McVay v. Trey et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
RICHARD THOMAS McVAY, also known
as Ricky McVay, also known as Tommy
McVay
PLAINTIFF
v. 	Civil No. 4:24-CV-04080-BAB
OFFICER TREY BAKER, NCDC; OFFICER
WILLIAM STRICKLAND, NCDC;
LIEUTENANT KARREN GHORMLEY,
NCDC; CAPTAIN STEVE OTTWELL,
NCDC; OFFICER PAULA, NCDC; JANE &
JOHN DOE; and MEDICAL STAFF, 	DEFENDANTS
REPORT AND RECOMMENDATION OF A MAGISTRATE JUDGE
Plaintiff Richard Thomas McVay, a prisoner serving a jail sentence at the Nevada County
Detention Center (“NCDC”) for a parole violation, filed the above-captioned civil rights action
pursuant to 42 U.S.C. § 1983. This Court previously granted Plaintiff’s request to proceed in
forma pauperis (“IFP”). (ECF No. 3). After noting potential legal and factual deficiencies with
Plaintiff’s original complaint, this Court ordered Plaintiff to submit an amended complaint. (ECF
No. 3).
Having now received that Amended Complaint, (ECF No. 6), United States District Court
Chief Judge Susan O. Hickey has referred this matter to the undersigned for the purposes of making
a report and recommendation on preservice review of the Amended Complaint pursuant to 28
U.S.C. § 1915A(a) of the Prison Litigation Reform Act (“PLRA”). Upon that review and for the
reasons outlined below, this Court recommends that Plaintiff’s excessive force claim against
Defendants Baker, Ghormley, Ottwell, Strickland, and Paula in their individual capacities (claim
one) proceed and that all remaining claims (claims two and three) be dismissed without prejudice
for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1).
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BACKGROUND
Plaintiff asserts three claims for relief. See (ECF No. 6). First, Plaintiff says that on July
17, 2024, Defendant Officer Trey Baker maced him in the face and then Defendants Lieutenant
Ghormley, Captain Ottwell, Officer Strickland, and Officer Paula “slammed” him into walls and
doors on the way to the intake shower area, causing him injury to his right arm, hand, and right
shoulder.
Second, Plaintiff claims that on July 17, 2024, he choked on Tylenol because Defendant
Strickland neglected to give him water when he was administering the Tylenol. Plaintiff asserts
that he became unconscious and fell off the bench, landing on his head. According to Plaintiff,
when he woke up, Defendant Strickland was patting him on the back.
Finally, Plaintiff says that on July 17, 2024, Defendant Ghormley denied his request to
call his attorney and his parole officer. Plaintiff also claims that Defendants Paula and Ottwell
denied the same request.
Plaintiff identifies all the defendants in their individual and official capacities. He requests
compensatory and punitive damages.
LEGAL STANDARD
Under PLRA, the Court must review a case initiated by a prisoner prior to service of
process being issued. The Court must dismiss a complaint, or any portion of it, if it contains claims
that: (1) are frivolous, malicious, or fail to state a claim upon which relief may be granted; or
(2) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams,
490 U.S. 319, 325 (1989). A claim fails to state a claim upon which relief 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.
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v. Twombly, 550 U.S. 544, 570 (2007). A pro se complaint, moreover, is to be given liberal
construction, meaning “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.” Stone v. Harry, 364
F.3d 912, 915 (8th Cir. 2004). However, “they still must allege sufficient facts to support the
claims advanced.” Id. at 914 (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).
DISCUSSION
The Amended Complaint1 does not explicitly assert any cause of action over which this
Court has jurisdiction. That said, Plaintiff claims that his constitutional rights were violated. See
(ECF No. 6). Thus, this Court considers whether he has established a plausible claim for relief
under 42 U.S.C. § 1983. To state a claim under 42 U.S.C. § 1983, “a plaintiff must allege a
violation of a constitutional right committed by a person acting under color of state law.” Andrews
v. City of West Branch, Iowa, 454 F.3d 914, 918 (8th Cir. 2006).
A. 	Claim 1
Regarding Plaintiff’s first claim, he says that the amount of force that was used against him
was excessive. (ECF No. 6). He also claims that Defendants denied him medical care, interfered
with his freedom of speech, and inflicted pain and suffering. Id.
As a threshold matter, Plaintiff fails to assert any facts establishing how the Defendants
denied him medical care or interfered with his freedom of speech. As a convicted criminal
defendant serving a jail sentence for a parole violation, this Court analyzes Plaintiff’s failure to
1 As Plaintiff was previously cautioned, an amended complaint supersedes, or takes the place of,
the original. See (ECF No. 3). Consistent with this caution, this Court only considers the Amended
Complaint in determining whether it states a plausible claim for relief.
