Mullins v. Sternisha et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
SHARDA LE’JARDUN MULLINS PLAINTIFF
v. 	Civil No. 	1:24-cv-01080-SOH-BAB
ASST. JAIL ADMIN MICKY STERNISHA;
CHIEF OF POLICE JERRY MANESS; and
JAIL ADMIN GEAN SEIGER
DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Sharda Le’Jardun Mullins, currently an inmate of the Columbia County Detention
Center, filed this action pursuant to 42 U.S.C. § 1983. 	Plaintiff proceeds pro se and in forma
pauperis. 	The case was directly assigned to the undersigned Magistrate Judge. 	However,
because not all parties to the action have consented to the jurisdiction of the undersigned, and at
least some of Plaintiff’s claims require dismissal, the Court enters its findings as a Report and
Recommendation, and the case will automatically be reassigned to Chief United States District
Judge Susan O. Hickey. 	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 under the provisions of 28 U.S.C. §
1915A(a). 	Pursuant to § 1915A(a), 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. 	Based on this review, for the reasons outlined below, the Court recommends Plaintiff’s
Complaint be dismissed without prejudice.
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I. 	BACKGROUND
Plaintiff filed his original Complaint on November 5, 2024 in the Eastern District of
Arkansas. 	(ECF Nos. 1, 2). 	The Eastern District Court transferred the case to this Court on
November 6, 2024. 	(ECF No. 2). 	Plaintiff failed to submit an application to proceed in forma
pauperis (“IFP Application”) or pay his filing fee so the Court ordered Plaintiff to either file an
IFP Application or pay his filing fee. 	(ECF No. 6). 	The Court also ordered Plaintiff to file an
Amended Complaint. 	(ECF No. ). 	Plaintiff filed his IFP Application on November 14, 2024 and
his Amended Complaint on November 21, 2024. 	(ECF Nos. 8, 9). 	Plaintiff then filed another
IFP Application on November 21, 2024. 	(ECF No. 10). 	The Court granted Plaintiff’s IFP
Motion on December 11, 2024. 	(ECF No. 12).
Plaintiff alleges in his Amended Complaint that he is incarcerated in the Columbia County
Detention Center (“CCDC”) on a parole violation during the times in issue here. 	(ECF No. 9, p.
2). 	Plaintiff names three Defendants in his Amended Complaint: Jail Administrator Gean Seiger,
Assistant Jail Administrator Micky Sternisha, and Chief of Police Jerry Maness. 	(ECF No. 9).
Plaintiff labels three claims in his Amended Complaint but alleges multiple claims within
some of his numbered claims. 	In his Claim One he alleges, on October 28, 2024, Defendants
Sternisha, Maness, and Seiger denied him the Arkansas Prison Rape Elimination Act (“PREA”)
Hotline number, threatened his life “physically, sexually, and mentally,” used excessive force, and
denied him mental health care. 	(ECF No. 9, p. 4). 	Specifically, Plaintiff states:
I was and still being threaten, sexually harassed by staff, medical neglected, neglected to
see or talk to [a] counselor, [discriminated] against, improperly treated, and retaliated on
here at Columbia County Jail.
M. Sternisha followed me into the pod and snatched my blanket out of my hand, and told
me that she will keep me in the corner as long as she wants. 	I tried to move off away from
her twice and she throw her hands up to block me. 	G. Seiger didn’t do anything but
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watched. 	Jerry Maness refused to allow me contact to PREA Hotline and still as of Nov.
12, 2024 have been denied the right to call. 	And Jerry Maness threatened my life if I press
PREA issue. 	Threatened, sexually harassed, medical and mental health neglected,
[discriminated] against, improperly treated, and retaliated on.
(ECF No. 9, p. 5) (errors in original). 	For his official capacity assertion in Claim Three, Plaintiff
states: “Holding me as … hostage against the wall. 	Being denied PREA contact. 	Snatching my
blanket out of my hand. 	Being threaten[ed] if I press PREA issue.” 	Id.
In his Claim Two, Plaintiff states Defendant Maness violated his constitutional rights on
October 29, 2024 through his conditions of confinement and not giving him the right phone
number to the Arkansas PREA hotline. 	Specifically, Plaintiff alleges:
I was called to Jerry Maness office and given a Military Rape Hotline And still haven’t
been given access to the right PREA number.
Jerry Maness threaten me if I press the PREA issue.
Mentally reliving sexual [assaults], denied PREA contact, and denied Mental Health
assistance 	And threaten[ed] with my freedom and my life if I pressed PREA issue And
being scared.
