Burns v. McElroy et al
ORDER ON REPORT AND RECOMMENDATIONS and ORDER granting in part and denying in part 16 Motion to Dismiss; McElroy, Chris Sparks, Weibert, Keith Ferguson and Martinez terminated. Signed by Honorable Jimm Larry Hendren on September 11, 2013. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
AUSTIN JAY BURNS
Civil No. 12-5164
DEPUTY McELROY; CAPTAIN CHRIS SPARKS;
SERGEANT MARTINEZ; DEPUTY WEIBERT;
SHERIFF KEITH FERGUSON; and
O R D E R
consideration the Report and Recommendation of the Magistrate
Judge (document #19) and the parties' responses thereto. The
Court, being well and sufficiently advised, finds and orders as
This is an action pursuant to 42 U.S.C. § 1983, which
plaintiff Austin Burns, acting pro se, caused to be filed on July
McElroy, Captain Chris Sparks, Sergeant Martinez, Deputy Weibert,
and the Benton County Detention Center as defendants, and alleged
that Deputy McElroy subjected him to mental abuse and
that Deputy McElroy and Deputy Weibert subjected him to
unsanitary conditions of confinement;
that Sergeant Martinez threatened him on July 3, 2012;
that his mail was improperly withheld.
The Court substituted Sheriff Keith Ferguson as a defendant in
place of the Benton County Detention Center.
Mr. Burns filed a supplement on August 1, 2012, in which
that evidence was planted on him; and
that, while Mr. Burns was on suicide watch, Deputy Simer
wanted to put him in a room with a broken stool with sharp metal
The Court treated the supplement as an amendment to the Complaint
and directed the Clerk to add Deputy Simer as a defendant.
On February 5, 2013, the defendants filed a motion to
dismiss the Complaint, arguing that Deputy Simer and Sheriff
Ferguson were improperly added as defendants and that Mr. Burns
had stated no plausible official-capacity or individual-capacity
claims. They further claimed the protection of qualified immunity
on all individual-capacity claims.
The Magistrate Judge issued the present Report and
Recommendation, concluding that the following claims should be
all claims against Sergeant Martinez and Deputy Weibert;
all conditions of confinement claims stemming from the
alleged unsanitary conditions;
all claims stemming from interference with Mr. Burns'
all claims based on planted evidence.
The Magistrate Judge concluded that the following claims should
remain for further consideration:
the claim against Deputy McElroy based on his alleged
repeated threatening conduct;
the failure-to-protect claims against Captain Sparks and
Sheriff Ferguson; and
indifference to a known risk of suicide on Mr. Burns' behalf.
Mr. Burns responded to the Report and Recommendations,
indicating no objections. The defendants object to the recommended
denial of their motion to dismiss and qualified-immunity defense.
Standard for Motion to Dismiss
Pursuant to Fed. R. Civ. P. 8(a), a complaint must
contain, among other things, a short and plain statement of the
claim showing that the plaintiff is entitled to relief. To survive
a motion to dismiss for failure to state a claim, a complaint must
contain sufficient facts stating a claim that is plausible on its
face and will allow a court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
For purposes of deciding a motion to dismiss, the Court takes
the alleged facts as true, construing all reasonable inferences
arising from the complaint in the light most favorable to the
plaintiff. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986).
Addition of Deputy Simer as a Defendant
The defendants first object to the addition of Deputy
Simer, arguing that Mr. Burns' failure to list Deputy Simer as a
defendant in his initial Complaint is clear evidence that he did
not intend to sue Deputy Simer.
It is well settled that a document filed by a pro se
litigant is to be liberally construed and that a pro se complaint
must be held to less stringent standards than a pleading drafted
by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The document filed by Mr. Burns on August 1, 2012 --
which was docketed as a "Supplement" -- contained a handwritten
note stating that Mr. Burns wanted to add certain information to
his file and complaining that Deputy Simer disregarded his status
disciplinary action form -- both dated July 24, 2012 -- relevant
to Mr. Burns' allegation that Deputy Simer tried to place him in
a room with an unsafe, broken stool, despite knowing that Mr.
Burns was at risk of suicide.