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provide medical care claim under the Eighth Amendment “deliberate indifference” standard.2 “To
prevail on an Eighth Amendment claim of deliberate indifference to serious medical needs, [the
plaintiff] must prove that he suffered from one or more objectively serious medical needs, and that
prison officials actually knew of but deliberately disregarded those needs.” Roberts v. Kopel, 917
F.3d 1039, 1042 (8th Cir. 2019) (quoting Roberson v. Bradshaw, 198 F.3d 645, 647 (8th Cir.
1999)). “Proof of deliberate indifference requires a showing of a mental state akin to criminal
recklessness.” Id. (internal quotation omitted). Here, however, Plaintiff has failed to allege that
he suffered from any medical need, nor does he plead any facts suggesting that any of the
defendants were aware of that medical need but deliberately ignored it.3 Accordingly, Plaintiff’s
medical indifference claim should fail.
Similarly, although Plaintiff asserts that the Defendants violated his First Amendment right
to freedom of speech, he alleges no facts establishing what he said or describing how the
Defendants interfered with that right. To the extent that Plaintiff claims that Defendants retaliated
against him in their use of excessive force, “[t]o prevail on [a] First Amendment retaliation claim,
[the plaintiff] must show that (1) he engaged in a constitutionally protected activity; (2) that the
defendant took adverse action against him that would chill a person of ordinary firmness from
continuing in the activity; and (3) that the adverse action was motivated in part by [plaintiff’s]
exercise of his constitutional rights.” Scheffler v. Molin, 743 F.3d 619, 621 (8th Cir. 2014) (quoting
2 Even if Plaintiff had been a pretrial detainee at the time of the events giving rise to his claims,
this Court would nevertheless consider his medical indifference claim under the same Eighth
Amendment “deliberate indifference” standard. See Jackson v. Buckman, 756 F.3d 1060, 1065
(8th Cir. 2014) (applying the 8th Amendment “deliberate indifference” standard to a pretrial
detainee’s medical indifference claim).
3 While Plaintiff claims that the excessive force incident caused him injury, he alleges no facts
suggesting that those injuries would be obvious to a layperson as requiring medical attention and
that the defendants deliberately disregarded that need.
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Nauche v. City of Park Hills, 284 F.3d 923, 927-28 (8th Cir. 2022)). But here, again, Plaintiff fails
to allege any facts describing what constitutionally protected activity he was engaged in that
purportedly precipitated the Defendants’ retaliation. Plaintiff’s First Amendment claim should
therefore similarly fail.
This leaves Plaintiff’s claim that Defendants used excessive force against him,
intentionally inflicting pain and suffering. Because Plaintiff was a convicted criminal defendant
serving a jail sentence on a parole violation at the time, this Court considers Plaintiff’s claim under
the Eighth Amendment. “When confronted with a claim of excessive force alleging a violation of
the Eighth Amendment, the core judicial inquiry is ‘whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Santiago
v. Blair, 707 F.3d 984, 990 (8th Cir. 2013) (quoting Hudson v. McMillian, 503 U.S. 1, 6-7 (1992)).
Here, for the purposes of preservice review pursuant to 28 U.S.C. § 1915A(a), this Court finds that
Plaintiff has alleged a plausible excessive force claim against Defendants Baker, Ghormley,
Ottwell, Strickland, and Paula.4
Plaintiff, however, sues Defendants Baker, Ghormley, Ottwell, Strickland, and Paula in
their individual and official capacities. “A suit against a government official in his or her official
capacity is another way of pleading an action against an entity of which an officer is an agent.”
Baker v. Chisom, 501 F.3d 920, 925 (8th Cir. 2007) (citing Monell v. Dep’t of Social Services, 436
U.S. 658, 690 n.55 (1978)). In this case, Defendants Baker, Ghormley, Ottwell, Strickland, and
4 A pretrial detainee must only show that the official’s use of force was “objectively
unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 391-92 (2015). Even if it is later
determined that Plaintiff was a pretrial detainee (and not a convicted prisoner) at the time of the
events giving rise to his claims, this Court finds that Plaintiff has established a plausible claim—
for the purposes of preservice review pursuant to 28 U.S.C. § 1915A(a)—that the Defendants’ use
of force was objectively unreasonable.
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Paula are alleged to be agents of Nevada County. Under § 1983, a municipality cannot be held
liable “solely because it employs a tortfeasor.” Bolderson v. City of Wentzville, 840 F.3d 982, 985
(8th Cir. 2016) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)). Rather, “[l]iability
for a constitutional violation will attach to a municipality only if the violation resulted from an
official municipal policy, an unofficial custom, or a deliberately indifferent failure to train or
supervise an official or employee.” Id. at 985 (citing Atkinson v. Cty. of Mountain View, Mo., 709
F.3d 1201, 1214 (8th Cir. 2013)).
