Hicks v. Curry et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
KERRY M. HICKS 	PLAINTIFF
v. 	Civil No. 2:24-cv-02140-TLB-MEF
JESSIE CURRY;
JOHN DOE I;
JOHN DOE II;
CITY OF MENA, ARKANSAS;
SETH SMITH 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed under 42 U.S.C. § 1983. Pursuant to the provisions of 28
U.S.C. §§ 636(b)(1) and (3), the Honorable Timothy L. Brooks, 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 for preservice screening pursuant to 28 U.S.C. § 1915(e)(2).
Under this provision, the Court is required to screen any complaint in which a Plaintiff seeks to
proceed in forma pauperis.
I. 	BACKGROUND
Plaintiff filed his Complaint on November 4, 2024. 	(ECF No. 1). 	In his Complaint,
Plaintiff identifies himself as homeless0F
1 and his Complaint centers on an encounter with the Mena
police on June 1, 2024. (Id. at 4-7).
Plaintiff alleges that on the morning of May 22, 2024, he was living on property he believed
to be owned by Southern Pacific Railroad inside the city limits of Mena, Arkansas. (ECF No. 1 at
2). He indicates he had a tent, a camping stove, and a “pick up truck load of possessions.” (Id. at
1 Plaintiff provided a residential address for this Complaint.
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2-3). Plaintiff indicates he and his possessions were “hauled off” to that location on May 2, 2024.
(Id. at 3). Plaintiff does not indicate who hauled him there. Plaintiff indicates that he was first
approached by two John Doe Mena police officers on May 22, 2024. They stated they had received
a complaint about him living on the property. (Id. at 2). John Doe Officer 1 stated that Plaintiff
needed to leave the premises by the next day. (Id. at 3).
On June 1, 2024, John Doe Officer 2 and Defendant Curry, both Mena police officers,
approached him and told him he had been told to leave. (ECF No. 1 at 4). Plaintiff alleges that
Defendant Curry acted “aggressively from the outset.” (Id. at 5). Plaintiff alleges that Defendant
Curry “walked up to Plaintiff to stare him in the face, their bodies separated by less than twelve
inches, and Curry told Plaintiff that the railroad called and they want Plaintiff out of there.” (Id.).
Plaintiff asked if there was documentation of this call, and he was told there was not. 	(Id.).
Plaintiff explained that he had no where else to go and had multiple health issues. 	(Id. at 5-6).
Defendant Curry stepped away and made a phone call. (Id. at 6). At the end of the call John Doe
Officer 2 stood about 10 feet away from Plaintiff and told him, “in a low voice barely more than a
whisper ‘We told you to leave.’” (Id.). Defendant Curry then told him it was now noon, and he
needed to be gone when he returned at 2:00 p.m. (Id. at 6). They then left the property. (Id.).
Plaintiff alleges that Curry stepping close to him and speaking “aggressively” constituted an
assault and resulted in emotional distress. (Id. at 11).
Plaintiff began gathering his belongings and placing them on a concrete slab about 30 feet
from his tent. (ECF No. 1 at 11). At 3:00 p.m. Plaintiff finished taking down his tent and placed
it over his belongings like a tarp. (Id. at 7). He then started walking south along the train track, at
which point a young woman approached his camp from the south, looked over his campsite and
then exited the property. (Id.). Plaintiff assumed this woman was sent by Defendant Curry, so he
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gathered some spare clothing, a blanket, and as much food as he could carry and left the property.
(Id.). Plaintiff indicates he was forced to abandon all his other property. (Id.).
Plaintiff alleges that Defendant Curry and the John Doe officers violated his rights when
they came onto private property without a warrant, probable cause, or reasonable suspicion that a
crime had been committed. (ECF No. 1 at 8). He further alleges they used his status as a homeless
person to cause his removal from the property through threats and intimidation in violation of
Plaintiff’s Fourteenth Amendment rights. (Id.).
Plaintiff spends considerable time in the Complaint discussing the fact there were no police
reports or body camera footage of the interaction between the Mena officers and himself. (ECF
No. 1 at 8-10). He states the City of Mena responded to his Arkansas Freedom of Information Act
(“AFOIA”) claim by stating that “no such information exists.” 	(Id. at 7). 	Plaintiff alleges that
Seth Smith, “having knowledge of Plaintiff’s claim of police misconduct,” failed to provide
Plaintiff with body camera recordings or police reports when Plaintiff requested them under
AFOIA. (Id. at 9). He conversely argues that the lack of police reports indicate that the two Mena
officers conspired to violate his rights under the First and Fourteenth Amendments. (Id.).
Finally, Plaintiff states the City of Mena engages in discriminatory practices in its policy
concerning homeless persons. 	(ECF No. 1 at 10). 	Specifically, Plaintiff alleges that anyone
experiencing homelessness may present themselves to the Mena police station and ask that they
be placed in a hotel for that night or be given a bus ticket out of town. (Id.). Once a homeless
person makes that request, they are interviewed by officers, a police check is run on them, and a
religious organization known as the Ministerial Alliance is contacted. 	Plaintiff alleges this is a
discriminatory policy which “entangles” church and state action. (Id.). Plaintiff does not state that
he approached Mena police department with this request.
