Pending before the Court is the Arkansas Department of Correction (ADC) defendants' motion for a judgment on the pleadings (docket entry #364). The plaintiff-incarcerated at the ADC Varner Supermax Unit-filed this action (docket entry #1) pursuant to 42 U.S.C. § 1983 alleging violation of his constitutional rights. The ADC defendants assert that the plaintiff has failed to state claims upon which relief can be granted. The motion (docket entry # 364) is granted in part and denied in part.
The plaintiff's allegations were extensively reviewed in the Partial Proposed Findings and Recommended Disposition (docket entry # 184) following an evidentiary hearing held on May 5, 2005, and will not be revisited herein.
The Court previously entered an order on November 30, 2006, (docket entry #414) adopting the magistrate judge's Partial Report and Recommendations (docket entry # 409) and dismissing deliberate indifference claims against separate defendants Alexander, Copeland, and Simmons. The remaining ADC defendants*fn1 filed this pending motion for judgment on the pleadings (docket entry # 364) on August 11, 2006.
A motion for judgment on the pleadings is governed by the same standards that apply to motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and will be granted "only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheur v. Rhodes, 416 U.S. 232, 236 (1974). Allegations of the complaint should be construed favorably to the pleader. Id. However, the complaint must contain facts which state a claim as a matter of law and must not be conclusory. Briehl v. General Motors Corp., 172 F.3d 623, 627 (8th Cir. 1999) (citing Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995).
A. Eleventh Amendment Immunity
The ADC defendants contend that the official capacity claims against them are barred because a person sued in his/her official capacity is not a "person" for purposes of 42 U.S.C. § 1983, and that the State's sovereign immunity serves to bar such claims as they are in effect a suit against the State itself. The law is well established that a civil litigant cannot obtain monetary damages on a claim brought against a state actor in their official capacity. Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989); Alabama v. Pugh, 438 U.S. 781 (1978). Accordingly, the plaintiff's claims for monetary damages asserted against the ADC defendants in their official capacities are dismissed.
The Court must accept the factual allegations in the Complaint as true in deciding the defendants motion to dismiss. Additionally, because qualified immunity is an affirmative defense, when the defense is asserted in a motion to dismiss, dismissal is proper only when the immunity is established on the face of the complaint. Weaver v. Clarke, 45 F.3d 1253 (8th Cir. 1995). The question of qualified immunity involves a two-step analysis. First, the Court must determine whether the plaintiff has alleged the violation of a constitutional right. Id. Second, the Court must determine whether that right was clearly established at the time of the alleged violation. Id. The plaintiff has stated claims for constitutional violations, and the rights at issue in this suit were clearly established at the time of the incidents. Accordingly, the defendants qualified immunity argument is unavailing at this point.
The ADC defendants' motion contends-without application to specific defendants- that the plaintiff has failed to allege sufficient facts to support his failure to protect claim. In essence, the defendants cite cases related to inmate--on--inmate attacks and argue that the attack by ADC prison guards was a surprise attack that the defendants responded to in a reasonable manner.
A prisoner may assert an Eighth Amendment claim against prison officers who fail to intervene on the prisoner's behalf when the prisoner is attacked by another correctional officer. See Buckner v. Hollins, 983 F.2d 119 (8th Cir. 1993) and Burgess v. Moore, 39 F.3d 216 (8th Cir. 1994). The question is whether the officer's inaction amounts to deliberate indifference to a substantial risk of serious harm to the prisoner. See Buckner, 983 F.3d at 121 and Estate of Davis v. Delo, 115 F.3d 1388, 1394 (8th Cir. 1997). An officer's liability is dependent on whether there was time to intervene. Putnam v. Gerloff, 639 F.2d 415 (8th Cir. 1981).
The plaintiff stated a claim for failure to protect, and the facts viewed in a light most favorable to the plaintiff would provide a basis for a jury to conclude that the defendants observed fellow officers using excessive force against the ...