Troka v. McCown et al

Filing 42

ORDER adopting in part and declining to adopt in part 28 recommendations; granting 12 motion to dismiss Mr. Troka's privacy claim related to his "institutional records" and denying the motion to dismiss Mr. Troka's defamation, due process, equal protection, breach of contract, disability-based discrimination, and deliberate indifference claims as set forth in this Order; denying 23 motion for default judgment; denying Mr. Troka's request to strike Mr. McCown's motion to dismiss; denying 23 motion for recusal and motion for service; adopting 30 recommendation in their entirety as this Court's findings in all respects; denying 29 motion for sanctions, motion for temporary restraining order, and motion for preliminary injunction; and certifying that an in forma pauperis appeal would not be taken in good faith. Signed by Chief Judge Kristine G. Baker on 3/10/2025. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ETHAN TROKA
ADC #178058
v.

PLAINTIFF
Case No. 3:24-cv-00082-KGB-JTK

PATRICK MCCOWN, et al.

DEFENDANTS
ORDER

Before the Court are the Proposed Findings and Recommendations submitted by United
States Magistrate Judge Jerome T. Kearney on November 26, 2024 (“the November
Recommendations”) addressing defendant Patrick McCown’s1 motion to dismiss (Dkt. No. 28)
and the Proposed Findings and Recommendations submitted by Judge Kearney on December 9,
2024 (“the December Recommendations”) addressing plaintiff Ethan Troka’s motion for
sanctions, temporary restraining order, and for preliminary injunction (Dkt. No. 30). Mr. McCown
has filed objections to the November Recommendations (Dkt. No. 31). Mr. Troka has filed
objections to the December Recommendations (Dkt. No. 32). After careful consideration of the
November Recommendations and the December Recommendations, the objections, and a de novo
review of the record, the Court determines for the following reasons that the November
Recommendations should be, and hereby are, approved and adopted, in part, as set forth in this
Order (Dkt. No. 28). After careful consideration of the December Recommendations the Court
determines that the December Recommendations should be, and hereby are, approved and adopted
as this Court’s findings in all respects (Dkt. No. 30).

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Mr. McCown was formerly the chaplain of the North Central Unit of the Arkansas
Division of Correction, but he has now retired (Dkt. No. 31, n. 1).

I.

Background

Mr. Troka, who is in custody at the North Central Unit (“NCU”) of the Arkansas Division
of Correction (“ADC”), filed this action pro se pursuant to 42 U.S.C. § 1983 (Dkt. No. 2). After
screening the complaint, the Court ordered the following claims served on Mr. McCown:
a.

violation of right to privacy related to the viewing of Mr. Troka’s prison
files (claims 4 and 5);

b.

defamation (claims 6 and 7);

c.

due process related to Mr. Troka’s removal from the NCU’s Principles and
Application for Life Skills (“PAL”) Program without notice or opportunity
to be heard (claims 8, 10, 11, 23, and 19);

d.

equal protection (claims 13 and 24);

e.

breach of contract (claim 18);

f.

disability-based discrimination (claims 14 and 15);

g.

deliberate indifference related to other inmates having positions of authority
over Mr. Troka (claims 22, 25, and 26).

(Dkt. No. 6).
The Court dismissed claims against defendants NCU Chapel, Jeffery Batson, Alan W.
West, Waylon Coker, Matthew Kyle Bain, Christopher Powell, and Victor Wilmouth as well as
official capacity damages claims as to Mr. McCown (Dkt. No. 37). All of Mr. Troka’s remaining
claims result from his removal from the PAL Program (Dkt. No. 2).
After receiving Judge Kearney’s Proposed Findings and Recommendations screening the
complaint, Mr. McCown filed a motion to dismiss the complaint (Dkt. No. 12). In response to Mr.
McCown’s motion to dismiss, Mr. Troka filed a motion for judgment of default/motion to

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strike/motion objecting to defendant’s motion to dismiss (Dkt. No. 23). Mr. McCown filed a reply
to Mr. Troka’s motion for judgment of default, motion to strike, and reply to motion to dismiss
(Dkt. No. 27). Judge Kearney issued his November Recommendations recommending that the
Court deny Mr. McCown’s motion to dismiss and that the Court deny Mr. Troka’s motion for
default judgment as well as his request to strike Mr. McCown’s motion to dismiss, motion for
recusal, and motion for service that were embedded in Mr. Troka’s response to the motion to
dismiss (Dkt. No. 28).

