Hubbard v. Witherington et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
LUCAS MICHAEL HUBBARD 	PLAINTIFF
v. 	Civil No. 6:24-cv-06151
KRISTY WITHERINGTON, et al 	DEFENDANTS
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
This is a civil rights action filed by Plaintiff, Lucas Michael Hubbard, pursuant to 42 U.S.C.
§ 1983. 	See Amended Complaint, ECF No. 61. 	Plaintiff also claims a cause of action based on
a violation of 42 U.S.C. § 1985 and 18 U.S.C. § 1201. 	Plaintiff proceeds pro se. 	Plaintiff
maintains his civil rights have been violated by the Defendants. 	Id. 	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 this Report and
Recommendation.
I. 	Background:
Plaintiff has named as Defendants Kristy Witherington, an Investigator with the Arkansas
Department of Human Services, Keith Manuel, a private Attorney, Detective Christopher Savage
with the Hot Springs Police Department, Kerry Spruill, Judge 12th Judicial District Court
Louisiana, Danny Clark, Carrie Clark, and Cable Thomas Parks. 	ECF No. 61. 	Plaintiff’s lawsuit
seeks damages as a result of a child custody decision and divorce proceedings from the State of
Louisiana. 	Id.
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II. 	Applicable Law:
The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are
frivolous, malicious, (2) fail to state a claim upon which relief may be granted, or (3) seek monetary
relief from a defendant who is immune from such relief. 	See 28 U.S.C. § 1915e(2)(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). 	“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. 	See Martin v. Sargent, 780 F.2d 1334,
1337 (8th Cir. 1985).
III. 	Discussion:
Section 1983 provides a federal cause of action for the deprivation, under color of law, of
a citizen’s “rights, privileges, or immunities secured by the Constitution and laws” of the United
States. 	To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) each defendant
acted under color of state law and that (2) he or she violated a right secured by the constitution.
See West v. Atkins, 487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999).
A. Judge Kerry Spruill
At the time Plaintiff filed his Complaint, Judge Spruill was the state court judge involved
in some fashion presiding over Plaintiff’s divorce proceeding in Louisiana. 	Judges are generally
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immune from lawsuits. See Mireles v. Waco, 502 U.S. 9, 11 (1991) (“judicial immunity is an
immunity from suit, not just from ultimate assessment of damages”). Judicial immunity is only
overcome in two situations: (1) if the challenged act is non-judicial; and, (2) if the action, although
judicial in nature, was taken in the complete absence of all jurisdiction. 	See Mireles, 502 U.S. at
11; see also Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (“A judge will not be deprived of
immunity because the action he took was in error, was done maliciously, or was in excess of his
authority; rather, he will be subject to liability only when he has acted in the clear absence of all
jurisdiction”) (internal citations omitted). 	Plaintiff has made no allegations that Judge Spruill
took any actions that were non-judicial or taken without jurisdiction. 	Judge Spruill is therefore
immune from suit.
B. Defendants Keith Manuel, Carrie Clark, Danny Clark, and Cable Thomas Parks
Plaintiff has also named in his complaint, Keith Manuel, a private Attorney, Danny Clark,
Carrie Clark, and Cable Thomas Parks. 	From the Complaint, it is clear these Defendants are not
a state actors and amenable to suit under 42 U.S.C. § 1983. 	Private actors may incur Section 1983
liability only if they are willing participants in a joint action with public servants acting under color
of state law. 	See Miller v. Compton, 122 F.3d 1094, 1098 (8th Cir. 1997). 	The plaintiff must
establish, at the very least, an agreement or meeting of the minds between the private and state
actors, and a corresponding violation of the plaintiffs' rights under the Constitution or laws of the
United States. 	See Mershon v. Beasley, 994 F.2d 449, 451 (8th Cir.1993); see also Dossett v.
First State Bank, 399 F.3d 940, 951 (8th Cir. 2005) (under § 1983, plaintiff must establish not only
that private actor caused deprivation of constitutional rights, but also that private actor willfully
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participated with state officials and reached mutual understanding concerning unlawful objective
of conspiracy).
