Ybarra v. Smith et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
AMBER YBARRA 	PLAINTIFF
v. 	Civil No. 	4:23-cv-04117-SOH-BAB
CAPTAIN TRAVIS SMITH; SHERIFF
BOBBY WALRAVEN; JAIL
ADMINISTRATOR GINA BUTLER;
OFFICER JOHN PUMPHREY; and
OFFICER TIMS
DEFENDANTS
REPORT AND RECOMMENDATION
This is a civil rights action filed pro se by Plaintiff, Amber Ybarra, under 42 U.S.C. § 1983.
Before the Court is Defendants Smith, Butler, and Walraven’s Motion for Summary Judgment on
the limited issue of exhaustion. (ECF No. 26). Plaintiff filed a Response. (ECF No. 32). 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 this case to the undersigned for the purpose of making a
Report and Recommendation.
I. BACKROUND
As an initial matter, the Court notes Defendants Smith, Butler, and Walraven (hereinafter
“Original Defendants”) filed their Motion for Summary Judgment on the limited issue of
Exhaustion on April 25, 2024. 	(ECF No. 26). 	Plaintiff then filed a Motion to Amend her
Complaint on May 10, 2024. (ECF No. 31). Original Defendants did not object, and the Court
granted Plaintiff’s Motion to Amend. (ECF No. 33). Plaintiff’s Amended Complaint was filed on
June 28, 2024. (ECF No. 34). In this Amended Complaint, Plaintiff joined additional claims and
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additional defendants to this case. Id. Original Defendants did not supplement their Motion for
Summary Judgment to argue the issue of exhaustion as to these additional claims or defendants.
Accordingly, the Court will address each of the Original Defendants arguments in relation to
Plaintiff’s Amended Complaint.
Plaintiff is currently incarcerated in the Arkansas Division of Corrections—McPherson
Unit in Newport, Arkansas, but her claims involve her incarceration at the Little River County
Detention Center (“LRCDC”) in Ashdown, Arkansas during June and September of 2023.
Plaintiff was a convicted inmate at all times relevant here. (ECF No. 34, p. 2).
In her Amended Complaint, Plaintiff names five Defendants: Captain Travis Smith, Sheriff
Bobby Walraven, Jail Administrator Gina Butler, Officer John Pumphrey, and Officer Tims, a
jailer. (ECF No. 34, pp. 3-4). In Claim One, Plaintiff claims Defendant Tims sexually assaulted
her using unnecessary force. Id. at 5. Specifically, Plaintiff claims:
[O]n the morning of 6/7/23, after doing morning rounds, ofc. Tims entered the plaintiff’s
cell. Ofc. Tims approached plaintiff’s bed and pinned her up against the wall. Ofc. Tims
pulled his pants down and also his underwear, he then stated “suck my penis.” Ofc. Tims
left a substance on plaintiff’s bed sheet that was green in color. The plaintiff screamed and
Ofc. Tims pulled his pants up. 	He asked if she needed a new sheet and brought a sheet
wrapped in a jumpsuit hidden. 	After the assault, the plaintiff was taken to the front to
supposedly use the phone to bond out. 	The plaintiff was asked to enter an area with no
cameras. Plaintiff was forced into a restraint chair and also threatened with pepper spray.
Id. at 5-6 (errors in original). Plaintiff indicates she is alleging this Claim One against Defendant
Tims in his official and individual capacity, but only asserts under the official capacity section that
“sexual assault is a crime/felony in the State of Arkansas.” Id. at 6.
In Claim Two, Plaintiff alleges Defendants Tims, Smith, Butler, and Walraven violated her
constitutional rights on June 7, 2023 when they used excessive force against her, denied her
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medical care, poisoned her, caused her physical injury, and subjected her to unconstitutional
conditions of confinement. Id. at 7. Specifically, Plaintiff alleges:
On 6/7/23, the plaintiff’s wrist was bent backwards @ an awkward angle. 	Her wrist
became swollen & black and the plaintiff asked repeatedly to go to the hospital for x-rays
and her requests were repeatedly denied. 	Plaintiff had no access to the inmate kiosk to
drop a sick call. The plaintiff was forced to go without a shower for 3 weeks. The plaintiff
was put on suicide watch for 16 days. While on suicide watch the plaintiff found hair, dirt,
& rocks in her food and often times felt nauseous, dizzy, & just ‘not right.’ The plaintiff
was denied state supplies for 3 months straight, while in the isolation cell.