Mr. McCown filed objections to Judge Kearney’s November

Recommendations (Dkt. No. 31). Mr. Troka filed a reply to Mr. McCown’s objections to Judge
Kearney’s November Recommendations (Dkt. No. 33).
Also pending before the Court is Mr. Troka’s motion for sanction, motion for temporary
restraining order, and motion for preliminary injunction (Dkt. No. 29). Judge Kearney issued his
December Recommendations recommending that the Court deny Mr. Troka’s motion for sanction,
temporary restraining order, and motion for preliminary injunction (Dkt. No. 30). Mr. Troka filed
objections to Judge Kearney’s December Recommendations (Dkt. No. 32).
II.

November Recommendations Addressing Mr. McCown’s Motion To Dismiss
And Other Matters Raised By Mr. Troka
A.

Legal Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing Twombly,
550 U.S. at 556). Although a complaint “does not need detailed factual allegations” to survive a
Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, the “[f]actual allegations must be
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enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Stated
differently, the allegations pleaded must show “more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678.
A court considering a motion to dismiss must accept as true all well-pleaded facts in the
complaint and draw all reasonable inferences from those facts in favor of the non-moving party.
See Farm Credit Servs. of Am., FLCA v. Haun, 734 F.3d 800, 804 (8th Cir. 2013); Coons v. Mineta,
410 F.3d 1036, 1039 (8th Cir. 2005); Abels v. Farmers Commodities Corp., 259 F.3d 910, 914
(8th Cir. 2001). However, a court need not credit conclusory allegations or “naked assertion[s]
devoid of further factual enhancement.” Retro Television Network, Inc. v. Luken Commc’ns, LLC,
696 F.3d 766, 768 (8th Cir. 2012) (alteration in original) (quoting Iqbal, 556 U.S. at 678).
Finally, in evaluating whether a pro se plaintiff has asserted sufficient facts to state a claim,
the court holds “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)
(alteration in original) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Even with this
construction, “a pro se complaint must contain specific facts supporting its conclusions.” Martin
v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
B.

Analysis
1.

Violation Of Privacy Claims

In the November Recommendations, Judge Kearney determined that Mr. McCown’s
motion to dismiss Mr. Troka’s violation of privacy claims should be denied (Dkt. No. 28, at 4). In
the complaint, Mr. Troka claims that Mr. McCown gave another inmate, Mr. West, the authority
to view his “institutional records.” (Dkt. No. 2, at 36). Mr. McCown argued in his motion to
dismiss that the Court should dismiss Mr. Troka’s violation of privacy claim because respondeat

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superior does not apply in § 1983 cases and because Mr. Troka’s claim was conclusory and did
not allege sufficiently that McCown was personally involved to establish liability (Dkt. No. 28, at
4). Based on Mr. McCown’s arguments, Judge Kearney recommended that Mr. Troka could seek
further details in discovery, and he recommended that the Court permit Mr. Troka to pursue his
privacy claims against Mr. McCown at this stage in the proceedings (Dkt. No. 28, at 4).
In his objections, Mr. McCown argues for the first time that Mr. Troka does not have a
constitutional privacy right in his “institutional records,” based on Jensen v. Satran, 633 F. Supp.
1187, 1191 (D. N.D.), aff’d, 808 F.2d 840 (8th Cir. 1986), and Mr. McCown argues that by
“institutional records” Mr. Troka really was referencing his disciplinary records (Dkt. No. 31, at
2). Mr. Troka objects that his violation of privacy claims are not based on other inmates reviewing
his disciplinary records but instead that his violation of privacy claims are based on other inmates
having access to his entire institutional record (Dkt. No. 33, at 3). Mr. Troka argues that this is a
threat to his security and a privacy violation (Id.).
The Court has reviewed Mr. Troka’s complaint and agrees that Mr. Troka’s privacy claims
are that Mr. McCown gave inmates access to his institutional record (Dkt. No. 2, at 36). The Court
has also considered Mr. McCown’s argument that Mr. Troka does not have a constitutional privacy
right in his institutional record and agrees that, based on Jenson, Mr. Troka does not have such a
constitutionally protected privacy right. See Jensen, 633 F. Supp. at 1191 (determining in case
where the inmate challenged institutional records being shared with outside volunteers that inmate
did not have a “constitutional right to privacy in his prison record.”); see also Ferguson v. DierZimmel, 809 F. Supp. 668, 670 (E.D. Wis. 1992) (determining that inmate had no constitutional
privacy right in his prison records). Accordingly, the Court declines to adopt Judge Kearney’s
November Recommendations as they relate to Mr. McCown’s motion to dismiss Mr. Troka’s

