Authement v. Carl

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
TERRY PETER AUTHEMENT 	PLAINTIFF
v. 	Civil No. 6:24-cv-06068-SOH-CDC
CPRL. MARK CARL; SAMUEL TUCKER;
SGT. DALE REED; SGT. DIXON (#56012);
SGT. SEAN LANE (#42932); SGT. JAMES
SMITH (#117263); SGT. BOYD; JANE
DOE MENTAL HEALTH WORKER;
JANE/JOHN DOE (Captain, Kitchen); DOE
A-SHIFT WORKERS (Intake Barracks 3);
DOE B-SHIFT WORKERS; DOE C-SHIFT
WORKERS; DOE D-SHIFT WORKERS;
DEPUTY DIRECTOR DOE (Over Ouachita
River Correctional Unit); WARDEN DOE
(Over Ouachita River Correctional Unit) 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed pursuant to 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.
The case is before the Court for preservice screening pursuant to 28 U.S.C. § 1915A.0F
1
Under § 1915A, the Court is required to screen any complaint in which a prisoner seeks redress
from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
1 Enacted as part of the Prison Litigation Reform Act (“PLRA”).
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I. BACKGROUND
Plaintiff filed his Complaint on May 16, 2024. 	(ECF No. 1). 	That same day the Court
entered an Order directing Plaintiff to submit a completed in forma pauperis (“IFP”) application
and an Amended Complaint. (ECF No. 3). Plaintiff did so on May 31, 2024, and was granted IFP
status on June 3, 2024. (ECF Nos. 7, 8, 9).
Plaintiff raises three claims in his Amended Complaint, all centered on his time
incarcerated in the Arkansas Division of Correction (“ADC”) Ouachita River Unit. (ECF No. 7).
He currently resides in the ADC Ester Unit. For his first claim, Plaintiff alleges that on March 10,
2024, Defendant Carl attempted to harm or kill him by tampering with his food. 	(Id. at 7-8).
Specifically, Plaintiff alleges that he is allergic to potatoes and had a valid medical script to that
effect. 	(Id.). 	He alleges that Defendant Carl brought him food that contained potatoes, and
Plaintiff refused to eat it, citing his allergy. (Id.). Plaintiff states Carl then ordered two Inmate
Porters to pick the potatoes out of the tray, then used a spoon to spread the potatoes into all of the
food on the tray. The Court will infer that Defendant Carl used the spoon to mash the potatoes into
the other food on the tray. (Id.). He then returned to Plaintiff and told him that “today I’m going
to make you eat potatoes.” (Id.). Plaintiff refused again, and Defendant Carl tried to give him the
same tray a third time. (Id.). Plaintiff alleges he could not eat at that mealtime, and subsequently
missed a number of meals and lost weight due to Defendant Carl’s actions. 	(Id. at 8). 	He also
alleges mental anguish. (Id.). As his official capacity portion of this claim, Plaintiff alleges that
the ADC adheres to valid medical scripts for diets from a doctor and that day Defendant Carl
violated that ADC policy and rule. (Id. at 8).
For his second claim, Plaintiff alleges that on numerous dates in March 2024, he submitted
grievances about Defendant Carl’s actions on March 10, 2024. 	He alleges the individuals who
received the grievances failed to take any action even after one of the Inmate Porters involved
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confirmed the facts of the incident. (Id. at 9). He further states he was not allowed to proceed to
Step Two of the grievance process, and Defendant Carl was permitted to “stay around” Plaintiff.
(Id.). As a result, Plaintiff missed many meals because he did not trust Carl after what he had done
to his food on March 10, 2024. (Id.). As his official capacity portion of this claim, Plaintiff alleges
that “they all tried to hide and cover everything up and hindered me from gaining access to the
proper people to handle said grievances.” (Id. at 10). Plaintiff names a number of Defendants for
this claim, including those not listed as parties in the appropriate section of the Complaint form.
(Id. at 9). Because this claim will be removed from the case, as discussed below, the Defendants
named will not be listed here or added to the case caption.1F
2
For his third claim, Plaintiff alleges that the State of Arkansas, through unnamed
employees, failed to properly train staff at the Ouachita River Unit to work with the ADC dietitian.
(Id. at 10-11). 	Plaintiff does not name any individual Defendants for this claim. 	(Id. at 10).
Plaintiff alleges that this lack of training caused him to be subjected to Defendant Carl’s attempt
to harm or kill him. (Id. at 11). Plaintiff alleges Defendant Carl was permitted to continue to work
around him, “antagonizing me, attempting to provoke me, intimidate me, etc.” 	(Id.). 	Plaintiff
alleges that, as a result, he lost weight until he was transferred to another ADC Unit. (Id.). For
his official capacity portion of this claim, Plaintiff states: “the policies are that the ADC ad[heres]
to medical script diets from medical doctors, the grievance procedures, as well as equal protection
of the law, my due process of law.” (Id. at 12).
