Luna v. Gentry et al

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
RONNIE ANTHONY LUNA 	PLAINTIFF
v. 	Civil No. 4:22-cv-04048-SOH-BAB
SHERIFF ROBERT GENTRY;
JAIL ADMINISTRATOR CHRIS WALCOTT;
JAILER ADRIAN HERNANDEZ; JAILER
ROMONA ARENAS; PROGRAM COORDINATOR
ELEUPERIO HERNANDEZ; JAILER BARBERA
VALENTNE; JAILER KIMBERLY MCBAIN;
JAILER/DEPUTY ANTHONY IRVIN; JAILER
BLAKE REEL; JAILER/PROGRAM DIR.
ANA MEJIA; JAILER WHITNEY HIGGINS;
and NURSE TAMMY FOWLER 	DEFENDANTS
REPORT AND RECOMMENDATION
Before the Court is Defendants Sheriff Robert Gentry, Jail Administrator Chris Walcott,
Jailer Adrian Hernandez, Jailer Romona Arenas, Program Coordinator Eleuperio Hernandez, Jailer
Barbera Valentine, Jailer Kimberly McBain, Jailer/Deputy Anthony Irvin, Jailer Blake Reel,
Jailer/Program 	Director 	Ana 	Mejia, 	and 	Jailer 	Whitney 	Higgins’ 	(collectively 	“County
Defendants”) Amended Motion for Judgment on the Pleadings (ECF No. 108). 	Plaintiff
responded. (ECF No. 115). Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011),
the Honorable Susan O. Hickey, Chief United States District Judge, referred the instant motion to
the undersigned for the purpose of making a Report and Recommendation.
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I. 	PROCEDURAL BACKGROUND0F
1
Plaintiff filed his original Complaint and Motion to Proceed in forma pauperis (“IFP
Motion”) on June 1, 2022. (ECF Nos. 1, 2). The Court granted Plaintiff’s IFP Motion on the same
day. (ECF No. 3). Plaintiff subsequently filed two amended complaints, (ECF Nos. 6, 8), and one
Motion to Supplement, (ECF No. 79). The Court granted Plaintiff’s Motion to Supplement and
determined the Motion to Supplement, (ECF No. 79), and Plaintiff’s Second Amended Complaint
(ECF No. 8) would be read together to state all of Plaintiff’s claims. (ECF No. 84).
Plaintiff filed a Motion for Summary Judgment on January 9, 2023. (ECF No. 46). The
Court denied Plaintiff’s Motion for Summary Judgment as premature as discovery was not yet
complete. (ECF No. 83). However, this Motion for Summary Judgment includes many relevant
factual assertions by Plaintiff and those factual assertions will be considered in deciding the instant
Motion for Judgment on the Pleadings. See Porous Media Corp. v. Pall Corp., 186 F.3d 1077,
1079 (8th Cir. 1999).
County Defendants filed their first Motion for Judgment on the Pleadings on February 27,
2023. 	(ECF No. 68). 	However, when the Court granted Plaintiff’s Motion to Supplement his
Second Amended Complaint, the Court also mooted County Defendants’ first Motion for
Judgment on the Pleadings. (ECF No. 85). County Defendants filed their Amended Motion for
Judgment on the Pleadings on January 30, 2024. (ECF No. 108). Plaintiff filed his Response on
March 22, 2024. (ECF No. 115).1F
2
1 This case has a long and convoluted procedural background much of which is irrelevant to County
Defendants’ instant Motion. 	Accordingly, the Court includes here only those filings which are
relevant.
2 Separate Defendant Fowler filed her Motion for Judgment on the Pleadings and Brief in support
on July 5, 2023. 	(ECF Nos. 87-88). 	Plaintiff did not respond. 	The Court issued a Report and
Recommendation on January 18, 2024 on Fowler’s Motion. (ECF No. 107). Chief Judge Hickey
adopted that Report and Recommendation on February 7, 2024. (ECF No. 110).
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II. 	CLAIMS AND FACTS ALLEGED
Plaintiff is currently incarcerated in the Dick Conner Correctional Center in Hominy,
Oklahoma. 	His claims in this lawsuit stem from alleged civil rights violations while he was
incarcerated in the Sevier County Detention Center (“SCDC”), in DeQueen, Arkansas, as a pretrial
detainee. Plaintiff sued County Defendants in both her individual and official capacities. Plaintiff
is seeking compensatory and punitive damages. (ECF No. 8).
Plaintiff makes nine claims in total between his Second Amended Complaint and his
Supplement to his Second Amended Complaint. 	In his Second Amended Complaint, Plaintiff
alleges five claims against twelve Defendants. 	Plaintiff asserts four additional claims in his
Supplement against the same twelve Defendants. 	Some of Plaintiff’s claims are asserted only
against Defendant Fowler who moved for judgment on the pleadings in a separate motion. (ECF
No. 87). The Court has already addressed those claims against Defendant Fowler in its January
18, 2024 Report and Recommendation. 	(ECF No. 107). 	Accordingly, those claims will not be
addressed herein. Furthermore, Plaintiff’s factual allegations in his Supplement provide the Court
with a more comprehensive explanation of the incident complained of at the SCDC. 	For this
reason, the Court will first enumerate the Supplemental Claims, and then the Claims asserted in
Plaintiff’s Second Amended Complaint.
In his Supplement to the Second Amended Complaint, Plaintiff states three claims against
County Defendants.2F
3 	First in Supplemental Claim One, Plaintiff alleges all County Defendants
3 The Court notes that even though Plaintiff labeled claims in his Supplement with the same
numbers as claims from his Second Amended Complaint, it appears Plaintiff did not intend the
numbering to correspond with the numbered claims in his Second Amended Complaint.
Accordingly, the Court construes them as new and additional claims.
