United States District Court, W.D. Arkansas, Texarkana Division
CODY S. HOWARD PLAINTIFF
OFFICER D. ROGERS, CAPTAIN GOLDEN, WARDEN JEFFIE WALKER and SHERIFF JACKIE RUNION All of Miller County DEFENDANTS
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE
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.
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 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 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
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).
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
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 ...