Holly v. McCormick et al

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
TERRANCE J. HOLLY 	PLAINTIFF
v. 	Civil No. 6:23-cv-06103-SOH-CDC
SHERIFF MIKE McCORMICK (Garland
County, Arkansas);
JAIL ADMINISTRATOR JOEL WARE
(Garland County Detention Center, GCDC);
FOOD ADMINISTRATOR JESSIE
HUNDHAUSEN (GCDC);
DEPUTY KING (GCDC);
EVA JONES (GCDC);
SERGEANT GATES 	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).
Also before the Court is Plaintiff’s failure to obey Court Orders and his failure to prosecute this
case.
1 Enacted as part of the Prison Litigation Reform Act (“PLRA”).
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I. BACKGROUND
Plaintiff filed his Complaint on October 10, 2023. (ECF No. 1). That same day, the Court
entered an Order advising Plaintiff that he must keep the Court informed of any address change
within 30 days of such change or his case would be subject to dismissal. (ECF No. 3). The Order
also directed him to file a completed in forma pauperis (“IFP”) application and an Amended
Complaint by October 31, 2023. (Id.). When Plaintiff failed to do so, the Court entered a Show
Cause Order directing Plaintiff to respond by November 29, 2023. (ECF No. 5). Plaintiff did not
provide any reason for his failure to obey the initial Court Order, but instead submitted his IFP
application and Amended Complaint on November 8, 2023. (ECF Nos. 6, 7). Because the IFP
application was again incomplete, the Court entered an Order directing Plaintiff to submit a
completed IFP application by November 29, 2023. (ECF No. 8). Plaintiff filed a completed IFP
application on November 27, 2023, and was granted IFP status on December 4, 2023. (ECF Nos.
9, 10).
Plaintiff’s claims center on his incarceration in the Garland County Detention Center.
(ECF No. 7). He alleges that on September 15, 2023, he found a castor bean in his “late meal”
and suffered from ricin poisoning as a result. (Id. at 5-10). He does not allege he ate the bean or
the meal. Instead, Plaintiff alleges he showed the bean to Defendant King, who had delivered the
meal. She took a picture of it, and told him it was a “bur.” (Id. at 9). As his only stated symptom
of poisoning, Plaintiff states that he “used the bathroom” and saw blood on the toilet tissue. (Id.
at 7, 9). He alleges this instance of blood indicates he was “bleeding on the inside” from being
poisoned. 	(Id. at 6, 10). 	Plaintiff alleges that Defendant Food Administrator Hundhausen was
responsible for buying and preparing the food, and she was therefore responsible for his being
served a castor bean. (Id. at 7, 9). Plaintiff alleges he went to sick call “almost a whole day later”
and medical told him they “can’t do anything.” (Id.). He then states he was “surched (sic) non
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stop by staff.” 	(Id. at 10). 	Plaintiff does not detail the actions of any other Defendant in his
allegations.
Plaintiff proceeds against all Defendants in their official and individual capacities. (Id. at
6, 8). Where he filled in the appropriate section of the form to state an official capacity claim, he
states, “collateral attack 2255” and “safety treated Human living environment.” 	(Id. at 6, 8).
Plaintiff seeks compensatory and punitive damages, as well as other relief. 	(Id. at 10).
Specifically, he states: “I’m seeking the max for being exposed to a highly leathel castor bean that
made me bleed on the inside. I want to be payed for my indreys and trouble pain and suffering
and finding a castor bean in my food.” (Id. at 10) (errors in original).
On December 15, 2023, mail sent to Plaintiff at the Garland County Detention Center was
returned undeliverable, and the deadline for Plaintiff to inform the Court of his new address was
set for January 16, 2024. 	(ECF No. 12). 	When Plaintiff failed to inform the Court of his new
address, the undersigned entered a Report and Recommendation for dismissal of the case on
February 20, 2024. 	(ECF No. 13). 	Plaintiff timely filed an Objection to the Report and
Recommendation on March 4, 2024. (ECF No. 14). In his Objection, Plaintiff stated that he was
still in the Garland County Detention Center. (Id.). Plaintiff filed a Motion to Appoint Counsel
on March 21, 2024. (ECF No. 15). He filed a Notice of Address change on May 7, 2024, stating
he was now incarcerated at the Arkansas Division of Community Correction in Little Rock,
Arkansas. (ECF No. 16).