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failed to train or supervise the SCDC staff while Plaintiff was incarcerated there. 	Specifically,
Plaintiff alleges:
On April 27, 2022 Justin [Velazquez]3F
4 who is nephew of [assistant] Jail administrator
Romona Arenas was improperly housed in my cell (A3). 	[Velazquez] had prior
disturbances which were documented relating to his mental health status and medication
in which he was removed from housing locations due to these disturbances. Exposure to
this inmate my safety and wellbeing, ruined my only discovery motions on pending
criminal cases. Caused me emotional, psychiatric distress, and physical harm relating to
the outcome of my criminal convictions . . . Chris Wolcott, Romona Arenas, Blake Reel,
Barbera Valentine, Anthony Irvin directly participated in the housing of [Velazquez] and
where personally involved. 	Even though it was brought to the staffs’ attention of these
mental disturbances caused by [Velazquez] he was still improperly housed in general
population. Nurse Tammy Fowler and security staff violated policy by not coordinating
with each other in rehousing [Velazquez] up on a change of dose in his current
[medication]. 	[Velazquez] destroyed my legal paperwork and discovery materials when
he was sleep walking and urinated all over my paper work. This occurred only days before
my scheduled trial date in which I only had 2 days of receiving the paperwork to study and
be prepared.
Even after this incident and my problems with [Velazquez] defendants intentionally kept
moving him to the same housing location as I was housed. Defendants were fully aware
of [Velazquez] mental condition, schizophrenic outburst and anger problems. This shows
total disregard for my safety. Robert Gentry, Chris Walcott, and Romona Arenas allowed
staff to continue this pattern of mis housing Velazquez by not properly addressing concerns
which I and staff wrote in [grievances] and incident reports.
Defendant[s] Whitney Higgins Ana Mejia, and Blake Reel failed to follow policies and up
hold the law. When they took away my 19836 form, legal writing material, and failed to
make copy of my destroyed/ruined criminal discovery materials.
Romona Arenas, Eleuperio Hernandez which are RSAT program coordinators who are
involved in the pacing of inmates in to the program. RSAT allows participants to get out
soon on criminal felony charges. 	A Quid-Pro-Quo occurred when these 2 defendants
promised me the program if I did not file civil and criminal complaints against Justin
Valezquez. 	Even though I originally held up my end of the deal ‘Quid-pro-Quo,’ but
defendants did not hold up their end. When the RSAT program was never again mentioned
as an outcome of my criminal case. 	This shows that defendants misuse of authority in
trying to cover up the situation of Velazquez and block me from exercising my
constitutional rights.
4 The Court is unsure of the correct spelling of Inmate Velazquez name as the parties are
inconsistent in the usage. However, for consistency herein, the Court will spell it Velazquez as
this is the most frequently used version by the parties.
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(ECF No. 79, pp. 3-6) (cleaned up). 4F
5
Plaintiff goes on to allege these instances show wide-spread negligence and deliberate
indifference from a lack of policies, procedures, and training. Id.at 6.
Finally, for his “Custom or Policy” portion of Supplemental Claim One, Plaintiff alleges
the County Defendants failed to follow existing policy in housing inmates with diminished mental
capacities. Plaintiff claims the County Defendants participated in a custom of showing special and
partial treatment to certain individuals. This custom put other inmates at risk. Id.
Next, in his Supplemental Claim Two, Plaintiff alleges: Defendants Gentry, Walcott,
Arenas, and Irvin intentionally exposed him to a mentally ill inmate. (ECF No. 79, p. 8). Plaintiff
further alleges:
On around 4-20-2022 Justin Velazquez was moved into my cell by shift supervisor by
Anthony Irvin. Prior to this Velazquez, who is on high doses of psych medicine had been
housed in isolation. Due to his disturbances and violent nature. Velazquez had also been
housed in General population but was removed after he threatened other inmates with his
stick. 	Even though Velazquez had a history of violent misconduct due to his mental
disorder, [County Defendants] and nurse Tammy Fowler disregarded my safety when they
chose to have Antony Irvin place in my cell.
Even after the incident when Velazquez was sleeping walking and ruined my legal paper
work he was removed from my cell only to return a few days later. Nurse Tammy Fowler
and facility staff continued to improperly house Velazquez, every time I moved to a new
housing location Velazquez was somehow following me. 	Staff were fully aware of the
problems of Velazquez and myself but intentionally moved him in to my housing location.
Velazquez mistreatment, mis housing, and improper handling contributed to my safety
being jeopardized, emotional and mental distress, my legal materials being destroyed
which effected process of my criminal proceedings and led to intentional violation of my
constitutional rights.
Id. at 8-9 (cleaned up).
5 Plaintiff makes additional allegations in this claim, but they are not asserted against County
Defendants. Therefore, the Court finds them irrelevant to the instant motion.
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For his official capacity claim related to Supplemental Claim Two Plaintiff alleges the
SCDC staff follow a custom that is contradictory to the existing policy by housing inmates with
mental disorders and history of disturbances with the general population. Id. at 9.
In Supplemental Claim Three, Plaintiff claims Defendants Walcott, Arenas, Eleuperio
Hernandez, Irvin, Reel, Higgins, Mejia, McBain, Valentine, and Adrian Hernandez hindered his
access to his criminal defense and access to the courts. (ECF No. 79, p. 10). Plaintiff goes on to
explain the documents Inmate Velazquez urinated on where his motion to discovery from his
criminal case. His criminal trial was scheduled only a few days after the urination incident, and
Plaintiff had only received the discovery two days prior to the urination incident. Plaintiff needed
to thoroughly review this discovery because he did not trust his criminal defense attorney. Id.
Plaintiff continues to complain that Defendant Mejia took the soiled discovery papers to
make a copy for Plaintiff so he could have a copy without urine on it, but she gave the soiled papers
to Defendant Reel instead. 	Defendant Reel then returned the soiled papers to Plaintiff without
making copies. Id. at 11.
