Solomon v. Sanders et al

Filing 30

ORDER granting 8 Motion to Supplement; denying 9 Motion to Supplement; denying 10 Motion to Supplement; denying 12 Motion to Supplement; denying 14 Motion to Supplement; denying 15 Motion to Supplement; denying 17 Motion to Suppl ement; denying 18 Motion to Supplement; denying 19 Motion to Supplement; denying 22 Motion for Issuance of Subpoena; denying 23 Motion to Amend/Correct; denying 24 Motion for Issuance of Subpoena; denying 25 Motion to Amend/Correct; denying 26 Motion to Amend/Correct; denying 27 Motion to Amend/Correct; denying 28 Motion to Amend/Correct. Signed by Honorable Barry A. Bryant on April 28, 2014. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION

CLIFTON O. SOLOMON

v.

PLAINTIFF

Civil No. 4:13-cv-04126

CORPORAL ALLEN SANDERS;
and DEWAYNE FLOYD

DEFENDANTS

ORDER
Plaintiff filed this section 1983 action on December 30, 2013. Plaintiff proceeds pro se and
in forma pauperis. Currently before the Court are Plaintiff’s: (1) Motion to Supplement Complaint
(ECF No. 8); (2) Motion to Supplement Complaint (ECF No. 9); (3) Motion to Supplement
Complaint (ECF No. 10); (4) Motion to Supplement Complaint (ECF No. 12); (5) Motion to
Supplement Complaint (ECF No. 14); (6) Motion to Supplement Complaint (ECF No. 15); (7)
Motion to Supplement Complaint (ECF No. 17); (8) Motion to Supplement Complaint (ECF No.
18); (9) Motion to Supplement Complaint (ECF No. 19); (10) Motion to Subpoena (ECF No. 22);
(11) Motion to Amend Complaint (ECF No. 23); (12) Motion to Subpoena (ECF No. 24); (13)
Motion to Amend Complaint (ECF No. 25); (14) Motion to Amend Complaint (ECF No. 26); (15)
Motion to Amend Complaint (ECF No. 27); and (16) Motion to Amend Complaint (ECF No. 28).
I.

BACKGROUND
In Plaintiff’s original Complaint he names Dewayne Floyd and Allen Sanders as Defendants

and states he is suing Defendants in both their individual and official capacities. Specifically,

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Plaintiff claims: (1) Defendant Sanders’ actions related to Plaintiff’s diciplinary proceedings in
November 2013 were retaliation; (2) he was the victim of a health hazard on November 21, 2013
when Defendant Floyd used sulfuric acid in West A Pod; (3) the panic button does not work in his
pod; (4) his pod has only one working shower for thirty inmates; (5) there is no hot water; (6) there
are no cleaning supplies; and (7) the food is cold. ECF No. 1.
II.

APPLICABLE LAW
Rule 15 of the Federal Rules of Civil Procedure governs amended pleadings. Rule 15(a)

provides in pertinent part:
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter
of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a
responsive pleading is required, 21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with
the opposing party's written consent or the court's leave. The court should freely give
leave when justice so requires.
Fed. R. Civ. P. 15(a).
Although leave to amend is to be freely granted under Rule 15(a), the Court has
discretion whether or not to grant leave to amend. Zenith Radio Corp. v. Hazeltine Research,
Inc., 401 U.S. 321, 330–32 (1971). Factors to consider in determining whether leave to amend
should be granted include but are not limited to (1) whether the motion was filed in bad faith
or with dilatory motive; (2) whether the motion was filed with undue delay; (3) whether leave
to amend would be unduly prejudicial to the opposing parties; and (4) whether the proposed
amendment would be futile. See Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir.
1998) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)); Williams v. Little Rock Mun. Water
Works, 21 F.3d 218, 224 (8th Cir. 1994).
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III.

ANALYSIS
1.

