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Burns v. Avery

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

November 13, 2017

AUSTIN JAY BURNS, ADC #551922 PLAINTIFF
v.
KENDRICK R. AVERY, Lieutenant, Cummins Unit, ADC, et al. DEFENDANTS

          RECOMMENDED PARTIAL DISPOSITION

         The following Recommended Partial Disposition ("Recommendation") has been sent to United States District Judge J. Leon Holmes. Any party may file written objections to this Recommendation. Objections must be specific and include the factual or legal basis for disagreeing with the Recommendation. An objection to a factual finding must specifically identify the finding of fact believed to be wrong and describe the evidence that supports that belief.

         An original and one copy of the objections must be received by the Clerk of this Court within fourteen (14) days of this Recommendation. If no objections are filed, Judge Holmes can adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may also waive any right to appeal questions of fact.

         I. Introduction

         Plaintiff Austin Jay Burns ("Burns") is a prisoner in the Cummins Unit of the Arkansas Department of Correction ("ADC"). He has filed a pro se § 1983 Complaint and an Amended Complaint alleging that Defendants Lieutenant Kedrick R. Avery ("Avery"), Captain Kenneth Wayne Starks ("Starks"), and Warden Budnik ("Budnik"), while acting in both their individual an official capacites, violated his constitutional rights. Docs. 2 & 5. Before Burns may proceed with action, the Court must screen his allegations.[1]

         II. Discussion

         A. Burns's Official Capacity Claims

         The doctrine of sovereign immunity bars Burns from obtaining monetary damages from Defendants Avery, Starks, and Budnik for their actions in their official capacities. See Zajrael v. Harmon, 677 F.3d. 353, 355 (8th Cir. 2012); Larson v. Kempker, 414 F.3d 936, 939-40 (8th Cir. 2005). Because Burns does not seek injunctive relief against these Defendants, his official capacity claims against them for monetary damages should be dismissed, without prejudice.

         B. Burns's Individual Capacity Claims

         1. Excessive Force Claim

         Burns alleges that, on April 11, 2017, Avery used excessive force when he sprayed him with a chemical agent and deployed a stinger grenade in his cell.

         The Court concludes, for screening purposes only, that Burns has pled a viable § 1983 excessive force claim against Avery. Thus, the Court recommends that service be ordered on Avery.

         2. Inadequate Nutrition Claim

         Burns alleges that, from April 11 to 18, 2017, Avery, Budnik, and Stark violated his constitutional rights by only feeding him meal substitute bars that did not provide adequate nutrition and caused him to lose weight.

         The Court concludes, for screening purposes only, that Burns has pled a viable ยง 1983 inadequate nutrition claim against Avery, Budnik, and Stark. Thus, the Court ...


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