In his Complaint, Plaintiff does not allege any conspiracy between these Defendants and
any state actor. 	Accordingly, Plaintiff’s claims against Defendants Keith Manuel, Carrie Clark,
Danny Clark, and Cable Thomas Parks should be dismissed.
C. Defendant Cable Thomas Parks
Plaintiff claims a single cause of action against Defendant Cable Thomas Parks based on a
violation of 18 U.S.C. § 1201, the federal criminal statue regarding kidnapping. 	However,
Plaintiff lacks standing to seek criminal charges against Defendants pursuant to a federal criminal
statute. 	See Parkhurst v. Tabor, 569 F.3d 861, 867 (8th Cir. 2009) (explaining that the decision
to prosecute “are decisions that generally rest in the prosecutor's discretion”). 	The criminal statute
relied on by Plaintiff does not afford him a private cause of action. 	Accordingly, Plaintiff cannot
be successful in this civil rights case under any of the criminal statutes he asserts in his First
Amended Complaint, and all these claims fail as a matter of law.
D. Section 1985 Conspiracy
Plaintiff also asserts a claim based on a violation of 42 U.S.C. § 1985. 	There are five types
of conspiracies to interfere with civil rights under § 1985: (a) the performance of official duties by
federal officers; (b) the administration of justice in federal courts; (c) the administration of justice
in state courts; (d) the private enjoyment of “equal protection of the laws” and “equal privileges
and immunities under the laws”; and (e) the right to support candidates in federal elections. Kush
v. Rutledge, 460 U.S. 719, 724 (1983).
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The First Amended Complaint does not specify the type of conspiracy alleged, but the facts
clearly do not support a claim under either 	type of action prohibited by § 1985(1) or (2). 	If
Plaintiff means to allege a violation of § 1985(3), he must state facts to show that there was a
conspiracy “fueled by some ‘class-based, invidiously discriminatory animus.’ ” Andrews v.
Fowler, 98 F.3d 1069, 1079 (8th Cir. 1996) (quoting Bray v. Alexandria Women's Health Clinic,
506 U.S. 262, 268 (1993)). 	He has failed to allege any such facts. Therefore, Plaintiff's conspiracy
claim under 42 U.S.C. § 1985 will be dismissed.
E. Defendants Kristy Witherington and Detective Christopher Savage
Plaintiff also named as Defendants Kristy Witherington, an Investigator with the Arkansas
Department of Human Services and Detective Christopher Savage with the Hot Springs Police
Department. 	At this stage of the case, the Court need only determine whether Plaintiff has alleged
sufficient facts to assert “plausible” claims against these two Defendants. 	The Court believes that
plausible claims have been stated against these Defendants.
IV. 	Conclusion:
For the reasons stated above, I recommend the following:
(1) That the claims against Defendant Judge Kerry Spruill be dismissed on the grounds he
is immune from suit.
(2) That the claims against Defendants, Defendants Keith Manuel, Carrie Clark, Danny
Clark, and Cable Thomas Parks under 42 U.S.C. § 1983 be dismissed as they are not a state actors
and amenable to suit under 42 U.S.C. § 1983.
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(3) That the claim against Defendant Cable Thomas Parks based on a violation of 18 U.S.C.
§ 1201 be dismissed as the criminal statute relied on by Plaintiff does not afford him a
private cause of action.
(4) That the claims against the Defendants Keith Manuel, Carrie Clark, Danny Clark, and
Cable Thomas Parks under 42 U.S.C. § 1985 be dismissed as Plaintiff has failed to allege facts to
support a claim pursuant to 42 U.S.C. § 1985.
(5) That Defendant’s Keith Manuel Motion to Dismiss (ECF No. 12) be DENIED AS
MOOT.
(6) That Defendants’ Danny Clark and Carrie Clark Motion to Dismiss (ECF No. 16) be
DENIED AS MOOT.
Adoption of these recommendations would result in the dismissal of all claims against
Defendants Keith Manuel, Judge Kerry Spruill, Danny Clark, Carrie Clark, and Cable Thomas
Parks. 	Only the claims against Defendants Kristy Witherington and Detective Christopher
Savage remain for further resolution.
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 13th day of February 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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