Payne v. Langley et al

Filing 5

PROPOSED FINDINGS AND RECOMMENDATION recommending Payne's claims be dismissed without prejudice; dismissal of this action count as a "strike"; and the Court certify an in forma pauperis appeal from the order adopting this recommendation would not be taken in good faith. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge Patricia S. Harris on 05/09/2024. (llg)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
ROBERT LEE PAYNE, III
Reg. #32548-009
v.

PLAINTIFF

No: 4:24-cv-00278-BSM-PSH

TAMMY LANGLEY, et al.

DEFENDANTS

PROPOSED FINDINGS AND RECOMMENDATION
INSTRUCTIONS
The following Recommendation has been sent to United States District Judge
Brian S. Miller. You may file written objections to all or part of this
Recommendation. If you do so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection, and (2) be received by the Clerk of this
Court within fourteen (14) days of this Recommendation. By not objecting, you
may waive the right to appeal questions of fact.
DISPOSITION
Plaintiff Robert Lee Payne, III filed a pro se complaint pursuant to 42 U.S.C.
§ 1983 on March 26, 2024, while incarcerated at the Gilmer Federal Correctional
Institution (“Gilmer FCI”) (Doc. No. 1). The Court granted Payne in forma pauperis
status (Doc. No. 4). The Court has screened Payne’s complaint and finds that he
does not describe facts sufficient to state a claim upon which relief may be granted.

I. Screening Standard
Federal law requires courts to screen prisoner complaints. 28 U.S.C. § 1915A,
1915(e)(2). Claims that are legally frivolous or malicious; that fail to state a claim
for relief; or that seek money from a defendant who is immune from paying damages
should be dismissed before the defendants are served.

28 U.S.C. § 1915A,

1915(e)(2). Although a complaint requires only a short and plain statement of the
claim showing that the pleader is entitled to relief, the factual allegations set forth
therein must be sufficient to raise the right to relief above the speculative level. See
Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555
(2007) (“a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment]to
relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. . . .”). A complaint must contain enough
facts to state a claim to relief that is plausible on its face, not merely conceivable.
Twombly at 570. A pro se plaintiff’s allegations must be construed liberally, Burke
v. North Dakota Dept. of Corr. & Rehab., 294 F.3d 1043, 1043-1044 (8th Cir. 2002),
and the Court must weigh all factual allegations in favor of the plaintiff, unless the
facts alleged are clearly baseless. See Denton v. Hernandez, 504 U.S. 25, 32-33
(1992) (explaining that clearly baseless facts include those that are fanciful,
fantastic, and delusional).

II. Analysis
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that the
conduct of a defendant acting under color of state law deprived him of a right,
privilege, or immunity secured by the United States Constitution or by federal law.
42 U.S.C. § 1983. Payne sues Nurse Tammy Langley and Turn Key Health (“Turn
Key”) for medical neglect based on treatment he received by Langley at the Pulaski
County Regional Detention Facility on July 22, 2022.1 Doc. No. 1 at 1 & 3.
Specifically, he alleges:
On 7-22-22 at about 11 o’clock a.m. at the Pulaski County Regional
Detention Facility, I (Robert Payne) was in a[n] altercation with another
inmate, and the other inmate bit my finger off. When the medical staff
at the jail responded to the incident, Nurse Tammy Langley (LPN)
(Turn Key Health) solicited a carton of milk from another inmate and
put my detached finger inside the carton of milk. I was then
transported, along with my detached finger still in the carton of milk,
by (MEMS) ambulance to the UAMS (University of Arkansas Medical
Science) hospital. Once at the hospital the orthopedic surgeon informed
me that my finger could not be re-attached because it was in milk. The
milk damaged my detached finger, so I want to sue Nurse Tammy
Langley and Turnkey Health for medical neglect.
1

Payne is currently incarcerated in federal prison. In a letter attached to his
complaint, he states that he requests paperwork for a Bivens claim so that he may file a
medical tort claim against Langley and Turn Key Health. Bivens v. Six Unknown Agents
of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”) holds that federal
prisoners may bring certain civil rights lawsuits for damages against federal officials.
Because Payne does not attempt to sue federal officials, he may not pursue a Bivens
claim. Further, to the extent that Payne attempts to state a claim for medical negligence
under Arkansas law, this Court should not exercise supplemental jurisdiction over those
state law claims. See Condor Corp. v. City of St. Paul, 912 F.2d 215, 220 (8th Cir. 1990)
(“The judicial resources of the federal courts are sparse compared to the states. We stress
the need to exercise judicial restraint and avoid state law issues wherever possible.”).

