Foust v. Tubbs et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
AMANDA MICHELLE FOUST, 	PLAINTIFF
v. 	Civil No. 1:24-CV-01082-SOH-BAB
OFFICER JONATHAN TUBBS, Assistant Jail Admin.;
CAMERON OWENS, Jail Admin.; and
CLARENCE CAPPS, Officer/Guard, 	DEFENDANTS.
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Amanda Michelle Foust, a prisoner, has filed a federal lawsuit pursuant to 42
U.S.C. § 1983 generally alleging that her constitutional rights were violated when she was
incarcerated at the Ouachita County Detention Center (“OCDC”). 	(ECF No. 9). 	Plaintiff
proceeds pro se and in forma pauperis (“IFP”). 	(ECF No. 10). 	The case was directly assigned
to the undersigned Magistrate Judge pursuant to General Order 2024-02. 	But not all parties to the
action have consented to the jurisdiction of the undersigned. 	See 28 U.S.C. § 636(c).
Accordingly, for the purpose of preservice review pursuant to 28 U.S.C. § 1915A(a), the case will
automatically be reassigned to Chief United States District Judge Susan O. Hickey and referred to
the 	undersigned 	for 	a 	report 	and 	recommendation 	pursuant 	to 	the 	provisions 	of 	28
U.S.C. § § 636(b)(1) and (3).
Upon that review and for the reasons outlined below, this Court recommends that
Plaintiff’s individual capacity claim against Defendants Tubbs and Owens alleging that her
exposure to black mold in the showers caused her to experience health problems (claim one)
proceed and that all other claims be dismissed without prejudice for failure to state a claim upon
which relief may be granted. 	See 28 U.S.C. § 1915A(b)(1).
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BACKGROUND
Plaintiff initiated her lawsuit in the Eastern District of Arkansas. 	(ECF No. 1). 	Upon
review, United States District Judge Lee P. Rudofsky of the Eastern District of Arkansas ordered
that this matter be transferred to this District in the interests of justice pursuant to 28 U.S.C.
§ 1406(a). 	(ECF No. 3). 	Upon transfer, this Court ordered Plaintiff to submit an amended
complaint on this District’s court-approved form and ordered Plaintiff to either submit a complete
in forma pauperis (“IFP”) application or pay the full statutory filing fee by December 5, 2024,
failing which this matter would be subject to dismissal. 	(ECF No. 7). 	On November 26, 2024,
Plaintiff submitted a complete IFP application, (ECF No. 8), which was later granted, (ECF No.
10). 	On December 2, 2024, Plaintiff submitted an Amended Complaint. 	(ECF No. 9).
The Amended Complaint asserts three claims for relief. 	First, Plaintiff says that her living
conditions at the OCDC are unsanitary—she describes black mold in the showers, paint peeling
from the rails and walls, finding hair in the food, and being required to sleep on a yoga mat on the
concrete floor or on a metal bunk bed. 	(ECF No. 9, pp. 4-5). 	Plaintiff says that inmates are not
provided with proper cleaning supplies to clean their own pods. 	She asserts that Defendant
Cameron Owens, the jail administrator, and Defendant Jonathan Tubbs, the assistant jail
administrator, know about these conditions, but have not done anything to correct them. 	Plaintiff
says that these conditions have caused her to experience back problems, hip problems, sinus
problems, along with potential “future problems.” 	Plaintiff also claims that while she has been
sentenced to two years at the “ACC,” the Defendants refuse to transfer her because they get “paid
too much” to house her. 	Plaintiff names Owens and Tubbs as defendants in their individual
capacities.
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Second, Plaintiff says that on November 7, 2024, she was made aware that Defendant
Tubbs was standing in the tower window watching her shower. 	Id., pp. 5-6. 	Plaintiff says that
Defendant Tubbs violated her right to privacy and that his conduct may have also constituted
sexual harassment. 	She identifies Defendant Tubbs as a defendant in his individual capacity.
Finally, Plaintiff claims that on November 5, 2024, several inmates in E-pod were trying
to start a fight with her and another inmate. 	Id., pp. 7-8. 	Plaintiff says that she submitted a
grievance asking to be moved because she feared for her safety, but Defendant Capps came to her
housing unit and said that he “was not playing musical pods and that if anyone was going to fight,
[they] just needed to fight.” 	Plaintiff says she called family and asked them to contact the jail
administrator to persuade him to move her to a safer housing unit. 	Plaintiff identifies Defendant
Capps in his individual capacity. 	She defers her request for relief to the discretion of the Court.
