Injunction on November 17,
2025. (ECF No. 40). Defendants filed a Motion to Strike Plaintiff’s Amended Reply on November
26, 2025. 	(ECF No. 41). 	As grounds they argue that “Plaintiff’s reply contains at least 3
nonexistent quotations, several quotations that actually come from the syllabus or overview of the
case, and one citation to a repealed statute.” Plaintiff filed a Motion to Strike their Motion to Strike
on December 1, 2025, arguing that Defendants misread his citations and are attempting to
weaponize Rule 11. (ECF No. 44). Review of the relevant documents indicates that Defendants’
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arguments were correct. Plaintiff’s use of legal citation and quotation were deceptive at best, and
clearly the result of using an AI model without checking the authority used prior to submission.
Accordingly, Plaintiff’s Amended Reply (ECF No. 39) was stricken on December 3, 2025.
Plaintiff was again warned against violating Rule 11 with his submissions.
II. 	LEGAL STANDARD
Rule 8(a) contains the general pleading rules and requires a complaint to present “a short
and plain statement of the claim showing that the pleader is entitled to relief.” 	Fed. R. Civ. P.
8(a)(2). “In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), ‘a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.’” 	Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” 	Iqbal, 556 U.S. at 678. 	While the Court will
liberally construe a pro se plaintiff’s complaint, the plaintiff must allege sufficient facts to support
his claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
III. 	ANALYSIS
A. 	Sovereign Immunity
Under the exception set forth in Ex parte Young, 209 U.S. 123 (1908), “state officials may
be sued in their official capacities for prospective injunctive relief without violating the Eleventh
Amendment.” 	Monroe v. Arkansas State University, 495 F.3d 591, 594 (8th Cir. 2007). “In
determining whether this exception applies, a court conducts a straightforward inquiry into
whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.” 281 Care Committee v. Arneson (I), 638 F.3d 621, 632 (8th Cir.
2011) (internal quotation marks and citation omitted). A plaintiff may not, however, sidestep the
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Eleventh Amendment by merely invoking an official capacity claim for prospective injunctive
relief. Instead, “any probe into the existence of a Young exception should gauge (1) the ability of
the official to enforce the statute at issue under his statutory or constitutional powers, and (2) the
demonstrated willingness of the official to enforce the statute.” 281 Care Committee v. Arneson
(II), 766 F.3d 774, 797 (8th Cir. 2014) (quoting Okpalobi v. Foster, 244 F.3d 405, 417 (5th Cir.
2001) (internal quotations and modification signals omitted). See also, e.g., Balogh v. Lombardi,
816 F.3d 536, 544-546 (8th Cir. 2016) (Director of Missouri Department of Corrections was
immune from suit under the Eleventh Amendment because his authority to choose the members of
the execution team was administrative or ministerial, and “not analogous to enforcing the statutes
non-discretionary provision though a civil or criminal prosecution.”).
The Eighth Circuit has recently addressed the connection issue in Bio Gen LLC v. Sanders,
142 F.4th 591 (8th Cir. 2025):
Ex parte Young permits some actions for prospective injunctive
relief against state officials acting in their official capacities, so long
as the official has “some connection with the enforcement” of the
challenged law. Ex parte Young, 209 U.S. at 157–59, 28 S.Ct. 441;
Monroe v. Ark. St. Univ., 495 F.3d 591, 594 (8th Cir. 2007).
For a sufficient connection to the enforcement of the challenged law,
an officer must have “methods of enforcement” for the challenged
law at its disposal. 	Church, 913 F.3d at 749. 	The method of
enforcement can arise out of “the general law” or be “specially
created by the act itself.” Ex parte Young, 209 U.S. at 157, 28 S.Ct.
441. 	It need not be a primary authority to enforce the challenged
law. 	E.g., Mo. Prot. & Advoc. Servs. v. Carnahan, 499 F.3d 803
(8th 	Cir. 	2007). 	But 	plaintiffs 	must 	identify 	a 	method 	of
enforcement that the officer has the authority to wield. 	See, e.g.,
Calzone v. Hawley, 866 F.3d 866, 870 (8th Cir. 2017) (enjoining the
attorney 	general 	would 	not 	prevent 	the 	complained 	vehicle
inspections by highway patrol); Digit. Recognition Network, Inc.,
803 F.3d 952, 960–64 (8th Cir. 2015) (analyzing Citizens for Equal
Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006)) (the Nebraska
governor “may direct the attorney general to file suit”); Church, 913
F.3d at 749–51 (appointing members to the Missouri State Public
Defenders 	commission 	is 	an 	insufficient 	connection 	to 	the
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enforcement mechanism relating alleged violations of the Sixth
Amendment right to adequate representation).
Bio Gen LLC v. Sanders, 142 F.4th at 604–05.
