Schildt et al v. Crawford County Sheriff's Office et al

Filing 4

ORDER; Plaintiff's Claims are DISMISSED WITHOUT PREJUDICE. Judgment will be entered accordingly. Signed by Honorable P. K. Holmes, III on November 29, 2016. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
COREY SCHILDT and ASHLEY SCHILDT
v.

PLAINTIFFS

Civil No.2:16-CV-02218

CRAWFORD COUNTY SHERIFF’S
OFFICE, DEPUTY SHERIFF BRANSON
PULE, GOVERNOR ASA HUTCHINSON,
PARKVIEW ELEMENTARY, PRINCIPAL
WOODS, DR. KERRY SCHNEIDER,
DEBBIE PIPPEN, LISA JENSEN, MAYOR
BOB FREEMEN, ALMA PRIMARY
SCHOOL, OFFICER TERRY
HUTCHINSON, CITY OF VAN BUREN,
SEBASTIAN COUNTY DCPS

DEFENDANTS

ORDER
This is a civil rights action filed by the Plaintiffs pursuant to 42 U.S.C. § 1983. Plaintiffs
proceed pro se, and have filed a motion for leave to proceed in forma pauperis (IFP).
Pursuant to 28 U.S.C. § 1915(e)(2), the Court has the obligation to screen any complaint
in which an individual has sought leave to proceed IFP. 28 U.S.C. § 1915(e)(2). On review, the
Court is to dismiss the complaint, or any portion of the complaint, that is frivolous, malicious, or
fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
I.

BACKGROUND
Plaintiffs filed their complaint on September 6, 2016. (Doc. 1). The complaint centers on

an allegation of child abuse against Plaintiffs and action taken on that allegation by the State and
other government agencies and officials. They make the following allegations against Defendants.
The Crawford County Sheriff’s Office and Deputy Sheriff Branson Rule “made a conflict of

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interest” when they knew the family and did not file a police report. (Doc. 1, p. 1). Governor Asa
Hutchinson denied a notarized Freedom of Information Act request. (Doc. 1, p. 1). Parkview
elementary, Principal Woods, and Superintendent Kerry Schneider made false allegations and
went to DCPS with “no evidence.” (Doc. 1, p. 1). Debbie Pippen of Crawford County DCPS
“approved attack against wife and husband repeatedly.” (Doc. 1, p. 1). Lisa Jensen denied Ashley
Schildt due process of law by filing with Hearing and Appeals, and the hearing was overdue. (Doc.
1, p. 1). Mayor Bob Freeman ignored them as constituents. (Doc. 1, p. 1). Alma primary school
separated the Schildt children “for own agenda to protect teachers and violate publics [sic] right to
know.” (Doc. 1, p. 2). Officer Terry Hutchinson threatened Corey Schildt with charges then failed
to do his job. Officer Hutchinson further sat in on a school meeting without parental permission
and refused to leave. (Doc. 1, p. 2). Plaintiffs list a number of Arkansas statutes as part of their
complaint, presumably implying that they were violated by Defendants. (Doc. 1, p. 4).
Plaintiffs did not indicate if they were proceeding against Defendants in their individual
capacity, official capacity, or both. Plaintiffs did not state what remedy they were seeking by filing
this complaint.
II.

ANALYSIS
A § 1983 complaint must allege that each Defendant, acting under color of state law,

deprived Plaintiff of "rights, privileges or immunities secured by the Constitution and laws" of the
United States. 42 U.S.C. § 1983; DuBose v. Kelly, 187 F.3d 999 (8th Cir. 1999). Plaintiffs failed
to allege any cognizable violations of any right, privilege or immunity guaranteed by the
Constitution or federal law.
Plaintiffs did not identify their Freedom of Information Act (FOIA) claim as federal or
state. However, they directed their request to Arkansas Governor Asa Hutchinson. This permits
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an inference that the request is based on the Arkansas FOIA. Further, the denial letter included as
an exhibit clearly cites to a statutory exemption from the Arkansas FOIA as the reason for denial.
(Doc. 1-9). Violation of the Arkansas FOIA is not cognizable under § 1983. See Taylor v.
Denniston, 111 Fed. App’x 864 (8th Cir. 2004) (unpublished) (citing Walker v. Reed, 104 F.3d
156, 157 (8th Cir. 1997); see also, Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102,
1105 (8th Cir. 1992) ( Even “[a] bad-faith violation of state law remains only a violation of state
law.”).
Plaintiffs did not identify their claims as proceeding against Defendants in their official
capacity, individual capacity, or both. Therefore, Plaintiffs’ complaint must be interpreted as
proceeding against Defendants in their official capacity alone. See Johnson v. Outboard Marine
Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“in order to sue a public official in his or her individual
capacity, a plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it will
be assumed that the defendant is sued only in his or her official capacity.”).
Under § 1983, a defendant may be sued in either his individual capacity, or in his official
capacity, or in both. In Gorman v. Bartch, the Eighth Circuit Court of Appeals (AEighth Circuit@)
discussed the distinction between individual and official capacity suits. As explained by the
Gorman case:
Claims against government actors in their individual capacities differ from those in
their official capacities as to the type of conduct that is actionable and as to the type
of defense that is available. See Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116
L.Ed.2d 301 (1991). Claims against individuals in their official capacities are
equivalent to claims against the entity for which they work; they require proof that
a policy or custom of the entity violated the plaintiff's rights, and the only type of
immunity available is one belonging to the entity itself. Id. 502 U.S. at 24B27, 112
S.Ct. at 361B62 (1991). Personal capacity claims, on the other hand, are those
which allege personal liability for individual actions by officials in the course of
their duties; these claims do not require proof of any policy and qualified immunity
may be raised as a defense. Id. 502 U.S. at 25B27, 112 S.Ct. at 362.
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Gorman, 152 F.3d 907, 914 (8th Cir.1998). A[R]igorous standards of culpability and causation
must be applied to ensure that the [county] is not held liable solely for the actions of its employee@
in cases where a plaintiff claims a county has caused an employee to violate the plaintiff=s
constitutional rights. Board of County Commissioners, Oklahoma v. Brown, 520 U.S. 397, 405
(1997).
Here, Plaintiffs have not alleged any violation of the Constitution or federal law by the
customs or policies of any governmental entity. Further, neither a State nor its officials acting in
their official capacities are “persons” under § 1983.” Will v. Michigan Dept. of State Police, 491
U.S. 58, 71 (1989); Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (“a section
1983 suit cannot be brought against the State”). Therefore, to the extent Arkansas agencies have
been named either directly or through official capacity claims, those claims fail as a matter of law.
Because Plaintiffs failed to allege any cognizable claims under § 1983, their Motion for
IFP and Service (Doc. 2) is DENIED as moot.
For these reasons, IT IS ORDERED that Plaintiffs’ claims are DISMISSED WITHOUT
PREJUDICE.
Judgment will be entered accordingly.
IT IS SO ORDERED this 29th day of November, 2016.

/s/P. K. Holmes, III
P. K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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