(ECF No. 9, p. 6) (errors in original). 	For his official capacity claim in Claim Two Plaintiff states:
“My freedom and life being threaten[ed].” 	Id. at 7.
In Claim Three, Plaintiff claims Jerry Maness violated his constitutional rights on October
31, 2024 by denying him the contact number for the PREA hotline and for threating Plaintiff’s life
and freedom. 	Specifically, Plaintiff states:
Scared, threaten with my life and freedom.
Jerry Maness called me into his office and told me if I called PREA he would put charges
on me and make my life a living hell. 	And I would never be freed.
Scared and in fear for my life and freedom.
(ECF No. 9, p. 8) (errors in original). 	Plaintiff does not make an official capacity claim in Claim
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Three. 	Id.
For relief Plaintiff seeks both compensatory and punitive damages. 	(ECF No. 9, p. 9).
He also seeks injunctive relief to ensure inmates have the right to file a proper PREA report at the
CCDC. 	Id.
Finally, attached to his Amended Complaint Plaintiff has additional explanation of the
actions he complains. 	The Court finds this attachment helpful in determining what actions
Plaintiff alleges violated his constitutional rights. 	Plaintiff states:
On 10-28-2024 Ms. M. Sternisha Followed me . . . back into the pod after a pod search.
She then followed me to my rack and snatched my blanket out of my hand, and told me
that she can keep me in the corner against the wall as long as she wants. 	I then tried to
move off and away from her twice and she throw her hands up to block me. 	As I put my
back against the wall she steady approached me closer and closer until another inmate
picked her up over his sho[u]lder and carried her out the pod. 	I have tried over and over
to call prea hotline on her and have been denied. 	Mr. Jerry Maness has called me into his
office twice since. 	Once given me a military rape hotline, and second giving me ADC
Prea Hotline, but Jerry Maness threatened my freedom and life the second time calling me
into his office. 	I have yet been able to contact Prea Hotline it being Nov. 7, 2024. 	I fear
for my life at this jail. 	I am being threaten[ed], sexually harassed, medical neglected,
[discriminated] against, improperly treated, and retaliated here at Columbia County Jail.
It's not right and now being sexually harassed and threaten[ed] by officers, I’m in more
fear being here. 	My motion for Restraining Order was denied, by Columbia County
Sheriffs’ Office that isn’t right. 	Now being multiple law suits they are trying to retaliate
against me ‘as well having my life threaten[ed]. 	Also I’m being still not allowed to file a
proper PREA report and that is my rights. 	The officers Keep giving me the wrong
Arkansas PREA Hotline number. 	Also Ms. Gean Seiger failed to do anything as Ms. M.
Sternisha had me heamed against the wall.
(ECF No. 9, pp. 12-13) (errors in original).
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
relief from a defendant who is immune from such relief. 	28 U.S.C. § 1915A(b).
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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. 	In re Tyler, 839 F.2d 1290, 1293-94 (8th Cir. 1988); Spencer
v. Rhodes, 656 F. Supp. 458, 464 (E.D.N.C. 1987). 	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
Plaintiff makes multiple factual allegations and claims within each of his numbered claims.
Therefore, the Court will address each of Plaintiff’s claims by subject matter rather than claim
number herein. 	The Court will address: (1) Plaintiff’s denial of mental health and discrimination
claims; (2) Plaintiff’s excessive force claim; (3) Plaintiff’s sexual harassment claim related to the
PREA; (4) Plaintiff’s retaliation claim against Defendant Maness; and (5) Plaintiff’s official
capacity claims.
A. Denial of Mental Health, Discrimination, and Conditions of Confinement
First, while Plaintiff list denial of mental health, discrimination, and conditions of
confinement in his list of claims in his Amended Complaint, he completely fails to allege any facts
related to any of these claims.
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Rule 8(a) contains the general pleading rules and requires a complaint to present “a short
and plain statement of the claim showing that the pleader is entitled to relief.” 	Fed. R. Civ. P.
8(a)(2). 	“A claim has facial plausibility 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). 	The Court will consider well plead factual
allegations in the Amended Complaint as true and construe all reasonable inferences from the
pleadings in favor of the non-moving party. 	Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986).