On 	February 	21, 	2025, 	Chief 	Judge 	Hickey 	declined 	to 	adopt 	the 	Report 	and
Recommendation. (ECF No. 17). She noted that the return of mail had apparently been an error
on the part of Garland County Detention Center, and that Plaintiff was prosecuting the case and
keeping the Court apprised of his current address. (Id.). The case was referred to the undersigned
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on February 21, 2025. (ECF Nos. 17, 18). Plaintiff’s Motion for Counsel was denied on February
25, 2025. (ECF No. 19).
Currently, the mailing address on file for Plaintiff is the Arkansas Division of Community
Correction, Central Arkansas Community Correction Center. The Court contacted this facility on
February 24, 2025, and learned that while Plaintiff had been incarcerated there at one time, he had
been released. Plaintiff did not inform the Court of his release or provide his free-world address.
Review of the Justice Exchange1F
2 database that same day indicated Plaintiff was under the
supervision of Officer Brandon Henry of Hot Springs Probation and Parole but has absconded on
his parole supervision.
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).
2 Available at www. justiceexchange.com. (last accessed Feb. 24, 2025).
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“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. 	Defendants McCormick, Ware, Jones and Gates
Plaintiff’ s personal capacity claims against these Defendants are subject to dismissal.
"Liability under Section 1983 requires a causal link to, and direct responsibility for, the deprivation
of rights." Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (citing Rizzo v. Goode, 423
U.S. 362, 370 (1976)). Thus, to state a cognizable Section 1983 claim, a complaint must set forth
specific factual allegations showing what each named defendant allegedly did, or failed to do, that
allegedly violated the plaintiff's federal constitutional rights. Plaintiff has not alleged a causal link
between any of these Defendants and his claims. 	See Martin, 780 F.2d 1337. 	(Even a pro se
Plaintiff must allege specific facts sufficient to state a claim).
B. 	Defendants Hundhausen and King
Plaintiff failed to state a plausible personal capacity claim against Defendants Hundhausen
and King. “Constitutional standards require only that prison authorities provide an inmate with
well-balanced meals, containing sufficient nutritional value to preserve health.” Berry v. Brady,
192 F.3d 504, 507 (5th Cir. 1999) (internal quotation marks and citation omitted).
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An isolated incident involving a foreign object in the food does not state a claim of
constitutional dimension. See e.g., Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992)
(prisoners have a right to nutritionally adequate food, but Wishon presented no evidence that the
food he was served was nutritionally inadequate or prepared in a manner presenting an immediate
danger to his health, or that his health suffered as a result of the food); Hamm v. DeKalb County,
774 F.2d 1567, 1572 (11th Cir. 1985) (“The fact that the food occasionally contains foreign objects
... does not amount to a constitutional deprivation”); Lunsford v. Reynolds, 376 F. Supp. 526, 527
(W.D. Va. 1974) (“The only contention concerning food which is detailed at all, is the inmates’
complaint that their food frequently contains insects. Nevertheless, occasional incidents of a
foreign object contained in food, while regrettable, do not present a question of constitutional
proportion”).
Here, Plaintiff alleges that there was a foreign object in his food on a single occasion and
identifies that object as a poisonous castor bean. Plaintiff is correct that castor beans contain ricin,
a natural poison.2F
3 Plaintiff does not allege, however, that he ate the castor bean or any of the food
on his tray. Instead, he alleges that he showed the bean to Defendant King, who took a picture of
it, and identified it as a “bur.” Nor does Plaintiff allege he suffered any of the symptoms of oral
ricin toxicity. According to the CDC, oral ricin symptoms usually occur less than 10 hours after
ingestion. 	The 	common 	symptoms 	include 	“vomiting, 	diarrhea 	(maybe 	bloody), 	severe
dehydration, and low blood pressure.” 3F
4 Other symptoms can include seizures, blood in urine, and
liver, spleen, and kidney failure. 4F
5 Plaintiff’s only alleged symptom was an unspecified amount
3 	Centers 	for 	Disease 	Control 	and 	Prevention, 	https://www.cdc.gov/chemical-
emergencies/chemical-fact-sheets/ricin.html. (last accessed Feb. 25, 2025).
