Hankins v. Bryant et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
DEMARIO LASHUN HANKINS 	PLAINTIFF
v. 	Civil No. 4:24-cv-04119-SOH-SGS
WILLIAM J. BRYANT; RICHARD TURNER;
JEFFIE WALKER; PENNY KILCREASE;
CHRISTIAN STUDDARD; TROOPER DALE
YOUNG; JUDGE THOMAS POTTER; DAVID
COTTON; KEITH MOORE; JOSHUA PENDERGRASS;
JUDGE CARLTON JONES; MARY PANKEY;
DONALD LOWREY; CALEB YOUNG;
STEPHEN KING; CHELSEA FOSTER;
LISA DAVIDSON; CAPTIAN GOLDEN ADAMS;
and SHERIFF DAVID WAYNE EASLEY 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is Defendants Kilcrease and Walker’s Motion to Dismiss (ECF No. 46).
Plaintiff responded. 	(ECF No. 52). 	Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and
(3)(2011), the Honorable Susan O. Hickey, United States District Judge, referred the instant
motions to the undersigned for the purpose of making a Report and Recommendation. 	After
thorough consideration, the Court recommends Plaintiff’s claims against Defendants Walker and
Kilcrease be dismissed.
I. 	BACKGROUND
Plaintiff filed his original Complaint on December 3, 2024. (ECF No. 1). Plaintiff then
paid his filing fee in full on December 6, 2024. 	Plaintiff was not at the time of filing his
complaint—nor is he currently—incarcerated.
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In his original Complaint, Plaintiff named the following Defendants: William J. Bryant,
Richard Turner, Jeffie Walker, Penny Kilcrease, Correctional Officer Studdard, Trooper Dale
Young, Judge Thomas Potter, Prosecutor David Cotton, and the Miller County Jail. (ECF No. 2).
On December 9, 2024, the Clerk of the Court issued summons on all named Defendants
from the original Complaint. 	(ECF No. 5). 	On December 26, 2024, Plaintiff returned these
summonses, along with Proof of Service, executed by himself, stating all Defendants were
properly served on December 18, 2024. (ECF No. 8).
On January 29, 2025, Defendants Kilcrease and Walker filed a Motion to set aside service
or extend time to respond to Plaintiff’s original Complaint. 	(ECF No. 20). 	The Court granted
Defendants Walker and Kilcrease an extension to Answer and terminated the Motion to Set Aside.
(ECF No. 38).
On February 10, 2025, Plaintiff filed a Motion for Leave to Amend his Complaint. (ECF
No. 26). No objections were filed.
On March 3, 2025, Defendants Kilcrease, Miller County Jail, and Walker filed a Motion
to Dismiss for failure to state a claim. (ECF No. 29).
On April 1, 2025, the Court granted Plaintiff leave to amend his original Complaint. (ECF
No. 42). Accordingly, Defendants’ original Motion to Dismiss (ECF No. 29) was denied as moot
and Defendants were instructed they may reassert their Motion to Dismiss after Plaintiff filed his
Amended Complaint. Id.
A. Plaintiff’s Amended Complaint
Plaintiff filed his Amended Complaint on April 22, 2025. (ECF No. 43). In his Amended
Complaint, Plaintiff names nineteen Defendants. 	He named eight of the original Defendants:
William Bryant; Christian Studdard; Trooper Dale Young; David Cotton; Judge Thomas A. Potter;
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Penny Kilcrease; Richard Turner; Jeffie Walker; and twelve newly named Defendants: Keith
Moore; Joshua Pendergrass; Sheriff David Wayne Easley; Judge Carlton Jones; Mary Pankey;
Donald Lowrey; Caleb Young; Stephen King; Chelsea Foster; Lisa Davidson; and Captain Golden
Adams. (ECF No. 43). Plaintiff did not reassert Miller County Jail as a Defendant in his Amended
Complaint, so this Defendant was terminated from the docket heading upon the filing of the
Amended Complaint.
The Court notes Plaintiff’s Amended Complaint is not on the Court’s approved Section
1983 Form; however, it is well organized and clearly articulates Plaintiff’s factual allegations and
claims. 	(ECF No. 43, pp. 4-6). 	Plaintiff makes the following specific factual allegations in a
section titled “FACTUAL BACKGROUND:”
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(ECF No. 43, pp. 6-7) (errors in original).
Plaintiff also includes a section in his Amended Complaint where he lists each Defendant
with a short statement as to why he is suing that Defendant. The Court includes only those sections
referencing the moving Defendants, Kilcrease and Walker herein:
1. 	Defendant Jeffie Walker was the Jail Administrator at the MCDC during the time
at issue. 	Plaintiff alleges Defendant Walker denied him counsel, obstructed
administrative grievances, and “for supervising correctional staff who violated
Plaintiff’s rights.” Plaintiff sues Defendant Walker in her individual capacity only.
