Hill v. Williams et al

Filing 23

DOCUMENT FILED IN ERROR - DISREGARD (wrong case). (kpr) (Docket text modified on 7/8/2011.) (thd).

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

EASTERN DIVISION

NICK LOPEZ, individually and as
administrator of the estate of
Rigoberto Lopez-Alvarado

v.

PLAINTIFF

Case No. 2:10-cv-76-DPM

LINDA SANDERS, T.C. OUTLAW,

JERRY CISSELL, JESSICA CISSELL, JERRY CAREY,

SHERYL PHILLIPS, TRACY GUTHRIE,

MARK TIPTON, TIM MOORE,

JUAN BALTAZAR, STEVEN LOPEZ, JEREMY LLOYD,

DARYL LlOYD, MARK SHELDON,

JOHN ELAM, DARYL MAUNE, ROBERT BYNUM,

RANDALL BYRAM, PALMER HERRINGTON,

STERLING AKINS, DARRELL ORDWAY,

MATTHEW VALENCIA, ROBERT STEWARD,

BRENT STEWARD, DANNY WESNER,

TONYA GEROR, ALAN MINGO, and

JOHN DOES 1-25
DEFENDANTS

ORDER
1. Rigoberto Lopez-Alvarado, an inmate at the federal prison In
Forrest City, Arkansas died after he was assaulted by two other inmates. This
is a Bivens action against various prison wardens and employees for claims
under the Fifth, Eighth, and Fourteenth Amendments. Bivens v. Six Unknown

Agents ofFederal Bureau ofNarcotics, 403 U.S. 388 (1971). Former warden Linda

Sanders moves to dismiss for lack of personal jurisdiction. FED. R. ClV. P.
12(b)(2). Sanders, Palmer Herrington, and T.C. Outlaw - all wardens or
former wardens - move to dismiss the Fifth and Fourteenth Amendment
claims and move for summary judgment on the Eighth Amendment claim.
FED. R. ClV. P. 12(b)(6); FED. R. ClV. P. 56(a). The remaining Defendants move
to dismiss all claims. This case and the related case, Lopez v. United States,
No. 2:10-cv-44, are proceeding toward a joint trial under the same scheduling
order. Document No. 56, at 1.
2. The motions based on lack of personal jurisdiction over former
Warden Sanders are denied without prejudice. Personal jurisdiction exists
over a non-resident when she has minimum contacts with the forum state
II

such that maintenance of the suit does not offend traditional notions of fair

play and substantial justice./I World-Wide Volkswagen Corp. v. Woodson, 444
U.s. 286, 292 (1980) (quotations omitted). Sanders's work as a warden in
Arkansas for three years, Document No. 59, at I, establishes sufficient contacts
with the forum such that [s]he should reasonably anticipate being haled into
II

court []here./I 444 U.S. at 297.

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The issue on Sanders is not the Court's power to reach her; it is whether

any claim exists against Sanders because it appears she was transferred to
California before the assault on Lopez-Alvarado. Document No. 59-8, at 8.
Plaintiff Lopez requests time to verify the transfer and offers to voluntarily
dismiss the claims against Sanders upon verification. Document No. 66, at 3.
The Court construes this as a Federal Rules of Civil Procedure 56(d) request
and grants Lopez until 1 September 2011 to investigate further.

This

threshold issue needs to be resolved either by non-suit or a renewed motion
for summary judgment within sixty days.
3. The warden Defendants' motion to dismiss the Fifth and Fourteenth
Amendment claims is granted. Plaintiff Lopez concedes the dismissal of his
Fourteenth Amendment claim. Document No. 66, at 6. Further, Lopez's
briefing makes clear that he is not alleging a Fifth Amendment equal­
protection or substantive-due-process violation. Document No. 66, at 3.
Lopez's procedural due process claim under the Fifth Amendment fails as a
matter of law. This claim rests on a false premise: the prison could have
deprived a prisoner serving a five-ten year sentence of his life if the prison
had only given notice, hearing, and other process due. Procedural protections

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are simply inapplicable to the circumstances here. Morrissey v. Brewer, 408
U.S. 471, 481 (1972). Plaintiff Lopez alleges a viable Eighth Amendment
claim, Whitley v. Albers, 475 U.S. 312, 327 (1986), not one under the Fifth
Amendment.
4. The warden Defendants' motion for summary judgment on the
Eighth Amendment claim is denied without prejudice.

Again, Plaintiff

Lopez's request for discovery in his brief suffices under Federal Rules of Civil
Procedure 56(d).

The Court permits discovery regarding the Eighth

Amendment claim until 1 October 2011. The warden Defendants may
thereafter re-file their motion (or not) on a fuller record.
5. The remaining Defendants' motion to dismiss the Fifth and
Fourteenth Amendment claims is granted, and the claims dismissed without
prejudice, for the reasons indicated above. On the Eighth Amendment claim,
the remaining Defendants seek dismissal for lack of specificity as to each of
the other named twenty-four defendants. Document No. 61, at 4. Lopez
asserts that he has done the best he could given problems identifying specific
acts in the redacted responses to his Freedom of Information Act requests.
Document No. 65, at 2.

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The remaining Defendants are right: the allegations are too thin.
Ashcroft v. Iqbat129 S. Ct. 1937, 1948-49 (2009); Frey v. City ofHerculaneum, 44

F.3d 667, 672 (8th Cir. 1995). But the undisputed fact remains that LopezAlvarado was beaten to death at the prison while some officers were on duty.
The Court therefore grants Plaintiff until 1 October 2011 to do some basic
discovery and either propose an amended complaint specifying the
involvement of each Defendant or move to voluntarily dismiss them.
So Ordered.

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