Stovall v. Brotherton

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
VANDY STOVALL 	PLAINTIFF
v. 	Civil No. 6:23-CV-06115-SOH-MEF
JASON A. BROTHERTON 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed under 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.
Currently before the Court is Defendant’s Motion to Dismiss Plaintiff’s Second Amended
Complaint (ECF No. 15), and Plaintiff’s Response to the Defendant’s Motion (ECF No. 19).
I. 	BACKGROUND
Plaintiff, Vandy Stovall (“Stovall”), currently an inmate in the Ouachita River Correctional
Unit of the Arkansas Division of Correction (“ADC”), filed this 42 U.S.C. § 1983 action pro se on
November 15, 2023. (ECF No. 1). The Court ordered the Plaintiff to file an Amended Complaint
detailing how his constitutional rights were violated and what injury he suffered. 	(ECF No. 6).
Plaintiff filed an Amended Complaint (ECF No. 7) on December 18, 2023, and at the Court’s
direction, Defendant was served with Plaintiff’s Amended Complaint (ECF Nos. 8-10). On March
14, 2024, Defendant filed his Motion to Dismiss and a Brief in Support, arguing that Stovall’s
Amended Complaint failed to state a claim upon which relief can be granted. (ECF Nos. 12, 13).
The Court issued an Order affording Stovall an opportunity to cure pleading defects in his
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Amended Complaint and granted Stovall leave to file a second amended complaint under Fed. R.
Civ. Pro. 15(a)(1)(B). (ECF No. 14).
On April 29, 2024, Stovall filed his Second Amended Complaint. (ECF No. 15). Stovall’s
Second Amended Complaint asserts a claim for cruel and unusual punishment under the Eighth
Amendment to the United States Constitution. Id. at 4. Stovall alleges the date of occurrence as
August 15, 2023, and he names Jason A. Brotherton (“Brotherton”) as the Defendant. Id. Stovall
brings his claim against Brotherton in both his official and personal capacity.0F
1 Id. at 7. Stovall,
however, does not correctly state a “policy or custom that [he] believe[s] caused a violation of his
constitutional rights.” 	Id. 	Instead, he asserts that his rights were violated when Brotherton
allegedly placed his hand on his gun while saying, “Stovall, I heard Black people can run fast, so
take off so I can shoot you!” Id. at 4, 7. Stovall claims he was injured by Brotherton’s actions,
and he suffered mentally because of the threat on his life. Id. at 5.
On May 1, 2024, Brotherton filed a timely Motion to Dismiss, and a Brief in Support,
seeking dismissal of Stovall’s Second Amended Complaint. 	(ECF Nos. 16, 17). 	He argues
Stovall’s claims against him should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because
Stovall fails to state a claim upon which relief can be granted. 	(ECF No. 17 at 3). 	He further
argues that Stovall’s requested relief is barred by statute and the doctrine of sovereign immunity,
and thus, the relief cannot be granted as a matter of law. 	Id. at 3-4. 	Brotherton contends that
because Stovall only suffered mental injuries from the threat to his life, he is statutorily barred
from recovering monetary relief by 42 U.S.C. § 1997e(e). Id. He also argues that Stovall is barred
1 In Stovall’s Second Amended Complaint, he indicates he is bringing his claim against Brotherton
in his official capacity. (ECF No. 15 at 5). Two pages later, Plaintiff adds additional facts while
echoing his first claim in the area for a second claim. Id. at 7. On the same page, he marked the
option stating he is suing the Defendant in his official and individual capacity. Id. Accordingly,
the Court will address the claims against Brotherton in each capacity.
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from recovering monetary relief from him in his official capacity by the doctrine of sovereign
immunity. Id. Brotherton, however, addresses Stovall’s substantive claims by arguing that he has
not stated an actionable constitutional violation against him. 	(ECF No. 17). 	Stovall filed a
Response to the Motion to Dismiss on May 28, 2024. (ECF No. 19). The Motion to Dismiss (ECF
No. 16) is ripe for decision.
