Waller v. Owens et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
ANTONIO JEROME WALLER, 	PLAINTIFF
v. 	Civil No. 1:24-CV-01085-SOH-BAB
SERGEANT DYLAN OWENS,
Union Center Detention Center (UCDC);
JAIL ADMINISTRATOR PAUL KRUGELR, UCDC;
SHERIFF RICKY ROBERTS,
Union County, Arkansas;
CAPTAIN LISA WORLEY, UCDC;
NURSE KASI SANFORD,
Turn Key Health Clinics, LLC, 	DEFENDANTS.
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Antonio Jerome Waller, a prisoner, has filed a federal lawsuit pursuant to 42
U.S.C. § 1983. 	(ECF No. 1). 	Plaintiff proceeds pro se and in forma pauperis (“IFP”). 	(ECF
No. 3). 	The case was directly assigned to the undersigned Magistrate Judge pursuant to General
Order 2024-02. 	But not all parties to the action have consented to the jurisdiction of the
undersigned. 	See 28 U.S.C. § 636(c). 	Accordingly, for the purpose of preservice review
pursuant to 28 U.S.C. § 1915A(a), the case will automatically be reassigned to Chief United States
District Judge Susan O. Hickey and referred to the undersigned for a report and recommendation
pursuant to the provisions of 28 U.S.C. § § 636(b)(1) and (3).
Upon that review and for the reasons outlined below, this Court recommends that
Plaintiff’s individual capacity claim against Defendants Dylan Owens and Kasi Sanford for failure
to provide him with constitutionally adequate medical care proceed (claim two), and that all other
claims be dismissed without prejudice for failure to state a claim upon which relief may be granted.
See 28 U.S.C. § 1915A(b)(1).
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BACKGROUND
The Complaint asserts three grounds for relief. 	First, Plaintiff says that Defendant Paul
Krugelr, the UCDC jail administrator, failed to ensure that the facility was properly sprayed for
insects, causing a spider to bite him in the chest, leaving a large hole in his chest and now a
permanent scar. (ECF No. 1, pp. 5-6). 	Plaintiff names Defendant Krugelr and Defendant Sheriff
Ricky Roberts in their individual and official capacities. 	He asserts a cause of action under the
Eighth Amendment and “HIPPA,” which this Court understands to be a reference to “HIPAA,” or
the Health Insurance Portability and Accountability Act.
Second, Plaintiff says that on September 27, 2024, Defendant Dylan Owens failed to
provide him with any medical care after he showed him the hole in his chest from the spider bite
and told him that he felt like he was going to pass out. 	(ECF No. 1, p. 7). 	According to Plaintiff,
he did eventually pass out and was rushed to the emergency room. 	Id. 	Plaintiff also claims that
Defendant Kasi Sanford did not respond to his sick call about the spider bite. 	Id. 	Plaintiff names
Defendants Owens and Sanford in their official and individual capacities.
Finally, Plaintiff says that his grievances about the spider bite and the failure to provide
medical care were not resolved. 	(ECF No. 1, p. 10). 	Plaintiff claims that Defendant Worley did
not resolve his first grievance and he was not able to appeal it. 	Plaintiff says his other grievances
were simply ignored. 	Plaintiff names Defendant Worley in her individual and official capacities.
He asserts a cause of action under the First Amendment for retaliation. 	Id., p. 10. 	Plaintiff
requests compensatory damages. 	Id., p. 11.
LEGAL STANDARD
Pursuant to 28 U.S.C. § 1915A of the Prison Litigation Reform Act (“PLRA”), the Court
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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).
A claim is frivolous if “it lacks an arguable basis either in law or fact.” 	Neitzke v.
Williams, 490 U.S. 319, 325 (1989). 	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). 	A pro se complaint, moreover, is to be
given liberal construction, meaning “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.” 	Stone v.
Harry, 364 F.3d 912, 915 (8th Cir. 2004). 	However, “they still must allege sufficient facts to
support the claims advanced.” Id. at 914 (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.
1989)).
DISCUSSION
Plaintiff brings his claims pursuant to 42 U.S.C. § 1983. 	To establish a plausible § 1983
claim, “a plaintiff must allege a violation of a constitutional right committed by a person acting
under color of state law.” 	Andrews v. City of West Branch, Iowa, 454 F.3d 914, 918 (8th Cir.
2006).
A. Claim One
Plaintiff says that unconstitutional conditions of confinement at the UCDC caused him to
be bitten by a spider. 	See (ECF No. 1, pp. 5-6). 	Plaintiff has failed to assert a plausible
constitutional violation.