According to Plaintiff, Defendants Arenas and Eleuperio Hernandez promised Plaintiff
they would get him accepted to the “RSAT” program if he did not file charges against Inmate
Velazquez. Inmate Velazquez was Defendant Arenas’s nephew. Defendant Arenas is the assistant
jail administrator at the SCDC and Defendant Eleuperio Hernandez is the RSAT program
coordinator. According to Plaintiff, this RSAT program allows participants to get released after
90 days. These Defendants did not follow through on their promise and Plaintiff was not allowed
to participate in the RSAT program. Instead, he was sentenced to 23 plus 15 years. Id. Plaintiff
claims Defendants Arenas and Eleuperio Hernandez actions led to the “unexpected outcome” of
his criminal case. Id.
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Plaintiff’s official capacity claim for Supplemental Claim Three is again that these
Defendants show special treatment to some inmates and that is detrimental to other inmates who
do not receive that same treatment. Id. at 12.
Plaintiff’s Supplemental Claim Four is for denial of medical care but only alleged against
Defendant Fowler. Id. at 13-14. Therefore, it is not at issue herein.
In Plaintiff’s Second Amended Complaint Claim One, Plaintiff alleges Defendants
Valentine, Adrian Hernandez, McBain, Arenas, Walcott, Irvin, Higgins, and Mejia all violated his
rights by failing to provide a healthy, safe, and secure environment at the SCDC on April 27, 2022.
Plaintiff alleges these County Defendants placed another inmate, Inmate Velazquez, in Plaintiff’s
cell on this day. 	Inmate Velazquez was experiencing medication changes on April 27, 2022.
Further Plaintiff claims, these County Defendants failed to properly monitor Inmate Velazquez or
evaluate his reaction to the increase in medication. (ECF No. 8, p. 6).
For his official capacity component of Claim One Plaintiff alleges:
My constitutional rights were violated (under color of state law) I have a right to a safe and
secure environment . . ..
Id. at 7.
In Claim Two, Plaintiff claims County Defendant Reel violated his right to free speech on
May 9, 2022. (ECF No. 8, p. 7). Specifically, Plaintiff claims: County Defendant Reel “censored
my mail prior to accepting it or reading it.” 	Id. 	For his official capacity claim in Claim Two
Plaintiff states:
My rights were violated (under color of state law) after he refused to take my legal mail.
Stating he wanted no part of anything that had to do with the incident.
(ECF No. 8, p. 8). Plaintiff further explains this Claim Two, in his previous Motion for Summary
Judgment:
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Also, on May 9th I wrote a letter of the incident that were occurring here in Sevier County
Jail. About inmate Justin Velazquez and how my legal work was destroyed. I also wrote
a receipt for a legal document for Jailer Blake Reel. Stating that he was given the incident
report from me to take to Robert Gentry or Chris Walcott to sign stating they got the
incident report. And Blake Reel refused to sign or take the incident report. So, I sealed it
put in an envelope and stamped it with my own self bought stamp. And told him to put it
in the mailbox. And he refused to take my mail without being any reason I could not send
my mail out.
(ECF No. 46, p. 31) (cleaned up). Plaintiff also attached his mail log to his Motion for Summary
Judgment which shows the single piece of mail he complains of was sent out on May 12, 2022.
(ECF No. 46, p. 34).
In Claim Three, Plaintiff alleges a cruel and unusual punishment claim against County
Defendants, Mejia, and Reel. Specifically, Plaintiff claims:
Ana Mejia made copies for my family but refuse to make me copy’s. The documents were
unsanitary, and I was not given any type of protection such as any gloves to keep from
having to come in to contact with them.
Id. In Plaintiff’s official capacity claim for Claim Three he alleges:
My rights were violated (under color of state law) after they made copies for my family.
But refused to make [copies] of my documents for me. They returned the contaminated
legal work to me. Blake [Reel] refused to make copies of my legal work as well.
Id. at 11 (cleaned up).
Next, in Claim Four of his Second Amendment Complaint, Plaintiff claims County
Defendants, Walcott, Arenas, Hernandez, Valentine, McBain, Irvin, Reel, Mejia, and Higgins,
denied him access to the courts on April 27, 2022. Plaintiff alleges:
My discovery papers were destroyed when Justin [Velazquez] urinated on them. I asked
for [copies] or another copy of the papers and to this day I have never received them (both
official and capacity). 	Each defendant was aware that my discovery evidence was
destroyed and has made no effort to obtain me another copy after asking multiple times
violating my rights (under color state law).
Id. at 9 (cleaned up).
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In Claim Five of his Second Amended Complaint, Plaintiff states all County Defendants
were aware of “the incident” but failed to address it. (ECF No. 8, p. 10). For his official capacity
claims, Plaintiff alleges:
My papers were destroyed. And I asked [repeatedly] for them to be replaced. They never
refused to do it, but they just kept putting me off acting as though the incident never
occurred. Each one of these individuals violated my rights (under color of law).
Id. (cleaned up).
III. 	LEGAL STANDARD
Federal Rule of Civil Procedure 12(c) provides that a party may move for judgment on the
pleadings. The Court applies the same standard on a motion for judgment on the pleadings as it
would on a Rule 12(b)(6) motion to dismiss for failure to state a claim. See Westcott v. City of
Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).
The legal standard for a motion for judgment on the pleadings under Rule 12(c) is the same
standard as a motion to dismiss under Rule 12(b)(6). See Westcott, 901 F.2d at 1488 (noting the
“distinction is purely formal” as courts review a Rule 12(c) motion for judgment on the pleadings
under the same standard courts consider a Rule 12(b)(6) motion to dismiss). A “judgment on the
pleadings is appropriate when there are no material facts to resolve[,] and the moving party is
entitled to a judgment [in his favor] as a matter of law.” Mills v. City of Grand Forks, 614 F.3d
495, 497-98 (8th Cir. 2010).
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). “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court will consider well plead factual allegations
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in the Complaint as true and construe all reasonable inferences from the pleadings in favor of the
non-moving party. 	Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). 	However, 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).
