Raper v. Hildreth et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
CARRIE DAWN RAPER 	PLAINTIFF
v. 	Civil No. 1:23-cv-01034-SOH-BAB
POLICE CHIEF SHAUN HILDRETH, Warren
Police Department; DETECTIVE ROBBIE ASHCRAFT,
Warren Police Department; and DETECTIVE TIM
NICHOLS, Warren Police Department 	DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This is a civil rights action filed by Plaintiff, Carrie Dawn Raper (“Raper”), pursuant to 42
U.S.C. § 1983. 	Raper proceeds pro se and in forma pauperis. 	Raper contends the Defendants
engaged in a pattern of harassing conduct that included retaliatory actions, unlawful seizures, the
violation of her right to remain silent, the violation and her right to counsel, and malicious
prosecution.
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 on the Motions to Dismiss
(ECF Nos. 13 & 20) filed by Police Chief Shaun Hildreth, Detective Robbie Ashcraft, and
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Detective Tim Nichols.1 	Raper has filed a response (ECF No. 25). 	The Motions2 are ready for
decision.
I. 	BACKGROUND
In the Complaint (ECF No. 1), Raper alleges that from 2017 until May 31, 2022,
Defendants used “their power and resources to harass and terrorize me, causing me numerous
health problems, having to sell my home, and destroying my name in the community.” 	(ECF No.
1 at 4-5). 	Raper says these acts included the following: In 2017, Raper says she was held on a
false accusation and denied an attorney. 	Id. at 5. 	She asserts Detective Nichols threatened her
with being jailed for 72-hours without her medication. 	Id. 	Six hours later, after being forced to
make a statement, she was released with no charges. 	Id. 	Raper further alleges that after she was
released Chief Hildreth had two individuals “follow and stalk both myself and my home for the
next year.” 	Id. 	After she filed complaints, Raper says the harassment worsened. 	Id. at 6.
Raper says she was twice being arrested on felony charges only to have the charges dropped
as there was no evidence to support them. 	(ECF No. 1 at 6). 	Raper asserts she was illegally
detained, searched, and paraded in handcuffs out of the courtroom. 	Id. 	Raper indicates Detective
Ashcraft knew it “was impossible for me to have committed the crimes at issue.” 	Id. 	Raper
alleges the Defendants fabricated charges against her “because they knew that as long as I had an
1 The claims against Tim Nichols were initially severed and transferred to the Eastern District of
Arkansas; Raper listed him as the Sheriff of Drew County, Arkansas and did not indicate she was
suing him in his capacity as a detective in the Warren Police Department. 	(ECF No. 1). 	Drew
County is in the Eastern District of Arkansas. 	However, it later became clear that at all times
pertinent to this case, Tim Nichols was a detective with the Warren Police Department. 	(ECF No.
8). 	Detective Nichols was added as a Defendant and service was directed on him. 	(ECF No. 9).
Detective Nichols is therefore properly before the Court.
2 Although separate motions and briefs were filed by the Defendants, the documents are virtually
identical. 	Compare (ECF Nos. 13 & 14); (ECF Nos. 20 & 21).
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active criminal case open that I could not file a federal lawsuit.” 	Id. at 6-7. 	Raper alleges these
are just a few examples of what she endured. 	Id. at 7. 	She maintains this all occurred over the
span of five years. 	Id.
The Amended Complaint (ECF No. 8) contains no specific dates. 	Instead, Raper alleges
the Defendants denied her the right to an attorney and forced her to testify or make statements
against her will on more than one occasion. 	Id. at 4. 	When the form complaint calls for Raper
to write the date and approximate time of the events giving rise to her claims, Raper responds:
“Because of the trauma inflected and the number of incidents that occur[r]ed I can only say that it
occurred around the time of the false accusations being made. 	Ask the defendants. 	They should
have all the Miranda waiver rights forms dated and signed.” 	Id. 	Raper says her husband as well
as other police officers were present during all the encounters. 	Id. 	As relief, Raper seeks
compensatory and punitive damages.3 	Id.
