Nolen v. Cash et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
THOMAS TERRAIL NOLEN 	PLAINTIFF
v. 	Case No. 6:21-cv-6151
SHERIFF MIKE CASH, CHIEF OF POLICE
DONNY TABER, JUDGE CHRIS E. WILLIAMS,
PUBLIC DEFENDER GREGORY CRAIN,
PAROLE OFFICER DANNY MARSH, CHIEF
DEPUTY RICHARD TOLLESON, OFFICER
DICKSON, CAPTAIN JOSH LINGO,
PUBLIC DEFENDANER PHILLIP WILSON
and PAROLE OFFICER EVAN THOMAS 	DEFENDANTS
ORDER
Before the Court is the Report and Recommendation filed by the Honorable Barry A.
Bryant, United States Magistrate Judge for the Western District of Arkansas. ECF No. 24. This
case is before the Court for preservice screening under the provisions of 28 U.S.C. § 1915A.
Judge Bryant recommends that certain claims of Plaintiff remain for further review and that
certain claims be dismissed. 	Plaintiff has responded with objections. 	ECF No. 25. 	The Court
finds the matter ripe for consideration.
I. BACKGROUND
Plaintiff, representing himself in this matter, initiated this civil rights action pursuant to
42 U.S.C. § 1983. 	Plaintiff complains about events that allegedly occurred between December
2019 and July 2020 related to his incarceration at the Hot Spring County Detention Center and
certain court proceedings. Plaintiff asserts three claims in his fourth amended complaint. 	First,
Plaintiff alleges that while he was incarcerated at the Hot Spring County Detention Center from
February 2020 through July 2020, he was subjected to excessive force and denial of medical
care. 	Second, Plaintiff alleges that his constitutional rights were violated when he was
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abandoned at a Veterans’ Hospital in Little Rock by Defendants Marsh and Thomas, who were
parole officers. 	Third, Plaintiff alleges that Defendant Judge Chris Williams and Captain Josh
Lingo violated his due process rights in December 2019 by not holding a first appearance
hearing until fifty (50) days after his arrest. 	Plaintiff is suing Defendants in their official and
individual capacities and is seeking compensatory and punitive damages.
II. STANDARD OF REVIEW
The Court may designate a magistrate judge to hear pre- and post-trial matters and to
submit to the Court proposed findings of fact and recommendations for disposition. 28 U.S.C. §
636(b)(1). 	Within fourteen days of receipt of a magistrate judge’s report and recommendation,
“a 	party 	may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations.” Fed. R. Civ. P. 72(b)(2); accord Local Rule 72.2(VII)(C). After conducting
an appropriate review of the report and recommendation, the Court may then “accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge . . .
or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1).
“[T]he specific standard of review depends, in the first instance, upon whether or not a
party has objected to portions of the report and recommendation.” 	Anderson v. Evangelical
Lutheran Good Samaritan Soc’y, 308 F. Supp. 3d 1011, 1015 (N.D. Iowa 2018). 	Generally,
“objections must be timely and specific” to trigger de novo review. Thompson v. Nix, 897 F.2d
356, 358-59 (8th Cir. 1990). 	However, the Court may, in its discretion, conduct a de novo
review of any issue in a report and recommendation. Thomas v. Arn, 474 U.S. 140, 154 (1985).
The Court must apply a liberal construction when determining whether pro se objections are
specific. Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995).
III. DISCUSSION
Judge Bryant recommends that Plaintiff’s Claim One against Defendants Sheriff Cash,
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Tolleson, and Dickson proceed for further litigation. 	Judge Bryant recommends that Plaintiff’s
Claim One against Defendant Taber be dismissed. 	Judge Bryant further recommends that
Claims Two and Three be dismissed.
A. Claim One
Plaintiff vaguely contends that from February 2020 through July 2020, while he was
incarcerated in the Hot Spring County Detention Center, he was subjected to excessive force
resulting in multiple injuries and that he was denied medical care. Plaintiff alleges that he spoke
with Defendants Tolleson and Sheriff Cash about these alleged violations and filed a notarized
complaint with Defendant Dickson. 	Judge Bryant found that, at this stage in the litigation,
Plaintiff has stated a plausible claim against these Defendants. No party disputes this finding.
