Cherry v. Higgins et al

Filing 26

ORDER directing the Clerk to prepare summonses for Defendants Randy Morgan and Washington and directing United States Marshal to serve these Defendants with summons and copy of 2 Complaint and 6 Amended Complaint through Pulaski County Detention Facility. Signed by Magistrate Judge Edie R. Ervin on 5/13/2024. (csf)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
CHARLES CHERRY
#169745
V.

PLAINTIFF
NO. 4:24-cv-00172-LPR-ERE

ERIC HIGGINS, et al.

DEFENDANTS
ORDER

Pro se plaintiff Charles Cherry, a pre-trial detainee at the Pulaski County
Regional Detention Facility (“Detention Facility”), filed this civil rights lawsuit
under 42 U.S.C. § 1983. Doc 2. In his original complaint, Mr. Cherry alleges that:
(1) Defendants Holmes, Fry, D. Green, Bogard, M. Green, D. Harris, C. Green, C.
Jones, Matthews, C. Miller, R. Lambert, C. Mosely, Rembly, Brooks, and Myrick
have acted with deliberate indifference to his health by smoking during their shifts
at the Detention Facility placing his health at a substantial risk of harm; and (2)
Defendant Eric Higgins is aware of this conduct, but he has failed to remedy the
problem. He sues each Defendant in both his or her individual and official capacity
seeking monetary damages, declaratory relief,1 and injunctive relief.

1

Mr. Cherry seeks a declaration that Defendants violated his constitutional rights. Doc. 2
at 3. However, “[a] declaratory judgment is meant to define legal rights and obligations of the
parties in anticipation of some future conduct, not simply to proclaim liability for a past act.” Just.
Network Inc. v. Craighead Cnty., 931 F.3d 753, 764 (8th Cir. 2019).

The Court previously determined that Mr. Cherry stated a deliberate
indifference claim again each of the named Defendants and issued service for those
claims.
Mr. Cherry later filed an amended complaint naming two additional
individuals as Defendants, Randy Morgan and Washington. For screening purposes
only, Mr. Cherry has stated a deliberate indifference claim against each of those
Defendants.2 Service of those claims is now proper.
IT IS THEREFORE ORDERED THAT:
1.

The Clerk is instructed to prepare summonses for Defendants Randy

Morgan and Washington.
2.

The United States Marshal is directed to serve these Defendants with a

summons and a copy of the complaint and the amended complaint (with any
attachments) (Docs. 2, 6), without requiring prepayment of fees and costs or security.
Service for these Defendants should be through the Pulaski County Detention
Facility, 3201 West Roosevelt Road, Little Rock, Arkansas 72204.

2

Screening is mandated by the Prison Litigation Reform Act, which requires federal courts
to screen prisoner complaints seeking relief against a governmental entity, officer, or employee.
28 U.S.C. § 1915A(a). The Court must dismiss a complaint or a portion thereof if the prisoner has
raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief
may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b). When making this determination, the Court must accept the truth of the factual
allegations contained in the complaint, and it may consider the documents attached to the
complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Reynolds v. Dormire, 636 F.3d 976, 979
(8th Cir. 2011).
2

SO ORDERED 13 May 2024.

____________________________________
UNITED STATES MAGISTRATE JUDGE

3