Additionally, the Court may consider the pleadings themselves, materials embraced by the
pleadings, exhibits attached to the pleadings, and matters of public record in ruling upon a Rule
12(c) motion. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
IV. 	DISCUSSION
The Court construes Plaintiff’s Claims One and Three in his Second Amended Complaint
along with his Supplemental Claim Two to all assert failure to protect claims under the Fourteenth
Amendment. As such, the Court will address all three of these claims together. Then the Court
will consider Plaintiff’s Second Amended Complaint Claim Two regarding his mail. Third, the
Court will analyze Plaintiff’s Second Amended Complaint Claims Four and Five along with his
Supplemental Claim Three together as they all attempt to allege denial of access to the courts.
Then, Plaintiff’s Supplemental Claim One which is clearly a failure to train or supervise claim.
Lastly, the Court will address Plaintiff’s Official Capacity Claims.5F
6
A. 	Second Amended Complaint Claim One and Two, and Supplemental Claim Three
The Court interprets Plaintiff’s Second Amended Complaint Claim One and Three, and his
Supplemental Claim Two as failure to protect claims. 	Plaintiff clearly states in his Second
Amended Complaint under Claim One that Defendants Valentine, Adrian Hernandez, McBain,
Arenas, Walcott, Irvin, Higgins, and Mejia violated his rights by failing to provide a healthy, safe,
6 While Defendants did make a qualified immunity argument in their Amended Motion for
Judgment on the Pleadings, the Court need not address it herein as it finds Plaintiff has failed to
sate any claims upon which relief may be granted.
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and secure environment for Plaintiff. Plaintiff goes on to explain this failure occurred on April 27,
2022 when Mr. Velazquez—who was experiencing medication changes—was placed in Plaintiff's
cell. (ECF No. 8, p. 6). Likewise, in Claim Three, Plaintiff alleges a cruel and unusual punishment
claim against Defendants Mejia and Reel for exposing him to Velazquez and the urine-soaked
documents. (ECF No. 8, p. 8). Finally, in Supplemental Claim Two, Plaintiff claims Defendants
Gentry, Walcott, Arenas, and Irvin intentionally exposed him to a mentally ill inmate—Mr.
Velazquez. 	(ECF No. 79, p. 8). 	Additionally, Plaintiff plainly states in his Supplement
“Velazquez[’s] mistreatment, mishousing, and improper handling contributed to my safety being
jeopardized . . ..” (ECF No. 79, p. 9). These three claims center on Plaintiff’s exposure to Inmate
Velazquez and his urine, and how that exposure caused alleged injury to Plaintiff through the
destruction of his legal papers. 6F
7
Defendants argue the Court previously held, in its Report and Recommendation on
Defendant Fowler’s Motion for Judgment on the Pleadings, that Plaintiff’s failure to protect claims
fail as a matter of law. (ECF No. 109, p. 3).
Plaintiff responds by arguing the facts alleged against the respective County Defendants
differ from those alleged against Defendant Fowler. Plaintiff asserts these facts do state a claim
upon which relief may be granted. 	Plaintiff highlights his allegations that Defendants Arenas,
Adrian Hernandez, Reel, and Higgins placed Velazquez in Plaintiff’s cell when the four-man cell
already housed four inmates. (ECF No. 115, p. 7). Then after Velazquez urinated on Plaintiff’s
7 The Court notes Plaintiff makes comments throughout his Second Amended Complaint,
Supplement, and Motion for Summary Judgment as to improper treatment or housing of Mr.
Velazquez, however, the Court does not construe these statements to allege any claim for denial
of medical care for Mr. Velazquez.
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property they continued to house him with Plaintiff.7F
8 Id. However, Plaintiff makes no additional
injury allegations other than the destruction of his legal paperwork and commissary. Id.
To prevail on a failure to protect claim as a pretrial detainee, Plaintiff must establish: (1)
he was “incarcerated under conditions posing a substantial risk of serious harm,” and (2) prison
officials were “deliberately indifferent [to his] health or safety.” See Holden v. Hirner, 663 F.3d
336, 341 (8th Cir. 2011) (internal citations omitted). Additionally, Plaintiff must suffer an injury
because of this failure to protect. 	See e g., Schoelch v. Mitchell, 625 F.3d 1041, 1047 (8th Cir.
2010).
The Court finds, even considering the facts alleged specifically against the respective
County Defendants and in a light most favorable to Plaintiff, Plaintiff has failed to state a claim he
was incarcerated under conditions posing substantial risk of serious harm. The only injury asserted
by Plaintiff as a result of being housed with Mr. Velazquez is the destruction of his legal papers,
subsequent “mental anguish,” “stress,” and “physical harm relating to the [outcome] of my
criminal convictions.” 	(ECF No. 8, p. 11; ECF No. 79, p. 4). 	Plaintiff does not provide any
explanation of the “mental anguish,” “stress,” or “physical harm” but simply lists the phrases.
None of these allegations are sufficient to establish a cognizable Fourteenth Amendment violation
under Section 1983 for failure to protect. 	See Schoelch, 625 F.3d at1047 (holding a pretrial
detainee’s Fourteenth Amendment Due Process claim for failure to protect and unconstitutional
8 The Court notes Plaintiff’s contradictory factual allegations in his Motion for Summary
Judgment. 	(ECF No. 46). 	Plaintiff swears under penalty of perjury in this document that after
Valezquez urinated on his property he was removed from his cell. Despite Plaintiff’s efforts to
talk the guards into bringing him back to Plaintiff’s cell, he was housed in isolated protective
housing. Id. at pp. 11-13.
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conditions of confinement failed due to a lack of evidence showing the detainee suffered an
“objectively serious mental or physical injury” as a result of the complained of conduct).
Furthermore, the Plaintiff alleges in his Motion for Summary Judgment that he repeatedly
attempted to talk the guards into rehousing Inmate Velazquez in his cell after the urination incident.
It seems from Plaintiff’s allegations, he wanted to watch over and protect Inmate Velazquez from
harming himself or from others. 	(ECF No. 46, pp. 11-12). 	However, Plaintiff states he was
unsuccessful in these attempts. Id. Accordingly, the facts, as alleged by Plaintiff, are contradictory
regarding whether Inmate Velazquez was rehoused in Plaintiff’s cell. Moreover, even if Inmate
Velazquez was rehoused in Plaintiff’s cell after Plaintiff’s repeated requests, the facts would not
support a finding of deliberate indifference by County Defendants.