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As a pretrial detainee,1 this Court analyzes Plaintiff’s conditions of confinement claim
under the Fourteenth Amendment’s Due Process Clause. 	Stearns v. Inmate Servs. Corp., 957
F.3d 902, 906 (8th Cir. 2020) (citing Bell v. Wolfish, 441 U.S. 520, 525 n.16 (1979)). 	Under that
standard, “the government may detain defendants pretrial and ‘may subject [them] to the
restrictions and conditions of [a] detention facility so long as those conditions and restrictions do
not amount to punishment, or otherwise violate the Constitution.” 	Id. at 907 (quoting Bell, 441
U.S. at 536-37)). 	There are two ways to determine whether conditions of confinement rise to the
level of punishment. 	Id. 	First, “a plaintiff could show that the conditions were intentionally
punitive.” Id. 	Alternatively, “if there is no expressly demonstrated intent to punish, the plaintiff
could also show that the conditions were not reasonably related to a legitimate government purpose
or were excessive in relation to that purpose.” Id. 	“In considering whether the conditions of
pretrial detention are unconstitutionally punitive, [courts] review the totality of the circumstances
of a pretrial detainee’s confinement.” Morris v. Zefferi, 601 F.3d 805, 810 (8th Cir. 2010).
Here, Plaintiff claims that he was bitten by a spider because Defendant Krugelr failed to
ensure that the facility was properly sprayed for insects. 	First, this assertion is wholly conclusory.
As such, it is not entitled to the presumption of truth in determining whether Plaintiff has
established a plausible cause of action. 	See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” are not sufficient to establish a plausible claim). 	Second, even if it were to be
presumed true, it would not establish a plausible unconstitutional conditions of confinement
1 Plaintiff asserts that he was a pretrial detainee during the events giving rise to his claims. 	See
(ECF No. 1, p. 2).
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claim—there are no facts, for example, suggesting that there were multiple sightings of potentially
dangerous spiders at the UCDC and that UCDC officials knew about these sightings but did
nothing to address the condition for some period of time, see Smith v. Copeland, 87 F.3d 265, 269
(8th Cir. 1996) (“[T]he length of time a prisoner is subjected to harsh conditions is a critical factor
in our analysis.”), or even that UCDC officials were aware that the UCDC could become infested
with potentially dangerous spiders unless proper steps were taken to prevent the condition, but
they failed to take those steps. 	Plaintiff’s claim, therefore, that he was bitten by a spider simply
does not rise to the level of a plausible constitutional violation. See Stearns, 957 F.3d at 908 n.5
(“[L]iability for negligently inflected harm is categorically beneath the threshold of constitutional
due process.”) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)).2
B. Claim Two
In claim two, Plaintiff asserts that Defendants Owen and Sanford were aware of his medical
condition—namely, a hole in his chest from a spider bite—but failed to provide him with any
medical attention. 	(ECF No. 1, p. 7). 	He names the Defendants in their individual and official
capacities.
Courts analyze failure to provide medical care claims brought by pretrial detainees such as
Plaintiff under the same Eighth Amendment “deliberate indifference” standard that applies to
prisoners. 	See Barton v. Taber, 908 F.3d 1119, 1123-24 (8th Cir. 2018). 	“Whether an official
was deliberately indifferent requires both an objective and subjective analysis.” 	Jackson v.
2 With respect to claim one, the Court notes that Plaintiff’s individual capacity claim against
Defendant Roberts fails for a second reason: Plaintiff has failed to assert any facts describing what,
specifically, Defendant Roberts did (or failed to do) in violation of his constitutional rights. 	See
Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006) (“Liability under § 1983 requires a
causal link to, and direct responsibility for, the deprivation of rights.”).
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Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014) (citing Scott v. Benson, 742 F.3d 335, 339-40 (8th
Cir. 2014)). 	“Under the objective prong, [plaintiff] must establish that he suffered from an
objectively serious medical need.” 	Id. 	To be objectively serious, “a medical need must have
been diagnosed by a physician as requiring treatment or must be so obvious that even a layperson
would easily recognize the necessity for a doctor’s attention.” 	Id. (internal quotation and citation
omitted). 	Under the subjective prong, plaintiff must show that an official “actually knew of but
deliberately disregarded his serious medical need.” 	Id. (internal quotation and citation omitted).
i. 	Individual Capacity Claims
Here, Plaintiff says that he showed Defendant Owens the hole in his chest and told him
that he felt like he was going to pass out, but, despite this knowledge, Defendant Owens walked
away without providing him with any care. 	(ECF No. 1, p. 7). 	As pleaded, this Court finds, for
the limited purposes of preservice review pursuant to 28 U.S.C. § 1915A(a), that Plaintiff has
established a plausible medical indifference claim against Defendant Owens in his individual
capacity.
Similarly, Plaintiff asserts that he submitted a medical grievance regarding his condition,
but Defendant Sanford failed to provide him with any medical care. 	Id. 	Accordingly, this Court
finds that for the limited purpose of preservice review pursuant to 28 U.S.C. § 1915A(a), that
Plaintiff has established a plausible medical indifference claim against Defendant Sanford in her
individual capacity.
ii. 	Official Capacity Claims
This leaves Plaintiff’s official capacity claims against Defendants Owens and Sanford. 	“A
suit against a public employee in his or her official capacity is merely a suit against the public
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employer.” 	Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). 	Here,
Defendant Owens is alleged to be an employee of Union County and Defendant Sanford is alleged
to an employee of Turn Key Health Clinics, LLC (“Turn Key”). 	“Section 1983 liability for a
constitutional violation may attach to a municipality if the violation resulted from (1) an ‘official
municipal policy,’ (2) an unofficial ‘custom,’ or (3) a deliberately indifferent failure to train or
supervise.” 	Corwin v. City of Indep., Mo., 829 F.3d 695, 699 (8th Cir. 2016) (citations omitted).