The Clerk's date stamp on the envelope containing the initial
Complaint appears to indicate that it was received on July 23,
2012, the day before the incident involving the broken stool.
Thus, Mr. Burns could not have included that incident as the basis
for a claim in his initial Complaint. The only way for Mr. Burns
Complaint. Liberally construing Mr. Burns' August 1, 2012 filing
-- as the Court is required to do -- the Court finds that Mr.
Burns did just that. Therefore, Deputy Simer was properly added as
Addition of Sheriff Ferguson as a Defendant
Next, the defendants argue that Sheriff Ferguson should
not have been substituted in place of the Benton County Detention
Center and that it is unclear in what capacity Sheriff Ferguson is
named. They argue that 28 U.S.C. § 1915A, which requires predocketing screening of prisoner complaints, allows the Court to
identify cognizable claims or to dismiss the complaint -- but not
to substitute a party.
A county jail, such as the Benton County Detention
Center, is merely a building; it is not an entity subject to suit
under 42 U.S.C. § 1983. Owens v. Scott County Jail, 328 F.3d 1026,
1027 (8th Cir. 2003). Rather, under Arkansas law, the sheriff is
charged with the care and custody of county prisoners. Ark. Code
Ann. § 12-41-502.
Where a complaint against a sheriff does not specify the
capacity in which he is sued, the court construes the suit as one
against the sheriff in his official capacity. See Johnson v.
Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). A claim
against a sheriff in his official capacity is the equivalent of a
claim against his county employer. Id.
As no allegations in the Complaint were specifically
directed against Sheriff Ferguson personally, he could only be
considered as a defendant in his official capacity.
However, despite the liberal construction of Mr. Burns'
Detention Center is not warranted in this case. Mr. Burns has
attempted to allege claims against the other named defendants in
equivalent to suing the county itself. See Veatch v. Bartels
Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). Therefore,
naming Sheriff Ferguson in order to address the claim against the
county is unnecessary.
Moreover, the Eighth Circuit Court of Appeals has indicated
that the dismissal of a non-suable entity named in a § 1983 suit
complaint to name a suable entity or individual. See De La Garza
v. Kandiyohi County Jail, 18 Fed. Appx. 436, 437, 2001 WL 987542
(8th Cir. 2001) (unpublished per curiam).
Accordingly, Sheriff Ferguson will be dismissed as a
defendant in this case. Because the Benton County Detention Center
is not a suable entity, it is likewise dismissed.
The defendants further argue that all claims against
them in their official capacities should be dismissed because Mr.
Burns failed to allege any unconstitutional policy or custom that
was the moving force in violating his rights.
As noted above, a suit against a public officer in his
official capacity is "functionally equivalent to a suit against
the employing governmental entity." Veatch, 627 F.3d at 1257. A
governmental entity can be liable under § 1983 only if the
plaintiff shows that the entity maintained a policy or custom that
caused the plaintiff to be deprived of a federal right. Alexander
v. Hedback, 718 F.3d 762, 766 (8th Cir. 2013).
In his Complaint, Mr. Burns makes no statement regarding
any policy employed by the detention center. However, in the
grievance attached to the supplement to the Complaint, Mr. Burns
states that he is "tired of being treated like an animal by the
[deputies]" and asserts, "Nothing is ever done about it because
it's my word against theirs. That's what I am told every time I
put a grievance in." (Supplement, p. 4, document #5).1
Liberally construing the Complaint in its entirety, the Court
agrees with the Magistrate Judge that these allegations amount to
As the docket sheet now reflects, page 4 of the Supplement -- which is the back
side of page 3 -- was inadvertently omitted at the time the document was scanned into
the system. The error has now been corrected.
a claim that Benton County had a custom of failing to fully
investigate -- or to take seriously -- an inmate's complaints of
threats by detention center employees.2
Notwithstanding the above, and as explained in the
following section, the official-capacity claims fail because the
violated Mr. Burns' constitutional rights.
Individual Capacity Claims/Qualified Immunity
The parties do not object to the Magistrate Judge's
recommendation that the claims against Sergeant Martinez and
Deputy Weibert should be dismissed, and the Court agrees that
their dismissal is proper. However, the defendants argue that Mr.
