Brotherton v. Hill et al

Filing 27

ORDER granting 21 Motion to Dismiss for Failure to State a Claim. The Court strikes certain portions of the amended complaint, as suggested by defts. Signed by Judge D. P. Marshall Jr. on 2/14/13. (kpr)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION THOMAS BROTHERTON v. PLAINTIFF No. 4:12-cv-534-DPM JAY HILL, individually and in his official capacity; and DAVID DONHAM, individually and in his official capacity DEFENDANTS ORDER Defendants' motion to dismiss Brotherton's amended complaint or strike its immaterial allegations, Document No. 21, is granted. Brotherton has not responded. The Court agrees with the Defendants that the amended complaint does not conform to the Court's earlier Order that dismissed many of Brotherton's claims, Document No. 19. Brotherton's only surviving claims are the Fourth Amendment claims against Jay Hill and David Donham under 42 U.S.C. § 1983. The Court strikes certain portions of the amended complaint, as suggested by Defendants and specified in the attached markup. So Ordered. Case 4:12-cv-00534-DPM Document 20 Filed 01/18/13 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION THOMAS BROTHERTON PLAINTIFF CASE NO: 4:12cv534 VS. JAY HILL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, and and DAVID DONHAM , INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY DEFENDANTS AMENDED COMPLAINT COMES THE PLAINTIFF, by and through Counsel and for his Complaint he states: PARTIES AND JURISDICTIONS 1. Plaintiff is a resident and citizen of the Grant County Arkansas, who works for the Arkansas Health Center, an instrumentality of the State of Arkansas. Jay Hill was the Acting Director of the Arkansas Health Center, and is now Director, who is sued in his Individual and Official Capacity as an employee of the Department of Human Services. David Donham is Certified Police Officer, who is the Chief of Police for the Arkansas Health Center and is an employee of the Arkansas Health Center who is sued in his Individual and Official Capacity. This is an action to address deprivation of the Plaintiff's rights granted to him under the Fourth Amendment to the United States Constitution , as permitted by 42 USC 1983. The individual Defendants are sued in their individual capacities for false imprisonment. Accordingly, this Court has federal question subject matter jurisdiction under 28 U.S.C . §1331 , since this action is brought under 42 U.S.C. §1983. Venue is proper is under 28 U.S.C. §1391 , since the acts giving rise to this action occurred in Saline County, Arkansas . jurisdiction over the parties. Page 1 of 6 This Court has personal Case 4:12-cv-00534-DPM Document 20 Filed 01/18/13 Page 2 of 6 GENERAL ALLEGATIONS OF FACTS 2. Plaintiff is a state employee working as a Boiler Operator at the Arkansas Health Center, a division of the Arkansas Department of Human Services. 3. At all times relevant, Plaintiff performed his job satisfactori ly .. 4. On November 22, 2011, suspected methamphetamine was found in the bathroom where Plaintiff works, as well as many others. Prisoners also have access to this bathroom . 5. Toward the end of his shift, there was an announcement for personnel to go to the Building 18 conference room. 6. Plaintiff was there, as were at least twenty more people , including the maintenance department. 7. Plaintiff and the other employees were told by David Donham, with the approval of Hill, who was now the Chief of the Public Safety Department at the Arkansas Health Center, to remain in the room . 8. The Chief, and his officers, are certified police officers and have the power to make an arrest. Plaintiff was falsely imprisoned . 9. Chief Donham indicated that suspected meth residue was found in a bathroom r.- aod they wanteG-all-effiJ3feyees-there-W-wrtte-a-sta·temeRt~aying-tl:lat-they-l:l.a4-A~ fA-t.Reir life. The-el'l'lf}feyees-weFe-AeHAf-eFmeG-G~~-this ti111e, irrcludi11g -a.ttG~.d-to 1ights to an.-Q.__ rern-affi- s-Her=tt-:--Nerwas-the·re-afly--§ wet:tle not be ..Q_€1 for J31:tf!30S"eS of criminal prosecutron . Tl1ey indicated tmrratl employees would be-re~ to take a drttg test. 11 . .5l_ The building was surrounded by police officers and they were told they could not leave, even after they took the test. 12. Plaintiff had an appointment that he wanted to go to. Page 2 of 6 Case 4:12-cv-00534-DPM Document 20 Filed 01/18/13 Page 3 of 6 13. Plaintiff went and asked Chief Donham if he could go ahead and take the test and go. Chief Donham started screaming at the Plaintiff that he could not go and that he had better go back in the room . 14. Accordingly Plaintiff was placed under arrest because he was not allowed to leave for more than 45 minutes by a police officer. 15. Seeking these drug tests and statements were not based upon reasonable suspicionf\~stster-tt-wi#H=ea~e-le-SI:!Siftess-neee~ • 16. Aeeordingiy;- th+s--eetlStitttteel- a.r.l-i.Uegal medi.caUoq11iry ey---en entity accepting Q__ 17. Plaintiff protested these actions to the Defendants, but Defendants requ ired Plaintiff to undergo this drug test anyway, as well as many others. 