United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
a civil rights action filed by the Plaintiff Jeremy Herrick
Simon pursuant to 42 U.S.C. § 1983. Plaintiff proceeds
pro se and in forma pauperis. He is
currently incarcerated in the Varner Unit of the Arkansas
Department of Correction (ADC).
case is currently before me on the partial motion to dismiss
(Doc. 11) filed by Nurse Tyranny Ray. Specifically, Nurse Ray
seeks dismissal of the official capacity claim against her.
Plaintiff has not responded to the motion.
to the allegations of the complaint (Doc. 1), on March 11,
2016, Plaintiff suddenly lost vision in his left eye. Five
hours later, he was taken to the emergency room. The
emergency room doctor consulted with the on call
ophthalmologist and instructions were given to the
transporting deputy, Deputy Garrett, that Plaintiff should be
taken to Void Vision the following Monday.
alleges Defendants did not take him to Void Vision for ten
days. He indicates he is still blind in his left eye.
sued the Defendants in both their individual and official
capacities. He seeks compensatory and punitive damages.
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 for 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)).
plausibility standard requires a plaintiff to show at the
pleading stage that success on the merits is more than a
'sheer possibility.'" Id., at 594. The
standard does "not impose a probability requirement at
the pleading stage; it simply calls for enough fact to raise
a reasonable expectation, " (Bell Atlantic Corp. V.
Twombly, 550 U.S. 544, 556 (2007)) or reasonable
inference, that the "defendant is liable for the
misconduct alleged." Iqbal, 556 U.S. at 678;
see also Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004)(While pro se complaints are liberally construed, they
must allege sufficient facts to support the claims.).
Ray maintains that she is entitled to the dismissal of the
official capacity claims because Plaintiff has not alleged
facts sufficient to assert a plausible claim that an official
institutional policy or custom reflected deliberate
indifference to his serious medical needs. Nurse Ray is
employed by Southern Health Partners, Inc., the contract
medical care provider for Benton County.
capacity claims are "functionally equivalent to a suit
against the employing governmental [or institutional]
entity." Veatch v. Battels Lutheran Home, 627
F.3d 1254, 1257 (8th Cir. 2010). A Plaintiff "seeking to
impose liability on a municipality [or institution] under
§ 1983 [must] identify [an unconstitutional] policy or
custom that caused the plaintiffs injury." Board of
County Commissioners of Bryan County, Oklahoma v. Brown,
520 U.S. 397, 403 (1997). "There are two basic
circumstances under which municipal [or institutional]
liability will attach: (1) where a particular [institutional]
policy or custom itself violates federal law, or directs an
employee to do so; and (2) where a facially lawful
[institutional] policy or custom was adopted with
'deliberate indifference' to its known or obvious
consequences." Moyle v. Anderson, 571 F.3d 814,
817-18 (8th Cir. 2009) (citation omitted).
has not alleged a plausible "policy" claim. He has
not pointed to "any officially accepted guiding
principle or procedure that was constitutionally
inadequate." Jenkins v. County of Hennepin, 557
F.3d 628, 633 (8th Cir. 2009)(quoting Mettler v.
Whitledge,165 F.3d 1197, 1204 (8th Cir.
1999)). He has not pointed to a "'deliberate choice
of a guiding principle or procedure made by the