United States District Court, W.D. Arkansas, Hot Springs Division
SYLVESTER O. BARBEE, Plaintiff,
SGT. STARKEY, Defendant.
Sylvester O. Barbee, Plaintiff, Pro Se.
Stuckey, Defendant, represented by Renae Ford Hudson,
Assistant Attorney General.
AMENDED REPORT AND RECOMMENDATION
A. BRYANT, Magistrate Judge.
a civil rights action filed by the Plaintiff, Sylvester O.
Barbee, pursuant to 42 U.S.C. Â§ 1983. Pursuant to the
provisions of 28 U.S.C. Â§ 636(b)(1) and (3)(2011), the
Honorable Susan O. Hickey, United States District Judge,
referred this case to the undersigned for the purpose of
making a Report and Recommendation. Currently before the
Court is Defendant Starkey's Motion to Dismiss (ECF
filed his Complaint on October 1, 2015. ECF No. 1. Plaintiff
noted he had begun another lawsuit dealing with the same
facts involved in this action. ECF No. 1, p. 1. The prior
case is 6:14-cv-06082, assigned to the Honorable Mark E. Ford
in this District.
makes almost identical claims against Defendant Starkey in
both cases. Specifically, in both cases, Plaintiff alleges he
had a medical restriction of no work requiring the grip of
his right hand. Plaintiff alleges Defendant Starkey forced
him to work with a field hoe and heavy crate in the farm
field, making his right hand swell. Plaintiff's Motion to
Amend in the prior case was denied as futile because the
injury claimed was de minimis. It was further denied
because the amendment was filed with undue delay.
instant case, Plaintiff adds the allegation that the swelling
caused pain and nerve damage which causes his right hand to
be consistently numb. ECF No. 1, p. 2.
Complaint does not indicate if he is proceeding against
Defendant Starkey in his official or personal capacity.
Plaintiff seeks $150, 000 in compensatory damages, $200, 000
in punitive damages, and attorney's fees. ECF No. 1, p.
Court entered a Report and Recommendation on July 20, 2016.
ECF No. 17. This report recommended dismissing
Plaintiff's Complaint without prejudice because his
Complaint proceeded against Defendant in his official
capacity, and Plaintiff had not made any official capacity
allegations. Plaintiff objected timely to the report,
indicating he intended to proceed against Defendant Starkey
in his personal capacity. ECF No. 18. In construing
Plaintiff's pleadings liberally, I will consider his
Objection as containing a request to amend his Complaint.
Accordingly, I enter this Amended Report and Recommendation.
8(a) contains the general pleading rules and requires a
complaint to present "a short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). "In order to meet this standard,
and survive a motion to dismiss under Rule 12(b)(6), a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.'" Braden v. Wal-Mart Stores, Inc.,
588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotations
omitted)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft, 556 U.S.
at 678. While the Court will liberally construe a pro
se plaintiff's complaint, the plaintiff must allege
sufficient facts to support their claims. See
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
noted above, the Court will interpret Plaintiff's
Objection, (ECF No. 18), as containing a request to amend his
Complaint. Rule 15 of the Federal Rules of Civil Procedure