Plaintiff seeks compensatory, punitive, and other damages. (Id. at 12). He seeks monetary
damages in the amount of $10 million dollars. He also seeks to have proper charges filed against
Defendants. (Id.).
2 The newly listed Defendants all appear to be ADC employees based on Plaintiff’s description.
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II. LEGAL STANDARD
Under § 1915A, the Court is obliged to screen the case 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) seeks
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). 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)). 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).
III. ANALYSIS
A. 	Official Capacity Claims Against ADC Employees
All Defendants named in the case are identified as employees of the Arkansas Division of
Correction. 	As such, Plaintiff’s official capacity claims against them are subject to dismissal.
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“Claims against individuals in their official capacities are equivalent to claims against the entity
for which they work.” 	Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir.1998). 	Thus, Plaintiff's
official capacity claims against Defendants are claims against the ADC. 	Id. 	The ADC is an
Arkansas state agency. See Fegans v. Norris, 351 Ark. 200, 206, 89 S.W.3d 919 (2002). States
and state agencies are not “persons” subject to suit under § 1983. Howlett v. Rose, 496 U.S. 356
(1990); Will v. Mich. Dept. of State Police, 491 U.S. 58 (1989); McLean v. Gordon, 548 F.3d 613,
618 (8th Cir. 2008). “This bar exists whether the relief sought is legal or equitable.” Williams v.
Missouri, 973 F.2d 599, 599-600 (8th Cir. 1992) (citing Papasan v. Allain, 478 U.S. 265, 276
(1986)). “Congress did not abrogate constitutional sovereign immunity when enacting the law that
was to become section 1983.” Burk v. Beene, 948 F.2d 489, 493 (8th Cir. 1991) (citing Quern v.
Jordan, 440 U.S. 332, 342 (1979)).
The Defendants in this case are all employees of the Arkansas Division of Correction. As
such, the official capacity claims against them for monetary damages barred by sovereign
immunity.
B. 	Claim One
Plaintiff’s allegation that Defendant Carl attempted to either trick or force him to eat
potatoes despite Plaintiff’s medical script, causing Plaintiff to lose weight because he was afraid
to eat states a valid individual capacity claim.
C. 	Claim Two
Plaintiff’s allegation that his grievances concerning the incident with Defendant Carl were
ignored and he was not permitted to proceed through the grievance process is subject to dismissal.
The Eighth Circuit has made it clear prisoners do not have a constitutional right to a prison
grievance procedure. 	Lomholt v. Holder, 287 F.3d 683, 684 (8th Cir. 2002) (no claim when
“various defendants denied his grievances or otherwise refused to help him”); Buckley v. Barlow,
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997 F.2d 494, 495 (8th Cir.1993) (no claim when defendants failed to timely and properly respond
to a grievance). Thus, a prison official's failure to properly respond to a grievance, standing alone,
is not actionable under § 1983. 	Id. 	As there is no constitutional right to either a grievance
procedure or a grievance response, Plaintiff failed to state a plausible claim based on Defendants’
lack of response to his grievances.
D. 	Claim Three
Plaintiff names only the State of Arkansas as the Defendant for this claim. States and state
agencies are not “persons” subject to suit under § 1983. Howlett v. Rose, 496 U.S. 356 (1990);
Will v. Mich. Dept. of State Police, 491 U.S. 58 (1989); McLean v. Gordon, 548 F.3d 613, 618
(8th Cir. 2008).
To the extent Plaintiff alleges that Defendant Carl harassed, intimidated, and attempted to
provoke him as part of this claim, these allegations fail to state a plausible constitutional claim.
“Verbal threats do not constitute a constitutional violation.” Martin, 780 F.2d at 1339. Similarly,
taunts, name calling, and the use of offensive language does not state a claim of constitutional
dimension. 	McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993)(inmate's claims of general
harassment and of verbal harassment were not actionable under § 1983); O'Donnell v. Thomas,
826 F.2d 788, 790 (8th Cir. 1987)(verbal threats and abuse by jail officials did not rise to the level
of a constitutional violation).
IV. CONCLUSION
Accordingly, 	it 	is 	recommended 	that 	Plaintiff’s 	individual 	capacity 	claim 	against
Defendant Carl remain for service and further review. 	It is further recommended that Plaintiff
remaining claims against all other Defendants be DISMISSED WITHOUT PREJUDICE and those
Defendants TERMINATED as parties from this case.
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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.
Referral Status: This case should remain referred for all matters not recommended for
dismissal in this Report and Recommendation.
DATED this 19th day of July 2024.
/s/ Christy Comstock
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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