Murphy v. Faust et al
OPINION AND ORDER directing the Clerk of Court to change Defendant Wayley's name to "Kelly D. Whaley." Murphy may proceed with her failure to protect, corrective inaction, and failure to train claims against Faust, Weekley, Whaley, and Dixon. All other claims and defendants are dismissed without prejudice. The Clerk is directed to prepare a summons for Faust, Weekley, Whaley, and Dixon. The U.S. Marshal is directed to serve the summons, complaint, amended complaint, and this Opinion and Order on them through the ADC Compliance Office without prepayment of fees and costs or security therefor. Signed by Judge J. Leon Holmes on 9/4/2014. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LISA R. MURPHY,
NO. 1:14CV00062 JLH-JTR
N. FAUST, Warden,
McPherson Unit, ADC, et al.
OPINION AND ORDER
Lisa R. Murphy is a prisoner in the McPherson Unit of the Arkansas Department of
Correction. She has filed a pro se § 1983 complaint alleging that defendants violated her
The Prison Litigation Reform Act requires federal courts to screen complaints filed by
prisoners. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or a portion thereof if the
prisoner has raised claims that are legally frivolous or malicious, fail to state a claim upon which
relief may be granted, or seek monetary relief from a defendant who is immune from such relief.
A complaint must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While Rule 8(a)(2) does not require a complaint to
contain detailed factual allegations, it does require a plaintiff to state the grounds of his entitlement
to relief, which requires more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007). The Court must accept as true all factual
allegations in the complaint and review the complaint to determine whether its allegations show that
the pleader is entitled to relief. Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir.
2008). All reasonable inferences from the complaint must be drawn in favor of the nonmoving party.
Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004). The Court need
not, however, accept as true legal conclusions, even those stated as though they are factual
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868
(2009). A pro se complaint must be liberally construed, however inartfully pleaded, and held to less
stringent standards than pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.
Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007).
Failure to Protect Claims
Murphy alleges that, on May 1, 2014, Warden Faust and Major Dixon subjected her to an
unconstitutional risk of harm when they transferred her from administrative segregation to
barracks 2, where she is housed with inmates who want to harm her. Documents #2 and #4. On
May 8, 2014, correctional officer Kelly D. Whaley1 allegedly escalated the risk of harm by falsely
telling the prisoners in barracks 2 that Murphy was a “snitch.” The Court concludes, for screening
purposes only, that Murphy has pled plausible failure to protect claims against Faust, Dixon, and
Corrective Inaction and Failure to Train Claims
Sergeant G. Cox allegedly knew that Whaley labeled Murphy a snitch, but refused to take
any corrective action. According to Murphy, Whaley’s actions were the result of improper training
by Warden Weekly. The Court concludes, for screening purposes only, that Murphy has pled
plausible corrective inaction and failure to train claims against Cox and Weekly.
Murphy contends that Whaley, Dixon, and correctional officer Blair “screamed” and “yelled”
at her during the May 8, 2014 incident. It, however, is well settled that verbal abuse and mere
The complaint and docket sheet name this defendant as “K. Wayley.” However, the
disciplinary forms attached to the amended complaint demonstrate that her full and correct name is
“Kelly D. Whaley.” Document #4 at 5. The Court will direct the Clerk to fix that error.
threatening language by prison official does not rise to the level of a constitutional violation.
McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993); Hopson v. Fredericksen, 961 F.2d 1374,
1378 (8th Cir. 1992). Thus, Murphy has failed to plead an actionable § 1983 claim in regard to the
verbal abuse she allegedly endured.
Claims Against Blair
Murphy’s only other allegation against Blair is that she was present when Whaley told
inmates in barracks 2 that Murphy was a snitch. To state a plausible constitutional violation, a
prisoner must plead “sufficient factual matter” suggesting that “each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
Murphy has not pled any such facts against Blair. Thus, Blair is dismissed from this lawsuit because
Murphy has failed to plead a plausible § 1983 claim against her.
Retaliatory Discipline Claims
Murphy claims that, on May 8, 2014, Whaley and Faust issued retaliated disciplinary charges
accusing her of using abusive and obscene language. Document #4 at 4-5. Whaley and Faust
allegedly did so to punish Murphy for writing grievances against them.
A disciplinary conviction cannot be deemed retaliatory if it was issued for an actual violation
of prison rules. Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir. 2008); Moots v. Lombardi, 453
F.3d 1020, 1023 (8th Cir. 2006). Thus, a retaliation claim fails, as a matter of law, if there was
“some evidence” to support the disciplinary conviction. Henderson v. Baird, 29 F.3d 464, 469 (8th
Cir. 1994); Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993). The Eighth Circuit has clarified that “a
report from a correctional officer, even if disputed by the inmate and supported by no other
evidence, legally suffices as some evidence upon which to base a prison disciplinary violation, if
the violation is found by an impartial decision maker.” Hartsfield, 511 F.3d at 831; see also
Henderson, 29 F.3d at 469. Importantly, this rule applies even if the report is written by the officer
who is alleged to have engaged in the retaliatory conduct. Id.
In the amended complaint, Murphy admits that a hearing officer found her guilty of using
obscene and abusive language during the May 8, 2014 incident. Document #4. Thus, her retaliatory
discipline claims against Cox and Whaley fail as a matter of law.
IT IS THEREFORE ORDERED THAT:
The Clerk is directed to change defendant Wayley’s name to “Kelly D. Whaley.”
Murphy may proceed with her failure to protect, corrective inaction, and failure to
train claims against Faust, Weekley, Whaley, and Dixon.
All other claims and defendants are dismissed without prejudice.
The Clerk is directed to prepare a summons for Faust, Weekley, Whaley, and Dixon.
The U.S. Marshal is directed to serve the summons, complaint, amended complaint, and this Opinion
and Order on them through the ADC Compliance Office without prepayment of fees and costs or
security therefor. If any of the defendants are no longer ADC employees, the ADC Compliance
Office must file a sealed statement containing the unserved defendant’s last known private mailing
IT IS SO ORDERED this 4th day of September, 2014.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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