II. 	LEGAL STANDARD
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). “In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), ‘a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.’” 	Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “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.” 	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. 	See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). 	For purposes of deciding a
motion to dismiss, the Court takes the alleged facts as true, construing all reasonable inferences
arising from the complaint in the light most favorable to the plaintiff. Morton v. Becker, 793 F.2d
185, 187 (8th Cir. 1986).
III. 	ANALYSIS
As set forth above, Stovall argues that he suffered cruel and unusual punishment in
violation of the Eighth Amendment when Brotherton placed his hand on his gun and told him to
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take off running so that he could shoot him. Stovall argues that this incident caused him to fear
for his life and caused mental distress. Brotherton’s arguments for dismissal are addressed below.
A. Sovereign Immunity
First, the Court looks to Brotherton’s argument that Stovall’s claims are barred by
sovereign immunity. 	To the extent the Second Amended Complaint can be read to assert an
official capacity claim against Brotherton, the claim is barred by the Eleventh Amendment. The
Eleventh Amendment bars claims for damages by private parties against a state. 	See, e.g.,
Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 618-19 (8th Cir. 1995); see also Fryberger v. Univ.
of Ark., 889 F.3d 471, 473 (8th Cir. 2018) (Eleventh Amendment establishes that “an unconsenting
State is immune from suits brought in federal courts by her own citizens as well as by citizens of
another state”). An official capacity claim against government officials is the equivalent of a claim
against the entity itself. Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Suits against state officials in
their official capacity ... should be treated as suits against the State”). As Defendant Brotherton is
an employee of the Arkansas Division of Correction (“ADC”), and the ADC is a state agency in
the State of Arkansas, Stovall’s official capacity claim against Brotherton is subject to dismissal.
B. Limitation on Damages
Brotherton next argues that Stovall’s claim is limited because his request for compensatory
damages and parole as a form of relief are barred as a matter of law. (ECF No. 17 at 3-4). First,
Brotherton argues that Stovall’s claim for compensatory damages is barred by 42 U.S.C. §
1997e(e). (ECF No. 17 at 3). Brotherton is correct in asserting that § 1997e(e) bars compensatory
damages as a form of relief “without a showing of physical injury or the commission of a sexual
act.” Id. And Stovall has not alleged that he suffered a physical injury due to Brotherton’s alleged
misconduct. 	Additionally, Stovall’s assertion that Brotherton caused him mental injuries and
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PTSD have not been recognized to rise to physical injuries in the context of the Eighth
Amendment. See Thomas v. Leggins, 2024 WL 3509500, at *3 (E.D. Mo. July 22, 2024) (finding
that PTSD is still a mental injury that is barred under the PLRA). Therefore, Stovall’s request for
compensatory damages is subject to dismissal.
As Stovall has stated a claim of a constitutional dimension, his potential recovery would
be limited to the recovery of nominal and punitive damages. See Royal v. Kautzky, 375 F.3d 720,
723 (8th Cir. 2004) (The physical injury requirement of the PLRA places limits on recovery for
mental and emotional injury but it does not bar recovery of nominal and punitive damages); see
also Pitts v. Helder, 2023 WL 2497989, at *5 (W.D. Ark. Jan. 31, 2023) (without a physical
showing, claims of constitutional dimension are limited to the recovery of nominal and possibly
punitive damages). 	Indeed, “[p]unitive damages may be awarded under § 1983 ‘when the
defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless
or callous indifference to the federally protected rights of others.’” Schaub v. VonWald, 638 F.3d
905, 922 (8th Cir. 2011) (citing Smith v. Wade, 461 U.S. 30, 56 (1983)).
Next, Brotherton contends that Stovall’s request for relief in the form of parole is barred
by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck v. Humphrey, the Supreme Court held that a
claim for damages for “allegedly unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or sentence invalid” is not
cognizable until “the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such a determination, or
called into question by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. 477,
486-87. Under this body of law, a plaintiff may not employ the civil rights statutes as a substitute
for habeas corpus relief. 	In other words, Stovall cannot seek relief pursuant to § 1983 which
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would undermine or potentially invalidate his criminal charges, convictions, and subsequent
confinement. See, e.g., Edwards v. Balisok, 520 U.S. 641, 648 (1997); Preiser v. Rodriquez, 411
U.S. 475, 500 (1973) (habeas corpus is the sole federal remedy for prisoners attacking the validity
of their conviction or confinement). 	As Stovall is barred by Heck from utilizing § 1983 as
mechanism to challenge his current sentence, his request for parole should be denied.