First Motion to Supplement Complaint (ECF No. 8)

In Plaintiff’s first Motion to Supplement his Complaint he requestS a protective order
against Defendant Sanders and a transfer from the Miller County Detention Center (“MCDC”)
because he fears Defendant Sanders will retaliate against him for filing this lawsuit. The Court
notes that Plaintiff’s address of record indicates he has been transferred to the Arkansas
Department of Corrections (“ADC”). Therefore, Plaintiff’s request for a protective order and
transfer are moot as he is no longer incarcerated at the MCDC where Defendant Sanders is
employed.
Next, Plaintiff seeks to supplement his Complaint with statements regarding Defendant
Sanders refusing another inmate a blanket and Defendant Sander’s threatening Plaintiff on
January 4, 2014.
Pursuant to Rule 15, Plaintiff is entitled to this amendment as a matter of right because
it was filed within twenty-one (21) days of Defendants being served.1 Accordingly, Plaintiff’s
first Motion to Supplement Complaint (ECF No. 8) is GRANTED.
2.

Second Motion to Supplement Complaint (ECF No. 9)

In his second Motion to Supplement his Complaint, Plaintiff: seeks to add Warden
Brazell as a defendant because he “stands as a defense for [Defendant] Sanders without
investigation” regarding the threats Defendant Sanders allegedly made to Plaintiff; states that
he is suing Brazell in both his individual and official capacities; and states that he was

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Defendants were served on January 21, 2014 (ECF No. 11) and Plaintiff filed his
Supplement on January 7, 2014 (ECF No. 8).
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incarcerated for a parole violation at the time the incident occurred. Additionally, Plaintiff
makes many references to his original Complaint and attaches grievances he filed in January
2014 regarding copies he was denied and the lack of a working panic button in his pod.
A claim

of deprivation of a constitutional right cannot be based on a respondeat

superior theory of liability. See Monell, 436 U.S. at 694. “[A] supervisor is not vicariously
liable under 42 U.S.C. § 1983 for an employee’s unconstitutional activity.” White v. Holmes,
21 F.3d 277, 280 (8th Cir. 1994); see also Keeper v. King, 130 F.3d 1309, 1314 (8th Cir.
1997) (“general responsibility for supervising the operations of a prison is insufficient to
establish the personal involvement required to support liability”). In other words, Warden
Brazell, cannot be held liable merely because he supervises the individuals allegedly responsible
for violating Plaintiff’s constitutional rights. Id. Plaintiff did not offer any facts or allegations
in his Motion indicating Warden Brazell played any role in the conduct Plaintiff complains of
in his Complaint. Therefore, allowing Plaintiff leave to amend his Complaint in order to add
Warden Brazell as a defendant would be futile.
Further, a motion to amend is not the proper avenue for presenting evidence or exhibits
to the Court. Plaintiff's conditions of confinement claims have been stated in his Complaint.
Any evidence he has to support these claims should be properly submitted in connection with
a motion for summary judgment or at an evidentiary hearing.
Accordingly, Plaintiff's fourth Motion to Supplement (ECF No. 9) is DENIED.
3.

Third Motion to Supplement Complaint (ECF No. 10)

In his third Motion to Supplement his Complaint, Plaintiff reiterates allegations already
made in his original complaint regarding the denial of grievance copies and the use of sulfuric
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acid in the West A pod.

Plaintiff also moves the Court to request Defendants produce

Plaintiff’s written grievances and the work order related to the use of sulfuric acid in West A
pod on November 21, 2013.
Initially the Court notes, pursuant to the Federal Rules of Civil Procedure, discovery
request and answers are not filed with the Court unless they are being used as evidence in
support of a motion, in response to a motion, or as exhibits at a hearing or trial. Fed. R. Civ.
P. 5(d)(1).

Accordingly, the Court will not direct Defendants to produce the requested

documents to Plaintiff. Plaintiff must make these discovery requests directly to Defendants'
counsel, Mr. Colin P. Wall at Rainwater, Holt, and Sexton, P.O. Box 17250, Little Rock,
Arkansas 72222.
Further, the Court notes the proposed supplements to Plaintiff's Complaint would be
futile as he simply reiterates claims already made in his Complaint.
Accordingly, Plaintiff's third Motion to Supplement (ECF No. 10) is DENIED.
4.

Fourth Motion to Supplement Complaint (ECF No. 12)

In Plaintiff’s fourth Motion to Supplement his Complaint he seeks to support his claims
regarding the conditions of his confinement with a grievance dated January 12, 2014. In this
grievance Plaintiff complains that his sink, shower, and “sign” need repairing and Warden
Brazell responds that the staff works on these type issues daily.
As explained above a motion to amend is not the proper avenue for presenting evidence
or exhibits to the Court. Plaintiff's conditions of confinement claims have been stated in his
Complaint. Any evidence he has to support these claims should be properly submitted in
connection with a motion for summary judgment or at an evidentiary hearing.
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Accordingly, Plaintiff's fourth Motion to Supplement (ECF No. 12) is DENIED.
5.

