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Barbee v. Starkey

United States District Court, W.D. Arkansas, Hot Springs Division

August 4, 2016

SYLVESTER O. BARBEE, Plaintiff,
v.
SGT. STARKEY, Defendant.

          Sylvester O. Barbee, Plaintiff, Pro Se.

          Sgt Stuckey, Defendant, represented by Renae Ford Hudson, Assistant Attorney General.

          AMENDED REPORT AND RECOMMENDATION

          BARRY A. BRYANT, Magistrate Judge.

         This is a civil rights action filed by the Plaintiff, Sylvester O. Barbee, pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 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[1] Motion to Dismiss (ECF No. 10).

         I. BACKGROUND

         Plaintiff 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.

         Plaintiff 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.

         In the 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.

         Plaintiff's 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. 2.

         The 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.

         II. APPLICABLE LAW

         Rule 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).

         III. DISCUSSION

         As 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 governs ...


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