(ECF No. 9, p. 9).
LEGAL STANDARD
Pursuant to 28 U.S.C. § 1915A of the Prison Litigation Reform Act (“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
given liberal construction, meaning “that if the essence of an allegation is discernable, even though
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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
Plaintiff brings her claims pursuant to 42 U.S.C. § 1983. 	To establish a plausible § 1983
claim, “a plaintiff must allege a violation of a constitutional right committed by a person acting
under color of state law.” 	Andrews v. City of West Branch, Iowa, 454 F.3d 914, 918 (8th Cir.
2006).
A. Claim One
Plaintiff alleges that she experienced unconstitutional conditions of confinement from
September 11, to “ongoing,” (ECF No. 9, p. 4), which this Court understands to be until November
20, 2024, the date she signed the Amended Complaint, id. at p. 11. 	Plaintiff asserts that on
September 23, 2024, she was sentenced to serve two years at the ACC/CCC. 	Id., p. 2. 	Plaintiff,
therefore, was both a pretrial detainee and a prisoner during the events giving rise to her claims.
Accordingly, for the purposes of preservice review, this Court will consider the claim under the
Fourteenth Amendment standard that applies to pretrial detainees as well as the Eight Amendment
standard that applies to prisoners.
i. 	Pretrial Detainee
As a pretrial detainee, this Court analyzes Plaintiff's conditions of confinement claims
under the Fourteenth Amendment’s Due Process Clause. 	Stearns v. Inmate Servs. Corp., 957
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F.3d 902, 906 (8th Cir. 2020) (citing Bell v. Wolfish, 441 U.S. 520, 525 n.16 (1979)). 	Under that
standard, “the government may detain defendants pretrial and ‘may subject [them] to the
restrictions and conditions of [a] detention facility so long as those conditions and restrictions do
not amount to punishment, or otherwise violate the Constitution.” 	Id. at 907 (quoting Bell, 441
U.S. at 536-37)). 	There are two ways to determine whether conditions of confinement rise to the
level of punishment. 	Id. 	First, “a plaintiff could show that the conditions were intentionally
punitive.” Id. 	Alternatively, “if there is no expressly demonstrated intent to punish, the plaintiff
could also show that the conditions were not reasonably related to a legitimate government purpose
or were excessive in relation to that purpose.” Id. 	“In considering whether the conditions of
pretrial detention are unconstitutionally punitive, [courts] review the totality of the circumstances
of a pretrial detainee's confinement.” Morris v. Zefferi, 601 F.3d 805, 810 (8th Cir. 2010).
Plaintiff 	describes 	five 	purportedly 	unconstitutional 	conditions 	of 	confinement:
(1) exposure to black mold in the showers; (2) hair in the food; (3) exposure to peeling paint;
(4) lack of access to adequate cleaning supplies; and (5) sleeping on a yoga mat on the concrete
floor and/or metal bunk. 	(ECF No. 9, pp. 4-5). 	Plaintiff, moreover, asserts that she was exposed
to these conditions for approximately two months (from September 11, 2024, to November 20,
2024). 	She also claims that Defendants Owens and Tubbs were aware of these conditions but did
nothing to correct them.
For the limited purpose of preservice review pursuant to 28 U.S.C. § 1915A(a), Plaintiff’s
claim against Defendants Owens and Tubbs alleging that her exposure to black mold in the
showers caused her to experience medical problems may proceed. 	See Thurmond v. Andrews,
972 F.3d 1007, 1012 (8th Cir. 2020) (explaining that there could be a case where exposure to the
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“presence of mold or another environmental allergen” may give rise to unsanitary prison
conditions that violate the inmates’ rights); see also Lemmons v. Chambers, Case No. 23-2318,
2023 WL 5164011, at *1 (8th Cir. Aug. 11, 2023) (concluding that plaintiff’s allegation that he
developed respiratory issues due to mold exposure in the jail during his 7 month detention was
sufficient to survive preservice dismissal).
The Court finds, however, that Plaintiff has not established plausible unconstitutional
conditions of confinement claims under the Fourteenth Amendment with respect to the claims that
she found hair in the food, she was exposed to peeling paint, and she was provided with inadequate
cleaning supplies and a yoga mat for a mattress.
