Anderson v. Worley et al

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
PLAINTIFF	BENNIE ROY ANDERSON, JR.,
v. Civil No. 1:24-CV-01086-SOH-BAB
CAPTAIN LISA WORLEY,
Union County Detention Center (UCDC);
SERGEANT JARRED DAVIS, UCDC;
LIEUTENANT STACIA WILLIS, UCDC; and
LIEUTENANT CICILY WILLIAMS, HILL, UCDC, DEFENDANTS.
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Bennie Roy Anderson, Jr., a prisoner, has filed a federal lawsuit pursuant to 42
U.S.C. § 1983 generally alleging that his constitutional rights were violated when he was
incarcerated at the Union County Detention Center (“UCDC”). (ECF No. 6). Plaintiff proceeds
pro se and in forma pauperis (“IFP”). (ECF No. 3). 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 Amended Complaint be dismissed without prejudice for failure to state a claim upon
which relief may be granted. See 28 U.S.C. § 1915A(b)(1).
BACKGROUND
Upon initial review of Plaintiff’s original complaint pursuant to 28 U.S.C. § 1915A(a), this
Case 1:24-cv-01086-SOH Document 7 Filed 01/28/25 Page 1 of 6 PageID #:
<pageID>

2
Court ordered Plaintiff’s to submit an amended complaint, explaining that the original complaint
contained factual and legal deficiencies that could lead to dismissal of its claims for failure to state
a plausible claim for relief. (ECF No. 3). Later, Plaintiff’s submitted an Amended Complaint.
(ECF No. 6). That Amended Complaint asserts one claim for relief.
Plaintiff says that on October 16, 2024, he was standing at the urinal when another inmate
walked up behind him and grabbed his penis, sexually assaulting him. (ECF No. 6, p. 4).
Plaintiff notified Defendant Sgt. Davis at 5:30 am, who then removed the inmate and told Plaintiff
that the Lieutenant would come speak to him about the incident. As the Court understands it, he
later spoke with Defendant Cicily Williams, Defendant Hill and Defendant Willis. Plaintiff says
that he continues to suffer mental anguish and post-traumatic stress from the sexual assault.
Plaintiff claims that the defendants were negligent in failing to protect him from the offending
inmate and that his rights were violated because the defendants should have placed the inmate in
solitary confinement and kept him away from the general population because he was back from
prison. Plaintiff identifies the defendants in their official and individual capacities. He asserts
no request for relief. Id., 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
Case 1:24-cv-01086-SOH Document 7 Filed 01/28/25 Page 2 of 6 PageID #:
<pageID>

3
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
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 his Amended Complaint 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. Failure to Protect
The fundamental problem with Plaintiff’s claim is that he has failed to assert a plausible
constitutional violation.
Plaintiff claims that the defendants failed to protect him from sexual assault by another
inmate. “The Eighth Amendment requires officials to ‘provide humane conditions of
confinement’ by taking reasonable steps to protect inmates convicted of crimes from assault by
other inmates.” Schoelch v. Mitchell, 625 F.3d 1041, 1046 (8th Cir. 2010) (quoting Farmer v.
Brennan, 511 U.S. 825, 832 (1994)). While officials’ duty to protect a pretrial detainee arises out
of the Fourteenth Amendment, courts analyze “failure to protect” claims under the same Eighth
Case 1:24-cv-01086-SOH Document 7 Filed 01/28/25 Page 3 of 6 PageID #:
<pageID>

4
Amendment standard. Id. To that end, to establish an unconstitutional failure to protect from
harm, 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. (quoting
Farmer, 511 U.S. at 834) (internal citation omitted) (cleaned up). The second element is “a
subjective test; the defendant must be aware of 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
quotation and citation omitted).
Here, Plaintiff’s failure to protect claim fails to pass the plausibility threshold on both
elements. He asserts no facts suggesting that he was incarcerated under conditions that posed a
substantial risk of serious harm to him. Although he says that the offending inmate should have
been placed in isolation because he had come back from prison, he asserts no facts establishing
what it was about these circumstances—namely, the inmate returning from prison—that created a
substantial risk of harm to Plaintiff. Nor does Plaintiff allege any facts regarding this inmate’s
history suggesting that he was known to sexually assault other inmates or that he had previously
threatened to sexually assault Plaintiff. See Vandevender v. Sass, 970 F.3d 972, 976 (8th Cir.
2020) (where the substantial risk of serious harm was obvious, the court’s analysis generally turned
on the subjective issue of deliberate indifference) (listing cases).
Moreover, Plaintiff asserts no facts suggesting that the defendants were aware of the
substantial risk of harm this inmate posed to him but disregarded it. While Plaintiff asserts that
the defendants were negligent in allowing this inmate into general population, “deliberate
indifference includes something more than negligence.” Schoelch, 625 F.3d at 1046. “[A]n
Case 1:24-cv-01086-SOH Document 7 Filed 01/28/25 Page 4 of 6 PageID #:
<pageID>

5
official’s failure to alleviate a significant risk that he should have perceived but did not, while no
cause for commendation, cannot . . . be condemned as [a constitutional violation].”” Vandevender,
970 F.3d at 978 (quoting Farmer, 511 U.S. at 838). In this case, Plaintiff has failed to allege any
facts showing that this inmate posed any risk to him, let alone a substantial risk or that defendants
disregarded that risk. Accordingly, Plaintiff’s failure-to-protect claim should be dismissed.
B. HIPAA
Plaintiff’s Amended Complaint references “HIPPA.” See (ECF No. 6, p. 4). This Court
understands “HIPPA” to mean the Health Insurance Portability and Accountability Act
(“HIPAA”). To the extent that Plaintiff asserts a claim for relief under HIPAA, however, HIPAA
does not create an express or implied private cause of action. Dodd v. Jones, 623 F.3d 563, 569
(8th Cir. 2010) (affirming dismissal of HIPAA claim because HIPAA does not create a private
right of action). This means that Plaintiff, a private party, cannot bring a claim for relief under
HIPAA. Thus, any such claim should also be dismissed as a matter of law.
RECOMMENDATION
In sum, having reviewed Plaintiff’s Amended Complaint, (ECF No. 6), pursuant to 28
U.S.C. § 1915A, this Court recommends that: (1) Plaintiff’s Amended Complaint, (ECF No. 6),
be DISMISSED WITHOUT PREJUDICE for failure to state a claim, see 28
U.S.C. § 1915A(b)(1); 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
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
Case 1:24-cv-01086-SOH Document 7 Filed 01/28/25 Page 5 of 6 PageID #:
<pageID>

6
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 is no longer referred.
DATED this 28th day of January 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
Case 1:24-cv-01086-SOH Document 7 Filed 01/28/25 Page 6 of 6 PageID #:
<pageID>