However, while the Court will liberally construe a pro se plaintiff’s complaint, the plaintiff must
allege sufficient facts to support his claims. 	See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
Prison officials have a duty to provide mental and medical health care to Plaintiff under
the Eighth Amendment. 	See Salam v. Delaney, 2015 WL 5693133, at *7 (W.D. Ark. Sept. 28,
2015). 	However, in order to state a claim for violation of this duty, Plaintiff must allege he
suffered an objectively serious mental health care need, and the defendants actually knew of but
were deliberately indifferent to that need. 	Id. at 8. 	Plaintiff has failed to allege any facts related
to his mental health care needs or purported denial of mental health care. 	Accordingly, Plaintiff
has failed to state a claim upon which relief may be granted as to any denial of mental health care
claims. 	Fed. R. Civ. P. 8(a)(2).
Furthermore, while Plaintiff does enjoy protections under the Equal Protection Clause of
the Fourteenth Amendment from discrimination, Plaintiff has failed to allege any facts to state a
claim under such Clause. 	The Court cannot determine from Plaintiff’s Amended Complaint, what
type of discrimination he alleges, who purportedly discriminated against him, or how he was
discriminated against. 	Accordingly, Plaintiff has failed to state a claim of discrimination upon
which relief may be granted. 	Fed. R. Civ. P. 8(a)(2).
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Lastly, because Plaintiff was incarcerated on a parole violation his conditions-of-
confinement claim is considered under the Eighth Amendment. 	See Peterson v. Heinen, 89 F.4th
628 (2023) (holding a probationer held on an unadjudicated probation violation is subject to the
Eighth Amendment because his detention is “part and parcel of the state’s successful criminal
conviction and ensuing punishment.”). 	This means Plaintiff must prove the conditions challenged
were objectively, sufficiently serious, meaning they amounted to the denial of the minimal
civilized measure of life’s necessities, and he must also prove the Defendants had a sufficiently
culpable state of mind, meaning they acted or failed to act despite their actual knowledge of the
substantial risk of serious harm. 	See Baker v. Delo, 38 F.3d 1024, 1027 (8th Cir. 1994) (internal
citations and quotations omitted). 	Plaintiff, however, failed to allege any complained of
conditions, any risk of serious harm, and any culpable state of mind for the Defendants.
Accordingly, he has failed to state a conditions-of-confinement claim upon which relief may be
granted. 	Fed. R. Civ. P. 8.
B. Excessive Force
Here, while Plaintiff alleges an excessive force claim against Defendant Sternisha, he fails
to allege she used any force against him. 	Instead, Plaintiff alleges she “snatched” a blanket from
him, cornered him against the wall, and spoke to him in a way that made him feel uncomfortable.
(ECF No. 9, p. 12). 	The facts alleged against Defendant Sternisha do not rise to the level of a
constitutional violation. 	It is well established that “[v]erbal threats do not constitute a
constitutional violation.” 	Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir. 1985). 	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 Section 1983); O'Donnell v.
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Thomas, 826 F.2d 788, 790 (8th Cir. 1987) (verbal threats and abuse by jail official did not rise to
the level of a constitutional violation).
Furthermore, Defendant Seiger cannot be held liable simply because she is the jail
administrator of the CCDC. 	As jail administrator, Defendant Seiger is only liable for her own
conduct and cannot be held accountable for the misbehavior of her agents under a theory of
respondeat superior or supervisor liability. 	Whitson v. Stone County Jail, 602 F.3d 920, 928 (8th
Cir.2010). 	However, a supervisor may be found liable under Section 1983 if she is aware of “a
substantial risk of serious harm” even if he is not aware that the harm has actually occurred. 	Kahle
v. Leonard, 477 F.3d 544, 552 (8th Cir.2007) (citing Farmer v. Brennan, 511 U.S. at 842). 	To
establish supervisor liability, the plaintiff must show a failure to train or supervise caused his
injury. 	Moore v. City of Desloge, 647 F.3d 841, 849 (8th Cir.2011). 	The Eighth Circuit Court
of Appeals has stated, “[t]he supervisor must know about the conduct and facilitate it, approve it,
condone it, or turn a blind eye [to it].” 	Boyd v. Knox, 47 F.3d 966, 968 (8th Cir.1995). 	“The
question whether the official knew of the risk is subject to demonstration, like any other question
of fact, by inference from circumstantial evidence.” 	Spruce v. Sargent, 149 F.3d 783, 786 (8th
Cir.1998). 	Therefore, 	if 	the 	plaintiff 	presents 	evidence 	of 	“very 	obvious 	and 	blatant
circumstances” showing the supervisor knew of the risk of harm to him, then the fact finder may
infer that the supervisor “must have known” of the risk. 	Id.
