United States District Court, W.D. Arkansas, Hot Springs Division
MAGISTRATE JUDGE'S REPORT AND
MARK E. FORD UNITED STATES MAGISTRATE JUDGE.
a civil rights action provisionally filed 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 Report and Recommendation.
case is before the Court for preservice screening under the
provisions of the Prison Litigation Reform Act (PLRA).
Pursuant to 28 U.S.C. § 1915A, the Court has the
obligation to screen any complaint in which a prisoner seeks
redress from a governmental entity or officer or employee of
a governmental entity. 28 U.S.C. § 1915A(a).
filed his Complaint on June 18, 2018. (ECF No. 1).
Plaintiff's alleges his constitutional rights were
violated by the delay and denial of medical care for a
gunshot wound to his right leg while in custody.
(Id. at 6). Plaintiff alleges he was arrested by the
Malvern Police Department on May 9, 2016, at 11:30 p.m., with
a bleeding gunshot wound to his upper right thigh. Plaintiff
was taken to the Hot Spring County Jail, where he was booked.
Neither the Malvern Police or the Hot Spring County Jail
booking deputy called an EMT. Instead, Plaintiff was forced
to wait for the Hot Springs Police Department to arrive and
take him into custody, approximately one hour later. The Hot
Springs police then drove past the Malvern hospital and drove
approximately 35 minutes to the National Park Medical Center
(NPMC), arriving at the Emergency Department of the hospital
at 1:37 a.m. on May 10, 2016. (Id. at 6, 10).
Plaintiff alleges he suffered emotional distress because he
believed he would bleed to death before received medical
NPMC, Plaintiff alleges Dr. Khanakbara, Nurse O'Brien,
and Nurse Braise told him they could not see the bullet on
the x-ray due to the swelling in his leg. Plaintiff alleges
they deliberately left the bullet in his leg to cause him
future discomfort. (Id.). Plaintiff attached
radiology reports from NPMC stating the bullet could not be
visualized, but that there were bullet fragments overlying
the medial proximal tibia. (ECF No. 1 at 10, 12). Medical
records indicate he was triaged, treated, discharged back to
the police, and instructed to obtain follow-up care in two
days. (ECF No. 1 at 10). The clinical impression was gunshot
wound to an extremity and atrial fibrillation.
proceeds against all parties in their individual and official
capacities. (ECF No. 1 at 4). He seeks punitive damages. (ECF
No. 1 at 7).
the PLRA, the Court is obligated to screen the case prior to
service of process being issued. The Court must dismiss a
complaint, or any portion of it, if it contains claims that:
(1) are frivolous, malicious, or fail to state a claim upon
which relief may be granted; or, (2) seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
is frivolous if “it lacks an arguable basis either in
law or fact.” Neitzke v. Williams, 490 U.S.
319, 325 (1989). A claim fails to state a claim upon which
relief may be granted if it does not allege “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). “In evaluating whether a pro
se plaintiff has asserted sufficient facts to state a
claim, we hold ‘a pro se complaint, however
inartfully pleaded ... to less stringent standards than
formal pleadings drafted by lawyers.'” Jackson
v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Even a
pro se Plaintiff must allege specific facts
sufficient to support a claim. Martin v. Sargent,
780 F.2d 1334, 1337 (8th Cir. 1985).
Official Capacity Claims
fails to state any plausible official capacity claims against
the City of Malvern, Hot Spring County, or the City of Hot
Springs. Under Section 1983, a defendant may be
sued in either his individual capacity, or in his official
capacity, or in both. In Gorman v. Bartch, 152 F.3d
907 (8th Cir. 1998), the Eighth Circuit Court of Appeals
discussed the distinction between individual and official
capacity suits. As explained by the Court in Gorman:
“Claims against government actors in their individual
capacities differ from those in their official capacities as
to the type of conduct that is actionable and as to the type
of defense that is available. See Hafer v. Melo, 502
U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). Claims
against individuals in their official capacities are
equivalent to claims against the entity for which they work;
they require proof that a policy or custom of the entity
violated the plaintiff's rights, and the only type of
immunity available is one belonging to the entity itself.
Id. 502 U.S. at 24-27, 112 S.Ct. at 361-62 (1991).
Personal capacity claims, on the other hand, are those which
allege personal liability for individual actions by officials
in the ...