Toney v. Lingo et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
JAVON TONEY 	PLAINTIFF
v. 	Civil No. 6:23-cv-06135-SOH-MEF
JOSHUA LINGO
(Jail Administrator, Hot Spring County Jail)
and INMATE ARMANI BARNETT 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed under 42 U.S.C. § 1983. Pursuant to the provisions of 28
U.S.C. §§ 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief United States District Judge,
referred this case to the undersigned for the purpose of making a Report and Recommendation.
Currently before the Court is Plaintiff’s failure to provide a valid service address for Defendant
Lingo and Defendant Barnett’s Motion to Dismiss Party. (ECF No. 26).
I. 	BACKGROUND
Plaintiff filed his Complaint in the Eastern District of Arkansas on December 11, 2023.
(ECF No. 1). It was transferred to this District on December 13, 2023. (ECF No. 3). On December
18, 2023, the Court entered Orders directing Plaintiff to submit a completed in forma pauperis
(“IFP”) application and an Amended Complaint. (ECF Nos. 5, 6). When Plaintiff failed to submit
either document by the deadline, the Court entered a Show Cause Order on February 2, 2024.
(ECF No. 7). 	Plaintiff submitted an Amended Complaint, IFP application, and Show Cause
Response three days past the deadline on February 26, 2024. (ECF Nos. 8, 9, 10). Plaintiff’s IFP
application was denied, and Plaintiff was directed to pay the filing fee by March 5, 2024. (ECF
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No. 11). Plaintiff sought, and was granted, an extension of time to pay the fee. (ECF Nos. 12,
13). Plaintiff timely paid the fee on March 19, 2024.
Plaintiff’s 	Amended 	Complaint 	alleges 	that 	he and 	Defendant 	Barnett 	were both
incarcerated in the Hot Spring County Jail on October 22, 2022. (ECF No. 8 at 4). Plaintiff alleges
that on that day he “was just over there minding my own business, I was on my way over to use
toilet, then inmate Armani Barnett just out of nowhere just came over to me and attacked me and
did not stop until he broke my left leg.” (Id. at 4-5). Plaintiff further alleges that jail staff sat and
watched the altercation on their cameras instead of stopping the attack. (Id. at 5). Plaintiff does
not indicate how the attack ended. Plaintiff alleges jail staff laughed at him for being so frightened
and in such pain that he defecated in his pants. (Id. at 5). They further made him continue to wear
the soiled clothing until the ambulance arrived approximately one hour later. 	(Id.). 	Plaintiff
alleges other inmates and the ambulance techs also laughed at him for soiling his pants. 	(Id.).
Plaintiff alleges he required emergency surgery because of the attack, and he now requires a walker
or wheelchair to ambulate. (Id.). He alleges he will never be able to walk on his own again. (Id.).
Plaintiff proceeds against Defendants in their individual and official capacity. (Id. at 6). As his
official capacity claim, he alleges it is the “custom at this jail to ignore assaults and not intervene
to protect inmates.” 	(Id.). 	He seeks compensatory damages. 	(Id. at 10). 	He also requests
Defendants to be disciplined and receive training. (Id.).
Summons sent to Defendant Barnett in the Arkansas Department of Corrections was
retuned executed on June 7, 2024. (ECF No. 24). Defendant Barnett filed his Motion to Dismiss
on June 20, 2024. (ECF No. 26). In it, Plaintiff argues that as a detainee he was not acting under
color of state law and, therefore, cannot be sued under § 1983. 	(Id.). 	Plaintiff has not filed a
Response to this Motion, and the time to do so has passed.
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Defendant Lingo is no longer an employee at the Hot Spring County Jail. (ECF No. 20 at
2). The Court has made numerous unsuccessful attempts to serve Defendant Lingo, including at
the last-known address provided by the jail. (ECF Nos. 14, 18, 20, 22). On June 21, 2024, the
Court entered an Order directing Plaintiff to provide additional address information to serve
Defendant Lingo. 	(ECF No. 27). 	Plaintiff was given until July 12, 2024, to provide this
information. This Order was not returned as undeliverable. Plaintiff did not respond. Plaintiff
has not communicated with the Court since he submitted his filing fee on March 19, 2024.
II. 	ANALYSIS
A. Defendant Lingo
It is the responsibility of the Plaintiff to provide the Court with an address for proper service
on the Defendants. See Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993). The Court has made
several unsuccessful attempts to serve Defendant Lingo, including at the last-known address
provided by the Hot Spring County Jail. 	In the Order directing Plaintiff to provide additional
service information, he was advised that failure to do so would result in the dismissal of Defendant
Lingo as a party in this case. (ECF No. 27). Defendant Lingo should be terminated as a party in
this case because Plaintiff has failed to provide a valid address for service.
B. Defendant Inmate Barnett
Defendant Barnett remained a party at pre-service screening due to the very early stage of
the case and out of an abundance of caution based on the seriousness of the alleged injury. We are
now at a later stage of the case, and Plaintiff’s Complaint allegations are no longer sufficient to
keep Defendant Barnett as a party. At the time of the alleged attack, Defendant Barnett was an
inmate in the Hot Springs County Jail. He is now an inmate in the Arkansas Division of Correction.
In his Motion to Dismiss him as a party, Defendant Barnett argues that he was a detainee and not
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a state actor during the incident. 	(ECF No. 26). 	Plaintiff has not submitted a Response to this
Motion.
A private person can act under color of state law for the purposes of § 1983 only if they
are “a willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S.
24, 27 (1980). 	Plaintiff’s Amended Complaint fails to state that Defendant Barnett had any
interaction with Defendant Lingo before, during, or after the attack. 	Indeed, Plaintiff fails to
mention Defendant Lingo by name in the factual portion of the claim. Plaintiff merely states that
Defendant Barnett came “out of nowhere,” attacked him for no apparent reason, and unnamed jail
staff failed to intervene. 	Defendant Barnett has now filed a Motion to Dismiss stating he is an
inmate and not a state actor. Plaintiff had the opportunity to respond to this Motion and clarify
any possible joint action between Barnett and Lingo, but he has failed to do so. While the Court
will liberally construe a pro se plaintiff’s complaint – and has done so in this case – the plaintiff
must allege sufficient facts to support his claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004). Plaintiff has failed to allege facts sufficient to state a plausible claim that Defendant Barnett
was a willful participant in any joint action with Defendant Lingo regarding the attack. Defendant
Inmate Barnett’s Motion to Dismiss (ECF No. 26) should, therefore, be GRANTED.
III. 	CONCLUSION
Accordingly, it is recommended that Defendant Barnett’s Motion to Dismiss (ECF No. 26)
be GRANTED, and both Defendants be terminated as parties in this case. 	It is further
recommended that Plaintiff’s Amended Complaint (ECF No. 8) be DISMISSED WITHOUT
PREJUDICE.
Referral 	Status: 	This 	case 	should 	not 	remain 	referred 	as 	all 	matters 	have 	been
recommended for dismissal in this Report and Recommendation.
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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 12th day of November 2024.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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