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Howard v. Rogers

United States District Court, W.D. Arkansas, Texarkana Division

October 9, 2018

CODY S. HOWARD PLAINTIFF
v.
OFFICER D. ROGERS, CAPTAIN GOLDEN, WARDEN JEFFIE WALKER and SHERIFF JACKIE RUNION All of Miller County DEFENDANTS

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE

         Plaintiff proceeds in this matter pro se and in forma pauperis 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 the purpose of making a 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 August 31, 2018. (ECF No. 1). He alleges his federal constitutional rights were violated on May 12, 2018, while he was incarcerated in the Miller County Correctional Facility. (Id. at 4). Plaintiff alleges he was not able to call his family using a new phone system in the facility because incorrect information had been entered into the system by staff. When an officer could not help him, the officer returned him to his cell and locked him inside. Plaintiff then “kicked the door a couple time and cussed the office[r].” (Id.). He then went to the back of the cell and sat down. (Id.). As Plaintiff sat at the back of the cell with his hands in his lap, Defendant Rogers opened the door and pointed the laser sight for the pepper spray[1] in Plaintiff's face. (Id. at 5). Plaintiff asked Defendant Rogers to remove the laser from his eyes before it caused damage, at which point Rogers said he was going to spray Plaintiff. (Id.). When Plaintiff “smirked” at him, Rogers shot him twice with the pepper spray while Plaintiff remained seated at the back of the cell. Plaintiff alleges he did not threaten Rogers or do anything which would have justified the spraying. (Id.).

         Plaintiff proceeds against Defendants in their official and personal capacity. (Id. at 4). Plaintiff seeks compensatory and punitive damages. He also seeks to have any officer who applies excessive force to an inmate to be removed from their duties. (Id. 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 failed to state any plausible official capacity claims. 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 ...

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