Moore v. Friday et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
ALLEN LEE JAMES MOORE, 	PLAINTIFF
v. 	Civil No. 4:24-CV-04067-SOH-CDC
ATTORNEY CHARLES FRIDAY;
BRAND HENNER, Task Force, Hempstead County Sheriff’s Department; and
OFFICER FROG, Task Force, Hempstead County Sheriff’s Department, 	DEFENDANTS.
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Allen Lee James Moore, a prisoner,1 filed the above-captioned civil rights action
under 42 U.S.C. § 1983. 	(ECF No. 1). 	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 purposes of making a Report and Recommendation. 	This Court previously
granted Plaintiff’s application to proceed in forma pauperis (“IFP”). (ECF No. 6). 	This matter is
now before the Court for preservice screening under the provisions of the Prison Litigation Reform
Act (“PLRA”). 	Pursuant to 28 U.S.C. § 1915A, 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. 	28 U.S.C. § 1915A(a). 	Upon that review and for the reasons outlined
below, this Court recommends that this matter be dismissed without prejudice. 	See 28 U.S.C.
§ 1915A(b)(1).
BACKGROUND
As this Court understands it, Plaintiff claims that he pleaded guilty in October 2020
1 	Plaintiff had been convicted of a criminal offense and was serving a sentence at the time he filed
his Complaint. 	(ECF No. 1).
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because his lawyer at the time, Defendant Friday, told him to even though he did not reside at the
address where the criminal offense occurred. 	(ECF No. 1, p. 4). 	Plaintiff says that he was
sentenced to a 5-year term of imprisonment. 	Id. 	Defendant Henner was his probation officer at
the time and he and Defendant Frog, who was not a probation officer, followed him from his work
to his home. 	Plaintiff’s Complaint lacks any further detail and fails to clearly set forth any
grounds of relief. 	Id.
A review of the publicly accessible Arkansas state court records system provides some
much-needed context to this Complaint. See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th
Cir. 2005) (court may take judicial notice of judicial opinions and public records). 	According to
these records, on October 28, 2020, Plaintiff pleaded guilty to delivery of methamphetamine,
heroin, or cocaine in violation of Ark. Code Ann. § 5-64-422(b)(2). See Sentencing Order, State
v. Moore, 29CR-20-206 (Ark. Dist. Ct., Nov. 4, 2019) (AOC CourtConnect, Ark. Case Law).
He was sentenced to a 5-year term of imprisonment. 	Id. 	Defendant Friday is identified as his
attorney in that case.
LEGAL STANDARD
Under PLRA, 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).
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
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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
There are several problems with Plaintiff’s Complaint. 	Principal among them, Plaintiff
fails to assert sufficient facts to establish any claims against the Defendants. 	Pursuant to Rule
8(a) of the Federal Rules of Civil Procedure, to state a claim for relief, a pleading must contain,
among other things, “a short and plain statement of the claim showing that the pleader is entitled
to relief . . . .” Fed. R. Civ. P. 8(a)(2). “The essential function of a complaint under the Federal
Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v. JPMorgan
Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Sanders, 199 F.3d 968,
973 (8th Cir. 1999)). 	“Rule 8 was not promulgated to provide helpful advice; it has the force of
law, and it must be followed.” Gurman v. Metro Hous. & Redev. Auth., 842 F.Supp.2d 1151, 1152
(D. Minn. 2011). 	Here, Plaintiff’s Complaint plainly fails to comply with Rule 8—Plaintiff has
failed to clearly describe the facts of his claims, what the defendants did (or did not do), or why he
is entitled to relief. (ECF No. 1).
Second, to the extent that Plaintiff claims that the defendants violated his constitutional
rights, the United States Constitution, by itself, does not establish a direct cause of action. 	See
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Quality Refrigerated Services, Inc. v. City of Spencer, 908 F.Supp. 1471, 1487 n.9 (N.D. Iowa
1995) (“There is simply no direct cause of action arising out of the Constitution itself against
municipal officials for alleged constitutional violations.”). 	Rather, 42 U.S.C. § 1983 establishes
a cause of action for alleged constitutional violations.
To state a claim under 42 U.S.C. § 1983, “a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.
42, 48 (1988). 	While Section 1983 itself does not include a specific statute of limitations period,
“§ 1983 claims accruing within a particular state are to be governed by that state’s general
personal-injury statute of limitations.” 	Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82
(8th Cir. 1992).