2. 	Defendant Court Clerk Penny Kilcrease was a court official responsible for
processing legal filings in Miller County. Plaintiff alleges she improperly issued
notices, 	mishandled 	court 	documentation, 	and 	contributed 	to 	procedural
irregularities. Plaintiff sues Defendant Kilcrease in her individual capacity only.
(ECF No. 43, p. 5).
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Plaintiff then enumerates, ten counts against various Defendants. (ECF No. 43, pp. 13-35).
Plaintiff does not allege any of these ten counts against Defendant Walker, but does allege Count
V, IX, and X against Defendant Kilcrease. Specifically, Plaintiff alleges:
Count V: Denial of due process in violation of Plaintiff’s Fifth and Fourteenth Amendment
rights against Defendant Kilcrease. (ECF No. 43, p. 26).
Count IX: Denial of procedural and substantive due process in violation of Plaintiff’s Fifth
and Fourteenth Amendment rights against Defendant Kilcrease. (ECF No. 43, p. 33).
Count X: Fraud on the court and civil conspiracy to obstruct justice in violation of
Plaintiff’s due process, and access to courts rights and to fair judicial proceedings against
Defendant Kilcrease. (ECF No. 43, p. 34).1
For relief, Plaintiff requests declaratory relief stating Defendants’ conduct violated
Plaintiff’s constitutional rights. Plaintiff also requests injunctive relief in the form of vacating
Plaintiff’s criminal sentence, expunging his felony conviction, enjoining further prosecution from
the facts described in the Amended Complaint, and requiring Defendants to disclose all evidence
relevant to this action. Plaintiff also request compensatory damages in the amount of $1,500,000
and punitive damages in an amount sufficient to punish Defendants and deter similar misconduct.
(ECF No. 43, pp. 36-37. Plaintiff also requests attorney’s fees and costs. Id.
B. Kilcrease and Walker’s Motion to Dismiss
Defendants Kilcrease and Walker reasserted their Motion to Dismiss on May 6, 2025.
(ECF No. 46).
1 Plaintiff did state that he alleged his Count VII against “all defendants.” However, Plaintiff
did not list Defendant Walker or Kilcrease in any of his factual allegations within Count VII
for conspiracy. 	(ECF No. 43, p. 30). 	Accordingly, the Court does not interpret Plaintiff’s
Amended Complaint to attempt to state a claim of conspiracy against Defendants Walker and
Kilcrease under Count VII.
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In their Motion, Defendants Kilcrease and Walker argue Plaintiff failed to state claims
upon which relief can be granted because: (1) the Court should dismiss the claims alleged against
Defendant Walker because they are based only on her supervisory role; (2) Plaintiff was not yet
entitled to counsel during the time period he alleges Defendant Walker denied him counsel; (3)
there is no independent right to a prison grievance procedure; (4) Plaintiff’s claims against
Defendant Walker are barred by Heck v. Humphrey; (5) Plaintiff’s allegations against Defendant
Kilcrease lack sufficient detail to create any cause of action; (6) all of Plaintiff’s allegations against
Defendant Kilcrease are barred by Heck v. Humphrey; and (7) Plaintiff failed to allege any Miller
County custom or policy led to his injuries. (ECF No. 47).
C. Plaintiff’s Response
In his Response, Plaintiff argues: (1) he sufficiently alleges Defendant Walker failed to
investigate or discipline her officers despite knowing of excessive force used against Plaintiff and
the refusal to provide him medical care, and this failure demonstrates deliberate indifference
actionable under Section 1983; (2) Defendant Kilcrease’s action of falsifying judicial records and
allowing false documents to be entered into his criminal court record are non-judicial functions
and fall outside of the quasi-judicial immunity provided to court clerks; (3) the Amended
Complaint clearly alleges Miller County has a widespread custom of permitting jail staff to use
excessive force against detainees, denying access to medical treatment, tampering with judicial
records, and failing to supervise, train, or discipline correctional staff; (4) Miller County has a de
facto policy of retaliation, fabrication of charges, and systemic denial of due process; (5) Plaintiff’s
claims against Defendants Walker and Kilcrease are not barred by Heck v. Humphrey; and (8)
Plaintiff has properly stated all required Section 1983 elements for each of his claims. (ECF No.
52).
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II. 	LEGAL STANDARD
Rule 8(a) contains the general pleading rules and requires a complaint to present “a short
and plain statement of the claim showing that the pleader is entitled to relief.” 	Fed. R. Civ. P.