Fifth Motion to Supplement Complaint (ECF No. 14)

In Plaintiff’s fifth Motion to Supplement his Complaint he seeks to supplement his
Complaint with a grievance dated January 26, 2014. Plaintiff argues this grievance supports
his claims that Defendant Sanders is unstable and abusive. Additionally, Plaintiff seeks to add
a grievance about the panic button dated January 25, 2014.
Again, a motion to amend is not the proper avenue for presenting evidence or exhibits
to the Court. Plaintiff's claims against Defendant Sanders and his claim relating to the panic
button have been stated in his Complaint. Any evidence he has to support these claims should
be properly submitted in connection with a motion for summary judgment or at an evidentiary
hearing.
Accordingly, Plaintiff's fifth Motion to Supplement (ECF No. 14) is DENIED.
6.

Sixth Motion to Supplement Complaint (ECF No. 15)

Plaintiff’s sixth Motion to Supplement his Complaint consist of two witness statements
from fellow inmates regarding the sulfuric acid usage complained of in Plaintiff’s Complaint.
Again, a motion to amend is not the proper avenue for presenting evidence or exhibits
to the Court. Plaintiff's claims regarding the sulfuric acid have been stated in his Complaint.
Any evidence, including witness statements, he has to support these claims should be properly
submitted in connection with a motion for summary judgment or at an evidentiary hearing.
Accordingly, Plaintiff's sixth Motion to Supplement (ECF No. 15) is DENIED.
7.

Seventh Motion to Supplement Complaint (ECF No. 17)

In Plaintiff’s seventh Motion to Supplement, he seeks to add a claim that MCDC
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violated its own diciplinary procedures by locking Plaintiff down in segregation on February
5, 2014.

Plaintiff also reiterates arguments made in his Complaint and prior Motions to

Supplement.
Plaintiff makes no connection between his allegations relating to his February 5, 2014
lockdown and the claims stated in his Complaint. The Court need not grant Plaintiff leave to
amend his Complaint when Plaintiff seeks to add claims unrelated to those alleged in his
Complaint. Wishon v. Gammon, 978 F.2d 446, 448 (8th Cir. 1992).
Accordingly, Plaintiff's seventh Motion to Supplement (ECF No. 17) is DENIED.
Plaintiff may file a new and separate section 1983 Complaint related to his February 5, 2014
lockdown if he wishes.
8.

Eighth Motion to Supplement Complaint (ECF No. 18)

In Plaintiff’s eighth Motion to Supplement Complaint: he submits another inmates
statement; requests the Court direct the United States Marshal Service (“USMS”) to file charges
against Defendant Sanders for retaliation, terroristic threatening, and harassment; requests the
Court direct the USMS to request MCDC produce the video and audio “for each and every
event listed or stated in (all) the Follow Document 1, 8, 9, 14 . . . ” (errors in original);
requests the USMS investigate all of Plaintiff’s allegations; makes arguments that his February
2014 diciplinary hearing was unfair because Defendant Floyd was present; and requests the
Court amend his Complaint to include a “conflict of interest and harassment” claim against
Defendant Floyd.
As previously explained, discovery request should be directed to Mr. Wall at Rainwater,
Holt, and Sexton.
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Further, the Court will not direct the USMS to conduct discovery on Plaintiff's behalf.
Additionally, as the Court explained above, any claims relating to Plaintiff's February
2014 diciplinary proceedings are unrelated to the claims alleged in the Complaint and leave will
not be granted to amend them here. Again, Plaintiff may make any claims relating to the
February 2014 lockdown and diciplinary proceedings in a new section 1983 complaint.
Lastly, the Court will not order the USMS to file any charges or conduct any
investigation into Plaintiff's claims against Defendant Sanders.

See Jennings v. City of

Stillwater, 383 F.3d 1199, 1205 (10th Cir. 2004) (“[F]ederal courts are not entrusted with the
responsibility of ensuring the effective enforcement of state criminal laws; that role falls to state
and local law enforcement authorities.”).
Accordingly, Plaintiff's eighth Motion to Supplement (ECF No. 18) is DENIED.
9.