Additionally, the Prison Litigation Reform Act “PLRA” provides, in pertinent part, that
“[n]o federal civil action may be brought by a prisoner … for mental or emotional injury … without
a prior showing of physical injury.” 42 U.S.C. § 1997e(e). 	In Royal v. Kautzky, 375 F.3d 720,
723 (8th Cir. 2004), the Eighth Circuit concluded that Congress intended this provision of the
PLRA to “limit [] recovery for mental or emotional injury in all federal actions brought by
prisoners.”
Lastly, to the extent Plaintiff is claiming his criminal conviction was improper—thus an
injury—such a claim is barred unless “the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of habeas corpus.”
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Plaintiff has produced no evidence or allegations
in his complaint to meet the Heck requirements.
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Accordingly, Plaintiff’s Second Amended Complaint Claims One and Three and his
Supplemental Claim Two all fail to state cognizable claims for failure to protect under Section
1983 and should be dismissed.
B. 	Second Amended Complaint Claim Two
In Claim Two, Plaintiff claims Defendant Reel violated his freedom of speech rights on
May 9, 2022 when he refused to mail a letter for Plaintiff and “censored” Plaintiff’s mail. (ECF
No. 8, p. 7). In his Motion for Summary Judgment Plaintiff explained the mail he sought to send
was the incident report regarding the April 27, 2022 interaction with Inmate Velazquez addressed
to the Sheriff. (ECF No. 46, p. 31).
Defendants argue Plaintiff has failed to state his First Amendment rights were violated by
Defendant Reel. (ECF No. 109, p. 10). Specifically, Defendants argue Plaintiff admits his mail
was eventually sent out. (ECF No. 46, p. 31, 33).
In his Response, Plaintiff argues Defendant Reel “censored” his mail at the order of
Defendant Mejia, and Defendant Reel “refused to perform the simple duty of accepting and
delivering Plaintiff’s legal mail due to the fact that he was [ordered] by Defendant Mejia to reject
any further attempts to resolve the issue.” (ECF No. 115, pp. 4, 5, 9).
First, the Court must determine what type of claim Plaintiff asserts here. The Court finds
it can be construed as: (1) a First Amendment claim; (2) a claim alleging denial of a grievance
procedure since the mail Plaintiff sought Defendant Reel to take was an incident report intended
for the Sheriff and Jail Administrator; or (3) as an access to the courts claim as Plaintiff refers to
the mail as legal mail. 	Accordingly, the Court will analyze Plaintiff’s claim under each
interpretation.
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1. 	First Amendment
It is well established that “[p]rison walls do not form a barrier separating prison inmates
from the protections of the Constitution.” 	Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)
(quoting Turner, 482 U.S. at 84). “[A] prison inmate retains those First Amendment rights that
are not inconsistent with his status as a prisoner or with the legitimate penological objectives of
the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). Among other things, the
“Constitution protects the rights [of inmates] to receive information and ideas.” Kleindienst, 408
U.S. at 762. 	Specifically, inmates retain the First Amendment right to send and receive mail.
Thongvanh v. Thalacker, 17 F.3d 256, 258 (8th Cir. 1994).
However, “maintaining institutional security and preserving internal order and discipline
are essential goals that may require limitation or retraction of the retained constitutional rights of
both convicted prisoners and pretrial detainees.” 	Id. (quoting Bell, 441 U.S. at 547). 	Prison
policies impinging on detainees’ First Amendment rights are valid only if they are reasonably
related to legitimate penological interests. Turner, 482 U.S. at 89-90; Cooper v. Schriro, 189 F.3d
781, 784 (8th Cir. 1999). 	“To determine whether a jail or prison policy infringes on the Frist
Amendment rights of inmates, as well as those seeking to communicate with them, the relevant
inquiry is whether the policy is reasonably related to legitimate penological interests.” 	Human
Rights Defense Ctr., 999 F.3d at 1164 (quoting Thornburgh, 490 U.S. at 409 (internal quotations
omitted)). In answering this question, courts apply the so-called four factor Turner test. Turner,
482 U.S. at 90-91.
Here, however, the Court need not reach the Turner factors because a three-day delay in
Plaintiff’s outgoing mail is insufficient to implicate the First Amendment. 	See Valiant-Bey v.
Morris, 829 F.2d 1441, 1444 n.5 (8th Cir. 1987) (mere delays in delivery of prisoner mail is not
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unreasonable and thus does not implicate the constitution); see also Zimmerman v. Tribble, 226
F.3d 568, 573 (7th Cir. 2000) (“allegations of sporadic and short-term delays in receiving the mail
are insufficient to state a cause of action.”); Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999)
(plaintiff failed to establish First Amendment claim based on delays in mail delivery where those
delays were sporadic and there were no allegations that the delays stemmed from some content-
based prison policy or practice).
Additionally, to the extent Plaintiff’s “censoring” allegation refers to Defendant Reel
opening and inspecting his mail, this claim also fails to state a cognizable First Amendment
violation. See e.g., Moore v. Rowley, 126 F. App’x 759, 760 (8th Cir. 2005) (prison officials may
inspect attorney mail for contraband in the presence of the inmate without offending the
Constitution). 	Furthermore, this Court has consistently held a one-time opening of legal mail
which did not prejudice Plaintiff or cause him actual injury, fails to state a cognizable constitutional
violation. See e g. Williams v. Runion, Civil No. 4:18-cv-04059, 2019 WL 5588750, at *7 (W.D.