18. On November 28 , 2011 , Donham approached Plaintiff and asked him if he was still Donham's friend . Plaintiff refused to associate himself with Donham in that manner and protested by saying that he had no comment. Donham took offense, and got loud with Plaintiff, shaking his finger in Plaintiff's face. Donham said you think you know more about the law than I do. I already got one dirty boy. Presumably, this meant that he would get Plaintiff later on , even though Plaintiff had tested negative. COUNT I 19. All actions were taken under color of law. 20. Plaintiff and others met with Jay Hill, who was the director of the Arkansas Health Center. They told Hill they felt their constitutional rights were violated . Hill indicated these actions were taken at his direction and he ratified them after the fact by indicating that what was done was appropriate. Plaintiff said that he felt if he was going to have to take it, everybody should . 21 . Allen Rusfl+ng is the-Bifeeter-ef--Maiffiemmee . Al+an Jackson is Plai1 1 s tiff' '<---.. - _Q Page 3 of 6 Case 4:12-cv-00534-DPM Document 20 Filed 01/18/13 Page 4 of 6 -NG-Ver+lber: JO, 2011, lacksor+-got-a~g.r-Y--Witb-2Jaintjff and tri.ed-t-G-f.G~~Fetest~ of-the drug tests. Plarntiff said something Jackson-d+d-not like. JaeksoA was abtJsive_a.r.::t~ El"=iftng tlr is conversation. Jaekson-puHed-fllaifl#f-f-i.AtG---a--R=~ee.ti.Ag with Rbi&A+Rg,-H+H;--aA~ Be~"Oid-thefl'l-#tat-P+atAt#f-Aad a p~ol;>lem,G~GIJS~i.s-p.l:e.\LiQus speooh, and attrroutmg-eeffH'l'lents to --"- Plaicti.fLg.oLupset and was crying , sa th~ tcrtd him to ta~hieh-he-d ~ -22. Plaintiff---9elieves the-aGts-s~t to the-drug testing were effuris at-2-- lAti.m+eatien , thre~ffiefferenee-;-and-eoereien-a-nel-eesurred beGa-Use of a failure te trai-n or -f3Ursuant to poliey or custortt. 23. C<_ Indeed, even after being notified that they had violated these individuals ' rights , including the Plaintiff's rights to be free from illegal search and seizure , Defendants continued to maintain their actions were lawful. Therefore, since Plaintiff continues to work at the Arkansas Health Center, the Plaintiff seeks appropriate declaratory and injunctive relief against the Defendants in their Official Capacity, requiring Defendants to cease and desist from requiring its employees to undergo blanket drug tests . 24. On the Constitutional claims in Count I, the Defendants in their official capacity are only sued for injunctive and declaratory relief and fees and costs. The Defendants are sued for damages in their individual capacities for damages on Count I. 25. Plaintiff had a clearly established right to be free from illegal search and seizure under the Fourth Amendment. 26. Nonetheless, Plaintiff's movements were restricted such that he was arrested without probable cause in violation of the 4 1h Amendment. Defendants' actions caused Plaintiff to cry and to become emotionally distressed such that Plaintiff was required to take leave that he would not otherwise to have taken. Page 4 of 6 «_ Case 4:12-cv-00534-DPM Document 20 Filed 01/18/13 Page 5 of 6 0 .dis.c~~eA1as-we.U-as-aUemf*ecl~mpe.r:...witl+.~rr't'1yrririnr.omr'7'ld"ZS"errtt? ond""e5fferzrrn1d~a..,. o-->"-­ ~~Rt-ey-&tepherrWrigt1t, a Fellow-emr:>leye~ 28. Defendants' actions, as herein alleged, were in accordance with its policy and practice. 29. Defendants' policy and practice is to drug test employees without reasonable suspicion. In fact, there was no reasonable suspicion here . Rather, there was a blanket drug testing, which is an illegal search and violates the 41h Amendment. 30. Indeed, Plaintiff, as well as the other employees, were so restricted in their movement such that these restrictions constituted an unreasonable search and arrest in violation of the 41h Amendment. employee, notice that looee.d,--Qe.feftdants' fa"ilell-m-ghte-P+aintiff, or any othe1 any-i.A.fGI:matiGA-GGtJ~El-Ge-~:~seG-aga.U:lsUI:IJso, Defendants have violated the rights granted to Plaintiff under the United States Constitution . 31. As direct and proximate cause of Defendants actions and omissions alleged herein, Plaintiff has suffered severe mental and emotional distress, lost work, and incurred other damages in an amount to be proven at trial. 32. Defendant's actions have been so egregious so as to warrant the imposition of punitive damages against the individual Defendants . Page 5 of 6 ~ Case 4:12-cv-00534-DPM Document 20 Filed 01/18/13 Page 6 of 6 WHEREFORE Plaintiff prays for appropriate compensatory and punitive damages, for a declaratory judgment that the Defendants' actions violated Plaintiff's rights, for an injunction requiring the Defendants to cease blanket drug testing, cease-retal+atery aeti\1i~tore his sick pay, for a trial by jury, for reasonable attorney's fees, for costs, and for all other proper relief. Respectfully submitted, SUTTER& GILLHAM, P.L.L.C. Attorneys at Law P.O. Box 2012 Benton, AR 72018 501-315-1910 Office 501-315-1916 Facsimile Attorneys for the Plaintiff By: Is/ Luther Oneal Sutter Luther Oneal Sutter, AR Bar No . 95031 CERTIFICATE OF SERVICE I hereby certify that on January 18, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system , which shall send notification of such filing to the following : David Curran By: Is/ Luther Oneal Sutter Luther Oneal Sutter, AR Bar No. 95031 luthers utter@yahoo. com Page 6 of 6

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