C. 	Constitutional Claims
Turning to Stovall’s constitutional claim, he alleges he suffered cruel and unusual
punishment in violation of the Eighth Amendment. 	To state an Eighth Amendment claim a
prisoner must meet two requirements, one objective and one subjective. The first requirement is
whether, viewed objectively, the deprivation of rights was sufficiently serious. 	Farmer v.
Brennan, 511 U.S. 825, 834 (1994). Meaning, “a prison official’s act or omission must result in
the denial of the minimal civilized measures of life’s necessities.” Id. (internal citation omitted).
Determining if an injury is sufficiently serious is a claim specific inquiry, as it permits the court to
analyze the Eighth Amendment claims in context and in accordance with “contemporary standards
of decency.” Hudson v. McMillian, 503 U.S. 1, 8 (1992). The second requirement is subjective
and requires the plaintiff to prove that prison officials had a “sufficiently culpable state of mind.”
Id. For Eighth Amendment claims, the court looks to the specific claim raised by a prisoner. Irving
v. Dormire, 519 F.3d 441, 446 (8th Cir. 2008). When a prisoner alleges that an officer or prison
official has used excessive force that impacts his health and safety, the claim is treated as a
conditions of confinement claim. 	Id. at 446. 	In an excessive force case, the subjective inquiry
turns to whether force was used “in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the purpose of causing harm.” Arnold v. Goose, 109 F.3d 1292,
1298 (8th Cir. 1997) (internal citation omitted). 	The words “maliciously” and “sadistically”
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establish a higher standard of intent together than either would alone. See Howard v. Barnett, 21
F.3d 868, 872 (8th Cir. 1994).
Beginning with the subjective requirement, Stovall claims that Brotherton told him, “I
heard Black people can run fast so take off running so I can shoot you,” while Brotherton rested
his hand on his pistol. (ECF No. 15 at 4, 7). Taking Stovall’s claim as true, it is difficult to see
what legitimate penological purpose could have been served by Brotherton’s statement and
physical gesture. 	See Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (finding that penological
purpose must exist to show a legitimate or good faith purpose for the officer’s action); cf. Small v.
Brock, 963 F.3d 539, 541 (6th Cir. 2020) (holding that there is no penological purpose for
brandishing a knife merely for the purpose of placing a prisoner in fear of his life). At this stage,
the record does not indicate any institutional or penological purposes at play during the incident
between Stovall and Brotherton. 	Arnold, 109 F.3d at 1298. 	Nor does the record indicate any
disciplinary context that could justify Brotherton’s alleged statement. Indeed, the record is unclear
as to the purpose of Brotherton’s statement; however, the statement does provide insight into
Brotherton’s state of mind at the time that he made his statement towards Stovall. See Pelfrey v.
Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995) (finding an Eighth Amendment violation based on
conduct “designed to frighten and degrade by reinforcing the fact that his continued well-being
was entirely dependent on the good humor of his armed guards”). Analyzing the record before the
Court, the officer’s statement was, at a minimum, made with deliberate indifference to Stovall’s
health and safety. Farmer, 511 U.S. at 835. In fact, a statement made by an officer to test a racial
stereotype is more akin to the “purpose of causing harm” rather than “maintaining or restoring
discipline” in a prison. Id. Therefore, the Court is left to conclude that Brotherton’s actions were
likely done with the purpose of causing harm and served a malicious or sadistic purpose rather
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than a legitimate penological objective. See Arnold, 109 F.3d at 1298. Thus, at this stage, Stovall’s
claim meets the subjective requirement.