Ark. Oct. 11, 2019), report and recommendation adopted, Civil No. 4:18-cv-04059, 2019 WL
5580962 (W.D. Ark. Oct. 29, 2019); Badger v. Loe, Civil No. 1:18-cv-01038, 2019 WL 3483131,
at *12 (W.D. Ark. July 31, 2019); Solis v. Jones-Foster, Civil No. 4:19-cv-0425, 2019 WL
3294801, at *2 (W.D. Ark. July 2, 2019), report and recommendation adopted, Civil No. 4:19-cv-
04025, 2019 WL 3292353; and Solomon v. Campbell, Civil No. 4:18-cv-04001, 2019 WL 937932,
at *5 (W.D. Ark. Feb. 26, 2019), appeal dismissed, Civil No. 19-1644, 2019 WL 4655952 (8th
Cir. June 4, 2019).
2. 	Grievance Procedure
Next, to the extend Plaintiff is complaining about Defendant Reel failing to take his
incident report to the Sheriff or Jail Administrator, this claim also fails as a matter of law. Plaintiff
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has no independent constitutional right a grievance procedure. See Lombolt v. Holder, 287 F.3d
683, 684 (8th Cir. 2002) (denial of grievances does not state a substantive constitutional claim);
Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (“no constitutional right was violated by the
defendants' failure, if any, to process all of the grievances [Plaintiff] submitted for consideration”).
“Rather, prison inmates have a constitutional right to petition the government for redress through
a right of access to the courts.” Blagman v. White, 112 F. Supp.2d 534, 542 (E.D. Va. 2000) aff'd,
3 Fed.App’x. 23 (4th Cir. 2001) (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)). A jail's
“refusal to entertain such grievances does not compromise the inmate's constitutional rights, as
access to the courts would still be available.” Id. (citation omitted). “[A]ny alleged due process
violation arising from the alleged failure to investigate . . . grievances is indisputably meritless.”
Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005).
3. 	Access the Courts
Lastly, presuming arguendo that Plaintiff’s mail was in fact legal mail, to the extent
Plaintiff Claim Two attempts to state he was denied access to the Courts by his legal mail being
delayed by three days, this claim also fails. Plaintiff has shown no injury resulted from the three-
day delay. See Lewis v. Casey, 518 U.S. 343, 351-2 (1996); see also Farver v. Vilches, 155 F.3d
978, 979-80 (8th Cir. 1998) (per curiam); Klinger v. Dep't of Corr., 107 F.3d 609, 617 (8th Cir.
1997) (to prevail on access-to-courts claim, inmate must show actual injury or prejudice even if
denial of access to library is complete and systematic); McMaster v. Pung, 984 F.2d 948, 953 (8th
Cir. 1993).
Accordingly, Plaintiff’s Second Amended Complaint Claim Two fails to state cognizable
claims under Section 1983, no matter the interpretation, and should be dismissed.
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C. 	Second Amended Complaint Claims Four and Five and Supplemental Claim Three
Plaintiff’s Claim Four and Five from his Second Amended Complaint and Claim Three
from his Supplement allege the respective County Defendants denied him access to the Courts and
potentially deprived him of his property. 	In Claim Four of his Second Amendment Complaint,
Plaintiff claims County Defendants, Walcott, Arenas, Eleuperio Hernandez, Valentine, McBain,
Irvin, Reel, Mejia, and Higgins, denied him access to the courts on April 27, 2022 by refusing him
copies of the criminal discovery paperwork destroyed by Inmate Velazquez. (ECF No. 8, p. 9).
In Claim Five of his Second Amended Complaint, Plaintiff states all County Defendants were
aware of “the incident” but failed to address it. (ECF No. 8, p. 10). In Supplemental Claim Three,
Plaintiff claims Defendants Walcott, Arenas, Eleuperio Hernandez, Irvin, Reel, Higgins, Mejia,
McBain, Valentine, and Adrian Hernandez hindered his access to a criminal defense and access to
the courts by denying his copies of legal work. (ECF No. 8, p. 9).
Defendants argue the Court previously held in its Report and Recommendation on
Defendant Fowler’s Motion for Judgment on the Pleadings that Plaintiff failed to state an access
to the courts claim because he has asserted no injury from any such denial. (ECF No. 109, p. 4).
Plaintiff does not assert any argument against dismissing his access to the courts claim
against the respective County Defendants in his Response. (ECF No. 115).
The facts in the pleadings which the Court finds relevant as to Plaintiff’s access claims
against the respective County Defendants are: (1) Plaintiff’s family was provided copies of his
legal papers, (ECF No. 8, p. 8); (2) the soiled legal papers were returned to Plaintiff, (ECF No. 8,
p. 11); (3) Plaintiff was represented in his criminal case during the time his legal papers were
destroyed, (ECF No. 79, p. 10); (4) the judge in Plaintiff’s criminal case continued the case
multiple times due to his legal papers being destroyed by Mr. Velazquez, (ECF No. 46, p. 36); (5)
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Plaintiff did in fact receive new copies of the destroyed papers on August 11, 2022 after he fired
his court appointed attorney and hired a new lawyer for his criminal case, (ECF No. 46, p. 37);
and (6) Plaintiff was in possession of his legal papers and represented by new counsel when he
was sentenced in his criminal matter, (ECF No. 46, p. 37). All these facts are considered as alleged
by Plaintiff.
1. 	Access to the Courts
The Supreme Court previously held “the fundamental constitutional right of access to the
courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries or adequate assistance from persons
trained in the law.” Lewis v. Casey, 518 U.S. 343, 346 (1996) (quoting Bounds v. Smith, 430 U.S.
817 (1997)). Nevertheless, the Supreme Court “did not create an abstract, freestanding right to a
law library or legal assistance.” Lewis v. Casey, 518 U.S. 343, 351 (1996). Instead, prison officials
must provide “some means for ensuring a reasonably adequate opportunity to present claimed
violations of fundamental constitutional rights to the courts.” 	Bear v. Fayram, 650 F.3d 1120,
1123 (8th Cir. 2011) (internal quotations and citations omitted). These means may include, but
are not limited to: prison libraries; jailhouse lawyers; private lawyers on contract with the prison;
or some combination of these and other methods. Id.