Burns has failed to allege actionable claims against Deputy
defendants are protected from this suit by qualified immunity.
Qualified immunity is a doctrine that has evolved to
protect government officials from liability for civil damages
statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The doctrine "gives government officials breathing room to make
reasonable but mistaken judgments, and protects all but the
There has been no argument regarding any official-capacity claims related to
Deputy Simer's alleged deliberate indifference to a known risk of suicide, nor did the
Magistrate Judge conclude that any exist.
plainly incompetent or those who knowingly violate the law."
Messerschmidt v. Millender, 132 S.Ct. 1235, 1244 (2012). Whether
qualified immunity exists in a given situation is a question of
law, not fact, McClendon v. Story County Sheriff's Office, 403
F.3d 510, 515 (8th Cir. 2005), although there may be disputed
issues of fact about what that situation is.
Regarding Deputy McElroy, the defendants contend that
the claims against him amount to nothing more than verbal threats,
which do not constitute a § 1983 claim. They also argue that Mr.
Burns failed to allege any specific statements made by Deputy
McElroy that he deemed threatening.
In the usual case, mere verbal threats and name calling
do not violate a constitutional right. McDowell v. Jones, 990 F.2d
433, 434 (8th Cir. 1993). However, the Eighth Circuit has made an
exception to this rule where a public official engaged in a
"brutal" and "wanton act of cruelty," even though there was no
physical injury. Burton v. Livingston, 791 F.2d 97, 100 (8th Cir.
1986) (holding that the plaintiff stated a claim where he alleged
that an officer used a racial epithet and threatened his life at
gunpoint). "[A] prisoner retains at least the right to be free
from the terror of instant and unexpected death at the whim of his
allegedly bigoted custodians." Id.
However, where the alleged conduct failed to rise to that
egregious level, the Eighth Circuit has held that a verbal threat
is not actionable under § 1983. Hopson v. Fredericksen, 961 F.2d
1374, 1379 (8th Cir. 1992). In Hopson, the plaintiff alleged that
he was placed alone in the back seat of a police car and that,
when he refused to answer any questions, an officer uttered a
racial slur and threatened to "knock [his] remaining teeth out of
his mouth." Id. at 1378. The Eighth Circuit reasoned that -because the officer never threatened to kill Hopson and never
brandished a weapon or made any type of physical gesture toward
him -- the officer's conduct failed to rise to the level of a
constitutional violation. Id. at 1378–79.
The Eighth Circuit used similar reasoning in Irving v.
Dormire, 519 F.3d 441 (8th Cir. 2008), where it held that repeated
death threats made by a prison guard against a prisoner violated
allegations to the facts in both Burton and Hopson and found them
to be more similar to Burton because the guard subjected Irving to
the fear of death. Irving, 519 F.3d at 449.
With respect to Deputy McElroy, Mr. Burns alleged that
the deputy would "remind me, every time he sees me, that he has
and CAN cause me bodily harm at any given time." (Complaint, p. 7,
document #1 (emphasis in original)). He also alleged that, in
response to Mr. Burns' upraised arms when he requested toilet
paper, Deputy McElroy stated that he was going to tackle him.
(Complaint, pp. 10–11, document #1). Further, Mr. Burns claimed
that, on July 24, 2012, Deputy McElroy called him a "dipshit."
(Supplement, p. 3, document #5).
As a result of these allegedly ongoing threats, Mr. Burns
claimed to have suffered mental anguish and nightmares about the
named guards (Complaint, pp. 5, 8, document #1), as well as "the
shakes" every time he heard his door open (Complaint, p. 8,
document #1). He explained that he believes Deputy McElroy has a
personal vendetta against him, because "[e]very time I talk to
him, he threatens me." (Complaint, p. 11, document #1). He also
stated that he did not feel safe in the jail around this staff.
(Complaint, p. 15, document #1).
Contrary to the defendants' argument, the Complaint does
include specific statements by Deputy McElroy -- which are noted
above -- that Mr. Burns claimed were threats.
However, the Court does not find that those threats were the
kind of "brutal" and "wanton acts of cruelty" that the Eighth
Circuit has held to violate a prisoner's constitutional rights.