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privacy claims (claims 4 and 5). The Court grants Mr. McCown’s motion to dismiss Mr. Troka’s
privacy claims related to his institutional record (claims 4 and 5).
2.

Defamation Claims

Judge Kearney’s November Recommendations recommend denying Mr. McCown’s
motion to dismiss Mr. Troka’s defamation claim. Mr. McCown objects arguing that the Court
should dismiss Mr. Troka’s defamation claim because it is not actionable under 42 U.S.C. § 1983
and because Mr. McCown contends that the Court cannot treat Mr. Troka’s defamation claim as a
state-law claim and exercise supplemental jurisdiction over the claim under 28 U.S.C. § 1367 (Dkt.
No. 31, at 3). Mr. Troka responds that the Court has jurisdiction over both state and federal claims
under 28 U.S.C. §§ 1367 and 1376, and he asserted jurisdiction under 28 U.S.C. §§ 1331 and 1343
in his complaint (Dkt. No. 33, at 4). Mr. Troka contends that the Court has discretion to exercise
jurisdiction under 28 U.S.C. § 1367, and the Court determines that, at this stage of the proceedings,
it will assume supplemental jurisdiction over Mr. Troka’s state law defamation claim under 28
U.S.C. § 1367. Accordingly, the Court overrules Mr. McCown’s objections as to this claim.
3.

Due Process Regarding Removal From The PAL Program

Judge Kearney determined in his November Recommendations that he is unable to
determine based on the record before the Court at this time whether the PAL Program is
discretionary in order to determine whether there is a protected liberty interest in participation. In
his objections, Mr. McCown states that he intends to supplement the record to demonstrate the
discretionary nature of the program (Dkt. No. 31, at 4). Mr. McCown has not established the
discretionary nature of the program at this stage in the proceedings. Accordingly, the Court
overrules Mr. McCown’s objections as to this claim.

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4.

Equal Protection Claims

Judge Kearney recommended that this Court find that Mr. Troka alleged sufficient facts to
establish that he was treated differently than other PAL Program participants based on his
disability and recommended that this Court permit Mr. Troka to proceed on his equal protection
claim (Dkt. No. 28, at 6). In his complaint, Mr. Troka asserted that Mr. McCown discriminated
against him due to his disability in dismissing him from the PAL Program. Mr. Troka asserts a
diagnosed mental disability, that renders him distinguishable from other inmates, including poor
organization skills and difficulty engaging with others (Dkt. No. 2, at 10-11). Mr. Troka contends
that Mr. McCown knew that he was disabled (Id., at 11). Mr. Troka asserts that he was treated
differently because of his disability as compared with others (Id.). Mr. McCown’s argument that
Mr. Troka’s equal protection claim requires additional evidence at this stage lacks merit, and the
Court overrules Mr. McCown’s objection as to this claim (Dkt. No. 31, at 4).
5.

Breach Of Contract Claim

In his November Recommendations, Judge Kearney determined that, construing Mr.
Troka’s complaint liberally as he must, Mr. Troka had stated a state law breach of contract claim
(Dkt. No. 28, at 6-7). In his objections, Mr. McCown reiterates the argument made in his motion
to dismiss, that a breach of contract claim is not actionable under § 1983 and that the Court cannot
exercise supplemental jurisdiction over the claim (Dkt. No. 31, at 4). For the reasons stated earlier
in this Order, the Court will read Mr. Troka’s claim liberally and assume supplemental jurisdiction
over Mr. Troka’s state law breach of contract claim. The Court overrules Mr. McCown’s
objections (Dkt. No. 31, at 4-5).

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6.