Judge Bryant further found that, in his fourth amended complaint, Plaintiff did not allege
any causal facts linking Defendant Taber to Claim One. 	In his objections, Plaintiff states that
Defendant Taber “never investigated or advised me of his results of his investigation” and is
“personally responsible for [Plaintiff’s] injuries.” 	ECF No. 25, p. 2. 	This objection, however,
again fails to allege any causal facts linking Defendant Taber to Plaintiff’s excessive force and
denial of medical care claims. Therefore, Plaintiff’s objection is overruled, and the Court adopts
Judge Bryant’s finding that Claim One should proceed against Defendants Cash, Tolleson, and
Dickson and should be dismissed as to Defendant Taber.
B. Claim Two
Plaintiff alleges that in April 2020, he was given a “parole release” from the Hot Spring
County Detention Center so that he could seek surgery. 	He further alleges that Defendants
Marsh and Thomas, who are parole officers, drove him against his will to the Veterans’ Hospital
in Little Rock and abandoned him at the entrance of the hospital, even though he had no
appointment for surgery, no money, and no phone. 	Plaintiff alleges that the following
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Defendants are involved in this claim: 	(1) Judge Chris Williams, an Arkansas Circuit Court
judge; (2) Officers Marsh and Thomas, parole officers; (3) Defendants Wilson and Cain, public
defenders; and (4) Captain Josh Lingo.
Judge Bryant found that Judge Chris Williams and Parole Officers Marsh and Thomas
were immune from suit. Judge Bryant further found that Defendants Wilson and Cain, who are
both public defenders, are not subject to suit under 42 U.S.C. § 1983 because they were not
acting under color of state law while representing Plaintiff in his criminal proceedings. 	Judge
Bryant also found that Plaintiff did not allege any causal facts linking Defendant Lingo to Claim
Two.
In is objections, Plaintiff does not specifically object to Judge Bryant’s findings regarding
the immunity of Judge Williams and Defendants Marsh and Thomas. 	Plaintiff does state that
“Judge Williams acted outside of his authority by ordering . . . Marsh and Thomas to drive [him]
against [his] will to the . . . hospital [where they] abandon[ed]” him. 	ECF No. 25, p. 2.
However, the Court agrees with Judge Bryant that the alleged actions of Judge Williams were
taken in his judicial capacity and thus he is immune from suit. 	Further, in his objections,
Plaintiff does not address the findings that Defendants Wilson and Cain are not subject to suit
under § 1983 and that Plaintiff did not allege any causal facts linking Defendant Lingo to Claim
Two. 	The 	Court, 	therefore, 	overrules 	Plaintiff’s 	objections 	and 	adopts 	Judge 	Bryant’s
recommendation that Claim Two should be dismissed.
C. Claim Three
Plaintiff alleges that he was arrested in February 2020 and only then was he given a first
appearance hearing related to charges stemming from a separate arrest on December 26, 2019.1
1Plaintiff alleges that after his arrest on December 26, 2019, he was taken by ambulance to Baptist Hospital in Little Rock
and abandoned at the hospital.
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He alleges that the delay and failure to give him a first appearance hearing for the December
charges violated his constitutional rights. Plaintiff names Judge Williams and Defendant Lingo
as Defendants involved in Claim Three.
Again, Judge Bryant found that Judge Williams was immune from suit. 	Judge Bryant
also found that Plaintiff failed to allege how Defendant Lingo caused any violation of his
constitutional rights. 	In his objections related to Claim Three, Plaintiff does not address these
specific findings. 	Thus, the Court overrules Plaintiff’s objections related to Claim Three and
adopts Judge Bryant’s findings as to this claim. The Court agrees with Judge Bryant that Claim
Three should be dismissed.
IV. CONCLUSION
Upon de novo review of the Report and Recommendation, and for the reasons discussed
above, the Court finds that Plaintiff has offered neither fact nor law which would cause the Court
to deviate from Judge Bryant’s Report and Recommendation. 	Therefore, the Court overrules
Plaintiff’s objections (ECF No. 25) and adopts the Report and Recommendation in toto. 	ECF
No. 24. 	Claim One for excessive force and denial of medical care against Defendants Cash,
Tolleson, and Dickson in their individual and official capacities remain for further review.
Claims Two and Three are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED, this 19th day of February, 2025.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge
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