Bierau v. Whitehead

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
SHAUN RANDOLF BIERAU 	PLAINTIFF
v. 	Civil No. 5:25-cv-05055-CDC
CORRECTIONAL OFFICER Z. WHITEHEAD,
Benton County Detention Center (BCDC);
CORRECTIONAL OFFICER BAILEY BEST, BCDC;
CORRECTIONAL OFFICER C. OGDEN, BCDC;
LIEUTENANT TAYLOR ROSS, BCDC;
CORRECTIONAL OFFICER MR. RUSSO, BCDC;
CORRECTIONAL OFFICER MR. CARTER, BCDC; and
JAIL ADMINISTRATOR MEGAN RUTLEDGE, BCDC 	DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, Shaun R. Bierau, a former inmate of the Benton County Detention Center
(“BCDC”), filed this civil rights action under 42 U.S.C. § 1983. 	Plaintiff proceeds pro se and in
forma pauperis.
Assignment to the undersigned Magistrate Judge was automatic; however, because not all
parties have consented to Magistrate Judge jurisdiction, and this Report recommends dismissal of
Plaintiff’s claims, the case automatically will be reassigned to United States District Judge
Timothy L. Brooks. 	28 U.S.C. § 636(c); Rule 73 of the Federal Rules of Civil Procedure; and
General Order 2024-02.
The case is before the Court for preservice screening of the Complaint (ECF No. 1) under
28 U.S.C. § 1915A. 	Pursuant to § 1915A, the Court has the obligation to screen any complaint
in which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
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I. 	BACKGROUND
Plaintiff was in convicted status while incarcerated in the BCDC. 	(ECF No. 1 at 2).
According to the allegations of Claim One of his Complaint, on February 17, 2025, Plaintiff was
woken during the night by Defendant Whitehead yelling the name Jason and making “multiple
aggressive kicks to the head of my boat on the ground.0F
1 ” 	Id. at 5. 	Plaintiff reported the incident
to Defendant Rosso “only to be told ‘taps’ to the bed are allowed and it causes ‘no harm.’” 	Id.
After submitting multiple grievances and being asked to provide the dates and times, Plaintiff says
he received the same response. 	Id. at 6.
Plaintiff alleges the Defendant Whitehead’s aggressive kicks to the head of his bed caused
swelling and “popping” of his neck vertebrae and headaches. 	(ECF No. 1 at 6). 	Plaintiff asked
to be seen by a specialist but was instead offered care from the on-site nurse. 	Id. 	The nurse
verified the problems but only treated him with naproxen. 	Id. 	Plaintiff says the incident has
caused him sleep deprivation and extreme paranoia. 	Id. 	Plaintiff has asserted both individual
and official capacity claims. 	Id.
In Claim Two, Plaintiff says on February 26, 2025, and February 27, 2025, he requested §
1983 forms multiple times from Defendant Ogden and Defendant Best.1F
2 	(ECF No. 1 at p. 7).
Although Plaintiff was told he would be provided with the forms, Defendant Best later told him
they could not find the forms but they were searching for them. 	Id. 	Plaintiff was initially given
an incomplete form but was able to obtain the complete form from another officer. 	Id. 	The
following day, Plaintiff says he was mockingly called the “form guy.” 	Id.
1 A boat is a type of molded sleep surface for inmates who do not have access to a regular bunk.
2 Plaintiff refers to this Defendant by the name Bailey. 	The only Bailey in this case is Defendant
Bailey Best. 	The Court refers to this individual by his last name Best.
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On February 26, 2025, Plaintiff says Defendant Whitehead took it upon himself to shake
down the barracks. 	(ECF No. 1 at 7). 	Plaintiff says his “boat” was excessively thrown around
crushing his belonging which were stored underneath the boat. 	Id. 	Plaintiff says this occurred
to no one else. 	Id. 	In fact, he says it was obvious to everyone that Defendant Whitehead was
retaliating against him and attempting to intimidate him which has “caused [him] to worry for [his]
safety around the staff.” 	Id.
In Claim Three, Plaintiff says that on February 28, 2025, Defendant Russo denied him a
manila envelope to mail his legal documents to the Court. 	(ECF No. 1 at 9). 	Defendant Russo
told Plaintiff he could purchase one. 	Id. 	Plaintiff made Defendant Russo aware that manila
envelopes could not be purchased. 	Id. 	On the evening shift, Plaintiff says he was denied a
manila envelope by Defendant Carter. 	Id. 	Plaintiff says he made Defendant Carter aware that
“there was no other way for me to have legal documents sent.” 	Id.
On March 3, 2025, Plaintiff says he received a response to a request he sent about the
manila envelopes. 	(ECF No. 1 at 9). 	Defendant Rutledge stated they did not provide manila
envelopes and he could send his legal papers folded in multiple regular envelopes. 	Id. 	Plaintiff
asserts Defendants Russo, Carter, and Rutledge were stopping him from filing his legal papers.
Id.
As relief, Plaintiff seeks compensatory and punitive damages. 	(ECF No. 1 at 10).
Plaintiff indicates he will need follow up care for both his physical and mental conditions caused
by Defendants’ conduct. 	Id.
II. 	APPLICABLE STANDARD
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
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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 in 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 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)). 	However, even a pro se Plaintiff must allege specific facts sufficient to support a claim.
Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
III. 	DISCUSSION
Section 1983 provides a federal cause of action for the deprivation, under color of law, of
a citizen’s “rights, privileges, or immunities secured by the Constitution and laws” of the United
States. 	To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) each defendant
acted under color of state law, and (2) that he or she violated a right secured by the constitution.