8(a)(2). “In order to meet this standard and survive a motion to dismiss under Rule 12(b)(6), a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (internal
quotations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In determining whether an action fails to state a claim upon which relief can be granted,
the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the
complaint that are not entitled to the assumption of truth. Ashcroft, 566 U.S. 678. These include
“legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are]
supported by mere conclusory statements.” 	Id. 	Second, the Court must determine whether the
complaint states a plausible claim for relief. Id. at 679. A plaintiff is required to plead facts that
show more than the “mere possibility of misconduct.” Id.
Pro se complaints are given some special consideration. “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 discernible, 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.” Jackson, 747 F.3d at
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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. 	DISCUSSION
As an initial matter, the Court notes there are many Defendants that have not yet been
served in this matter and many claims and Defendants not currently before the Court on the instant
Motion to Dismiss. 	Plaintiff does not proceed in forma pauperis, and he was not incarcerated
when he filed this case. Therefore, the Court may not screen his Complaint pursuant to the Prison
Litigation Reform Act. 28 U.S.C. § 1915. The Court also will not sua sponte dismiss claims or
Defendants that have not yet been served. See Smith v. Boyd, 945 F.2d 1041, 1042-43 (8th Cir.
1991). 	Accordingly, the Court will only address those claims specifically challenged by the
moving Defendants in the instant Motions to Dismiss.
A. Defendant Kilcrease
Plaintiff alleges four claims against Defendant Kilcrease: Count V, Count VII, Count IX,
and Count X. 	In Plaintiff’s Count V he claims Defendant Kilcrease violated his Fourteenth
Amendment rights by denying him due process. Specifically, he claims:
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(ECF No. 43, p. 27).
In Count VII, Plaintiff alleges all named Defendants conspired to violate his civil rights
pursuant to Sections 1983 and 1985. Specifically, Plaintiff alleges:
All Defendants knowingly conspired to violate his civil rights, deprive him of
liberty, and obstruct justice by jointly participating in coordinated acts that led to
his unlawful arrest, detention, assault, false prosecution, and continued deprivation
of freedom.
(ECF No. 30, pp. 30-31). 	For Defendant Kilcrease’s specific involvement in the alleged
conspiracy, Plaintiff alleges she “ratified false documents and permitted irregular processes.”
(ECF No. 43, p. 31).
In Count IX, Plaintiff claims Defendant Kilcrease violated his Fifth and Fourteenth
Amendment rights again by denying him substantive and procedural due process. (ECF No. 43,
p. 33). Specifically, Plaintiff again alleges Defendant Kilcrease “participated in or facilitated the
preparation, submission, and use of false records to reflect a judicial appearance that never
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occurred.” 	(ECF No. 43, p. 33). 	Plaintiff claims this fabrication deprived him of the ability to
challenge his detention and understand the charges against him. 	He also claims the alleged
fabrication stripped him of his rights to counsel and to a fair and impartial tribunal. Id. Plaintiff
claims this was a coordinated effort to secure a coerced plea from Plaintiff. Id.
In Count X, Plaintiff again alleges Defendant Kilcrease, with other Defendants not at issue
here, jointly engaged in a scheme to defraud the court and obstruct justice by fabricating legal
records, and forging judicial documents in violation of his constitutional rights. (ECF No. 43, p.
34).2 Plaintiff also again alleges a conspiracy among the Defendants but this time pursuant to 42
U.S.C. § 1985(2) and (3). Plaintiff also asserts as “a direct result of this conspiracy he suffered
the imposition of a felony conviction, unlawful probation, and the loss of fundamental
constitutional rights including access to the courts, due process, and equal protection of the law.”
(ECF No. 43, p. 35).
As evident by Plaintiff’s Amended Complaint, his claims against Defendant Kilcrease are
all based upon the filling of the allegedly falsified initial appearance documents on the docket in
his criminal case. Therefore, the Court can address all claims, or counts, together.
1. 	Heck v. Humphrey
Defendant Kilcrease first argues all claims alleged against her are barred by Heck v.
Humphrey. (ECF No. 47, p. 4). The Court agrees. In Heck, the Supreme Court held:
[T]o recover damages for allegedly unconstitutional conviction or imprisonment,
or for other harm caused by actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such determination, or called into question
2 Plaintiff makes other claims in Count X that clearly apply only to those Defendants not at issue
here, so the Court need not address those claims in this Report and Recommendation.
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by a federal court’s issuance of a writ of habeas corpus . . . . A claim for damages
bearing that relationship to a conviction or sentence that has not been so invalidated
is not cognizable under § 1983.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Thus, pursuant to Heck, a Section 1983 claim
stemming from an allegedly unlawful detention, arrest, or prosecution does not arise until (or
unless) the detainee has successfully challenged that detention or prosecution through habeas or
some other proceeding. Portley-El v. Brill, 288 F.3d 1063, 1066 (8th Cir. 2002).