Ninth Motion to Supplement Complaint (ECF No. 19)

In Plaintiff’s ninth Motion to Supplement his Complaint he seeks to add a denial of
medical care claim to his Complaint regarding a sick call he placed on February 10, 2014.
Plaintiff also seeks to add the “tag” of the sulfuric acid used in West A pod.
As explained above, the Court need not grant Plaintiff leave to amend his Complaint
when Plaintiff seeks to add claims unrelated to those alleged in his Complaint. Wishon v.
Gammon, 978 F.2d 446, 448 (8th Cir. 1992).

Plaintiff's denial of medical care claim is

completely unrelated to the claims asserted in his Complaint.
Further, as also explained above, the Court will not grant Plaintiff leave to supplement
his Complaint in order to add exhibits. Any evidence, including the tag from the sulphuric
acid at issue, Plaintiff has to support his claims should be properly submitted in connection

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with a motion for summary judgment or at an evidentiary hearing.
Accordingly, Plaintiff's ninth Motion to Supplement Complaint (ECF No. 19) is
DENIED.
10.

First Motion to Subpoena (ECF No. 22)

While titled a Motion to Subpoena, the Court construes this document as yet another
motion to amend his Complaint. In this Motion, again Plaintiff requests the Court add Warden
Brazell as a Defendant in this matter.
Plaintiff's only basis for adding Warden Brazell to this action is that he "Has Been a
great support system for the two said Defendants." ECF No. 22. A claim of deprivation of
a constitutional right cannot be based on a respondeat superior theory of liability. See Monell,
436 U.S. at 694. “[A] supervisor is not vicariously liable under 42 U.S.C. § 1983 for an
employee’s unconstitutional activity.” White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994); see
also Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) (“general responsibility for
supervising the operations of a prison is insufficient to establish the personal involvement
required to support liability”). In other words, Warden Brazell, cannot be held liable merely
because he supervises the individuals allegedly responsible for violating Plaintiff’s constitutional
rights. Id. Plaintiff did not offer any facts or allegations in his Motion to Subpoena indicating
Warden Brazell played any role in the conduct Plaintiff complains of in his Complaint.
Therefore, allowing Plaintiff leave to amend his Complaint in order to add Warden Brazell as
a defendant would be futile.
Accordingly, Plaintiff's first Motion to Subpoena (ECF No. 22) is DENIED.
11.

First Motion to Amend (ECF No. 23)
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In his first Motion to Amend, Plaintiff seeks to amend his original Complaint by adding
Miller County Correctional Center (a.k.a. Miller County Detention Center) and Miller County
Sheriff’s Office as Defendants. Plaintiff also seeks to amend his requested relief to include
compensatory damages for “mental anguish, the endangerment of my life and health” and
punitive damages.
Both the Miller County Correctional Center and the Miller County Sheriff’s office are
buildings and not persons or legal entities subject to suit under section 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 County Jail, 814 F. Supp.
757, 758 (N.D. Ill. 1993) (jail is not a "person" under Section 1983); Marsden v. Fed. Bureau of
Prisons, 856 F. Supp. 832, 836 (S.D.N.Y. 1994) (the “jail is not an entity that is amenable to
suit”); 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). Therefore, neither can be named as defendants in this matter.
Further, Plaintiff already noted he was seeking both compensatory and punitive damages
in his original Complaint.
Therefore, both amendments sought in Plaintiff’s first Motion to Amend would be futile.
Accordingly, Plaintiff’s first Motion to Amend (ECF No. 23) is DENIED.
12.

Second Motion to Subpoena (ECF No. 24)

As with Plaintiff’s first Motion to Subpoena, the Court construes this document as an
additional motion to amend his Complaint. In this Motion, Plaintiff again requests the Court
add Warden Brazell and Lt. Adams as Defendants in this matter because they were both
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notified of the incident with the sulfuric acid.
As stated above, Warden Brazell and Lt. Adams cannot be held vicariously liable for
Defendants actions. Further, in order to establish liability under section 1983, Plaintiff must
establish “a causal link to, and direct responsibility for, the depravation of rights” protected by
the Constitution. Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). In his Motion,
Plaintiff merely alleges Brazell and Adams were notified that sulfuric acid was used in West
A pod after the fact. This fails to state a cognizable claim under section 1983. Therefore,
amending his Complaint to add Brazell and Adams as Defendants would be futile.
Accordingly, Plaintiff’s second Motion to Subpoena (ECF No. 24) is DENIED.
13.