First, it is well established that “liability for negligently inflicted harm is categorically
beneath the threshold of constitutional due process.” 	Stearns, 957 F.3d at 908 n.5 (quoting
County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)). 	Here, Plaintiff has asserted no facts
suggesting that finding hair in the food was the result of anything more than mere negligence on
the part of jail officials. 	Second, while she claims she was exposed to peeling paint, she does not
assert any facts establishing how this condition is purportedly unsanitary or otherwise threatens
her health or safety. 	Similarly, Plaintiff claims she was provided inadequate cleaning supplies,
but she offers no facts describing what cleaning supplies were provided and how they were
inadequate. 	See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements” are not sufficient to
establish a plausible claim). 	Finally, Plaintiff asserts that being required to use a “yoga mattress”
violated her constitutional rights, but she does not provide any further description of the mattress
itself or how long she was required to sleep on it. 	Under these circumstances, this Court finds
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that Plaintiff has failed to state a plausible conditions of confinement claim for being required to
sleep on such a mattress. 	See Ferguson v. Cape Girardeau Cnty., 88 F.3d 647, 650 (8th Cir. 1996)
(concluding that using a “floor mattress” for thirteen nights did not violate plaintiff’s due process
rights).
ii. 	Convicted Prisoner
As a convicted prisoner, Plaintiff’s unconstitutional conditions of confinement claim is
analyzed under the Eighth Amendment’s prohibition on “cruel and unusual punishment.” 	The
Eighth Amendment extends to conditions of incarceration and confinement. 	Kulkay v. Roy, 847
F.3d 637, 642 (8th Cir. 2017). 	To state a plausible Eighth Amendment claim, the inmate must
first show that the alleged violation is “objectively and sufficiently serious.” 	Id. (quoting Farmer
v. Brennan, 511 U.S. 825, 834, 837 (1994)). 	“An alleged violation is objectively and sufficiently
serious when the inmate ‘is incarcerated under conditions posing a substantial risk of serious
harm.” Id (internal quotation omitted). 	Second, the inmate must show “the defendant acted with
a ‘sufficiently culpable state of mind.’” 	Id. at 643 (quoting Farmer, 511 U.S. at 834). 	“In a case
challenging conditions of confinement, the requisite state of mind is ‘deliberate indifference’ to
inmate health or safety.” Id. 	“An official is deliberately indifferent if he or she actually knows of
the substantial risk and fails to respond reasonably to it.” 	Id. (quoting Young v. Selk, 508 F.3d
868, 873 (8th Cir. 2007)). 	“Mere negligence or inadvertence does not rise to the level of
deliberate indifference.” 	Id.
For the limited purpose of preservice review, the Court finds that Plaintiff’s assertions that
she was exposed to black mold in the showers for approximately two months, that Defendants
Owens and Tubbs were aware of this condition but did nothing to address it, and that the condition
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caused her health problems establishes a plausible Eighth Amendment unconstitutional conditions
of confinement claim. 	(ECF No. 9). 	See Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989)
(“[I]nmates are entitled to reasonably adequate sanitation, personal hygiene, and laundry
privileges, particularly over a lengthy course of time.”).
But, as noted above, Plaintiff has not asserted sufficient facts showing that finding hair in
her food was the result of anything more than negligence on the part of jail officials. 	Further,
while Plaintiff claims that she was not provided adequate cleaning supplies, she fails to assert any
facts describing how they were inadequate. 	Finally, while Plaintiff claims that she was exposed
to peeling paint and used a yoga mat as a mattress, even if these conditions qualify as objectively
serious, Plaintiff has failed to assert any facts establishing that the Defendants were actually aware
of the substantial risk these conditions posed to her health and safety and nevertheless failed to
reasonably respond to them. 	Indeed, Plaintiff does not assert any facts suggesting how exposure
to peeling paint posed any risk to her health or safety. 	Accordingly, Plaintiff’s remaining
conditions of confinement claims should be dismissed for failure to state a claim upon which relief
may be granted.1
B. Claim Two
In claim two, Plaintiff asserts that Defendant Tubbs watched her take a shower. 	To the
extent that Plaintiff claims that Defendant Tubbs’s conduct violated her right to privacy, the United
States Court of Appeals for the Eighth Circuit has held that inmates do not have a constitutionally
1 Plaintiff’s claim that OCDC officials would not transport her to the ADC because the OCDC
“gets paid too much” to house her does not amount to a plausible constitutional violation. 	See
Smith v. McKinney, 954 F.3d 1075, 1079 (8th Cir. 2020) (“An inmate ‘has no constitutional right
to remain in a particular institution.’”) (quoting Askew v. Heflin, 67 F.3d 303, 303 (8th Cir. 1995)
(unpublished per curiam)).