Turning to the objective requirement, excessive force claims involve the direct infliction
of harm on inmates. Because the use of force is sometimes required in prison settings, guards are
only liable when the use of force is to, maliciously or sadistically, cause harm. Hudson, 503 U.S.,
at 9. However, “not every push or shove ... violates a prisoner’s constitutional rights.” Id. Only
where the use of force is greater than de minimis, or the use of force is “repugnant to the conscious
of mankind,” does a prisoner have a valid constitutional claim under the Eighth Amendment. Id.
at 9-10; see also Irving, 519 F.3d at 446. 	Yet, “[i]t is not hard to imagine inflictions of
psychological harm ... that might prove to be cruel and unusual punishment.” Hudson, 503 U.S.
at 16 (Blackmon J., concurring). Indeed, “psychological pain can be more than de minimis” and
can similarly be the basis of a claim. 	Id. 	In his Second Amended Complaint, Stovall does not
allege any specific physical injury; instead, he asserts he has suffered mentally because of the
threat on his life. 	(ECF No. 15 at 4). 	In determining whether Stovall’s deprivation of rights is
sufficiently serious, the Court will analyze the type of injury incurred.
Beginning with the verbal threat, the Eighth Circuit has previously held “[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 § 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). Yet, the Eighth Circuit has found an exception to this
rule if a public official engages in “brutal” and “wanton act[s] of cruelty” without causing physical
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injury. 	Burton v. Livingston, 791 F.2d 97, 100 (8th Cir. 1986) (holding a plaintiff had a claim
when an officer threatened his life at gunpoint and used racial epithets). This exception extends
to instances where the actions of the officer subject the prisoner to the fear of instant death. See
id.; see also Irving, 519 F.3d at 449. But an officer’s verbal threat must be accompanied by some
sort of physical showing. 	Hopson v. Fredericksen, 961 F.2d 1374, 1378-79 (8th Cir. 1992)
(finding that a plaintiff’s claim failed as the officer did not brandish his weapon or make any
physical gesture when verbally threatening the plaintiff).
Here, Stovall’s claim lies at the intersection of the Eighth Circuit’s caselaw on excessive
force, racial epithets, and verbal threats. In Hopson, the court reviewed a district court’s decision
to grant a directed verdict against Hopson’s § 1983 claim that Officer Thomure used excessive
force when he used racial slurs and threatened to “knock Hopson’s remaining teeth out of his
mouth if he remained silent.” 	Hopson, 961 F.2d at 1378 (cleaned up); see also Black Spotted
Horse v. Else, 767 F.2d 516, 517 (8th Cir. 1985) (use of racially offensive language in dealing
with a prisoner does not, by itself, state a claim). 	The court held that Hopson’s claim was
distinguishable from Burton because Hopson was not physically assaulted by Officer Thomure,
nor did the officer make a physical gesture towards Hopson with his fist or a firearm. Id. at 1379.
While the court did not condone the actions of Officer Thomure’s alleged conduct, the use of racial
slurs while making mere verbal threats was not sufficient for a cognizable claim. Id. at 1378-79.
Therefore, the court acknowledged that Hopson’s claim failed to rise to the level of brutal and
wanton cruelty necessary to meet a cognizable claim under § 1983. Id. The Eighth Circuit’s ruling
in Hopson makes clear that a mere verbal threat and the use of racial slurs is not enough to
constitute a cognizable claim, a physical gesture must accompany the threat to make it objectively
credible.
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In Irving v. Dormire, the court analyzed a prisoner’s claims that multiple corrections
officers made repeated threats to kill him and threatened to arrange to have him killed or beaten
by other inmates. Irving, 519 F.3d at 449. The threats spanned a period of several months from
2004-2005 and involved one of the officers giving a razor to an inmate to harm Irving. Id. at 445.
Additionally, the officers, on several occasions attempted to dragoon other inmates into attacking
Irving in exchange for money and cigarettes. 	Id. 	The court held that the repeated use of death
threats, in addition to the other misconduct involved, distinguished the officers’ actions from
verbal threats and constituted objectively credible death threats from state actors that are
cognizable as brutal and wanton cruelty that serve no penological purpose under the Eighth
Amendment. Id. at 449-50.
Brotherton argues his statement constitutes a mere verbal threat; but Stovall asserts that
Brotherton made the statement while resting his hand on his gun. (ECF No. 15 at 7). Brotherton
argues that even if he did have his hand on his gun and used stereotypes, it is not as egregious as
the conduct described in Burton, thus decreasing the severity of the incident. (ECF No. 17 at 6).