3 Defendants cite the Court to two other lawsuit Raper filed “presumably for the same incident,
and alleging essentially the same claim.” 	(ECF No. 14 at 1); (ECF No. 21 at 1). 	However, James
M. Raper and Carrie D. Raper, Civil No. 1:18-cv-01073, involves actions taken by Officer Britton
in regard to searching the Rapers’ vehicle and alleges multiple arrests of James Raper and a single
arrest of Carrie Raper. 	The case was dismissed when the filing fee was not paid. 	Here, Raper
has made no allegations regarding searches of her vehicle. 	However, it is possible her arrest is
one included in the litany mentioned in this case. 	The second case referenced is Civil No. 4:21-
cv-00094. 	This case was filed in the Eastern District of Arkansas on February 4, 2021. 	Chief
Hildreth, Detective Nichols, and Detective Ashcraft were among the Defendants named. 	Raper
alleged she had been harassed since January of 2016 in violation of her Fifth Amendment rights.
The Court found any claimed violations of Raper’s rights before February 5, 2018, were barred by
the statute of limitations. 	(ECF No. 6 at 2). 	With respect to the remaining claims, the Court held
that Younger v. Harris, 401 U.S. 27 (1971) “barred [the Court] from addressing any on-going state
criminal case,” and Heck v. Humphrey, 512 U.S. 477 (1994) precluded an “award of damages
under § 1983 unless a conviction has been invalidated.” 	(ECF No. 6 at 3). 	It is unclear to the
Court why this case was not transferred to this district. 	Warren, Arkansas, is in Bradley County
which lies within the El Dorado Division of this Court.
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II. 	APPLICABLE STANDARD
In considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court
must accept as true all the factual allegations in the complaint and draw all reasonable inferences
in the plaintiff’s favor. Gorog v. Best Buy Co., 760 F.3d 787, 792 (8th Cir. 2014). The factual
allegations need not be detailed, but they must be sufficient “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 	Further, the complaint
must “state a claim to relief that is plausible on its face.” Id. at 570. 	Although pro se complaints,
such as this one, are entitled to a liberal construction, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
they must nevertheless contain specific facts in support of the claims it advances. Martin v.
Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). 	“[A] pro se plaintiff requires no special legal
training to recount the facts surrounding his alleged injury, and he must provide such facts if the
court is to determine whether he makes out a claim on which relief can be granted.” 	Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations omitted).
III. 	DISCUSSION
Defendants maintain the case is subject to dismissal for the following reasons: (1) the
claims are vague, conclusory, and unsubstantiated; (2) the claims based on events occurring prior
to April 28, 2020, are barred by the statute of limitations; (3) the Fifth Amendment only applies
to the federal government; and (4) the Sixth Amendment right to counsel had not attached. 	The
Court will address each of Defendants’ arguments although not necessarily in the order raised by
Defendants.
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A. 	Vague, Conclusory, and Unsubstantiated Claims
Although the filing of an Amended Complaint normally supersedes the original Complaint
and becomes the operative pleading, see In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir.
2000), where a pro se party’s amended pleading is clearly meant to supplement, or be read together
with, the original complaint, the Court will give liberal construction to both pleadings.4 	See e.g.,
Cooper v. Schiro, 189 F.3d 781, 783 (8th Cir. 1999). 	Reviewing the Complaint and Amended
Complaint, it is clear the two were meant to be read together. 	The Complaint sets forth some
examples of the alleged false arrests, retaliatory acts, and malicious prosecution on the part of
Defendants. 	The Amended Complaint again asserted claims against Tim Nichols, but indicated
he was a Detective in the Warren Police Department at the time of the events giving rise to this
lawsuit. 	Raper then proceeds to name people who were present during the encounters. 	Liberally
construing the Complaint and Amended Complaint as the Court must, Raper claims violations of
the First, Fourth, Fifth, and Sixth Amendments. 	The Court turns to the question of whether the
facts alleged assert plausible claims under these Constitutional Amendments.
(1). 	First Amendment
Raper has alleged that starting at some date in 2017, Chief Hildreth had officers follow and
stalk her and watch her home. 	(ECF No. 1 at 5). 	After she complained to a police sergeant and
the mayor, the harassment “got worse.”
“Criticism of public officials and the administration of governmental policies lies at the
heart of speech protected by the First Amendment.” 	Rinne v. Camden Cty., 65 F.4th 378, 383
(8th Cir. 2023)(cleaned up). 	A citizen’s right to exercise First Amendment freedoms ‘without
4 The Court notes that Defendants refer to both pleadings in their Motions to Dismiss.
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facing retaliation from government officials is clearly established.’” 	Baribeau v. City of
Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010)(quoting Kilpatrick v. King, 499 F.3d 759, 767 (8th
Cir. 2007)). 	To establish a First Amendment retaliation claim, Raper must show: 	(1) she
engaged in protected activity; (2) Defendants took adverse action against Raper which would chill
a person of ordinary firmness from continuing in the protected activity; and (3) there was a but-for
causal connection between Defendants’ retaliatory animus and Raper’s injury.5 	Brandy v. City of
St. Louis, 75 F.4th 908 (8th Cir. 2023); see also Green v. City of St. Louis, 52 F.4th 734, 739 (8th
Cir. 2022)(citations omitted). 	Raper has asserted a plausible First Amendment retaliation claim.