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protected privacy right preventing them from being observed by guards of the opposite sex. 	Bell
v. Conard, 749 F.App’x 490, 491 (8th Cir. 2019) (affirming preservice dismissal and holding that
“prison officials did not violate a clearly established constitutional right by allowing female guards
to monitor Bell through surveillance cameras”) (citing Timm v. Gunter, 917 F.2d 1093, 1102 (8th
Cir. 1990) (“Whatever minimal intrusions on an inmate's privacy may result from [opposite-sex]
surveillance, whether the inmate is using the bathroom, showering, or sleeping in the nude, are
outweighed by institutional concerns for safety and equal employment opportunities.”)).
To the extent, moreover, that Plaintiff claims that Defendant Tubbs’s conduct may have
constituted sexual harassment, she does not allege that Defendant Tubbs physically touched her or
made any lude or profane gestures towards her. 	See (ECF No. 9). 	While “sexual harassment or
abuse of an inmate by a corrections officer . . . can, in certain circumstances, constitute the
‘unnecessary and wanton infliction of pain’ forbidden by the Eighth Amendment, . . . sexual
harassment, absent contact or touching, does not constitute unnecessary and wanton infliction of
pain.” 	Howard v. Everett, 208 F.3d 218, 20000 WL 268493, at *1 (8th Cir. Mar. 10, 2000) (table
opinion) (quoting Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997)). 	Accordingly, Plaintiff
has failed to establish a plausible constitutional violation with respect to claim two. 	This claim
should therefore be dismissed.
C. Claim Three
In claim three, Plaintiff claims that Defendant Capps failed to protect her from harm by
refusing to transfer her to another housing unit upon her request. 	(ECF No. 9, p. 7).
A pretrial detainee’s “failure to protect” claim is analyzed under the same standard as a
“failure to protect” claim brought by a prisoner. 	See Schoelch v. Mitchell, 625 F.3d 1041, 1046
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(8th Cir. 2010). 	That standard, moreover, is the same Eighth Amendment conditions of
confinement standard that applies to prisoners. 	Id. 	To prove an unconstitutional failure to
protect from harm, therefore, a plaintiff must show “(1) an objectively, sufficiently serious
deprivation, meaning that he was incarcerated under conditions posing a substantial risk of serious
harm; and (2) that the defendant was deliberately indifferent to the substantial risk of serious
harm.” 	Id. (internal citation omitted) (cleaned up). 	The second prong is “a subjective test; the
defendant must be aware of the facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw that inference.” Id. (internal quotations omitted).
In this case, Plaintiff does not assert that she was injured in a fight between inmates, only
those inmates threatened to physically fight her. 	See (ECF No. 9, p. 8). 	Furthermore, Plaintiff
asserts that she was moved housing pods, perhaps before the fight occurred or thereby preventing
a fight in the first place. 	Regardless, the fact that Plaintiff was moved pods (albeit not
immediately upon Plaintiff’s request) evinces that Defendant Capps did not disregard the risk of
harm to Plaintiff (substantial or otherwise) in remaining housed in that pod. 	Plaintiff, therefore,
has failed to assert a plausible failure-to-protect claim. 	This claim should also therefore be
dismissed.
RECOMMENDATION
In sum, having reviewed Plaintiff’s Amended Complaint, (ECF No. 9), pursuant to 28
U.S.C. § 1915A, this Court recommends that: (1) Plaintiff’s individual capacity claims against
Defendants Cameron Owens and Jonathan Tubbs alleging that she was exposed to black mold in
the showers, that they knew about the condition, and they failed to address it (claim one) proceed;
and that (2) all other claims be DISMISSED WITHOUT PREJUDICE for failure to state a
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claim, see 28 U.S.C. § 1915A(b)(1).
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.
STATUS OF REFERRAL: This case remains referred consistent with the Court’s
recommendations.
DATED this 23rd day of January 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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