In Burton, the Eighth Circuit found a constitutional violation when Officer Livingston brandished
his service weapon, armed it, and threatened to kill Burton for exercising his constitutional rights
while Livingston yelled racial epithets. 	Burton, 791 F.2d at 100. 	At this stage, it is unclear if
Brotherton’s hand on his gun is a physical gesture sufficient to raise his statement from a verbal
threat to an actionable death threat. However, Brotherton’s argument misunderstands the purpose
of Burton. 	The Burton court took pains to acknowledge that there was no provocation for the
“wanton act of cruelty which, if it occurred, was brutal despite the fact that it resulted in no
measurable physical injury to the prisoner.” 	Burton, 791 F.2d at 100. 	In fact, the principle of
Burton was subsequently furthered by the Irving court when the court recognized that “a guard is
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not permitted to threaten an inmate with death by means readily at hand.” Irving, 519 F.3d at 450.
Similarly, the record does not indicate, nor can the Court identify, any provocation that justifies
the use of a death threat towards an inmate for the purpose of testing a stereotype.
Moreover, Brotherton’s use of the phrase, “run so I can shoot you” bears too close a relation
to the threat used by Officer Livingston that caused Burton to fear for his life. See Burton, 791
F.2d at 99 (“. . . ‘run so I can blow your Goddamn brains out, I want you to run so I’ll be justified’”)
(alteration in the original). As the Burton court acknowledged, “a prisoner retains at least the right
to be free from the terror of instant and unexpected death at the whim of his custodians.” Id. at
100 (alteration in the original). In this instance, while the semantics are softer the sentiment is the
same. Taking Stovall’s assertions as true, it was reasonable for Stovall to fear for his life while a
corrections officer issued a death threat with his hand on his weapon. 	Therefore, there is a
plausible claim that Brotherton was making a death threat towards Stovall.
The Court does not condone such behavior, and at this stage, the Court is not convinced
the use of the phrase, “run so I can shoot you” while resting a hand on a firearm can reasonably be
interpreted as an idle threat. 	Indeed, other courts have similarly found that objectively credible
death threats constitute a cognizable harm. See Chandler v. D.C. Dept. of Corr., 145 F.3d 1355,
1360-61 (D.C. Cir. 1998) (finding that a single death threat by a guard who had the ability carry
out the threat was sufficient to state an Eighth Amendment claim); see also Hudspeth v. Figgins,
548 F.2d 1345, 1348 (4th Cir. 1978) (where an officer ordered the prisoner to drop his lawsuit or
he would be “accidently” shot constituted a cognizable claim); cf. Small, 963 F.3d at 541-42
(“objectively credible threats” such as aggressively brandishing a deadly weapon make threats
credible). Like Chandler, accepting Stovall’s claims as true, “depending on the gravity of the fear,
the credibility of the threat, and on [his] psychological condition, the threat itself could have caused
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more than a de minimis harm and therefore could have been sufficient to state a claim of excessive
force.” 145 F.3d at 1361; see also Small, 963 F.3d at 542 (finding that the threat of death by knife
caused a prisoner to fear for his life to the point of paranoia and psychological distress that
necessitated mental health treatment was more than de minimis). Given the current facts before
the Court, Stovall has sufficiently plead more than a de minimis harm under the Eighth
Amendment. 	As Stovall has asserted a claim with sufficient particularity to, at least, plausibly
claim that the defendant is liable for his conduct, Brotherton’s Motion to Dismiss for failure to
state a claim upon which relief can be granted should be DENIED as to the Stovall’s constitutional
claim against Brotherton in his individual capacity.
IV. 	CONCLUSION
For the reasons discussed above, it is recommended that the Defendant’s Motion to Dismiss
(ECF No. 16) should be GRANTED IN PART and DENIED IN PART. 	Specifically, it is
recommended that the Motion be GRANTED as to Stovall’s official capacity claim, his claim for
compensatory damages, and his request for relief in the form of parole; and that the Motion be
DENIED in all other respects.
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 19th day of November 2024.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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