Hubbard v. Witherington et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
LUCAS MICHAEL HUBBARD 	PLAINTIFF
v. 	Case No. 6:24-cv-6151
KRISTY WITHERINGTON,
Investigator, Garland County DHS;
DETECTIVE CHRISTOPHER SAVAGE,
Police Officer, Garland County 	DEFENDANT
ORDER
Before the Court is the Report and Recommendation filed August 21, 2025, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.0F
1
ECF No. 89. Judge Bryant recommends that Separate Defendant Christopher Savage’s Motion to
Dismiss (ECF No. 81) be granted and that Plaintiff’s claim against Defendant Savage be dismissed
without prejudice. 	Plaintiff has responded with objections. 	ECF No. 91. 	The Court finds the
matter ripe for consideration.
I. BACKGROUND
This is a civil rights action filed by Plaintiff, a self-represented litigant. 	Plaintiff seeks
damages related to a child custody decision and divorce proceedings in Louisiana. He claims that
he was denied access to his minor child and lost his home because of the action of a private attorney
in Louisiana and orders entered by a Louisiana state court.
The instant Report and Recommendation addresses only the claims against Separate
Defendant Christopher Savage, who Plaintiff identifies as a police officer for the City of Hot
Springs, Arkansas. Plaintiff alleges that Defendant Savage violated his civil rights by purposefully
1Magistrate Judge Barry A. Bryant is now retired.
Case 6:24-cv-06151-SOH-SGS Document 97 Filed 02/26/26 Page 1 of 5 PageID #:
<pageID>

2
distracting Plaintiff so that Separate Defendant Cable Parks1F
2 could sneak inside Plaintiff’s house
and kidnap his daughter. 	ECF No. 61, p, 3. 	Plaintiff alleges that Defendant Savage’s actions
violate 42 U.S.C. § 1983 and 18 U.S.C. § 242.
Defendant Savage asks the Court to dismiss all claims against him pursuant to Fed. R. Civ.
P. 12(b)(6) for failure to state a claim upon which relief can be granted.
II. STANDARD OF REVIEW
The Court may designate a magistrate judge to hear pre- and post-trial matters and to
submit to the Court proposed findings of fact and recommendations for disposition. 28 U.S.C. §
636(b)(1). Within fourteen days of receipt of a magistrate judge’s report and recommendation, “a
party 	may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations.” Fed. R. Civ. P. 72(b)(2); accord Local Rule 72.2(VII)(C). After conducting
an appropriate review of the report and recommendation, the Court may then “accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge . . . or
recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1).
“[T]he specific standard of review depends, in the first instance, upon whether or not a
party has objected to portions of the report and recommendation.” 	Anderson v. Evangelical
Lutheran Good Samaritan Soc’y, 308 F. Supp. 3d 1011, 1015 (N.D. Iowa 2018). 	Generally,
“objections must be timely and specific” to trigger de novo review. Thompson v. Nix, 897 F.2d
356, 358-59 (8th Cir. 1990). However, the Court may, in its discretion, conduct a de novo review
of any issue in a report and recommendation. 	Thomas v. Arn, 474 U.S. 140, 154 (1985). 	The
Court must apply a liberal construction when determining whether pro se objections are specific.
Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995).
2Separate Defendant Cable Parks has been dismissed from this case. ECF No. 74.
Case 6:24-cv-06151-SOH-SGS Document 97 Filed 02/26/26 Page 2 of 5 PageID #:
<pageID>

3
III. DISCUSSION
Judge Bryant recommends that Plaintiff’s claims against Defendant Savage be dismissed
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief can be granted. An
action fails to state a claim on which relief can be granted if it does not plead “enough facts to state
a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is facially plausible when the plaintiff “pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). 	The facts alleged by a
plaintiff “must be enough to raise a right to relief above the speculative level.” Twombly. 550 U.S.
at 555. This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. While the Court will liberally construe a pro se plaintiff’s
complaint, the plaintiff must allege sufficient facts to support his claims. Stone v. Harry, 364 F.3d
912, 914.
A. 42 U.S.C. § 1983 Claim
Plaintiff broadly states in his amended complaint that he makes a claim pursuant to 42
U.S.C. § 1983, but he does not allege any specific facts related to his § 1983 claim. 	Further,
Plaintiff does not identify in which capacity he is suing Defendant Savage. 	Thus, the Court
assumes that Plaintiff is suing Defendant Savage in his official capacity.2F
3 See Johnson v. Outboard
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (noting that “only an express statement that
[public officials] are being sued in their individual capacity will suffice”); see also Egerdahl v.
Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995). According to Plaintiff, Defendant Savage
is an officer of the Hot Springs Police Department. Thus, the claim against Defendant Savage is
3Plaintiff confirms this assumption in his objections, stating that he is “seeking damages against the defendant in his
official capacity.” ECF No. 91, p. 1.
Case 6:24-cv-06151-SOH-SGS Document 97 Filed 02/26/26 Page 3 of 5 PageID #:
<pageID>