West v. Atkins, 487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999).
The Court reads the Complaint to be asserting the following claims: (1) excessive force
and retaliation claims against Defendant Whitehead; and (2) denial of access to the courts claims
against Defendants Best, Ogden, Ross, Russo, Carter, and Rutledge.
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A. 	Excessive Force
Because Plaintiff was in convicted status at the time of the described incident, the Eighth
Amendment applies to his excessive force claim against Defendant Whitehead. 	Andrews v. Neer,
253 F.3d 1052, 1060 (8th Cir. 2001) (constitutional standard may very depending on whether the
plaintiff is a pretrial detainee or a convicted inmate); Kingsley v. Hendrickson, 576 U.S. 389, 400
(2015) (Pretrial detainee’s excessive force claim is analyzed under the Due Process Clause while
the Eighth Amendment applies to claims of convicted inmates). 	“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, 7 (1992)). 	“The Supreme Court . . . clarified that the extent of
any resulting injury, while material to the question of damages and informative as to the likely
degree of force applied, is not in and of itself a threshold requirement for proving this type of Eighth
Amendment claim.” 	Williams v. Jackson, 600 F.3d 1007, 1012 (8th Cir. 2010) (citing Wilkins v.
Gaddy, 559 U.S. 34 (2010)).
Whether this claim will survive on the merits is not the issue before the Court. 	Instead,
the Court must determine whether Plaintiff has alleged “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). 	The undersigned
believes Plaintiff has set forth a plausible excessive force claim against Defendant Whitehead.
B. 	Retaliation
ATo prevail on a ' 1983 claim for retaliation in violation of the First Amendment, [a
Plaintiff] must demonstrate (1) that he engaged in a protected activity; (2) that the government
official took adverse action against him that would chill a person of ordinary firmness from
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continuing in the activity; and (3) that the adverse action was motivated at least in part by the
exercise of the protected activity.” 	Santiago, 707 F.3d at 991 (citing Revels v. Vincenz, 382 F.3d
870, 876 (8th Cir.2004)).
In general, “[c]onduct that retaliates against the exercise of a constitutionally protected
right is actionable, even if the conduct would have been proper if motivated by a different reason.”
Cody v. Weber, 256 F.3d 764, 771 (8th Cir.2001) (citation omitted); Madewell v. Roberts, 909
F.2d 1203, 1206 (8th Cir.1990) (same). “Indeed, the retaliatory conduct does not itself need to be
a constitutional violation in order to be actionable.” Id. See also Dixon v. Brown, 38 F.3d 379, 380
(8th 	Cir.1994)(“[W]hen 	retaliatory 	conduct 	is 	involved, 	there 	is 	no 	independent 	injury
requirement.”).
Here, during a shakedown of the barracks, Plaintiff alleges Defendant Whitehead
“excessively” threw his boat around crushing his belongings. 	Plaintiff maintains it was obvious
that Defendant Whitehead was retaliating against him and/or attempting to intimidate him. 	As
mentioned above, a retaliation claim requires Plaintiff to show a plausible connection between his
protected speech and the adverse action. 	To “show that the protected activity was a ‘but-for-
cause’ of the adverse actions, meaning that the adverse action against [him] would not have been
taken absent a retaliatory motive.” 	De Rossitte v. Correct Care Sols., LLC., 22 F.4th 796, 804
(8th Cir. 2022). 	Plaintiff has failed to set forth sufficient factual matter which, taken as true, states
a claim that is plausible on its face. 	His factual statements are conclusory. 	Plaintiff does not
allege his right to access to the courts or to file grievances was impaired. 	“[A]n inmate cannot
immunize himself . . . merely by filing grievances and then claiming that everything that happens
to him is retaliatory.” 	Rienholtz v. Campbell, 64 F. Supp. 2d 721, 733 (W.D. Tenn. 1999) (citation
omitted). 	No plausible retaliation claim is stated against Defendant Whitehead.
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C. 	Access to the Courts
The Supreme Court has 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, 518 U.S. at 351. 	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).
An inmate cannot prevail on an access-to-courts claim unless he can demonstrate he
suffered prejudice or actual injury because 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). 	Put another way, “[t]o 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)
(internal quotation and citations omitted).
With respect to the requested § 1983 form, Plaintiff indicates he received the correct form
from another officer on the same day he requested it. 	Plaintiff has failed to state a plausible claim
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against Defendants Ogden and Bailey. 	Additionally, Plaintiff has failed to state a plausible claim
regarding his request for a manila envelope against Defendants Russo, Carter, and Rutledge.
There is no requirement that § 1983 complaints or other documents be mailed to the Court in
manila envelopes. Plaintiff may utilize multiple regular envelopes to provide his documents via
mail.
IV. 	CONCLUSION
For the reasons stated above, I recommend that the retaliation and access to courts claims
be dismissed. 	This dismisses all claims against Defendants Best, Ogden, Ross, Russo, Carter, and
Rutledge and they should be terminated as Defendants.
Remaining for consideration is Plaintiff’s excessive force claim against Defendant
Whitehead By separate Order the excessive force claim will be served on Defendant Whitehead.
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.
Status 	of 	Referral: 	This 	case 	should 	remain 	referred 	for 	all 	matters 	not
recommended for dismissal in this Report and Recommendation.
RECOMMENDED this 19th day of March 2025.
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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