Rasmussen v. State of Arkansas et al

Filing 10

OPINION AND ORDER dismissing case without prejudice; see order for specifics. Signed by Honorable Timothy L. Brooks on February 24, 2017. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
PHILIP WILLIAM RASMUSSEN

PLAINTIFF

v.

Civil No. 3:17-cv-03013

STATE OF ARKANSAS;
BAXTER COUNTY ARKANSAS
SHERIFF'S DEPARTMENT; and
MOUNTAIN HOME ARKANSAS
POLICE DEPARTMENT

DEFENDANTS

OPINION AND ORDER
This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro
se and in forma pauperis ("IFP"). Under the provisions of the Prison Litigation Reform Act

("PLRA"), the Court is obligated to screen the case prior to service of process being issued.
The Court must dismiss a complaint, or any portion of it, if it contains claims that: (a) are
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).
A claim is frivolous if "it lacks an arguable basis either in law or fact." Neitzke v. Williams,
490 U.S. 319, 325 (1989). A claim fails to state a claim upon which relief may be granted
if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 , 570 (2007) . "In evaluating whether a prose

plaintiff has asserted sufficient facts to state a claim , we hold 'a prose complaint, however
inartfully pleaded . . . to less stringent standards than formal pleadings drafted by lawyers."'
Jackson v. Nixon , 747 F.3d 537, 541 (8th Cir. 2014)(quoting Erickson v. Pardus , 551 U.S.

89 , 94 (2007)) .

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I. BACKGROUND
Plaintiff beg ins his narration with his 2007 incarceration in the Baxter County Jail on
a charge of second degree battery. Plaintiff believes his right to a fair trial was violated.
He also believes the prosecutor was maliciously prosecuting him. His first trial on the
battery charges ended in a hung jury. His January 2007 trial on an arson charge also
ended in a hung jury. A week before the second trial , Plaintiff alleges he was in a fight with
fellow inmates John Lipe, a jail house snitch , and Jerry Martin . Plaintiff states he was
removed from the general population and put into a holding cell . Following the arson trial ,
Plaintiff indicates he was put back into a holding cell . Plaintiff alleges the prosecutor
ordered the jailers to put Plaintiff back in general population .
Plaintiff, in an effort to get out of general population , alleges he pretended to throw
a punch at Inmate Howard Johnson . Officer Alkire came to break up the fight and Plaintiff
contends the officer deliberately tripped him. All three of them went to the ground. At this
time, John Lipe and Jerry Martin came up and started to "stomp and kick" at the Plaintiff
and Johnson . Johnson was taken to the hospital and diagnosed with a broken jaw in two
places. Surgery had to be performed on Johnson . Plaintiff was charged with second
degree assault as a result of this incident. As a result of the assault charge, Plaintiff was
unable to make bail. The prosecutor also filed a motion to have Plaintiff tried as a habitual
offender which increased Plaintiff's bond from $25 ,000 to $50 ,000 .
Plaintiff alleges the assault charge was tried in May 2007 . The prosecuting attorney
entered x-rays of Johnson's jaw from the day of the incident. Plaintiff asserts another x-ray
was admitted over his objection as it had no identification of who took it or when it was
taken . Years later, Plaintiff alleges he discovered that:
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there were other x-rays of

Johnson's jaw that showed Johnson had a broken jaw months before the incident with
Plaintiff; a statement made by a fellow inmate against the Plaintiff was coerced; and a
statement of an inmate that would have exonerated Plaintiff was withheld . Plaintiff states
he learned all of this during discovery, in a civil case filed by Johnson against him.
Between 2010 and 2012 , Plaintiff was paroled from the Arkansas Department of
Correction ("ADC") and then was incarcerated in Ohio . When he violated his parole , he
was again incarcerated in the ADC in 2012 . At some point, Plaintiff had filed a habeas
corpus action with the Baxter County Circuit Court, based on the newly discovered
evidence related to the May 2007 assault conviction. However, within a few weeks of filing
this action , Plaintiff was released on parole again .
In July of 2014 , while in Branson , Missouri , Plaintiff was arrested. While in jail in
Branson , Plaintiff alleges he filed a federal habeas corpus action which was denied . In the
State of Arkansas' reply to the habeas action , Plaintiff learned that the Baxter County
Circuit Court had granted a hearing on his habeas corpus action in 2010 . Plaintiff says he
was not notified of the hearing and his Due Process rights were violated . Had he been
returned to Baxter County, Plaintiff believes his state habeas corpus petition would have
been granted and the conviction reversed . Plaintiff indicates his habeas corpus action was
assigned to Judge Putman who had presided over the criminal case initially. According to
Plaintiff, Judge Putman realized he had made a mistake when he allowed the police into
the room where the jury was deliberating . Plaintiff also maintains Judge Putman now knew
that Johnson had committed perjury.
As relief in the instant case , Plaintiff asks to be returned to Baxter County so his
state habeas corpus action can now be heard . He also wants to be compensated in the
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amount of ten million dollars for the years he has been falsely imprisoned.