Plaintiff specifically alleges Defendant Kilcrease’s actions blocked his ability to contest
his unlawful detention and subjected him to continued incarceration. (ECF No. 43, p. 27). Plaintiff
also seeks relief from his conviction and sentence of probation in multiple different ways
throughout his Amended Complaint. 	(ECF No. 43). 	Clearly, success on his claims against
Defendant Kilcrease, and the relief requested, would imply the invalidity of his criminal conviction
and probation sentence. Accordingly, it is barred by Heck.
Next, Plaintiff argues his requests for prospective injunctive and declaratory relief (e.g., to
stay his probation and halt enforcement of unconstitutional conditions through his sentence) are
not barred by Heck pursuant to the holding in Wilkinson v. Dotson, 544 U.S. 74 (2005). While this
is an interesting argument, the Court is unconvinced. 	First, even though Plaintiff attempts to
classify his injunctive or declaratory relief sought as prospective, he is not seeking to prevent a
future harm. 	Instead, he seeks his conviction and sentence of probation declared invalid and
revoked. Plaintiff wants to be release from his probation sentence. Wilkinson does not support
such a claim or relief. 	See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (holding “a state
prisoner’s § 1983 action is barred (absent prior invalidation)—no matter the relief sought (damages
or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction
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or internal prison proceedings)—if success in that action would necessarily demonstrate the
invalidity of confinement or its duration.”).
Here, Plaintiff seeks declaratory relief that will necessarily imply the invalidation of his
guilty plea, e.g., a stay or revocation of his sentence of probation. In Wilkinson the declaratory
relief sought related to the procedures of the Ohio Parole board and how that board determined
eligibility for parole. Wilkinson, 544 U.S. at 83-84. The Wilkinson Court specifically recognized
Heck and its holding that any Section 1983 claim that would necessarily imply the invalidity of
the plaintiff’s criminal conviction is barred and found that Wilkinson’s challenge to parole
procedures did not fit into Heck because the plaintiff was not challenging his sentence but the
parole board procedures. 	Id. 	Plaintiff’s claims here, however, fit squarely into Heck as he is
challenging his sentence and seeks relief from it through a declaration that his conviction and
sentence were invalid. Accordingly, his claims against Defendant Kilcrease are not analogous to
Wilkerson.
Furthermore, Sheldon v. Hundley, also states the Court should disregard the form of relief
sought and instead look to the essence of Plaintiff’s claims. 83 F.3d 231, 233 (8th Cir. 1996). The
entire crux of Plaintiff’s claims against Defendant Kilcrease is an effort to invalidate his plea
agreement, conviction, and sentence. See Sheldon, 83 F.3d at 233 (the court should disregard the
form of relief sought and instead look to the essence of the Plaintiff’s claims).
Finally, Plaintiff argues Heck should not bar his claims because habeas relief is not
available to him. In support of this argument Plaintiff relies on Spencer v. Kemna, 523 U.S. 1, 21
(1998). 	However, in Spencer, the Supreme Court explained that Heck had no impact on the
timeliness determination of the petitioner’s habeas petition. The Spencer Court explained:
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[Petitioner] contends that since our decision in [Heck] would foreclose him from pursuing
a damages action under [Section 1983], unless he can establish the invalidity of his parole
revocation, his action to establish that invalidity cannot be moot. 	This is a great non
sequitur, unless one believes (as we do not) that a [Section 1983] action for damages must
always and everywhere be available. It is not certain, in any event, that a [Section 1983]
damages claim would be foreclosed. If, for example, petitioner were to seek damages for
using the wrong procedures, not for reaching the wrong result, and if that procedural defect
did not necessarily imply the invalidity of the revocation, then Heck would have no
application [at] all.
Spencer, 523 U.S. at 17 (internal citations and quotations omitted). 	Interestingly, the Spencer
Court highlights the precise issue damming Plaintiff’s claims against Defendant Kilcrease. If he
were solely challenging the procedure of her incorrect filings, instead of the impact those
procedural errors had on his criminal case, then Heck would have no applicability. However, as
previously explained, the entire crux of all of Plaintiff’s claims against Defendant Kilcrease are
that she caused his unlawful plea agreement and invalid criminal conviction and sentence through
her actions.3
Accordingly, all of Plaintiff’s claims, Counts V, VII, IX, and X against Defendant
Kilcrease are barred by Heck and should be dismissed.
2. 	Immunities of Court Clerks
Next, Defendant Kilcrease argues the factual allegations alleged against her, even if not
barred by Heck, fail to state a claim upon which relief can be granted. 	(ECF No. 47, p. 4).