Here, Plaintiff alleges Defendant Seiger did not intervene when Defendant Sternisha
cornered him in his pod. 	As the Court has already found, Defendant Sternisha’s actions did not
rise to the level of a constitutional violation, accordingly, there can be no violation for Defendant
Seiger failing to intervene.
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C. Sexual Harassment
Thirdly, to the extent Plaintiff’s claims regarding the purported sexual harassment by staff
is an attempt to make a substantive claim under the PREA, it fails because there is no private cause
of action under the PREA. 	Section 1983 does not create any substantive rights. 	Rather, it
provides a remedy for violations of constitutional rights or rights created under federal law.
Tarsney v. O'Keefe, 225 F.3d 929, 939 (8th Cir. 2000). 	The PREA authorized the federal
government to give grants to prisons and detention facilities that implement procedures designed
to reduce the number of prison rapes. 	34 U.S.C. §§ 30301-30309. 	While there appears to be no
Eighth Circuit decision on point, other courts have made clear that the PREA does not create a
private cause of action. 	Johnson v. Garrison, 859 F. App'x 863, 864 (10th Cir. 2021); Bowens v.
Wetzel, 674 F. App'x 133, 137 (3d Cir. 2017); Krieg v. Steele, 599 F. App'x 213, 232-33 (5th Cir.
2015); Wilmoth v. Sharp, No. 6:15-cv-06057, 2018 WL 1092031, *3 (W.D. Ark. Feb. 27, 2018).
Thus, Plaintiff has failed to state any plausible constitutional claims based on the PREA.
Furthermore, Plaintiff failed to allege any facts related to his sexual harassment claim.
Accordingly, just as with his denial of mental health, discrimination, and conditions-of-
confinement claims, Plaintiff has failed to state a claim upon which relief may be granted related
to his sexual harassment claim. 	Fed. R. Civ. P. 8.
D. Retaliation
However, Plaintiff’s claims that Defendant Maness intimidated him and prevented his
access to file a grievance or claim pursuant to the PREA is sufficiently stated at this juncture.
Plaintiff specifically claims Defendant Maness threatened his life and freedom if he pursued his
PREA claim. 	(ECF No. 9, p. 8). 	Inmates retain a First Amendment right to access the courts
and to petition the government for redress of grievances. 	Bounds v. Smith, 430 U.S. 817, 821 –
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33 (1977). 	Inmates are entitled to “a reasonably adequate opportunity to present claimed
violations of fundamental constitutional rights to the courts.” 	Id. at 825. 	Furthermore, inmates
have a constitutionally protected right to file grievances. 	Sprouse v. Babcock, 870 F.2d 450, 452
(8th Cir. 1989) (First Amendment right to petition for redress of grievances includes redress under
established prison grievance procedures). 	Moreover, inmates may not be retaliated against for
exercising their First Amendment rights to file grievances. 	Id. 	Finally, verbal death threats by a
prisoner officer could be found to chill a prisoner of ordinary firmness from participating in the
prison grievance procedure. 	See Santiago v. Blair, 707 F.3d 984, 992-3 (8th Cir. 2013).
Accordingly, the Court finds Plaintiff has stated a claim, at this juncture, for retaliation against
Defendant Maness.
E. Official Capacity
Finally, all official capacity claims asserted by Plaintiff against all Defendants must fail as
a matter of law. 	Under Section 1983, a defendant may be sued in either his personal capacity, or
in his official capacity, or claims may be stated against a defendant in both his personal and his
official capacities. 	The type of conduct that is actionable and the type of defense available depend
on whether the claim is asserted against a defendant in his official or individual capacity. 	See
Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted). 	“Claims against
individuals in their official capacities are equivalent to claims against the entity for which they
work; they require proof that a policy or custom of the entity violated the plaintiff’s rights, and the
only type of immunity available is one belonging to the entity itself.” 	Id. 	Here, that means
Plaintiff needed to allege a policy, procedure, or custom of Columbia County caused his alleged
constitutional violations. 	Plaintiff has failed to do so here as he has not alleged any facts regarding
the policy, procedures, or customs of Columbia County.
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IV. 	CONCLUSION
For these reasons, it is recommended that:
(1) All of Plaintiff’s claims except his retaliation claim against Defendant Maness be
dismissed for failure to state a claim under 28 U.S.C. § 1915A(b)(1);
(2) Defendants Sternisha and Seiger be dismissed without prejudice from this matter; and
(3) Plaintiff’s claim of retaliation, against Defendant Maness, in his individual capacity
only, shall proceed. 	A separate Order for service of process will issue.
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 30th day of January 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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