Mr. Burns does not allege that Deputy McElroy ever threatened his
life or even made a physical gesture to indicate he intended to
carry out his threats. While the Court does not condone the
alleged conduct, it cannot say that the allegations against Deputy
McElroy -- even if true -- state an actionable claim under § 1983.
Therefore, the claims against Deputy McElroy will be dismissed.
As to Captain Sparks, beyond listing his name as a
defendant on the Complaint, Mr. Burns makes no mention of him in
either his Complaint or Supplement. Thus, the Court finds that Mr.
Burns has failed to state a claim against Captain Sparks for
failure to protect.
Moreover, an Eighth Amendment violation based on failure
to protect requires two things:
first, that the conditions resulting from the failure to
protect pose a substantial risk of serious harm to the inmate (an
objective requirement); and
deliberately indifferent to that substantial risk of serious harm
(a subjective requirement).
Lenz v. Wade, 490 F.3d 991, 995 (8th Cir. 2007). The objective
requirement is to ensure that the violation is sufficiently
serious to amount to a deprivation of constitutional dimension.
Jensen v. Clarke, 94 F.3d 1191, 1194 (8th Cir. 1996).
Because the facts set forth by Mr. Burns regarding
constitutional rights, there can be no claim against Captain
Sparks under § 1983 for failure to protect from those threats.
Finally, the defendants argue that Mr. Burns failed to
state a claim against Deputy Simer for deliberate indifference of
a known risk of suicide. They contend it is clear from the
documents submitted that Mr. Burns was not actually placed in the
room with the broken stool. They further argue that Mr. Burns
failed to allege that Deputy Simer knew the stool was broken or
that it had sharp, ragged edges.
The Eighth Amendment's prohibition of cruel and unusual
indifference to serious medical needs. Vaughn v. Greene County,
Ark., 438 F.3d 845, 850 (8th Cir. 2006). For these purposes, the
risk of suicide by a prisoner is considered a serious medical
need. Gregoire v. Class, 236 F.3d 413, 417 (8th Cir. 2000). The
constitutional right of a prisoner to be protected from the known
risks of suicide has been clearly established. Luckert v. Dodge
County, 684 F.3d 808, 817 (8th Cir. 2012) (quoting Yellow Horse v.
Pennington County, 225 F.3d 923, 927 (8th Cir. 2000)).
Here Mr. Burns complains that, while he was on suicide
watch, Deputy Simer "wanted to put me in a room with sharp metal
edges from this stool that was broke." (Supplement, p. 1, document
#5). Contrary to the defendants' assertion, it is not clear
whether Mr. Burns was actually placed in the room with the broken
stool. The accompanying disciplinary action form indicates that
Mr. Burns did not want to go "back to his cell" because the stool
was broken. (Supplement, p. 2, document #5). Thus, it can be
inferred that Mr. Burns had been placed inside that cell.
Further, although Mr. Burns does not explicitly state that
Deputy Simer knew about the condition of the stool, this too can
be inferred from the stated circumstances. Again, the Court is
Erickson, 551 U.S. at 94.
The Court agrees with the Magistrate Judge that Mr.
Burns has adequately stated a claim of deliberate indifference
against Deputy Simer in his individual capacity. Because the law
in this area is clearly established, the Court finds that Deputy
Simer is not entitled to qualified immunity.
For the reasons discussed herein, the Court finds that
the defendants' motion to dismiss will be granted in part and
denied in part. Specifically, the following defendants -- and all
claims against them -- will be dismissed:
Captain Chris Sparks
Deputy Weibert; and
Sheriff Keith Ferguson.
This leaves for further proceedings the claim against
indifference to a known risk of suicide.
IT IS THEREFORE ORDERED that the Report and Recommendation of
the Magistrate Judge (document #19) is modified as stated herein.
IT IS FURTHER ORDERED that, for the reasons stated herein,
the defendants' Motion to Dismiss (document #16) is hereby granted
in part and denied in part. Separate defendants Deputy McElroy,
Captain Chris Sparks, Sergeant Martinez, Deputy Weibert, and
Sheriff Keith Ferguson are hereby dismissed from this action.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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