At this stage in the case, this is all she needs to do. 	See e.g., Stone v. Harry, 364 F.3d 912, 915
(8th Cir. 2004)(Liberal construction means the Court construes a pro se litigant’s filing “in a way
that permits the [litigant]’s claim to be considered within the proper legal framework”).
(2). 	Fourth Amendment
Raper’s allegations suggest two separate violations of the Fourth Amendment—the first an
unlawful seizure and/or arrest and the second malicious prosecution.
(a). 	Unlawful Seizure and/or Arrest
The Fourth Amendment protects the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures. 	U.S. Const. amend IV.
To establish a Fourth Amendment violation, ‘the claimant must demonstrate a seizure occurred
and the seizure was unreasonable.’” 	Quaishi v. St. Charles Cty., 986 F.3d 831, 839 (8th Cir.
2021)(quoting McCoy v. City of Monticello, 343 F.3d 842, 846 (8th Cir. 2003)). 	“A Fourth
5 In retaliatory arrest claims, the Eighth Circuit has identified a fourth prong: 	lack of probable
cause or arguable probable cause. 	Galarnyk v. Fraser, 687 F.3d 1070, 1076 (8th Cir. 2012).
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Amendment seizure occurs when an officer restrains the liberty of an individual through physical
force or show of authority.” 	McCoy, 343 F.3d at 846. 	“To be seized, ‘a reasonable person would
have believed that he was not free to leave.’” 	Quaishi, 986 F.3d at 839 (quoting United States v.
Mendenhall, 446 U.S. 544, 554 (1980)). 	“A warrantless arrest that lacks probable cause violates
the Fourth Amendment.” 	Robbins v. City of Des Moines, 984 F.3d 673, 679 (8th Cir. 2021)
(citation omitted). “Whether probable cause exists depends upon the reasonable conclusion to be
drawn from the facts known to the arresting officer at the time of the arrest.” 	Devenpeck v. Alford,
543 U.S. 146, 152 (2004).
Raper alleges that on multiple occasions she was taken in and questioned by Defendants
although ultimately no charges were brought. 	It is not clear whether she was arrested on these
occasions or just taken to the police station. 	She further alleges that the Defendants were all
personally involved in these encounters. 	The allegations are sufficient to state a plausible claim
Fourth Amendment claim for unlawful seizure and/or arrest.
(b). 	Malicious Prosecution
The Supreme Court has held that malicious prosecution is actionable under the Fourth
Amendment. 	Thompson v. Cark, ___ U.S. ___, 142 S. Ct. 1332, 1337, 212 L.Ed.2d 382 (2022).
Raper may pursue a malicious prosecution claim by showing: 	“(1) the criminal proceeding was
instituted without probable cause, (2) the defendant’s motive in instituting the proceeding was
malicious, and (3) the prosecution terminated in acquittal or discharge of the accused.” 	Id. at
1338.
In this regard, Raper has alleged she was twice arrested on felony charges. 	Both times,
she alleges the charges were dropped. 	She contends these charges were brought against her as
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part of the continuing practice of harassment and to keep her from filing a civil rights complaint
in federal court. 	A plausible claim malicious prosecution claim has been stated.
(3). 	Fifth Amendment
Raper’s allegations suggest violation of two separate Fifth Amendment protections—the
right against self-incrimination and the right to counsel.
(a). 	Self-Incrimination
Defendants contend no Fifth Amendment violation exists because the Fifth Amendment
only applies to the actions of federal officials. 	Defendants mistakenly rely on cases addressing
whether the Due Process Clause of the Fifth Amendment applies to the states. 	See e.g., Barnes v.
City of Omaha, 574 F.3d 1003, 1005 n. 2 (8th Cir. 2009)(“The Fifth Amendment’s Due Process
Clause applies only to the federal government or federal actions, and the Plaintiffs have not alleged
that the federal government or a federal action deprived them of property”). 	The Due Process
Clause of the Fifth Amendment is not at issue in this case.