However, an inmate cannot prevail on an access-to-courts claim unless he can demonstrate
he suffered prejudice or actual injury as a result of the prison officials' conduct. See Lewis, 518
U.S. at 351-2; see also Farver v. Vilches, 155 F.3d 978, 979-80 (8th Cir. 1998) (per curiam);
Klinger v. Dep't of Corr., 107 F.3d 609, 617 (8th Cir. 1997) (to prevail on access-to-courts claim,
inmate must show actual injury or prejudice even if denial of access to library is complete and
systematic); McMaster v. Pung, 984 F.2d 948, 953 (8th Cir. 1993). “To prove a violation of the
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right of meaningful access to the courts, a prisoner must establish the state has not provided an
opportunity to litigate a claim challenging the prisoner's sentence or conditions of confinement in
a court of law, which resulted in actual injury, that is, the hindrance of a nonfrivolous and arguably
meritorious underlying legal claim.’” 	Hartsfield v. Nichols, 511 F.3d 826, 831 (8th Cir. 2008)
(internal quotation and citations omitted).
Considering these facts alleged by Plaintiff, he was not denied access to the courts. See
Bear v. Fayram, 650 F.3d at 1123. Plaintiff was represented by counsel at the time in issue, his
court dates were continued until he could resolve the issue with his discovery, and Plaintiff
received a copy of the documents destroyed prior to his sentencing. 	These facts demonstrate
Plaintiff suffered no injury related to the destruction of his legal documents.
2. 	Deprivation of Property
To the extent these Claims attempt to state a claim for property deprivation, Plaintiff
nevertheless has failed to state a claim upon which relief can be granted because there is no
constitutional claim under Section 1983 for loss of property.
The Due Process Clause of the Fourteenth Amendment provides that “[n]o state shall ...
deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend.
XIV, § 1. Courts have interpreted procedural due process considerations as imposing “constraints
on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the
meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Walters v. Wolf, 660
F.3d 307, 311 (8th Cir. 2011) (quoting Mathews v. Eldridge, 424 U.S. 319, 332 (1976)).
Assuming, without deciding, that Plaintiff has a recognized property interest in his legal papers,
the question, then becomes what process Plaintiff is owed for the loss of that property.
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In answering this question, the Supreme Court has usually held that “the Constitution
requires some kind of hearing before the State deprives a person of liberty or property.” Zinermon
v. Burch, 494 U.S. 113, 127 (1990) (emphasis in original). “In some circumstances, however, the
Court has held that a statutory provision for a post deprivation hearing, or a common-law tort
remedy for erroneous deprivation, satisfies due process.” Id. at 128. The Supreme Court has held,
moreover, that such circumstances include “cases where the predicate deprivation is, or is akin to,
a tortious loss of a prisoner's property resulting from a random unauthorized act by a state
employee—versus some established state procedure.” Walters, 660 F.3d at 312 (quoting Parratt
v. Taylor, 451 U.S. 527, 541 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S.
327, 330-31 (1986)). 	“The loss of property ... is in almost all cases beyond the control of the
[government], in most cases it is not only impracticable, but impossible, to provide a meaningful
hearing before the deprivation.” Id.
This is exactly one such case. Assuming Plaintiff has a property interest in his legal papers
and the respective County Defendants deprived him of his property when they housed Plaintiff
with Mr. Velazquez, a post-deprivation hearing is all the process Plaintiff is due. See Hudson v.
Palmer, 468 U.S. 517, 533 (1984) (intentional deprivation of property does not violate due process
when meaningful post-deprivation remedy is available). 	Arkansas law provides such a post-
deprivation remedy through an action for conversion. See e.g., Elliott v. Hurst, 817 S.W.2d 877,
880 (Ark. 1991) (cause of action for conversion lies where distinct act of dominion is exerted over
property in denial of owner's right). Accordingly, Plaintiff's claims concerning the loss of his legal
papers does not establish a cognizable Section 1983 claim.
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Accordingly, Plaintiff’s Second Amended Complaint Claims Four and Five and his
Supplemental Claim Three all fail to state cognizable claims under Section 1983 and should be
dismissed.
D. 	Supplemental Claim One
Plaintiff’s Supplemental Claim One, is clearly a claim for failure to train or supervise
alleged against all County Defendants.
Defendants do not make an argument in favor of dismissing Plaintiff’s failure to train or
supervise claim. However, the Court may on its own initiative dismiss claims for failure to state
a claim. See Buckley v. Ray, 848 F.3d 855, 867 n.9 (8th Cir. 2017); Smith v. Boyd, 945 F.2d 1041,
1042-1043 (8th Cir. 1991); Mildfelt v. Circuit Court, 827 F.2d 343, 345 (8th Cir. 1987) (per
curiam). Dismissal is appropriate where a “plaintiff cannot possibly prevail and amendment would
be futile.” Bucklew v. Lombardi, 783 F. 3d 1120, 1127 (8th Cir. 2015). Furthermore, the Court
has an obligation to screen Plaintiff’s claims pursuant to the PLRA and dismiss any claims which
fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(1).
As an initial matter, Plaintiff failed to allege all the County Defendants named in
Supplemental Claim One were in fact supervisors. Instead, Plaintiff describes Defendant Adrian
Hernandez as a jailer (ECF No. 8, p. 3); Defendant Barbera Valentine as a jailer (ECF No. 8, p. 4);
Defendant Kimberly McBain as a jailer (ECF No. 8, p. 4); Defendant Anthony Irvin as a
jailer/deputy (ECF No. 8, p. 4); Defendant Blake Reel as a jailer (ECF No. 8, p. 5); and Defendant
Whitney Higgins as a jailer (ECF No. 8, p. 5). Plaintiff makes no allegations that these Defendants
have supervisory capacities, subordinates, or any authority to train employees at the SCDC.
Accordingly, Plaintiff’s Supplement Claim One against these Defendants fail as a matter of law.
