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Hurlbut v. Clark

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

January 15, 2019

DANIEL BRYCE HURLBUT PLAINTIFF
v.
LIEUTENANT ADAM CLARK, et al. DEFENDANTS

          ORDER

          Susan O. Hickey United States District Judge

         Before the Court is the Report and Recommendation filed October 31, 2018, by the Honorable Mark E. Ford, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 6). Plaintiff Daniel Bryce Hurlbut has filed objections. (ECF No. 8). The Court finds the matter ripe for consideration.

         I. BACKGROUND

         On September 12, 2018, Plaintiff filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights while he was incarcerated in the Arkansas Department of Correction - Ouachita River Unit. He alleges that Defendant Clark approached him in his cell on July 24, 2018, and instructed him to submit to being handcuffed. Plaintiff alleges that he refused and asked to call his lawyer. Plaintiff appears to allege that he was not allowed to call his lawyer, but that Plaintiff then gave his lawyer's information to a friend, who attempted to call Plaintiff's lawyer on his behalf. Plaintiff alleges that, at that time, Defendant Clark used unlawful technology created by Defendant Security Technology Phone Company to disrupt the call to Plaintiff's lawyer.[1]

         Plaintiff also alleges that, after this, “all security defendants” utilized excessive force when Defendant Clark sprayed him with mace and when a cell-extraction team removed him from his cell. He alleges further that Defendant Clark was deliberately indifferent to his medical needs when he would not permit Plaintiff to see a nurse after being maced and instead left Plaintiff in a cell without running water. Finally, Plaintiff alleges that “all security defendants” and Defendant Faust retaliated against him for later filing a grievance and for calling his attorney by removing his legal materials, hygiene products, clothes, and blanket from his cell. Plaintiff asserts all claims against the respective defendants in both their individual and official capacities.

         On October 31, 2018, Judge Ford conducted a preservice screening of Plaintiff's complaint and recommends that the Court dismiss certain of Plaintiff's claims for failure to state a claim upon which relief may be granted. Specifically, Judge Ford finds that Plaintiff fails to allege any facts to establish a causal link between any of his claims and Defendants Governor Hutchinson, Nurse Goldman, Sergeant Sammy Jarrett, Sergeant Jason Clemons, Lieutenant Paul Walter, Sergeant Mario Trobradovie, Sergeant Arrinn Delaney, Corporal McDonnell, and Major Kennie Bolden.[2]Judge Ford also finds that Plaintiff's official capacity claims fail against all defendants in that they are barred by the doctrine of sovereign immunity because the State of Arkansas and its agencies have not consented to this suit. Judge Ford also finds that Plaintiff failed to state cognizable denial of access to the courts claims against Defendants Clark and Security Technology Phone Company because he failed to allege any injury resulting from his inability to use the phone to contact his attorney and because a single instance in which the phone was inoperable does not rise to the level of a constitutional violation. Judge Ford recommends that the Court dismiss the above-discussed claims. Judge Ford also finds that Plaintiff has asserted plausible claims of excessive force and deliberate indifference against Defendant Clark and of retaliation against Defendants Clark, Williams, and Faust. Judge Ford recommends that those claims remain.

         On December 20, 2018, Plaintiff filed objections to Judge Ford's Report and Recommendation. Pursuant to 28 U.S.C. § 646(b)(1), the Court will conduct a de novo review of all issues related to Plaintiff's specific objections.

         II. DISCUSSION

         Plaintiff objects to Judge Ford's recommendation that the Court dismiss without prejudice Defendants Jarrett, Clemons, Walter, Trobradovie, Delaney, McDonnell, and Bolden for failure to allege any facts that establish a causal link between any of Plaintiff's claims and those defendants. Plaintiff also objects to Judge Ford's recommendation that the Court should dismiss without prejudice Plaintiff's denial of access to the courts claims against Defendants Clark and Security Technology Phone Company because he failed to allege any injury resulting from his inability to use the phone and because a single instance in which the phone was inoperable does not rise to the level of a constitutional violation.

         Before taking up Plaintiff's specific objections, the Court will first address Judge Ford's recommendations that are not objected to. Plaintiff does not object to Judge Ford's recommendation that the Court dismiss without prejudice his individual capacity claims against Defendants Hutchinson and Goldman for failure to allege any facts to establish a causal link between any of Plaintiff's claims and those defendants. Plaintiff also does not object to Judge Ford's recommendation that the Court dismiss with prejudice all of Plaintiff's official capacity claims pursuant to the doctrine of sovereign immunity. Accordingly, the Court finds that those claims should be dismissed as recommended. The Court will now address Plaintiff's specific objections.

         A. Causal Link

         Judge Ford finds that Plaintiff named Defendants Jarrett, Clemons, Walter, Trobradovie, Delaney, McDonnell, and Bolden in his complaint but failed to allege any facts to establish a causal link between any of his claims and those defendants. Accordingly, Judge Ford recommends dismissal of those defendants.

         Plaintiff objects to this recommendation, arguing that Defendants Jarrett, Clemons, Walter, Trobradovie, Delaney, McDonnell, and Bolden were part of the cell extraction team that allegedly utilized excessive force on him. Plaintiff states that his complaint listed those defendants' positions as “ERT, ” which he now explains means “Emergency Response Team.” Although Plaintiff concedes that he did not explain this in his complaint, he asks the Court to construe his complaint leniently and to decline to dismiss Defendants Jarrett, Clemons, Walter, Trobradovie, Delaney, McDonnell, and Bolden. As further support, Plaintiff attaches to his objections a major disciplinary form prepared by Defendant Clark that names Defendants Jarrett, Clemons, Walter, Trobradovie, Delaney, McDonnell, and Bolden as members of the cell extraction team that removed Plaintiff from his cell.

         Upon consideration, the Court finds that Plaintiff's individual capacity claims against Defendants Jarrett, Clemons, Walter, Trobradovie, Delaney, McDonnell, and Bolden should remain for service. It is true that Plaintiff's complaint does not explain in detail the meaning behind those defendants' positions being listed as “ERT.” However, Plaintiff has since explained the meaning of the abbreviation and provided additional evidence demonstrating that those defendants were part of the cell extraction team involved in his ...


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