Id. at 7 (errors in original). 	Plaintiff indicates she is alleging Claim Two against Defendants in
both their individual and official capacities. For her official capacity claim she states Defendants,
while acting under color of state law, used excessive force and caused physical injury to Plaintiff’s
left wrist. Id. at 8.
In Claim Three, Plaintiff claims Defendant Pumphrey subjected her to unconstitutional
conditions of confinement and is guilty of voyeurism. Id. at 8. Specifically, Plaintiff claims:
On 9/6/23, the Little River Detention Center 	had the plaintiff transferred to the
McPherson’s unit in Newport. 	Ofc. John Pumphrey transported the plaintiff to the
McPherson unit on 9/6/23. 	While being escorted to the McPherson unit, Ofc. John
Pumphrey admitted to the plaintiff that he & other officers could see the Sun, Moon, &
stars. He was referring to the shower area in G-pod where there were no shower curtains.
Plaintiff wrote a grievance on the issue and the warden’s answer was, “I am unable to
address the merits of the grievance.”
Id. at 9 (errors in original). 	Plaintiff indicates she is alleging Claim Three against Defendant
Pumphrey in both his individual and official capacities. For her official capacity claim, Plaintiff
simply states: “voyeurism is a crime/felony.”
Plaintiff does not state what relief she is seeking in her Amended Complaint. (ECF No.
34).
In Defendants’ Motion, Brief, and Statement of Undisputed Facts, Original Defendants
argue: (1) the LRCDC has a grievance procedure; (2) Plaintiff utilized this procedure on unrelated
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matters; but (3) failed to exhaust her administrative remedies as to her claims of excessive force
and denial of medical care.0F
1 (ECF No. 27). Specifically, Defendants present approximately sixty-
seven (67) requests and grievances Plaintiff submitted while incarcerated in the LRCDC. (ECF
No. 28-3, pp. 1-44). 	These grievances and requests relate to Plaintiff’s food, hygiene products,
prescription medication and allergies, legal mail, sleeping conditions, seek addresses and
information related to her criminal charges, and complain of the lack of shower curtains. However,
there are no grievances or requests related to the alleged use of force (in the restraint chair) or
denial of medical care on June 7, 2023. 	Id. 	Accordingly, Defendants argue Plaintiff failed to
exhaust her administrative remedies as to these claims.
In Plaintiff’s Response, she argues she grieved the issue related to the shower curtains, and
her injured wrist once she arrived at the McPherson Unit on September 6, 2023. (ECF No. 32, p.
6). Plaintiff attaches grievances and inmate requests from the McPherson Unit to her Response.
Id. at 10-16. Plaintiff does not dispute: (1) that the LRCDC had a grievance procedure; or (2) that
she failed to file any grievances related to these claims through the LRCDC grievance procedure.
She also does not provide any explanation as to why she did not utilize the LRCDC grievance
procedure regarding her claims. (ECF No. 32).
1 Defendants also argue, in their Motion, that Plaintiff failed to exhaust her claim of retaliation,
but Plaintiff did not include a claim of retaliation in her Amended Complaint. Accordingly, the
Court need not address any arguments related to a claim of retaliation as Plaintiff is no longer
asserting such a claim. In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000) (“It is
well-established that an amended complaint supercedes an original complaint and renders the
original complaint without legal effect.”)
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II. LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the nonmoving party, the record "shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Once
a party moving for summary judgment has made a sufficient showing, the burden rests with the
non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine
issue of material fact exists.” Nat’l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir.
1999).
The non-moving party "must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient
evidence to support a jury verdict in their favor." Nat’l Bank, 165 F.3d at 607. "A case founded
on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. at 610.
“When opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007).
