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Shaw v. City of Malvern

United States District Court, W.D. Arkansas, Hot Springs Division

July 31, 2018

ERIC SHAW PLAINTIFF
v.
CITY OF MALVERN, ARKANSAS; HOT SPRING COUNTY; DETECTIVE JARED CANTRELL; DETECTIVE RINES; SGT. JERRY FREEMAN; NATIONAL PARK MEDICAL CENTER; DR. AKBAR A. KHANAKBARA; SPENCER L. O'BRIEN registered nurse; COURTNEY BRAISE registered nurse; CITY OF HOT SPRINGS, ARKANSAS; DETECTIVE MARK FALLIS DEFENDANTS

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. MARK E. FORD UNITED STATES MAGISTRATE JUDGE.

         This is 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.

         The 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).

         I. BACKGROUND

         Plaintiff 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 attention. (Id.).

         At 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. (Id.).

         Plaintiff proceeds against all parties in their individual and official capacities. (ECF No. 1 at 4). He seeks punitive damages. (ECF No. 1 at 7).

         II. LEGAL STANDARD

         Under 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. § 1915A(b).

         A claim 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).

         III. ANALYSIS

         A. Official Capacity Claims

         Plaintiff fails to state any plausible official capacity claims against the City of Malvern, Hot Spring County, or the City of Hot Springs.[1] 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 ...

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