United States District Court, E.D. Arkansas, Western Division
PROPOSED FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to Chief United States District Judge Brian S. Miller. You
may file written objections to all or part of this
Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your
objection, and (2) be received by the Clerk of this Court
within fourteen (14) days of this Recommendation. By not
objecting, you may waive the right to appeal questions of
Bruce Wayne DeVries filed a pro se complaint
pursuant to 42 U.S.C. § 1983 on January 23, 2018, while
incarcerated at the Saline County Detention Facility (Doc.
No. 2). DeVries was granted leave to proceed in forma
pauperis and ordered to file an amended complaint
identifying claims relating to only one issue, describing how
each defendant violated his constitutional rights, describing
how he was injured by each defendant's actions, and
explaining why he sued defendants in their official
capacities only. Doc. No. 3. DeVries filed an amended
complaint on February 1, 2018, identifying almost 30 separate
issues and indicating he is suing defendants in their
official capacities only. See Doc. No. 5. DeVries
filed a second amended complaint on February 9, 2018, adding
two defendants (Doc. No. 7). For the reasons stated herein,
DeVries' claims should be dismissed for failure to state
a claim upon which relief may be granted.
docketing the complaint, or as soon thereafter as
practicable, the Court must review the complaint to identify
cognizable claims or dismiss the complaint if it: (1) is
frivolous or malicious; (2) fails to state a claim upon which
relief may be granted; or (3) seeks monetary relief against a
defendant who is immune from such relief. See 28
U.S.C. § 1915A. Rule 8 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.” In Bell Atlantic Corporation v.
Twombly, 550 U.S. 544, 555 (2007), the Court stated,
“a plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do. . . . Factual allegations must be enough to
raise a right to relief above the speculative level, ”
citing 5 C. Wright & A. Miller, Federal Practice
and Procedure § 1216, pp. 235-236 (3d ed. 2004). A
complaint must contain enough facts to state a claim to
relief that is plausible on its face, not merely conceivable.
Twombly at 570. However, a pro se
plaintiff's allegations must be construed liberally.
Burke v. North Dakota Dept. of Corr. & Rehab.,
294 F.3d 1043, 1043-1044 (8th Cir.2002) (citations omitted).
seeks an award of money damages, the establishment of a
grievance committee, and to have food portions and
temperature controlled. Doc. No. 5 at 14. DeVries was
instructed to limit his claims to those that are factually
related to one another because multiple unrelated claims may
not be prosecuted in a single action against multiple
defendants. See Fed. R. Civ. P. 20(a)(2). DeVries
should also not be allowed to defeat the filing fee
requirements by joining multiple causes of action in one
suit. DeVries raises almost 30 separate issues against 29
defendants. See Doc. No. 5. He does not claim that
all defendants are responsible for all his complaints.
Id. at 3-5. Accordingly, the Court examines the
viability of DeVries' complaint that he was denied
adequate medical care. See Doc. No. 5 at
¶¶ 24-27 & 35. If DeVries wishes to pursue his
other claims, he must file separate lawsuits.
respect to DeVries' medical care claim, DeVries sues
defendants in their official capacities only. See
Doc. No. 4. Official capacity claims are “functionally
equivalent to a suit against the employing governmental
entity.” Veach v. Bartels Lutheran Home, 627
F.3d 1254, 1257 (8th Cir. 2010). Thus, a suit against the
defendants in their official capacities is in essence a suit
against the County or city itself. See Murray v.
Lene, 595 F.3d 868 (8th Cir. 2010); Liebe v.
Norton, 157 F.3d 574 (8th Cir. 1998). A municipality
cannot be held liable on the basis of respondeat
superior, or simply by virtue of being the employer of a
tortfeasor. Atkinson v. City of Mountain View, Mo.,
709 F.3d 1201 (8th Cir. 2013). Accordingly, the defendant
county employees can only be held liable in their official
capacities in this case if DeVries can establish that a
constitutional violation was committed pursuant to “an
official custom, policy, or practice of the governmental
entity.” Moyle v. Anderson, 571 F.3d 814, 817
(8th Cir. 2009). DeVries does not assert that a custom or
policy of Saline County was the moving force behind the
claimed violations of his constitutional rights. Accordingly,
his complaint fails to state a claim upon which relief may be
granted and should be dismissed.
reasons stated herein, it is recommended that:
1. DeVries' complaint be dismissed without prejudice for
failure to state a claim upon which relief may be granted.
2. Dismissal of this action count as a “strike”
within the meaning of 28 U.S.C. § 1915(g).
3. The Court certify, pursuant to 28 U.S.C. §
1915(a)(3), that an in forma pauperis appeal from
the order adopting this recommendation and accompanying