Disability-Based Discrimination Claims

Judge Kearney determined in his November Recommendations that Mr. Troka had
sufficiently raised a claim under Title II of the Americans with Disabilities Act at this stage in the
proceedings (“ADA”). Mr. McCown raises an objection similar to the argument that he made in
his motion to dismiss that Mr. Troka has failed to allege sufficient facts to establish that he is a
qualified individual with a disability (See Dkt. Nos. 13, at 11; 31, at 5). Further, citing a summary
judgment case and a case where the Court was determining damages following a bench trial, Mr.
McCown now argues that Mr. Troka has not alleged sufficient facts to prove discriminatory intent
(See Dkt. No. 31, at 5). For the reasons stated in Judge Kearney’s November Recommendations,
this Court concludes that Mr. Troka has asserted sufficient facts at this stage in the proceedings to
state a claim for disability-based discrimination under the liberal pleading standard because he
asserted that he was a qualified individual with a disability that prevented him from being
organized and tidy, that Mr. McCown knew of Mr. Troka’s disability, and that Mr. McCown
removed him from the PAL Program because he was not “organized and inspection ready” (Dkt.
No. 28, at 8). The Court overrules Mr. McCown’s objections related to Mr. Troka’s disabilitybased discrimination claim.
7.

Deliberate Indifference Claims – Inmates In Positions Of
Authority

In his November Recommendations, Judge Kearney found that Mr. Troka sufficiently
alleged a deliberate indifference claim related to other inmates being in positions of authority over
him (Dkt. No. 28, at 8-9). Mr. McCown objects that the November Recommendations suggest
that Mr. Troka may develop details of the claim during discovery (Dkt. No. 31, at 5). Mr. McCown
maintains that Mr. Troka does not allege that he faces a substantial risk of serious harm from other
inmates (Dkt. No. 31, at 5). Mr. Troka asserts that there is enough case law showing that there are
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dangers and threats to security when inmates are in positions of authority over others and that Mr.
McCown’s motion lacks merit (Dkt. No. 33, at 8-9).
The Court observes that in the complaint Mr. Troka asserts that Mr. McCown does not
second guess the control of the other inmates who have been placed in positions of authority over
the PAL Program barracks; that the other inmates have total control; that Mr. McCown routinely
accepts the allegations in disciplinary matters written by the other inmates as true without question
or investigation; and that if Mr. Troka or other PAL Program participants question the other
inmates, Mr. McCown threatens the PAL Program participant with removal from the statesponsored religious program (Dkt. No. 2, at 51). Based on all the facts asserted by Mr. Troka in
his complaint, the Court overrules Mr. McCown’s objections related to Mr. Troka’s deliberate
indifference claim regarding other inmates being in positions of authority within the PAL Program.
8.

Other Matters Raised In Mr. Troka’s Response To The Motion
To Dismiss
a.

Default Judgment And Request To Strike

Mr. Troka believes that he is entitled to default judgment because Mr. McCown did not
file a timely responsive pleading (Dkt. No. 23-1). Judge Kearney addressed this in his November
Recommendations and clarified that Mr. McCown filed his motion to dismiss timely (Dkt. No. 28,
9). Mr. Troka does not object to this portion of the November Recommendations. The Court
agrees and adopts in its entirety Judge Kearney’s denial of Mr. Troka’s motion for default
judgement (Id.).
Mr. Troka also seeks to strike Mr. McCown’s motion under Federal Rule of Civil
Procedure 12(b)(6) claiming that the motion was untimely, but as Judge Kearney points out there
is no basis on which the Court may strike Mr. McCown’ motion to dismiss because the motion

9

was timely filed. Accordingly, the Court adopts in its entirety Judge Kearney’s recommendation,
and denies Mr. Troka’s motion to strike (Dkt. No. 28, at 9).
b.

Motion For Recusal

Mr. Troka requests that Judge Kearney recuse himself from the case (Dkt. No. 23-1, at 10).
Judge Kearney determines that there is no indication that he cannot be impartial and recommends
that the Court deny Mr. Troka’s request that he recuse himself (Dkt. No. 28, at 9-10). The Court
is not aware of any reasons why Judge Kearney cannot be impartial in this case and adopts in its
entirety Judge Kearney’s recommendation and denies Mr. Troka’s motion for recusal (Dkt. No.
28, at 9-10).
c.