4 Id.
5 Id.
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of blood on his toilet paper on one occasion after “using the bathroom.” Plaintiff also alleges that
he was seen by medical staff at a sick call a day later and does not indicate that he was diagnosed
with any of the common symptoms, such as dehydration or low blood pressure. 	Thus, at most,
Plaintiff has alleged a single incident of a foreign object in his food, which does not rise to the
level of a constitutional violation. Plaintiff has failed to allege a plausible personal capacity claim
against either Defendant Hundhausen or Defendant King.
C. 	Official Capacity Claims
Under Section 1983, a defendant may be sued in either his individual capacity, or in his
official capacity, or in both. In Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998), the Eighth Circuit
Court of Appeals discussed the distinction between individual and official capacity suits. 	As
explained by the Court in Gorman:
“Claims against government actors in their individual capacities differ from those
in their official capacities as to the type of conduct that is actionable and as to the
type of defense that is available. See Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358,
116 L.Ed.2d 301 (1991). 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. 502 U.S. at 24-27, 112
S.Ct. at 361-62 (1991). Personal capacity claims, on the other hand, are those which
allege personal liability for individual actions by officials in the course of their
duties; these claims do not require proof of any policy and qualified immunity may
be raised as a defense. Id. 502 U.S. at 25-27, 112 S.Ct. at 362.”
Gorman, 152 F.3d at 914.
Here, Plaintiff has failed to identify any policy or custom of Garland County Detention
Center which violated his constitutional rights. Thus, he has failed to state any plausible official
capacity claims.
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D. 	Failure to Apprise Court of Address and Failure to Prosecute this Case
Although pro se pleadings are to be construed liberally, a pro se litigant is not excused
from complying with substantive and procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.
1984). The local rules state in pertinent part:
It is the duty of any party not represented by counsel to promptly notify the Clerk
and the other parties to the proceedings of any change in his or her address, to
monitor the progress of the case, and to prosecute or defend the action diligently. .
.. 	If any communication from the Court to a pro se plaintiff is not responded to
within thirty (30) days, the case may be dismissed without prejudice. 	Any party
proceeding pro se shall be expected to be familiar with and follow the Federal Rules
of Civil Procedure.
Local Rule 5.5(c)(2).
Additionally, the Federal Rules of Civil Procedure specifically contemplate dismissal of a
case on the grounds that the plaintiff failed to prosecute or failed to comply with orders of the
court. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (stating that
the district court possesses the power to dismiss sua sponte under Rule 41(b)). Pursuant to Rule
41(b), a district court has the power to dismiss an action based on “the plaintiff’s failure to comply
with any court order.” Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (emphasis added).
Here, Plaintiff was advised that he must timely advise the Court of any address changes,
or his case would be dismissed. Indeed, a Report and Recommendation to dismiss for this very
reason was previously filed and the case survived only because Plaintiff timely filed his objection,
noting he remained in the Garland County Detention Center who had returned his mail in error.
Plaintiff clearly understood the requirement to keep the Court informed of his address as evidenced
by his Notice of Address Change indicating relocation to an Arkansas Community Correction
facility. It now appears Plaintiff has been released but has absconded his parole supervision. Thus,
Plaintiff has failed to provide his current address not only to the Court, but to his parole supervisor
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at Hot Springs Probation and Parole. He has failed to obey the Court’s Order that he inform the
Court of any change in his address and, in doing so, has failed to prosecute this case.
IV. CONCLUSION
Based upon the preservice screening analysis, it is recommended that: (1) the case be
dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may
be granted; (2) Plaintiff is warned that, in the future, this dismissal may be counted as a strike for
purposes of 28 U.S.C. § 1915(g) and thus, the Clerk is directed to place a § 1915(g) strike flag on
the case for future judicial consideration; and (3) the Court certify pursuant to 28 U.S.C. §
1915(a)(3) that any appeal from this dismissal would not be taken in good faith.
In the alternative, it is recommended that Plaintiff’s case be DISMISSED WITHOUT
PREJUDICE for failure to comply with the Court’s Local Rules and Orders and failure to
prosecute this case.
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.
RECOMMENDED this 12 th day of March 2025.
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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