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May v. Ridgell

United States District Court, E.D. Arkansas, Pine Bluff Division

August 4, 2016

JAMES CLAYTON MAY ADC# 137749, PLAINTIFF
v.
KEVIN DEMON RIDGELL, Correctional Sergeant, Dermott Unit, Arkansas Department of Correction, DEFENDANT

          PROPOSED FINDINGS AND RECOMMENDATIONS

          JOE J. VOLPE UNITED STATES MAGISTRATE JUDGE

         INSTRUCTIONS

         The following recommended disposition has been sent to United States District Judge James M. Moody, Jr. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

         If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the new hearing in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the new hearing.

         From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and “Statement of Necessity” to:

Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR 72201-3325

         DISPOSITION

         I. INTRODUCTION

         James May (“Plaintiff”) brought this action pro se and under 42 U.S.C. § 1983. (Doc. No. 2.) He alleges Sergeant Kevin Ridgell (“Defendant”) subjected him to excessive force while he was incarcerated at the Dermott Unit of the Arkansas Department of Correction. (Id.) Now, Defendant has moved to dismiss this action arguing Plaintiff has failed to state a claim upon which relief may be granted. (Doc. No. 10.) Plaintiff responded (Doc. No. 13) and the Motion is ripe for disposition.

         II. STANDARD

         Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009); Erickson v. Pardus, 551 U.S. 89, 93 (2007). While specific facts are not necessary, a pleading that offers only “labels and conclusions” or “a formulaic recitations of the elements of a cause of action will not do.” Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008). In order to meet the Rule 8(a) standard and survive a motion to dismiss under Rule 12(b)(6), the factual allegations in the complaint must “state a claim to relief that is plausible on its face.” Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic, 550 U.S. at 570); Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). 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 (quoting Bell Atlantic, 550 U.S. at 556); Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 716 (8th Cir. 2011). The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a ...


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