Further, the doctrine of Ex parte Young only applies where the suit seeks prospective
injunctive relief to end a continuing federal law violation. Seminole Tribe of Fla. v. Fla., 517 U.S.
44 (1996). “[A] plaintiff's speculation that a future injury may occur is not sufficient to warrant
injunctive relief.” Guggenberger v. Minnesota, 198 F. Supp. 3d 973, 991 (D. Minn. 2016) (citing
Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). See, e.g., 281 Care Comm. v. Arneson (II), 766
F.3d at 797 (The Ex parte Young exception only applies when a state official has threatened to,
and is about to, commence proceedings.).
Defendant Griffin is the Arkansas Attorney General. 	Nothing in § 5-71-217 grants any
specific enforcement authority to the Arkansas Attorney General under the statute. 	Nor do his
general law enforcement powers provide sufficient connection to support Plaintiff’s claims.
Defendant Higgins is a Deputy Prosecuting Attorney. “A deputy has the authority to file
charges in the name of the prosecutor who appoints him. Ark. Code Ann. § 16–21–113(c)(1). In
the words of an older case, the deputy is ‘generally clothed with all the powers and privileges of
the prosecuting attorney,’ and he speaks in court papers in his principal’s name.’” Austin v. Long,
No. 2:12-CV-76-DPM, 2013 WL 1092407, at *1 (E.D. Ark. Mar. 14, 2013) (quoting Johnson v.
State, 199 Ark. 196, 203, 133 S.W.2d 15, 18 (1939)). Defendant Higgins was the acting prosecutor
on Plaintiff’s dismissed case for cyberbullying; however, because he can only act under the
authority of the elected prosecutor of the Fifth District, he lacks the authority to prosecute Plaintiff
under § 5-71-217 on his own authority.
Finally, the Ex parte Young exception only applies when a state official has threatened to,
and is about to, commence proceedings; it does not apply to retrospective or speculative harms.
Here, Plaintiff has not alleged that Defendants are about to commence proceedings against him
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under § 5-71-217. Instead, he refers only to the dismissed case, a state revocation hearing,2F
3 and
he speculates that a future injury could occur. This is insufficient to qualify for the Ex parte Young
exception, and Defendants are thus protected by sovereign immunity.
B. 	Plaintiff’s Standing
Plaintiff has failed to establish standing for his claims. “To establish Article III standing,
a plaintiff must show (1) an injury in fact,” (2) a sufficient “causal connection between the injury
and the conduct complained of,” and (3) a “likel[ihood]” that the injury “will be redressed by a
favorable decision.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks omitted)). “[A]
plaintiff satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a course
of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there
exists a credible threat of prosecution thereunder.’” (Id. at 159).
As Defendants correctly argued, Plaintiff lacks standing because the original charge against
Plaintiff under § 5-71-217 was dismissed, the statute of limitations has passed, and Plaintiff has
not alleged that he plans to take action that allegedly violates § 5-71-217 or that he would do so
but for the statute. Instead, as discussed above, Plaintiff refers only to the dismissed case, a state
revocation hearing, and speculates that a future injury could occur.
3 Plaintiff has several cases pending in this District. In Jones v. City of Clarksville, Case No. 2:25-
cv-02123-TLB-MEF, Plaintiff recently asked this Court to issue injunctive relief concerning a
pending revocation hearing on November 14, 2025. That request was denied. The state cases in
question were 36CR-23-330 and 36CR-24-87, in which Plaintiff was convicted of criminal
mischief. The revocation petition is based on allegations that Plaintiff violated conditions of his
suspended imposition of sentence, including failure to make full monthly payments, failure to be
gainfully employed, and failure to avoid contact with Jonia Smith and his wife. The alleged no-
contact violation included a Facebook post on Justice for Arkansas and resulting texts and emails.
The petition also alleges Plaintiff committed perjury in Yell County on August 11, 2025. Cases
available at SearchAR Courts (last accessed Dec. 2, 2025). No mention of § 5-71-217 is made in
the revocation petition.
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Based on the Court’s rulings discussed above, it is not necessary to address the other
arguments raised by Defendants at this time.
IV. 	CONCLUSION
Accordingly, it is RECOMMENDED that Plaintiff’s Motion for Temporary Injunction
(ECF No. 24) and Plaintiff’s Motion for a Hearing on the Motion for Temporary Injunction (ECF
No. 40) be DENIED. It is further RECOMMENDED that Defendants’ Motion to Dismiss (ECF
No. 28) be GRANTED, and Plaintiff’s Complaint be DISMISSED WITHOUT PREJUDICE.
Referral Status: This case should not remain referred because all matters have been
recommended for dismissal in this Report and Recommendation.
The parties have fourteen (14) days from receipt of the 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 de novo review by the
district court.
DATED this 3rd day of December 2025.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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