Under § 1983, a defendant may be sued in either his personal capacity, or in his official
capacity, or claims may be stated against a defendant in both his personal and his official
capacities. 	The type of conduct that is actionable and the type of defense available depend on
whether the claim is asserted against a defendant in his official or individual capacity. See Gorman
v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted). 	“Claims against
individuals in their official capacities are equivalent to claims against the entity for which they
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work; they require proof that a policy or custom of the entity violated the plaintiff’s rights, and the
only type of immunity available is one belonging to the entity itself.” Id. Personal capacity claims
“are those which allege personal liability for individual actions by officials in the course of their
duties; these claims do not require proof of any policy and qualified immunity may be raised as a
defense” to these individual capacity claims. Id. To state a claim under 42 U.S.C. § 1983, Plaintiff
must allege that the defendant acted under color of state law, and that the actor violated a right,
privilege, or immunity secured by the Constitution. 	West v. Atkins, 487 U.S. 42, 48 (1988);
Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999).
III. DISCUSSION
The Court will first address the issue of exhaustion as argued by the Original Defendants.
The Court will then sua sponte address frivolous claims made in Plaintiff’s Amended Complaint.
A. Exhaustion
The PLRA mandates exhaustion of available administrative remedies before an inmate files
suit. Section 1997e(a) of the PLRA provides: “[n]o action shall be brought with respect to prison
conditions under Section 1983 of this title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 	42 U.S. C. § 1997e(a) (held unconstitutional on other grounds). 	Exhaustion is
mandatory. Porter v. Nussle, 534 U.S. 516, 524-25 (2002). In Jones v. Bock, 549 U.S. 199 (2007),
the Supreme Court explained that “to properly exhaust administrative remedies prisoners must
complete the administrative review process in accordance with the applicable procedural rules.”
Id. at 218 (internal quotation marks and citation omitted). The Jones Court stated that the “level
of detail necessary in a grievance to comply with the grievance procedures will vary from system
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to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the
boundaries of proper exhaustion.” Id.
Here, Plaintiff does not dispute the LRCDC has a grievance procedure or that she had
access to that procedure. 	The Court notes Plaintiff’s statement in her Amended Complaint that
she did not have access to the kiosk while in the restraint chair to “drop a sick call.” (ECF No. 34,
p. 7). However, Plaintiff filed multiple grievances on unrelated matters after the alleged June 7,
2023 incident with the restraint chair. 	(ECF No. 28-3, pp. 6-8). 	The Court need not credit
Plaintiff’s allegations when the record directly contradicts such allegations. See Scott v. Harris,
550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).
Furthermore, Plaintiff does not dispute the fact she filed over sixty-seven (67) grievances
and requests on unrelated matters while incarcerated in the LRCDC. 	Finally, she provides no
explanation for her failure to file any grievances related to her excessive force (in the restraint
chair) and denial of medical care claim against Defendants Smith, Walraven, or Butler in
compliance with the LRCDC’s grievance procedure. Plaintiff cannot rely on grievances filed at
the McPherson Unit as it is not the Arkansas Division of Corrections’ grievance procedure at issue.
Plaintiff must comply with and fully exhaust her administrative remedies through the LRCDC
before she can bring a lawsuit in this Court on claims arising at the LRCDC. See Jones, 549 U.S.
at 218 (the exhaustion requirements are specific to the institution’s grievance procedures); 42 U.S.
C. § 1997e(a).
The record clearly indicates Plaintiff failed to exhaust her administrative remedies
regarding her excessive force (in the restraint chair) and denial of medical care claims against
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Defendants Smith, Walraven, and Butler. Accordingly, those claims, from Plaintiff’s Amended
Complaint (ECF No. 34) should be dismissed pursuant to the PLRA.
B. Frivolous Claims
An additional matter is Plaintiff’s frivolous claims asserted in her Amended Complaint.
While the Court previously screened Plaintiff’s original Complaint pursuant to the Prison
Litigation Reform Act, it has not yet done so with Plaintiff’s Amended Complaint. 	Under the
Prison Litigation Reform Act, 42 U.S.C.A. § 1997e, “The court shall on its own motion . . . dismiss
any action brought with respect to prison conditions under section 1983 of this title . . . if the court
is satisfied that the action . . . is frivolous, malicious, fails to state a claim upon which relief can
be granted, or seeks monetary relief from a defendant who is immune from such relief.” 	42
U.S.C.A. § 1997e(c)(1). Section 1997e(c) is applicable throughout the life of a case and provides
the District Court with the authority to sua sponte dismiss at any time during litigation if it becomes
apparent that this dismissal provision has been satisfied. Beenick v. LeFebvre, 684 F.App'x. 200,
204 (3d Cir. 2017) (unpublished); see also Williams v. Cox, 3:20-CV-00070-JTR, 2022 WL
883026, at n. 8, *4 (E.D. Ark. Mar. 24, 2022) (dismissing inmate's case at the summary judgment
stage under § 1997e(c)(1) and collecting cases supporting a District Court's ability to do so sua
sponte).