Here, Plaintiff has asserted no facts establishing that Defendants Owens or Sanford failed
to provide him with medical care as a result of some official unconstitutional Union County or
Turn Key policy. 	Further, Plaintiff asserts no facts establishing that the failure to provide him
with constitutionally adequate medical care was part of a widespread pattern constituting an
unofficial custom on the part of either Union County or Turn Key. 	See Brewington v. Keener,
902 F.3d 796, 801 (8th Cir. 2018) (to establish an unconstitutional unwritten or unofficial policy,
there must be evidence of a practice “so permanent and well-settled as to constitute a custom”)
(quoting Davison v. City of Minneapolis, 490 F.3d 648, 659 (8th Cir. 2007)). 	Finally, Plaintiff
does 	not 	assert 	any 	specific 	facts 	establishing 	that 	the 	Defendants’ 	failure 	to 	provide
constitutionally adequate medical care was the result of a failure to train or supervise.
Accordingly, Plaintiff’s official capacity claims against Defendants Owens and Sanford for
allegedly failing to provide him with constitutionally adequate medical care should be dismissed.
C. Claim Three
This leaves claim three. 	In claim three, Plaintiff asserts that Defendant Worley failed to
properly respond to his grievances. 	(ECF No. 1, p. 10).
As a threshold matter, the Eighth Circuit has made it clear prisoners do not have a
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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, 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.
Here, however, Plaintiff describes Defendant Worley’s failure to adequately respond to his
grievances as retaliation in violation of the First Amendment. 	(ECF No. 1, p. 9). 	To establish a
plausible retaliation claim, the plaintiff must show: “(1) he engaged in protected activity, (2)
officials took adverse action against him that would chill a person of ordinary firmness from
continuing in the activity, and (3) the adverse action was motivated at least in part by the exercise
of the protected activity.” DeRossitte v. Correct Care Sol., LLC., 22 F.4th 796, 804 (8th Cir. 2022).
It is well-established that “the filing of a prison grievance, like the filing of an inmate
lawsuit, is protected First Amendment activity.” 	Lewis v. Jacks, 486 F.3d 1025, 1029 (8th Cir.
2007). 	Ultimately, however, Plaintiff’s retaliation claim fails to pass the plausibility threshold
with respect to prongs two and three. 	With respect to the third prong, Plaintiff must show the
“protected activity was ‘but-for cause’ of the adverse action, meaning that the adverse action
against [him] would not have been taken absent a retaliatory motive.” DeRossitte, 22 F.4th at 804
(quoting Graham v. Barnette, 5 F.4th 872, 889 (8th Cir. 2021)). 	But Plaintiff asserts no facts
establishing that Defendant Worley (or anyone else) took adverse action against him in response
to him filing grievances (or what purportedly adverse action was taken), let alone that the adverse
action was the “but for” cause of him filing grievances. 	Plaintiff’s third claim should therefore
similarly be dismissed for failure to state a plausible constitutional violation.
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D. HIPAA
One final matter requires some discussion. 	Plaintiff’s Complaint is peppered with
references to “HIPPA.” 	See (ECF No. 1, p. 5, 6). 	This Court understands “HIPPA” to mean the
Health Insurance Portability and Accountability Act (“HIPAA”). 	To the extent that Plaintiff
asserts a claim for relief under HIPAA, however, HIPAA does not create an express or implied
private cause of action. Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010) (affirming dismissal of
HIPAA claim because HIPAA does not create a private right of action”). 	This means that
Plaintiff, a private party, cannot bring a claim for relief under HIPAA. 	Thus, any such claim
should also be dismissed as a matter of law.
RECOMMENDATION
In sum, having reviewed Plaintiff’s Complaint, (ECF No. 1), pursuant to 28 U.S.C.
§ 1915A, this Court recommends that: (1) Plaintiff’s individual capacity claims against
Defendants Dylan Owens and Kasi Sanford for failure to provide him with constitutionally
adequate medical care (claim two) proceed; that (2) all other claims be DISMISSED WITHOUT
PREJUDICE for failure to state a claim, see 28 U.S.C. § 1915A(b)(1); and that (3) Defendants
Jail 	Administrator 	Paul 	Krugelr, 	Sheriff 	Ricky 	Roberts, 	and 	Captain 	Lisa 	Worley 	be
TERMINATED from this action.
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.
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STATUS OF REFERRAL: This case remains referred consistent with the Court’s
recommendations.
DATED this 23rd day of January 2025.
/s/ 	Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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