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Next, in cases brought under Section 1983, supervisors are not liable for constitutional
violations committed by their subordinates simply because they are their supervisors; instead,
Plaintiff must plead each Defendant, “through [his] own individual actions,” has violated the
Constitution. Marsh v. Phelps Cty., 902 F.3d 745, 754 (8th Cir. 2018). (quoting Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009)). Supervisors are only liable for their own misconduct. Ashcroft, 556
U.S. at 677. 	However, a prison supervisor can be held liable for failing to train or supervise
subordinates when that failure caused the constitutional violation. 	Tilson v. Forest City Police
Dept., 28 F.3d 802, 806 (8th Cir. 1994). To state an individual capacity claim for failure to train
or supervise there must be allegations: (1) the supervisor knew of a pattern of unconstitutional acts
committed by the subordinate; (2) the supervisor demonstrated deliberate indifference to, or
unspoken authorization of, constitutional violations committed by subordinates; (3) the supervisor
failed to take appropriate remedial action after learning of a subordinate's misconduct; and (4) the
plaintiff was injured as a result of the failure to properly train or supervise subordinates. Otey v.
Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997). The standard for proving deliberate indifference
is high. Even where prison officials know of a substantial risk to inmate health or safety, they are
not liable, “if they responded reasonably to the risk, even if the harm ultimately was not averted.”
Farmer v. Brennan, 511 U.S. 825, 844 (1994).
The County Defendants that can be reasonably construed as supervisors from Plaintiff’s
Second Amended Complaint and Supplement are Defendant Robert Gentry as Sheriff of Sevier
County (ECF No. 8, p. 2); Defendant Chris Walcott as Jail Administrator of the SCDC (ECF No.
8, p. 3); Defendant Romona Arenas as Assistant Jail Administrator at the SCDC (ECF No. 8, p.
3); Defendant Eleuperio Hernandez as Program Coordinator for RSAT (ECF No. 8, p. 4); and Ana
Mejia as Program Coordinator for RSAT (ECF No. 8, p. 5).
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Of these supervisory Defendants Plaintiff alleged the following individual involvement:
(1) Defendants Walcott and Arenas were personally involved in housing Velazquez with Plaintiff,
(ECF No. 79, p. 4); (2) Defendants Gentry, Walcott, and Arenas allowed staff to continue to mis
house Velazquez by not addressing Plaintiff’s grievances and incident reports, (ECF No. 79, p. 5);
(3) Defendants Mejia failed to follow policy when they took away Plaintiff’s Section 1983 forms,
legal writing materials, and failed to copy his ruined criminal discovery documents, (ECF No. 79,
p. 5); and (4) Defendant Arenas and Eleuperio Hernandez, as RSAT program coordinators coerced
Plaintiff into refraining from filing criminal complaints against Velazquez, (ECF No. 97, p. 5).
First, Plaintiff’s allegations against Defendants Mejia and Eleuperio Hernandez do not state
claims for failure to train or supervise. There is no allegation these Defendants knew of a pattern
of unconstitutional acts committed by their subordinates. 	Instead, Plaintiff claims these
Defendants’ specific actions violated his constitutional rights (coercion, denial of Section 1983
forms, writing materials, and copies). 8F
9 These allegations do not state a failure to train or supervise
claim against Defendants Mejia and Eleuperio Hernandez.
Finally, Plaintiff has alleged Defendants Gentry, Walcott, and Arenas were personally
involved in the housing of Inmate Velazquez and they allowed their staff to continue this housing
situation. (ECF No. 79, pp. 4-5). These allegations, if proven, are sufficient to meet the first three
elements of a failure to train claim, but Plaintiff has failed to allege sufficient facts to establish he
was injured as a result of Defendants Gentry, Walcott, and Arenas conduct. See supra, Section
9 The Court notes this allegation regarding a Section 1983 form and writing materials is only made
here under Plaintiff’s Supplement Claim One for failure to train. 	The only facts alleged is the
statement enumerated here. Plaintiff does not allege this fact regarding his access to court claim.
However, even if he did, the claim would fail to state a claim upon which relief could be granted
for the same reasoning as discussed with Plaintiff’s access claims. See supra, Section IV. C.
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IV. A. Thus, Plaintiff has failed to allege facts to satisfy the fourth element of a failure to train or
supervise claim. See Otey, 121 F.3d at 1155.
Accordingly, Plaintiff’s Supplemental Claim One for failure to train against all County
Defendants should be dismissed for failure to state a claim upon which relief may be granted.
E. 	Official Capacity Claims
Lastly, County Defendants argues Plaintiff has failed to state any cognizable official
capacity claims against them because he has failed to allege any constitutional violations. 	The
Court agrees. As the Court has determined Plaintiff has failed to state cognizable constitutional
violations regarding his claims against County Defendants, there can be no corresponding official
capacity claims. See McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005) (The Eighth
Circuit has consistently recognized without an underlying substantive constitutional violation
against a defendant in their individual capacity, a plaintiff cannot be successful on an official
capacity claim against that defendant’s employer).
Accordingly, all official capacity claims against the County Defendants fail as a matter of
law and should be dismissed.
V. 	CONCLUSION
For the foregoing reasons, I recommend County Defendants’ Amended Motion for
Judgment on the Pleadings (ECF No. 108) be GRANTED and all of Plaintiff’s claims against
County Defendants in their individual and official capacity claims be DISMISSED WITHOUT
PREJUDICE. Defendants Sheriff Robert Gentry, Jail Administrator Chris Walcott, Jailer Adrian
Hernandez, Jailer Romona Arenas, Program Coordinator Eleuperio Hernandez, Jailer Barbera
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Valentine, 	Jailer 	Kimberly 	McBain, 	Jailer/Deputy 	Anthony 	Irvin, 	Jailer 	Blake 	Reel,
Jailer/Program Dir. Ana Mejia, AND Jailer Whitney Higgins all be dismissed from this matter.9F
10
Referral Status: 	This case should remain referred for further litigation on the
surviving claim against Defendant Fowler.10F
11
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 17th day of July 2024.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
10 Defendants made an argument for qualified immunity, however, as the Court finds no claims
upon which relief may be granted have been stated, it need not address such argument.
11 Plaintiff’s Claim Three, for denial or delay in medical treatment, against Defendant Fowler
remains for further litigation. See ECF No. 110.
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