Here, there are no facts suggesting that during the events giving rise to Plaintiff’s excessive
force claims, Defendants Baker, Ghormley, Ottwell, Strickland, and Paula were acting pursuant to
some unconstitutional official Nevada County policy. Further, Plaintiff does not allege any facts
establishing that the excessive force incident alleged in the Amended Complaint is part of a
widespread, persistent pattern of unconstitutional conduct constituting a municipal custom. Id. at
986 (to trigger municipal liability based on custom, “the custom must be so pervasive among non-
policymaking employees of the municipality that it effectively has the force of law”). Finally,
there are no facts establishing that the Defendants’ purported use of excessive force was the result
of some failure to train or supervise. Accordingly, Plaintiff’s official capacity claim against
Defendants Baker, Ghormley, Ottwell, Strickland, and Paula should be dismissed without
prejudice for failure to state a claim.
B. 	Claim 2
With respect to claim 2, Plaintiff claims that Defendant Strickland was “improperly
trained.” (ECF No. 6, p. 6). Plaintiff asserts this claim against Defendant Strickland in his
individual and official capacities.
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A government official, however, is only liable in his individual capacity for his own
misconduct. See Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010) (“[E]ach government official,
his or her title notwithstanding, is only liable for his or her own misconduct.”). Here, Plaintiff
asserts no facts establishing that Defendant Strickland was a supervising official, responsible for
training himself or others. Accordingly, Plaintiff’s claim against Defendant Strickland in his
individual capacity for “failure to train” should be dismissed.
This leaves Plaintiff’s “failure to train” claim against Defendant Strickland in his official
capacity. As noted above, an official capacity claim is the equivalent of a claim against the entity
for which the defendant is an agent, or, in this case, Nevada County. See Parrish, 594 F.3d at 997
(quoting Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006)). A local government entity
such as Nevada County may be subject to § 1983 liability for “inadequate training of its employees
where (1) the county’s training practices were inadequate; (2) the county was deliberately
indifferent to the rights of others in adopting them, such that the failure to train reflects a deliberate
or conscious choice by the county; and (3) an alleged deficiency in the training procedures actually
caused the plaintiff’s injury.” Id. (quoting Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996))
(cleaned up). Here, however, Plaintiff fails to allege how Nevada County’s training procedures
were inadequate (namely, what was inadequate about them), whether Nevada County was aware
of those purported inadequacies, or how those inadequacies caused Defendant Strickland to neglect
to give him water with his Tylenol. Plaintiff’s official capacity claim for “failure to train” should
therefore likewise be dismissed.
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C. 	Claim 3
Finally, regarding claim 3, Plaintiff says that Defendants Ghormley and Ottwell denied his
requests to contact his parole officer and his attorney in Alaska. (ECF No. 6, p. 7). This Court
construes Plaintiff’s allegations as an “access to the courts” claim.
The United States Constitution guarantees prisoners a right to access to the courts. See
White v. Kautzky, 494 F.3d 677, 679 (8th Cir. 2007). “To prove a violation of the 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)
(citing White, 494 F.3d at 680). “To prove actual injury, moreover, “a prisoner must demonstrate
that a nonfrivolous legal claim had been frustrated or was being impeded.” Id. (quoting Lewis v.
Casey, 518 U.S. 343, 353 (1996)).
Here, Plaintiff claims the Defendants denied his request to speak to his attorney, who
practices and resides in Alaska, when he was incarcerated on a probation violation in Arkansas.
Plaintiff also claims that the Defendants denied his request to speak to his parole officer. But
Plaintiff does not allege that he suffered any injury from allegedly being denied access to his
attorney and his parole officer. Accordingly, Plaintiff has failed to establish a plausible “access to
the courts” claim. This claim should therefore be dismissed.
D. 	Defendants Jane and John Doe and Medical Staff
This leaves Defendants “Jane and John Doe” and “Medical Staff.” While Plaintiff
identifies Jane and John Doe and Medical Staff as defendants to this action in the case caption, the
body of his Amended Complaint fails to identify what these defendants allegedly did or failed to
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do in violation of his constitutional rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
(“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
constitution.”). Accordingly, any claims against Defendants “Jane and John Doe” and “Medical
Staff” should be dismissed for failure to state a claim.
CONCLUSION
In sum, having reviewed Plaintiff’s Amended Complaint pursuant to 28 U.S.C. § 1915A,
this Court recommends that: (1) Plaintiff’s excessive force claim (claim 1) against Defendants
Baker, Ghormley, Ottwell, Strickland and Paula in their individual capacities PROCEED; (2) all
other claims be DISMISSED WITHOUT PREJUDICE; and (3) Defendants Jane and John Doe,
and Medical Staff be TERMINATED from this action.
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.
STATUS OF REFERRAL: Plaintiff’s excessive force claim against Defendants Baker,
Ghormley, Ottwell, Strickland, and Paula in their individual capacities (claim 1) remains referred.
DATED this 20th day of September 2024.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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