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Miller v. Jones

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

August 7, 2019

HARRY KEITH MILLER PLAINTIFF
v.
ROBERT JONES and NURSE ROBERTSON 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, Chief 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 July 12, 2019. (ECF No. 1). Plaintiff was ordered to submit an in forma pauperis application, and he did so on July 22, 2019. (ECF No. 4). Plaintiff filed a Supplement to his Complaint on July 31, 2019. (ECF No. 5). Plaintiff alleges he was denied dental and medical care while incarcerated in the Arkansas Department of Correction (“ADC”). Plaintiff alleges he was made to wait 15 months to have two teeth pulled. (ECF No. 1 at 4). He names Defendant Jones for this claim and identifies him as “dental practitioner” and an employee of Correct Care Solutions. (Id. at 2, 4). In his Supplement, Plaintiff attaches grievance SNU18-00070, in which his complaints concerning his dental care were found to be with merit due to the delay in treatment for two cavities. (ECF No. 5 at 3). Plaintiff also alleges Defendant Robertson would not follow up on his claims of pain in his neck and back, and as a result, it took 18 months for Plaintiff to receive a CT scan and medication. (ECF No. 1 at 6). He identifies Robertson as a nurse and employee of Correct Care Solutions. (Id. at 3). In his Supplement, Plaintiff provided grievance GR-19-00170. In this document, Plaintiff stated his neck and back pain were the result of an excessive force incident in 2017. (ECF No. 5 at 1-2). The grievance response noted Plaintiff had been scheduled and rescheduled for a CT scan several times staring in 2017 but did not receive one until February 7, 2019. His grievance was found to be without merit. (Id.).

         Plaintiff proceeds against both Defendants in their official and personal capacities. (ECF No. 1 at 5). He seeks compensatory and punitive damages. (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

         Correct Care Solutions is a private correctional health care services corporation contracted with the ADC to provide those services. Defendants are identified as employees of Correct Care Solutions. Through this contract, Correct Care Solutions and Defendants are acting under color of state law and are subject to suit under § 1983. West v. Atkins, 487 U.S. 42 (1988); Burke v. North Dakota Dept. of Corrections and Rehab., 294 F.3d 1043 (8th Cir. 2002); Montano v. Hedgepeth, 120 F.3d 844, 849-50 (8th Cir. 1997).

         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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