Motion For Service

The Court addressed service in its prior orders by serving Mr. McCown (Dkt. No. 6) and
by adopting Judge Kearney’s Proposed Findings and Recommendations dismissing the other
defendants in this case so that service on these defendants is not proper (Dkt. No. 37).
Accordingly, the Court adopts in its entirety Judge Kearney’s recommendation regarding service
and denies Mr. Troka’s motion for service (Dkt. No. 28, at 10).
III.

December Recommendations On Mr. Troka’s Motion For Sanctions,
Temporary Restraining Order, And Preliminary Injunction

In his December Recommendations, Judge Kearney addresses Mr. Troka’s motion for
sanctions, motion for temporary restraining order, and motion for preliminary injunction, which
are all based on new claims brought by Mr. Troka claiming that he is being retaliated against by
medical personnel for filing this lawsuit (Dkt. No. 30, at 3). Judge Kearney explains in the
December Recommendation that Mr. Troka asserts that various medical providers, who are not
parties to this lawsuit, denied Mr. Troka adequate care for serious medical conditions that cause
him extreme back pain, among other things (Id., at 3). Judge Kearney points out that, for relief,
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Mr. Troka asks the Court to sanction the new medical defendants and to restrain the medical
defendants from continuing their retaliatory conduct (Id., at 3-4). Additionally, Mr. Troka requests
that the Court issue a preliminary and permanent injunction ordering that the retaliation stop (Id.,
at 4). Judge Kearney observes that all of these claims lie outside the scope of Mr. Troka’s claims
raised in his complaint in this case related to the PAL Program and that the medical providers are
not named defendants in this lawsuit (Id.). Judge Kearney suggests that Mr. Troka may file a new
lawsuit to pursue his claims against the medical defendants, if Mr. Troka wishes to do so (Id.).
Mr. Troka objects to Judge Kearney’s December Recommendations and argues that he is
unable to file a new lawsuit and pursue his claims because “WELLPATH has recently filed for
Chapter 11 bankruptcy.” (Dkt. No. 32, at 3). In his objections, Mr. Troka also updates the Court
regarding his medical condition and admits that medical providers have taken care of several of
his medical needs (Dkt. No. 32, at 3-5).
The Court is aware of Wellpath LLC’s bankruptcy filing but that does not render Mr.
Troka’s medical claims, which arose after the filing of his complaint and which are unrelated to
the events described in the complaint, appropriate for this case. Nothing raised in Mr. Troka’s
objections states an appropriate ground for granting Mr. Troka a temporary restraining order, a
preliminary injunction, or sanctions against the medical defendants who are not parties in this
lawsuit.
Upon a de novo review of the record, including the December Recommendations, the Court
finds that Mr. Troka’s objections break no new ground and fail to rebut the December
Recommendations. Thus, the Court agrees with the December Recommendations and adopts them
as the Court’s findings in their entirety (Dkt. No. 4).

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IV.

Conclusion

The Court rules as follows:
1.

The Court adopts, in part, and declines to adopt, in part, the November
Recommendations as set forth in this Order (Dkt. No. 28).

2.

The Court grants Mr. McCown’s motion to dismiss Mr. Troka’s privacy claim
related to his “institutional records” (claims 4 and 5) and denies Mr. McCown’s
motion to dismiss Mr. Troka’s defamation, due process, equal protection, breach of
contract, disability-based discrimination, and deliberate indifference claims as set
forth in this Order.

3.

The Court denies Mr. Troka’s motion for default judgment (Dkt. No. 23-1, at 1-6).

4.

The Court denies Mr. Troka’s request to strike Mr. McCown’s motion to dismiss
on the ground that the responsive pleading was not timely filed (Dkt. No. 23-1, at
5-6).

5.

The Court denies Mr. Troka’s motion for recusal (Dkt. No. 23-1, at 6-7).

6.

The Court denies Mr. Troka’s motion for service (Dkt. No. 23-1, at 20-21)

7.

The Court adopts the December Recommendations in their entirety as this Courts
findings in all respects (Dkt. No. 30). The Court denies Mr. Troka’s motion for
sanctions, motion for temporary restraining order, and motion for preliminary
injunction (Dkt. No. 29).

8.

The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis
appeal from the portion of this Order adopting Judge Kearney’s December
Recommendations would not be taken in good faith.

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So ordered, this 10th day of March, 2025.

_____________________________
Kristine G. Baker
Chief United States District Judge

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