II. DISCUSSION
The complaint is subject to dismissal for a number of reasons. First, the State of
Arkansas may not be sued in federal court. The claims are barred by the Eleventh
Amendment. Will v. Michigan Dept. of State Police , 491 U.S. 58 (1989) . "The Eleventh
Amendment bars suits against a State by citizens of that same State in federal court."
Williams v. Missouri, 973 F.2d 599 , 599 -600 (8th Cir. 1992) (citing Papasan v. Allain, 478
U.S. 265 , 276 (1986)). '"This bar exists whether the relief sought is legal or equitable."' Id.
(quoting Papasan , 478 U.S. at 276) . "Congress did not abrogate constitutional sovereign
immunity when enacting the law that was to become section 1983." Burk v. Beene , 948
F.2d 489, 493 (8th Cir. 1991) (citing Quern v. Jordan , 440 U.S. 332, 342 (1979)).
Second, Plaintiff may not use the civil rights statutes as a substitute for habeas
corpus relief. In other words , he cannot seek declaratory or injunctive relief relating to his
confinement and/or conviction in a§ 1983 action. See, e.g., Edwards v. Balisok, 520 U.S.
641 , 648 (1997) ; Heck v. Humphrey, 512 U.S. 477 , 483-89 (1994) ; Preiser v. Rodriquez,
411 U.S. 475, 500 (1973) (habeas corpus is the exclusive remedy for prisoners attacking
the validity of their conviction or confinement) .
Third , neitherthe Baxter County Sheriff's Department nor the Mountain Home Police
Department are subject to suit. The Sheriff's Department and Police Department are
buildings and not persons or a legal entities subject to suit under§ 1983. See, e.g., Dean
v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) ("[s]heriff's departments and police
departments are not usually considered legal entities subject to suit") ; Powell v. Cook

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County Jail, 814 F. Supp . 757 (N .D. Ill. 1993) Uail not subject to suit) ; Marsden v. Fed.
Bureau of Prisons , 856 F. Supp. 832 , 836 (S .D.N.Y. 1994) ("jail is not an entity that is

amenable to su it") ; In re Scott County Master Docket, 672 F. Supp . 1152, 1163 n.1 (D .
Minn . 1987) (sheriff's department is not a legal entity subject to suit) , aff'd, Myers v. Scott
County, 868 F.2d 1017 (8th Cir. 1989).

Fourth , the majority, if not all , of his claims are also barred by the statute of
limitations. Section 1983 does not contain its own statute of limitations. Instead, causes
of action under§ 1983 are governed by "the most appropriate or analogous state statute
of limitations." Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987) (§ 1981 case);
see also Wilson v. Garcia , 471 U.S. 261 , 268 (1985) (§ 1983 case) ; Bell v. Fowler, 99 F.3d

262, 265-266 (8th Cir. 1996) (§ 1985 case) . In Arkansas , this is the three-year personal
injury statute of limitations, Ark. Code Ann. 16-56-105(3) (2016) . See Millerv. Norris, 247
F.3d 736 , 739 (8th Cir. 2001) (Ark. Code Ann . § 16-56-105(3) is the statute of limitations
applicable to§ 1983 cases). Thus , any substantive claims that are based on events that
occurred prior to January 31 , 2014 , would be barred by the statute of limitations.
Finally, in Heck v. Humphrey, 512 U.S. 477 (1994) , the Supreme Court held that a
claim for damages for "allegedly unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a conviction or sentence invalid"
is not cognizable until "the conviction or sentence has been reversed on direct appeal ,
expunged by executive order, declared inva lid by a state tribunal authorized to make such
a determination , or called into question by a federal court's issuance of a writ of habeas
corpus." Heck, 512 U.S. 486-87 . Plaintiff's conviction has not been reversed or otherwise

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called into question .
Ill. CONCLUSION

The Complaint fails to state a cognizable claim under§ 1983 and is frivolous . It is
therefore DISMISSED WITHOUT PREJUDICE. See 28 U.S.C. § 1915(e)(2)(B)(i)-(ii) (in
forma pauperis complaint may be dismissed at any time due to frivolousness or for failure

to state a claim).
IT IS SO ORDERED on this

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