Specifically, Defendant Kilcrease argues she cannot determine what specific claim Plaintiff is
alleging against her. 	Id. 	As enumerated above, Plaintiff clearly alleges Defendant Kilcrease
violated his due process rights by accepting fraudulent documents for filing in his criminal case
3 The Court makes no determination of whether habeas relief is currently unavailable to Plaintiff.
However, the Court does note habeas relief is generally available for probationer and parolees.
See Maleng v. Cook, 490 U.S. 488, 491 (1989) (holding “in custody” need not require physical
confinement inside a prison or jail but can encompass parole.).
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and by conspiring to falsify his criminal docket by accepting for filing those fraudulent documents
in his criminal case.
While Defendant Kilcrease does not raise immunities, Plaintiff does. 	Plaintiff argues in
his Response that Defendant Kilcrease participated in the falsification of the judicial record by
knowingly allowing falsified documents to be filed into the court record. (ECF No. 52, p. 3). He
further argues this action falls outside Defendant Kilcrease quasi-immunity as the court’s clerk.
Id. Specifically, Plaintiff argues Defendant Kilcrease altered or forged court records to legitimize
Plaintiff’s unlawful detention and these acts were not performed at the direction of a judge. Thus,
Defendant Kilcrease’s actions fall outside the scope of her quasi-judicial immunity. 	Id. at 4.
Plaintiff relies on Antoine v. Byers & Anderson, Incl. 508 U.S. 429, 436 (1993) to support this
argument.
First, the Court finds Antoine distinguishable from the facts asserted here as the defendant
in Antoine was a court reporter and not a court clerk, and the challenged actions in Antoine were
not filing of court documents on the court docket. 508 U.S. at 436 (holding a court reporter was
not absolutely immune from damages for failing to produce a transcript of federal trial because
judicial immunity does not extend to court reporters). To the contrary, it is well established that
court clerks are immune from suit under the type of facts alleged by Plaintiff. Even though Plaintiff
alleges multiple counts against Defendant Kilcrease, the crux of Plaintiff’s claims and the factual
allegations alleged all related Defendant Kilcrease’s participation in the filing of the allegedly
fabricated initial appearance document on Plaintiff’s criminal case docket.
“Court clerks have absolute quasi-judicial immunity from damages for civil rights
violations when they perform tasks that are an integral part of the judicial process unless the clerks
acted in the clear absence of all jurisdiction.” Boyer v. County of Washington, 971 F.2d 100, 102
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(8th Cir. 1992) (internal quotations marks and citation omitted). The filing of court documents is
clearly an integral part of the judicial process. See Smith v. Erickson, 884 F.2d 1108, 1111 (8th
Cir. 1989) (explaining that federal court clerk, who allegedly impeded inmate’s access to the courts
by intentionally delaying the filing of his original complaint and by lying to him about its
whereabouts, was entitled to judicial immunity because “the filing of complaints and other
documents is an integral part of the judicial process”); see also Davis v. McAteer, 431 F.2d 81, 82
(8th Cir. 1970) (holding state court clerk who allegedly lost the court’s file in a was entitled to
absolute immunity).
Accordingly, the Court finds, even if Plaintiff’s claims against Defendant Kilcrease were
not barred by Heck, Defendant Kilcrease is entitled to quasi-judicial immunity here for filing the
allegedly falsified initial appearance documents, and Counts V, VIII, IX, and X, as asserted against
Defendant Kilcrease, should be dismissed based on her immunity.
B. Defendant Walker
While Plaintiff failed to allege any “counts” against Defendant Walker, the Court, in
liberally construing his Amended Complaint, interprets Plaintiff to allege the following claims
against Defendant Walker: (1) denial of counsel; (2) obstruction of administrative grievances; (3)
supervising staff that violated Plaintiff’s constitutional rights; and (4) willfully suppressing key
exculpatory documents including the disciplinary history of Defendant Studdard in violation of
Brady v. Maryland, thus, depriving Plaintiff of a fair trial. (ECF No. 43, pp. 5, 6).
Defendant Walker argues in his Motion to Dismiss that: (1) Plaintiff had no right to counsel
during the time period he claims he was denied counsel; (2) Plaintiff has no independent right to a
grievance procedure; (3) Defendant Walker cannot be liable under Section 1983 for merely
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supervising the persons alleged to have violated Plaintiff’s constitutional rights; and (4) all claims
against Defendant Walker are barred by Heck v. Humphrey.
1. 	Denial of Counsel
Plaintiff does not allege in his Amended Complaint how or when Defendant Walker denied
him counsel. However, Plaintiff does allege without referencing Defendant Walker:
Plaintiff was never afforded the right to speak with legal counsel prior to being
charged, fingerprinted, or appearing before a judicial officer. 	He was placed in
solitary confinement, denied telephone access, and prevented from contacting a
lawyer or family during the critical early phase of his arrest and detention.