Here, Plaintiff says that the incident that gives rise to his claims took place in Arkansas in
October 2020. 	(ECF No. 1). 	In Arkansas, the general personal-injury statute of limitations is
three years. 	Id.; see also Miller v. Norris, 247 F.3d 736, 739 (8th Cir. 2001) (Arkansas three-year
personal injury statute of limitations applies to § 1983 actions). 	Plaintiff did not commence this
suit until June 2024, outside the three-year limitations period. 	Plaintiff’s claims, therefore, are
time barred unless Arkansas’s so-called savings statute applies.
Pursuant to that statute, “[i]f any action is commenced within the time ... prescribed ... and
the plaintiff suffers a nonsuit ... the plaintiff may commence a new action within (1) one year after
the nonsuit.” 	Ark. Code Ann. § 16-56-126. 	Here, however, Plaintiff does not claim that he first
initiated this lawsuit within the three-year statute of limitations period, but the case was later
dismissed without reaching a decision on the merits. 	Accordingly, to the extent Plaintiff asserts
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a cause of action under § 1983, such claims are time-barred.
Even if a § 1983 claim was not time-barred, it would nevertheless be subject to dismiss for
failure to state a plausible claim. 	As noted above, § 1983 applies to state actors. See 42 U.S.C.
§ 1983. 	Plaintiff has not established any facts suggesting that Defendant Friday, his attorney in
his criminal case, was operating as a state actor at the time. 	To the extent that Defendant Friday
was his court-appointed attorney (or public defender), public defenders are not “acting under color
of state law” for the purposes of § 1983 litigation “when performing a lawyer’s traditional
functions as counsel to a defendant in a criminal proceeding.” Polk County v. Dodson, 454 U.S.
312, 325 (1981). 	Although a § 1983 claim may be brought against a public defender if the public
defender “has conspired with . . . state officials to deprive a prisoner of federally protected rights,”
Manis v. Sterling, 862 F.2d 679, 681 (8th Cir. 1988), the allegations of a conspiracy must be
pleaded with sufficient specificity and factual support to suggest a “meeting of the minds,” Smith
v. Bacon, 699 F.2d 434, 436 (8th Cir. 1983). In this case, Plaintiff fails to plead sufficient facts to
establish allegations of a conspiracy that would sustain a claim against Defendant Friday, assuming
Defendant Friday was his court-appointed attorney. 	With respect to Defendants Henner and Frog,
moreover, as noted above, Plaintiff has failed to assert sufficient facts describing their conduct—
and certainly no facts describing how that conduct violated his constitutional rights. 	Thus,
Plaintiff has failed to assert a plausible § 1983 claim.
Third, to the extent Plaintiff claims his current detention is unlawful, a Ҥ 1983 action is a
proper remedy for a state prisoner who is making a constitutional challenge to the conditions of
his prison life, but not to the fact or length of his custody.” Preiser v. Rodriguez, 411 U.S. 475,
499 (1973). 	In Preiser, the United States Supreme Court made clear that “when a state prisoner
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is challenging the very fact or duration of his physical confinement, and the relief he seeks is a
determination that he is entitled to immediate release or a speedier release from that imprisonment,
his sole federal remedy is a writ of habeas corpus.” Preiser, 411 U.S. at 500. 	Furthermore, even
if Plaintiff is requesting monetary damages and not release from custody, a claim for damages for
an allegedly unlawful detention does not arise until (or unless) the detainee has successfully
challenged that detention through habeas or some other proceeding. Portley-El v. Brill, 288 F.3d
1063, 1066 (8th Cir. 2002).
Finally, to the extent that Plaintiff asserts some other cause of action, this Court will not
comb through Plaintiff’s filings searching for relevant facts to cobble one together for him. 	See
Bediako v. Stein Mart, Inc., 345 F.3d 835, 840 (8th Cir. 2004) (federal courts are not required to
“divine the litigant’s intent and create claims that are not clearly raised”). 	Rather, having closely
reviewed the Complaint, this Court finds that the Complaint—even when liberally construed—
fails to articulate any facts or law from which this Court could discern a valid cause of action.
Accordingly, this Court recommends that Plaintiff’s Complaint be dismissed without prejudice for
failure to state a claim upon which relief may be granted.
CONCLUSION
In sum, having reviewed Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A, this Court
recommends 	that: 	(1) 	Plaintiff’s 	Complaint 	(ECF 	No. 	1) 	be 	DISMISSED 	WITHOUT
PREJUDICE for failure to state a claim; and (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.
The parties have fourteen days from receipt of the Report and Recommendation in
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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 31st day of July 2024.
/s/ Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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