Instead, Raper contends her Fifth Amendment right against self-incrimination has been
violated. 	It is well settled law that the “Fifth Amendment’s exception from compulsory self-
incrimination is also protected by the Fourteenth Amendment against abridgement by the States.”
Malloy v. Hogan, 378 U.S. 1, 6 (1964); see also Gideon v. Wainwright, 372 U.S. 335
(1963)(holding the Double Jeopardy Clause of the Fifth Amendment applicable to the States).
The Fifth Amendment provides that a person may not be compelled to testify against themselves.
Kastigar v. United States, 406 U.S. 441, 444 (1972). 	“[I]t protects against any disclosures which
the witness reasonably believes could be used in a criminal prosecution or could lead to other
evidence that might be so used.” 	Id. at 444-45.
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No 	Self-Incrimination 	Clause 	claim 	exists. 	“Statements 	compelled 	by 	police
interrogations of course may not be used against a defendant at trial, but it is not until their use in
a criminal case that a violation of the Self-Incrimination Clause occurs.” 	Chavez v. Martinez, 538
U.S. 760, 767 (2003)(citations omitted). 	“Although conduct by law enforcement officials prior
to trial may ultimately impair that right, a constitutional violation occurs only at trial.” 	United
States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990)(citations omitted). 	Raper has not alleged
any compelled statements were used against her at a criminal trial. 	For this reason, no plausible
Fifth Amendment self-incrimination claim is stated.
(b). 	Right to Counsel
The right to counsel is protected by both the Fifth and the Sixth Amendments. 	Patterson
v. Illinois, 487 U.S. 285, 297-98 (1988). 	The Fifth Amendment protection provides the right to
counsel during custodial interrogations. 	Edwards v. Arizona, 451 U.S. 477, 482 (1981)(“Miranda
thus declared that an accused has a Fifth and Fourteenth Amendment right to have counsel present
during custodial interrogation”). 	“If the accused indicates that [s]he wishes to remain silent, “the
interrogation must cease.’ 	If [s]he requests counsel, ‘the interrogation must cease until an
attorney is present.’” 	Id. (quoting Miranda v. Arizona, 384 U.S. 436, 474 (1966)). 	The Supreme
Court has said that:
[i]t is reasonably clear under our cases that waivers of counsel must not only be
voluntary, but must also constitute a knowing and intelligent relinquishment or
abandonment of a known right or privilege, a matter which depends in each case
“upon the particular facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused.”
Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
Raper has alleged a plausible Fifth Amendment denial of counsel claim.
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(4). 	Sixth Amendment
The Sixth Amendment right to counsel attaches “at or after the time that judicial
proceedings have been initiated . . . ‘whether by way of formal charge, preliminary hearing,
indictment, information or arraignment.’” 	Fellers v. United 	States, 	540 U.S. 519, 523
(2004)(quoting Brewer v. Williams, 430 U.S. 387, 398 (1977)). 	After an adversary judicial
proceeding has commenced, the Sixth Amendment provides a right to counsel at a “critical stage”
even when there is no interrogation and no Fifth Amendment applicability. 	United States v.
Wade, 388 U.S. 218 (1967).
While Raper alleges felony charges were brought against her twice and eventually dropped,
she does not indicate she was denied counsel once the adversary proceedings were initiated.
Raper has therefore failed to allege a plausible violation of her Sixth Amendment right to counsel.
B. 	Statute of Limitations
“Congress did not establish a statute of limitations or a body of tolling rules applicable to
actions brought in federal court under § 1983—a void which is commonplace in federal statutory
law.” 	Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 483 (1980). 	Instead,
causes of action under § 1983 are governed by “the most appropriate or analogous state statute of
limitations.” 	Wilson v. Garcia, 471 U.S. 261, 268 (1985). 	In Arkansas, this is the three-year
personal injury statute of limitations, Ark. Code Ann. § 16-56-105(3). 	See Miller v. Norris, 247
F.3d 736, 739 (8th Cir. 2001). 	“[A] state statute of limitations and the coordinate tolling rules are
more than a technical obstacle to be circumvent if possible. 	In most cases, they are binding rules
of law.” 	Bd. of Regents, 446 U.S. at 484.