(ECF No. 43, p. 8).
The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy
the right . . . to have the assistance of counsel for his [defense].” Cronin v. Peterson, 288 F.Supp.3d
970, 994-95 (D. Neb. 2018). The right of the accused to assistance of counsel “is limited by its
terms: it does not attach until a prosecution is commenced.” Rothgery v. Gillespie Cty., Tex., 554
U.S. 191, 198 (2008) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)). “[A] criminal
defendant’s initial appearance before a judicial officer, where he learns of the charge against him
and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger
attachment of the Sixth Amendment right to counsel.” Rothgery, 554 U.S. at 213.
Plaintiff makes no argument in his Response regarding the timing of his denial of counsel
claim against Defendant Walker. Accordingly, the Court agrees with Defendant, that as alleged,
Plaintiff’s claim of denial of counsel against Defendant Walker, prior to being charged or
appearing before a judicial officer, fails to state a claim upon which relief may be granted.
Rothgery, 554 U.S. at 213.
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2. 	Grievance Procedures
Plaintiff does not provide any explanations of how Defendant Walker obstructed his
administrative grievances in his Amended Complaint. (ECF No. 43). Furthermore, Plaintiff does
not elaborate on this claim in his Response or argue against Defendant Walker’s arguments to
dismiss this claim. (ECF No. 52).
“Inmates do not have a constitutionally protected right to a grievance procedure. Because
a . . . grievance procedure does not confer any substantive right upon prison inmates, a prison
official’s failure to comply with the . . . grievance procedure is not actionable under § 1983.”
Ashann–Ra v. Commonwealth of Virginia, 112 F.Supp.2d 559, 569 (W.D. Va. 2000) (citations
omitted); see also Lombolt v. Holder, 287 F.3d 683, 684 (8th Cir. 2002) (denial of grievances does
not state a substantive constitutional claim); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)
(“no constitutional right was violated by the defendants’ failure, if any, to process all of the
grievances [Plaintiff] submitted for consideration”); Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994)
(inmates have no constitutional right to grievance procedure); Blagman v. White, 112 F.Supp.2d
534 (E.D. Va. 2000) (inmate has no constitutional entitlement to grievance procedure), aff’d, 3
Fed. App’x 23 (4th Cir. 2001).
“Rather, prison inmates have a constitutional right to petition the government for redress
through a right of access to the courts.” Blagman, 112 F.Supp.2d at 542 (citing Flick v. Alba, 932
F.2d 728, 729 (8th Cir. 1991)). A jail’s “refusal to entertain such grievances does not compromise
the inmate’s constitutional rights, as access to the courts would still be available.” 	Id. (citation
omitted). “[A]ny alleged due process violation arising from the alleged failure to investigate . . .
grievances is indisputably meritless.” Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005).
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Accordingly, as alleged, Plaintiff has failed to state a claim upon which relief may be
granted regarding his administrative grievances against Defendant Walker.
3. 	Supervisory Liability
Next, Plaintiff claims Defendant Walker is liable because she supervises the MCDC. (ECF
No. 43). Defendant Walker argues there is no supervisor liability under Section 1983. (ECF No.
46).
A claim of deprivation of a constitutional right cannot be based on a respondeat superior
theory of liability. See Monell v. Department of Social Services, 436 U.S. 654, 694 (1978). “[A]
supervisor is not vicariously liable under 42 U.S.C. § 1983 for an employee’s unconstitutional
activity.” White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994); see also Keeper v. King, 130 F.3d
1309, 1314 (8th Cir. 1997) (“general responsibility for supervising the operations of a prison is
insufficient to establish the personal involvement required to support liability”). “Liability under
section 1983 requires a causal link to, and direct responsibility for, the deprivation of rights. To
establish personal liability of the supervisory defendants, [Plaintiff] must allege specific facts of
personal involvement in, or direct responsibility for, a deprivation of his constitutional rights.”
Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007) (quoting Mayorga v. Missouri, 442
F.3d 1128, 1132 (8th Cir. 2006)); see also Kulow v. Nix, 28 F.3d 855, 859 (8th Cir. 1994) (“if any
claim of medical indifference . . . is to succeed, it must be brought against the individual directly
responsible for [Plaintiff’s] medical care.”).
Plaintiff has failed to allege in his Amended Complaint any specific facts of Defendant
Walker’s personal involvement in or direct responsibility for his claimed constitutional violations
as the supervisor of the MCDC. To the contrary, Plaintiff alleges Defendant Keith Moore was the
correctional supervisor on duty the day Plaintiff was assaulted, and Plaintiff alleges it was
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Defendant Moore that failed to supervise the MCDC employees that day related to the alleged
excessive force incident. (ECF No. 43, p. 19). Furthermore, Plaintiff makes no allegations relating
to Defendant Walker’s supervision related to his denial of medical care. Instead, he claims that
Defendants Lowrey, Moore, and “unnamed jail administrators”4 had notice of Plaintiff’s injuries
and were responsible for ensuring he was evaluated but failed to do so. 	(ECF No. 43, p. 23).