Id. at 1.
Payne previously sued Langley based on this incident, and his claim was
dismissed with prejudice. See Payne v. Langley, Case No. 4:22-cv-00805-BRW at
Doc. Nos. 35-37. In that case, United States Magistrate Judge Jerome T. Kearney
reviewed Payne’s medical records and concluded that Langley’s decision to place
Payne’s fingertip in milk “may well have been a poor decision, negligent. But
Plaintiff has not come forward with evidence establishing that Defendant Langley
ignored Plaintiff’s severed finger or the risk that it could not be reattached.” Id. at
Doc. No. 35, pp. 6-7. He therefore recommended that Langley be granted summary
judgment, and his recommendation was subsequently adopted by United States
District Judge Billy Roy Wilson. Id. at Doc. No. 36. Because that claim was decided
on the merits and dismissed with prejudice, Payne may not litigate it again. See In
re Anderberg-Lund Printing Co., 109 F.3d 1343, 1346 (8th Cir. 1997) (“Claim
preclusion will bar a subsequent suit when: ‘(1) the first suit resulted in a final
judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) both
suits involved the same cause of action; and (4) both suits involved the same parties
or their privies.’” (quoting Lovell v. Mixon, 719 F.2d 1373, 1376 (8th Cir. 1983)).
Furthermore, as Judge Kearney previously found, Payne’s claims relating to
Langley’s placement of his finger in milk fail as a matter of law because they sound
in negligence, which is not actionable under § 1983. See Crow v. Montgomery, 403

F.3d 598, 602 (8th Cir. 2005) (explaining that intentional conduct, rather than
negligence, is required to sustain a § 1983 claim under both the Eighth Amendment
and the Fourteenth Amendment applicable to pre-trial detainees); see also Jackson
v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998) ( . . . “‘deliberate indifference
includes something more than negligence but less than actual intent to harm’; it
requires proof of a reckless disregard of the known risk.”) (quoting Newman v.
Holmes, 122 F.3d 650, 653 (8th Cir. 1997)).
In this case, Payne also adds a new defendant: Turn Key, Langley’s employer.
A corporation acting under color of state law cannot be held liable on a theory of
respondeat superior, but may be held liable only for its own unconstitutional
policies. Burke v. North Dakota Dept. of Corr. & Rehab., 294 F.3d 1043, 1044 (8th
Cir. 2002). That means that Turn Key can be held liable in this case only if “there
was a policy, custom, or official action that inflicted an actionable injury.” Johnson
v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006) (quoting Sanders v. Sears, Roebuck
& Co., 984 F.2d 972, 975-976 (8th Cir. 1993)). A “policy,” for purposes of § 1983,
is “an official policy, a deliberate choice of a guiding principle or procedure made
by an official with authority.” Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir.
1999).

“Custom” means a “persistent, widespread pattern of unconstitutional

conduct of which officials have notice and subsequently react with deliberate
indifference or tacit authorization.” Johnson v. Outboard Marine Corp., 172 F.3d

531, 536 (8th Cir. 1999). In this case, Payne has not included any allegations about
a Turn Key policy, custom, or official action that contributed to his injuries. He has
not alleged a “widespread pattern of unconstitutional conduct”; nor has he alleged
that Turn Key officials were notified of widespread unconstitutional conduct but
failed to act. Therefore, Payne’s claims against Turn Key should be dismissed
without prejudice for failure to state a claim upon which relief may be granted.
For these reasons, this case should be dismissed without prejudice for failure
to state a claim upon which relief may be granted.
III. Conclusion
It is therefore recommended that:
1.

Payne’s claims be dismissed without prejudice.

2.

Dismissal of this action count as a “strike” within the meaning of 28

U.S.C. § 1915(g).
3.

The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma

pauperis appeal from the order adopting this recommendation would not be taken in
good faith.
IT IS SO RECOMMENDED this 9th day of May, 2024.

UNITED STATES MAGISTRATE JUDGE