Second Motion to Amend (ECF No. 25)

In Plaintiff’s Second Motion to Amend, he seeks to add a denial of medical care claim
to his Complaint. He alleges he was denied medical care on February 10, 2014.
As explained above, this denial of medical care claim is completely unrelated to the
claims alleged in Plaintiff’s Complaint. Accordingly, Plaintiff’s second Motion to Amend (ECF
No. 25) is DENIED.
14.

Third Motion to Amend (ECF No. 26)

In Plaintiff’s third Motion to Amend, he submits an affidavit reiterating the claims
alleged in his Complaint and previous motions to supplement against Defendant Sanders.
Additionally, Plaintiff attaches documents to this affidavit that are already filed with the Court.
For the same reasons as stated previously, Plaintiff’s third Motion to Amend (ECF No.
26) is DENIED.
15.

Fourth Motion to Amend (ECF No. 27)
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In Plaintiff’s fourth Motion to Amend, he reiterates his allegations against Defendant
Sanders and again requests the Court for compensatory and punitive damages.
For the same reasons as stated previously, Plaintiff’s fourth Motion to Amend (ECF No.
27) is DENIED.
16.

Fifth Motion to Amend (ECF No. 28)

In Plaintiff’s fifth Motion to Amend, he seeks to add Warden Brazell and Lt. Adams
as Defendants in this matter. Plaintiff also attaches documents previously filed with the Court
to this Motion.
For the same reasons as stated previously, Plaintiff’s fifth Motion to Amend (ECF No.
28) is DENIED.
IV.

CONCLUSION
For the reasons stated above, Plaintiff’s: Motion to Supplement Complaint (ECF No. 8)

is GRANTED; Motion to Supplement Complaint (ECF No. 9) is DENIED; Motion to
Supplement Complaint (ECF No. 10) is DENIED; Motion to Supplement Complaint (ECF No.
12) is DENIED; Motion to Supplement Complaint (ECF No. 14) is DENIED; Motion to
Supplement Complaint (ECF No. 15) is DENIED; Motion to Supplement Complaint (ECF No.
17) is DENIED; Motion to Supplement Complaint (ECF No. 18) is DENIED; Motion to
Supplement Complaint (ECF No. 19) is DENIED; Motion to Subpoena (ECF No. 22) is
DENIED; Motion to Amend Complaint (ECF No. 23) is DENIED; Motion to Subpoena (ECF
No. 24) is DENIED; Motion to Amend Complaint (ECF No. 25) is DENIED; Motion to
Amend Complaint (ECF No. 26) is DENIED; Motion to Amend Complaint (ECF No. 27) is
DENIED; and Motion to Amend Complaint (ECF No. 28) is DENIED.
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The Clerk of the Court is DIRECTED to file Plaintiff’s first Motion to Supplement
(ECF No. 8) as a Supplement to his Complaint.
Further, the Clerk of the Court is DIRECTED to accept no further supplements,
motions to supplement complaint, amendments, or motions to amend complaint from Plaintiff
without prior approval from the Court. Plaintiff is not entitled to unlimited amendments to his
Complaint.

Zenith Radio Corp., 401 U.S. at 330–32.

Plaintiff cannot continue to add

Defendants and claims in this matter as new incidents occur. Additionally, Defendants in this
matter have been served and filed an Answer in this matter.

Allowing such continuous

amendments would be unduly prejudicial to Defendants and impede the resolution of this matter.
Additionally, the Clerk of the Court is DIRECTED to return to Plaintiff without filing
any exhibits, evidence, or discovery request not appropriately attached to a motion. Plaintiff
will have an opportunity to present evidence to the Court in connection with a motion for
summary judgment or at an evidentiary hearing.
Finally, the Clerk of the Court is DIRECTED to return any documents he has
previously submitted for filling in this matter to Plaintiff without filing. Plaintiff is advised
that it is unnecessary to submit documents to the Court on multiple occasion. Once Plaintiff
has submitted a document to the Court it remains on the record throughout this proceeding.
IT IS SO ORDERED this 28th day of April 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE

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