United States District Court, W.D. Arkansas, Hot Springs Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.
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 Robert T.
Dawson, United States District Judge, referred this case to
the undersigned for the purpose of making a Report and
Recommendation. Currently before the Court is a Motion to
Dismiss on the Pleadings by the City of Hot Springs and
Defendant Stachey in his official capacity. (ECF No. 18).
filed his Complaint on January 14, 2019. (ECF No. 1).
Plaintiff alleges his constitutional rights were violated by
the delay of medical care on May 9th and 10th of 2016.
(Id. at 6). Specifically, Plaintiff alleges that at
11:30 pm on May 9, 2016, he was taken into custody by Hot
Springs County jail staff with a bleeding bullet wound in is
right thigh. (Id.) He alleges an ambulance was not
called for him. Instead, he was taken into custody by City of
Hot Springs police officers at 12:15 am on May 10, 2016.
These officers then drove him past the Malvern hospital to
the National Park Medical Center forty-five minutes away.
(Id.). Plaintiff was then seen by Dr. Khan Akbar at
1:37 am. (Id.).
alleges Stachey and Cash, in their official capacities as the
City of Hot Springs Police Chief and Hot Springs County
Sheriff, were negligent in their training of officers. He
states this resulted in officers being “negligent in
the case of my medical needs while in their custody.”
(Id.). Plaintiff appears to allege that the officers
acted in violation of the Arkansas Police Chiefs' Policy
and Procedures Manual for Emergencies 2.22. (Id.)
alleges he received “inadequate medical
attention” because an ambulance with EMTs was not
called immediately, it took forty-five minutes to get him to
the National Park Medical Service, and he was not seen by a
doctor at the medical center until 1:37 am. (Id.).
Plaintiff states the medical records indicate he was shot by
alleges he suffered emotional distress as a result of the
delay in medical treatment because he was afraid he would
bleed to death. He now has a “lifelong fear and lack of
trust in law enforcement.” (Id.).
proceeds against Defendant Stachey and Cash in their official
capacity only. (Id. at 2, 6).
filed a Supplement to his Complaint on February 13, 2019.
(ECF No. 13). Defendants' correctly note that Plaintiff
did not request or receive permission from the Court to file
this Supplement pursuant to Fed R. Civ. P. 15(d). The Court
will, however, consider this information. The Supplement
consisted of Plaintiff's medical records from the
National Park Service Medical Center and a criminal
investigation report by Mark Fallis, dated May 9, 2016. (ECF
No. 13). The criminal investigation report states that
Plaintiff drove from Malvern, Arkansas to Hot Springs,
Arkansas, in the company of an adult female and her child, to
purchase the drug “Ice.” Plaintiff was shot in
the leg during the attempted drug purchase. He then drove
himself and his companions to the Budget Inn in Malvern where
he was arrested. At the time of the arrest, bloody clothing
was seen in the hotel room. (ECF No. 13 at 7). There is no
indication in the report that Plaintiff himself sought
medical care for the gunshot wound during his thirty to
forty-five-minute drive. In contrast, the medical records
indicate that Plaintiff told emergency room staff that police
had shot him in order to subdue him. (ECF No. 13 at 8).
Stachey and the City of Hot Springs filed their Motion for
Judgment on the Pleadings on April 26, 2019. (ECF No. 18).
Plaintiff filed a Response in Opposition to the Motion on May
23, 2019. (ECF No. 22).
8(a) contains the general pleading rules and requires a
complaint to present “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). “In order to meet
this standard, and survive a motion to dismiss under Rule
12(b)(6), ‘a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.'” Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotations omitted)). A Rule 12(c) motion for
judgment on the pleadings is reviewed under the same standard
as a Rule 12(b)(6) motion. Westcott v. City of
Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft, 556 U.S. at 678. While the
Court will liberally construe a pro se
plaintiff's complaint, the plaintiff must allege
sufficient facts to support his claims. See Stone v.
Harry, 364 F.3d 912, 914 (8th Cir. 2004).
Stachey and the City of Hot Springs argue Plaintiff's
case should be dismissed because: (1.) Plaintiff's
official capacity claims fail as a matter of law; and (2.)
the City of Hot Springs is ...