Raper filed this lawsuit on April 28, 2023. 	She alleges a pattern of harassment that began
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in 2017 and ended on May 31, 2022. 	Defendants maintain all claims prior to April 28, 2020, are
barred by the statute of limitations. 	Raper contends that she filed a case for stalking and
harassment in 2020 in the Eastern District of Arkansas; however, the case was dismissed because
she could not pursue the complaint while criminal charges were pending. 	Raper indicates the
charges were not dropped until two years later. 	The Court assumes Raper is referring to Raper v.
City of Warren, et al., Civil No. 4:21-cv-00094.
“The purpose of a statute of limitations is to encourage the prompt filing of claims by
allowing no more than a reasonable time within which to make a claim so a defendant is protected
from having to defend an action in which 	the truth-finding process would be impaired by the
passage of time.” 	McEntire v. Malloy, 707 S.W.2d 582, 586 (Ark. 1986)(citation omitted). 	In
Arkansas v. Diamond Lakes Oil Co., 66 S.W.3d 613, 616-17 (Ark. 2002), the Arkansas Supreme
Court stated that “[t]he limitation period found in § 16-56-105 begins to run when there is a
complete and present cause of action, and in the absence of concealment of the wrong, when the
injury occurs, not when it is discovered.”
There are very few exceptions to the running of the statute of limitations. 	None appear to
be applicable in this case. 	Raper makes no argument the wrongful acts of the Defendants were
fraudulently concealed. 	See Chalmer v. Toyota Motor Sales, USA, Inc., 935 S.W.2d 258, 261
(Ark. 1996)(“Fraud suspends the running of the statute of limitations, and the suspension remains
in effect until the party having the cause of action discovers the fraud or should have discovered it
by the exercise of reasonable diligence”). 	While Raper alleges a continuous pattern of
harassment, the Arkansas Supreme Court has specifically rejected the “continuing-tort theory of
tolling the statute of limitations.” 	Id. at 264.
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“It is ‘hornbook law’ that limitations periods are customarily subject to equitable tolling,
unless tolling would be inconsistent with the relevant statute.” 	Stracener v. Williams, 137 S.W.3d
428, 431 (Ark. App. 2003)(citing Young v. United States, 535 U.S. 43, 49 (2002)). 	The Arkansas
Court of Appeals stated that “[r]easonable diligence is essential in the context of equitable tolling.”
Id. 	While Arkansas has applied equitable tolling to the statute of limitations, it has not specifically
defined the doctrine. 	Loftin v. First State Bank, 596 S.W.3d 16, 19 (Ark. App. 2020). 	In Loftin,
the Plaintiff advanced the description of equitable tolling used by the Seventh Circuit in Miller v.
Runyon, 77 F.3d 189, 191 (7th Cir. 1996) which was:
[E]ven when the defendant is faultless, if the plaintiff because of disability,
irremediable lack of information, or other circumstances beyond his control just
cannot reasonably be expected to sue in time, the statute of limitations will be tolled
until he is able through the exercise of proper diligence to file his suit. 	This is
equitable tolling.
Id. 	Under the facts alleged in this case, it is clear Raper was not ignorant of the existence of her
causes of action.
Likewise, equitable estoppel is inapplicable. 	As stated in Scarlett v. Rose Care, Inc., 944
S.W.2d 545, 547 (Ark. 1997):
In order to successfully assert the defense of equitable estoppel, the following must
be shown: 	(1) conduct by one party who knows the facts and intends that his
conduct be relied upon by the second party; (2) the party relying on the first party’s
conduct must be ignorant of the facts; (3) the party relying on the first party's
conduct must do so to his detriment.
Id. (citations omitted). 	Raper is unable to make such a showing. 	The Court agrees with
Defendants that any claims based on events occurring prior to April 28, 2020, are barred by the
statute of limitations.
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IV. CONCLUSION
For these reasons, it is recommended that Defendants’ Motions to Dismiss (ECF Nos. 13
& 20) be GRANTED IN PART AND DENIED IN PART as follows:
• 	all Fifth Amendment claims that Defendants violated Raper’s right against self-
incrimination should be DISMISSED;
• 	all Sixth Amendment right to counsel claims should be DISMISSED;
• 	all claims stemming from events occurring prior to April 28, 2020, should be
DISMISSED as barred by the statute of limitations;
• 	Raper should be directed to file a Second Amended Complaint which should re-allege only
those claims stemming from events arising after April 28, 2020. 	The Clerk should be
advised to send Raper a blank § 1983 form.
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.
DATED this 7th day of September 2023.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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