A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams,
490 U.S. 319, 325 (1989). An action is malicious when the allegations are known to be false, or
it is undertaken for the purpose of harassing or disparaging the named defendants rather than to
vindicate a cognizable right. 	Spencer v. Rhodes, 656 F. Supp. 458, 464 (E.D.N.C. 1987); In re
Tyler, 839 F.2d 1290, 1293-94 (8th Cir. 1988). A claim fails to state a claim upon which relief
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may be granted if it does not allege “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. 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)). This means “that if the essence of an allegation is
discernable, even though it is not pleaded with legal nicety, then the district court should construe
the complaint in a way that permits the layperson's claim to be considered within the proper legal
framework.” 	Jackson, 747 F.3d at 544 (cleaned up). 	However, the complaint must still allege
specific facts sufficient to support a claim. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
Plaintiff’s allegations in Claims One and Three regarding felony sexual assault and
voyeurism against Defendants Tims and Pumphrey are frivolous. Plaintiff has no constitutional
right to have law enforcement officials investigate a reported crime. See Brown v. Hickman, 2015
WL 1097392, *6-7 (Mar. 11, 2015) (citing to Sheets v. Mullins, 287 F.3d 581 (6th Cir. 2002)).
Additionally, Plaintiff has failed to state any official capacity claims against any
Defendants in her Amended Complaint. A governmental entity can be held liable only when the
constitutional violation was caused by a policy, custom, or failure to train or supervise. Monell v.
Dep't. of Soc. Servs., 436 U.S. 658, 691 (1978). Plaintiff failed to allege any policies or customs
of Little River County that caused her alleged constitutional violations. Furthermore, Little River
County cannot be held liable simply based on the misbehavior of its employees under a theory of
respondeat superior or supervisor liability. Whitson v. Stone County Jail, 602 F.3d 920, 928 (8th
Cir.2010).
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Accordingly, (1) Plaintiff’s official capacity claims against all Defendants; and (2) any
claims regarding criminal activity by Defendants Tims and Pumphrey should be dismissed
pursuant to 42 U.S.C.A. § 1997e(c)(1).
IV. CONCLUSION
For the reasons stated above, it is recommended Defendants’ Motion for Summary
Judgment (ECF No. 26) be GRANTED and Plaintiff’s Claim Two for denial of medical care and
excessive force against Defendants Smith, Butler, and Walraven in the Amended Complaint be
DISMISSED WITHOUT PREJUDICE.
Further, it is recommended all of Plaintiff’s official capacity claims against all Defendants
and Plaintiff’s claims related to the criminal activity of Defendant Tims and Pumphery be
DISMISSED WITHOUT PREJUDICE pursuant to 42 U.S.C.A. § 1997e(c)(1). This leaves for
further litigation:
1) 	Plaintiff’s Claim One against Defendant Tims, in his individual capacity, for excessive
force;
2) 	Plaintiff’s Claim Two for poison in the food and unconstitutional conditions of
confinement against Defendants Smith, Butler, and Walraven, in their individual
capacity;
3) 	Plaintiff’s Claim Two for excessive force, denial of medical care, poison in food, and
unconstitutional conditions of confinement against Defendant Tims, in his individual
capacity; and
4) 	Plaintiff’s Claim Three for conditions of confinement against Defendant Pumphrey, in
his individual capacity.
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Finally, Defendants should be allowed to move for summary judgment on the issue of
exhaustion on any new claims asserted by Plaintiff in her Amended Complaint that were not
asserted in her original complaint. The Court will issue a separate order providing a deadline for
any such motion for summary judgment on exhaustion.
Referral Status: This case should remain referred..
The parties have fourteen 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 7th day of November 2024.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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