4
functionally a claim against the City of Hot Springs, Arkansas. See Veatch v. Bartels Lutheran
Home, 627 F.3d 1254, 1257 (8th Cir. 2010) (explaining that an official capacity claim is
“functionally equivalent to a suit against the employing governmental entity”).
Judge Bryant recommended that Plaintiff’s § 1983 claim be dismissed because Plaintiff
fails to describe any policy, practice, or custom of the City of Hot Springs that contributed to a
violation of his constitutional rights. 	Plaintiff objects, arguing generally that his amended
“complaint contains sufficient factual matter to state plausible claims under 42 U.S.C. § 1983.
ECF No. 91, p. 1.
Under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), a government entity can be
liable only “for a constitutional violation resulting from (1) an official municipal policy, (2) an
unofficial custom, or (3) failure to train or supervise.” Robbins v. City of Des Moines, 984 F.3d
673, 681-82 (8th Cir. 2021). 	Here, Plaintiff does not allege or describe any policy, practice, or
custom of the City of Hot Springs, Arkansas, that contributed to a violation of his constitutional
rights. Further, Plaintiff does not allege that the City of Hot Springs failed to train its officers. In
fact, Plaintiff fails to include in his amended complaint any “factual content that [would] allow[]
the [C]ourt to draw the reasonable inference that the [City of Hot Springs, Arkansas,] is liable for
the misconduct alleged.” Ashcroft, 556 U.S. 662, 678 (2009). Accordingly, the Court finds that
Plaintiff’s official capacity claim under § 1983 against Defendant Savage should be dismissed.
B. 18 U.S.C. § 242 Claim
Plaintiff states in his amended complaint that he is bringing a cause of action against
Defendant Savage based on 18 U.S.C. § 242, which is a federal criminal statute regarding
deprivation of rights. ECF No. 61, p. 4. Plaintiff, however, lacks standing to seek criminal charges
against Defendant pursuant to any criminal statute. 	See Parkhurst v. Tabor, 569 F.3d 861, 867
Case 6:24-cv-06151-SOH-SGS Document 97 Filed 02/26/26 Page 4 of 5 PageID #:
<pageID>

5
(8th Cir. 2009) (explaining that decisions to prosecute “are decisions that generally rest in the
prosecutor’s discretion”). This criminal statute, 18 U.S.C. § 242, does not afford Plaintiff a private
cause of action. 	Accordingly, the Court finds that any claim based on this statute, or any other
criminal statute, must be dismissed.
IV. CONCLUSION
Being well and sufficiently advised and finding no clear error on the face of the record, the
Court adopts the Report and Recommendation (ECF No. 89) in toto. 	Accordingly, Defendant
Savage’s Motion to Dismiss (ECF no. 81) is GRANTED, and all claims against Defendant Savage
are DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure
12(b)(6). The Court also finds that Plaintiff’s Motion to Strike (ECF No. 83), which Judge Bryant
treated as Plaintiff’s response to the instant Motion to Dismiss, should be and hereby is DENIED.3F
4
IT IS SO ORDERED, this 26th day of February, 2026.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
4In the Motion to Strike, Plaintiff argues that the instant Motion to Dismiss (ECF No. 81) should be stricken from the
record because it was untimely filed. The Court cannot find that the motion was untimely filed because it does not
appear that the City of Hot Springs, Arkansas, has ever been served with the amended complaint (ECF No. 61), which
is the operative complaint in this matter.
Case 6:24-cv-06151-SOH-SGS Document 97 Filed 02/26/26 Page 5 of 5 PageID #:
<pageID>