Finally, the Court recognizes Plaintiff’s arguments in his Response, however, these arguments are
merely legal conclusions and threadbare recitals of the elements of supervisory liability. 	Such
arguments and recitals in connection with the failure to make any specific factual allegations
against Defendant Walker in his Amended Complaint related to her supervisory duties fail to
satisfy Rule 8 or survive Rule 12(b)(6). Ashcroft, 566 U.S. 678.
In his Response, Plaintiff argues Defendant Walker can be liable under Section 1983 as the
supervisory authority at the MCDC for Plaintiff’s claims of excessive force, denial of medical
treatment, fabrication of charges, and falsification of court records. 	(ECF No. 52). 	He argues:
“The Amended Complaint states that Walker ratified misconduct by her subordinates and failed to
intervene or take corrective action despite having actual and constructive knowledge of systemic
violations.” Id. at 3. Plaintiff failed to cite the Court to where in the Amended Complaint he made
these allegations, and the Court is unable to locate any such claims in the Amended Complaint
alleged against Defendant Walker. (ECF No. 43).
Plaintiff goes on to argue supervisors can be liable under Section 1983 when they directly
participate in unconstitutional conduct, fail to supervise or train subordinates, or tacitly authorize
known misconduct. The Court agrees supervisors can be held liable under those situations as the
4 While Defendant Walker is identified by Plaintiff as the jail administrator for the MCDC, she is
not “unnamed” in his Amended Complaint. 	Accordingly, this “unnamed jail administrator” is
considered a John Doe by the Court.
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law cited above explains, however Plaintiff’s allegations in his Amended Complaint fail to state
any facts indicating Defendant Walker’s actions fit into one of these three categories. (ECF No.
43).
Plaintiff also argues in his Response that Defendant Walker failed to investigate or
discipline officers despite knowing of excessive force used against Plaintiff and refused to provide
Plaintiff with medical care. (ECF No. 52, p. 3). Again, Plaintiff did not allege any facts against
Defendant Walker related to Plaintiff’s claims of excessive force or denial of medical care in his
Amended Complaint. (ECF No. 43).
Finally, the Court notes Plaintiff includes a section in his Amended Complaint titled
Supervisory and Municipal Liability Under Section 1983, however, Plaintiff only asserts
allegations against Defendants Keith Moore and Sheriff Easley in this section. (ECF No. 43, p.
13, 31). Neither of these Defendants are before the Court for purposes of the instant Motion to
Dismiss.
Accordingly, Plaintiff’s claims of supervisor liability against Defendant Walker should be
dismissed for failure to state a claim upon which relief may be granted.
4. 	Heck v. Humphrey
Defendant Walker argues all claims alleged against her are barred by Heck v. Humphrey,
512 U.S. 477 (1994). However, as the Court has previously explained herein, Plaintiff has failed
to state claims for denial of counsel, denial of grievances, and supervisory liability. Therefore, the
only claim the Court need consider under Heck is Plaintiff’s claim that Defendant Walker willfully
suppressed key exculpatory documents including the disciplinary history of Defendant Studdard
in violation of Brady v. Maryland, 373 U.S. 83 (1963), thus depriving Plaintiff of a fair trial.
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Just as explained above with regards to Defendant Kilcrease, Heck v. Humphrey generally
precludes recovery of damages for an unconstitutional conviction or imprisonment when the
underlying criminal conviction has not been first overturned, expunged, or otherwise invalidated.
Such claims are barred unless “the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of habeas corpus.”
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). 	However, the Heck court noted that if a
successful claim would not demonstrate the invalidity of an outstanding criminal judgment, it
should be allowed to proceed. Id.
Plaintiff argues in his Response that his claims against Defendant Walker do not
necessarily imply the invalidation of his guilty plea and probation sentence. The Court disagrees.
It is well established that, “when successful postconviction necessarily yields evidence
undermining a conviction: Brady evidence is, by definition, always favorable to the defendant and
material to his guilt or punishment.” Skinner v. Switzer, 562 U.S. 521, 536 (2011). Such claims
fall under habeas corpus and outside the province of Section 1983. 	Id. at 536-37. 	In Heck v.