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Plaintiff asks the Court to order the City of Mena to provide body camera footage and
police reports, or to provide an explanation as to why they do not exist. 	(Id. at 11). 	Plaintiff
requests an unidentified declaratory judgment. 	(Id.). 	Plaintiff requests compensatory damages
exceeding the jurisdictional amount for this court for Plaintiff’s loss of property, pain and
suffering, emotional distress, and other such emotional juries proved at trial. (Id.). Plaintiff seeks
punitive damages in the amount of $250,000 from each Defendant. (Id. at 11-12).
II. 	LEGAL STANDARD
Under § 1915A, the Court is obliged to screen the case prior to service of process being
issued. 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) seeks
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). An action is malicious when the allegations are known to be false, or
it is undertaken for the purpose of harassing or disparaging the named defendants rather than to
vindicate a cognizable right. 	Spencer v. Rhodes, 656 F. Supp. 458, 464 (E.D.N.C. 1987); In re
Tyler, 839 F.2d 1290, 1293-94 (8th Cir. 1988). 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)). This means “that if the essence of an allegation is
discernable, even though it is not pleaded with legal nicety, then the district court should construe
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the complaint in a way that permits the layperson’s claim to be considered within the proper legal
framework.” 	Jackson, 747 F.3d at 544 (cleaned up). 	However, the complaint must still allege
specific facts sufficient to support a claim. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
III. 	ANALYSIS
Plaintiff’s claims are frivolous and subject to summary dismissal. Plaintiff freely admits
he was trespassing on private property with his camp. There is no federal constitutional right to
trespass and camp on the private property of others. See e.g., Dundon v. Kirchmeier, No. 1:16-
CV-406, 2017 WL 5894552, at *16 (D.N.D. Feb. 7, 2017), aff'd, 701 F. App’x 538 (8th Cir. 2017)
(unpublished) (citing Adderley v. State of Florida, 385 U.S. 39, 47-48 (1966)) (“The United States
Supreme Court has said the First Amendment cannot be utilized as a justification for trespass, and
the government has the right to enforce trespass laws as to both private and public property.”)
Plaintiff alleges he was assaulted when Defendant Curry spoke aggressively to him and
stood within a foot of him to do so. This claim fails for several reasons. First, Plaintiff does not
allege that Curry ever touched him or threatened him. 	Second, even if a simple dispersal order
could be construed as a threat, “[v]erbal threats do not constitute a constitutional violation.”
Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir. 1985). Similarly, taunts, name calling, and the
use of offensive language does not state a claim of constitutional dimension. McDowell v. Jones,
990 F.2d 433, 434 (8th Cir. 1993) (inmate’s claims of general harassment and of verbal harassment
were not actionable under § 1983); see also Doe v. Gooden, 214 F.3d 952, 955 (8th Cir. 2000)
(abusive language or verbal harassment is not, by itself, unconstitutional and will not support a
civil rights cause of action). 	Third, fear or emotional injury which results solely from verbal
harassment or idle threats is generally not sufficient to constitute an invasion of an identified liberty
interest. King v. Olmsted County, 117 F.3d 1065, 1067 (8th Cir. 1997). Here, Plaintiff does not
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allege that he was touched or physically injured in any way. 	Instead, he merely states that he
suffered emotional distress because Defendant Curry stood near him and spoke “aggressively.”
Plaintiff alleges that he suffered loss of personal property because of being forced to leave
his camp. 	Plaintiff fails to state a plausible constitutional claim based on his personal property
loss. 	See Clark v. Kansas City Mo. Sch. Dist., 375 F.3d 698, 793 (8th Cir. 2004) (no cause of
action for the taking of personal property as long as the state provides an adequate post-deprivation
remedy). Even if the deprivation of his property was intentional, there is no Due Process violation
when the state has provided Plaintiff with adequate post-deprivation remedies. 	See Hudson v.
Palmer, 468 U.S. 517, 533 (1984) (intentional deprivation of property does not violate due process
when meaningful post-deprivation remedy is available). Arkansas provides the post-deprivation
remedy of conversion for the recovery of personal property. See Elliot v. Hurst, 817 S.W.2d 877,
880 (1991) (cause of action for conversion lies where distinct act of dominion is exerted over
property in denial of owner’s right). Accordingly, because Plaintiff could seek redress in Arkansas
state courts to recover his lost property, he has no plausible claim pursuant to § 1983 in this regard.
Finally, Plaintiff alleges that Defendant Smith and the City of Mena violated his rights
under the Arkansas Freedom of Information Act. 	“Violations of state law do not give rise to a
cause of action under § 1983.” Carter v. Wasko, No. 4:22-CV-04103-RAL, 2024 WL 3522017,
at *2 (D.S.D. July 24, 2024) (citing Doe v. Gooden, 214 F.3d 952, 955 (8th Cir. 2000).
IV. 	CONCLUSION
For the reasons discussed above, it is RECOMMENDED that Plaintiff’s Complaint (ECF
No. 1) be DISMISSED WITHOUT PREJUDICE.
Referral Status: This case should not remain referred because all matters have been
recommended for dismissal in this Report and Recommendation.
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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 16th day of December 2024.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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