Humphrey, the Court explained that a claim alleging prosecutors, and an investigator had
knowingly destroyed exculpatory evidence that could have proven the defendant’s innocence,
could not be maintained under Section 1983. Heck, 512 U.S at 479. Here, Plaintiff is specifically
claiming Defendant Walker willfully suppressed key exculpatory documents in the form of
Defendant Studdard’s disciplinary records. This is exactly the type of claim at issue in Heck and
Skinner and held by the Supreme Court to be barred unless the conviction or sentence has been
“reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s issuance of a
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writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 487 (1994). Plaintiff has failed to allege
any facts indicating his guilty plea and probation sentence have been reversed, expunged,
invalidated, or called into question. 	Accordingly, Plaintiff’s Brady claim against Defendant
Walker fails as a matter of law as barred by Heck.
C. Miller County
Defendants argue for dismissal of Plaintiff’s official capacity claims against Miller County
as alleged against Defendants Kilcrease and Walker. Plaintiff argues he sufficiently stated official
capacity claims. 	The Court struggles to enumerate Plaintiff’s official capacity claims against
Defendants Kilcrease and Waker here. It is unclear in Plaintiff’s Amended Complaint whether he
intended to assert official capacity claims against Defendants Walker and Kilcrease. First, Plaintiff
lists in the heading of his Amended Complaint that both Defendants Walker and Kilcrease are
named “individually and in his official capacity” and “individually and in her official capacity.”
(ECF No. 43, p. 1). However, in his section titled “III. PARTIES” where he lists a paragraph for
each Defendant stating why he is suing them; Plaintiff lists he is suing both Defendant Walker and
Defendant Kilcrease in their “individual capacity.” Id. at 5. Finally, Plaintiff has a section in his
Amended Complaint titled “Supervisory and Municipal Liability Under § 1983.” (ECF No. 43,
pp. 12-13). 	Plaintiff does in fact reference the elements of municipal liability and supervisor
liability in this section but the only Defendants he references or makes allegations against in this
section are two unserved Defendants–Officer Moore and Sheriff Easley. Id. However, providing
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Plaintiff a liberal construction of his Amended Complaint, the Court will proceed as if he did
intend to assert official capacity claims against Defendants Walker and Kilcrease.5
First, the Court notes Plaintiff cannot proceed with official capacity claims against
Defendant Walker or Kilcrease because he has failed to state cognizable individual capacity claims
against either. 	All official capacity claims asserted by Plaintiff must fail as a matter of law.
Without a cognizable constitutional violation alleged, there can be no official capacity claim
against the employers. See Morris v. Cradduck, 954 F.3d 1055, 1060 (8th Cir. 2020); Sanders v.
City of Minneapolis, Minn., 474 F.3d 523, 527 (8th Cir. 2007) (citing City of Los Angeles v. Heller,
475 U.S. 796, 799 (1986)).
Even if Plaintiff had stated claims upon which relief could be granted against Defendants
Walker and Kilcrease, the Court finds Plaintiff has failed to allege any cognizable official capacity
claims against either through a policy, procedure, or custom of Miller County. Plaintiff failed to
assert any facts in his Amended Complaint alleging some Miller County policy or unofficial
custom was the “moving force” behind the alleged violations by Defendants Walker or Kilcrease.
See Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (explaining that “a ‘policy’ is an
official policy, a deliberate choice of a guiding principle or procedure” made by an official with
authority; “custom” is a persistent, widespread pattern of unconstitutional conduct of which
officials have notice and react with deliberate indifference or tacit authorization). Further, Plaintiff
also fails to allege any facts giving rise to a plausible assertion that the purported constitutional
violations resulted from the county’s failure to train or supervise its employees. 	See Parrish v.
Ball, 594 F.3d 993, 997-98 (8th Cir. 2010) (To establish a claim for failure to train, the plaintiff
5 The Court notes it is not considering all official capacity claims asserted against Miller County
as there are Miller County Defendants who have not yet been served and those official capacity
claims are not before the Court on this Motion to Dismiss.
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must show that “the need for more or different training is so obvious and the inadequacy so likely
to result in the violation of constitutional rights, that the policy makers of the county can reasonably
be said to have been deliberately indifferent to the need.”).
Thus, Plaintiff’s official capacity claims against Defendants Walker and Kilcrease should
be dismissed for failure to state a claim upon which relief can be granted.
IV. 	CONCLUSION
For the foregoing reasons, I recommend Defendants’ Motion to Dismiss (ECF No.46) be
GRANTED and all claims against Defendants Penny Kilcrease and Jeffie Walker, in both their
individual and official capacities, be dismissed without prejudice, and Defendants Penny Kilcrease
and Jeffie Walker be dismissed from this action.
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.
REFERRAL STATUS: This case shall remain referred.
DATED this 10th day of November 2025.
/s/ Spencer G. Singleton
HON. SPENCER G. SINGLETON
UNITED STATES MAGISTRATE JUDGE
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