United States District Court, W.D. Arkansas, Texarkana Division
REPORT AND RECOMMENDATION
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.
the Court is a Motion to Dismiss (ECF No. 34) filed by
Defendant Robert H. Harrison. Plaintiff filed a Response (ECF
No. 38) and Defendant Harrison filed a Reply. (ECF No. 39).
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.
Ron Wesley Hayes filed this case pro se pursuant to
42 U.S.C. § 1983 on May 23, 2019. (ECF No. 1). In
response to this Court's order, Plaintiff filed an
Amended Complaint on June 12, 2019. (ECF No. 6). His
application to proceed in forma pauperis
(“IFP”) was granted that same day. (ECF No. 7).
Plaintiff is asserting claims against Defendants Henderson,
Studdard, Adams, Griffeson and John Doe Officers from the
Texarkana Arkansas Police Department (“TAPD”) for
excessive force that occurred on April 19,
2019. Plaintiff is also asserting a claim
against Defendant King for denial of medical care.
August 6, 2019, Plaintiff filed a Motion to Supplement his
Amended Complaint claiming in part the Chief of the TAPD,
Robert H. Harrison, denied him medical care when he refused
“to pay my Dr. bill to have sirger on my
face…” (ECF No. 27, p. 1). On August 19, 2019,
the Court granted Plaintiff's Motion to Supplement in
part finding Plaintiff had stated a plausible claim against
Defendant Harrison for alleged denial of medical care. (ECF
No. 29). On September 18, 2019, Defendant Harrison filed the
instant Motion to Dismiss arguing Plaintiff failed to state a
claim against him upon which relief can be granted. (ECF No.
34). He argues Plaintiff has failed to state a claim because
“Plaintiff was never in the custody of Chief Harrison
but was instead in all relevant times was a Miller County
Arkansas Detainee” and Plaintiff has not described how
Defendant Harrison was involved in denying Plaintiff medical
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 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).
alleges Defendant Harrison, the Chief of Police for the TAPD,
denied him medical care when he refused to pay for surgery on
his face after three TAPD police officers used excessive
force against him. Inadequate prison health care rises to a
violation of the Eighth Amendment only if officials have been
deliberately indifferent to a serious medical need.
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
“[D]eliberate indifference to serious medical needs of
prisoners constitutes the unnecessary and wanton infliction
of pain…proscribed by the Eighth Amendment, ”
and this includes “indifference…manifested by
prison doctors in their response to the prisoner's needs
or by prison guards or police officers in intentionally
denying or delaying access to medical care. Id.
Harrison argues Plaintiff fails to state a claim against him
“given that the Plaintiff was never in the custody of
Chief Harrison but was instead in all relevant times was a
Miller County Arkansas detainee.” (ECF No. 34).
However, because the Court is addressing a motion to dismiss,
not a motion for summary judgment, the Court must assume all
facts alleged in the Complaint are true. Eckert v. Titan
Tire Corp., 514 F.3d 801, 806 (8th Cir.
2008). Plaintiff's Complaint need only “‘give
the defendant fair notice of what the … claim is and
the grounds upon which its rests.'” Erickson v.
Pardus, 551 U.S. 89 (2007) (internal citations and
quotations omitted). In order to survive a motion to dismiss,
a prisoner need not plead more than the warden [or police
chief] was directly involved in the decision to deny medical
care. Martin v. Sargent, 780 F.2d 1334 (1985) citing
Messimer v. Lockhart, 702 F.2d 729, 732
(8th Cir. 1983). Plaintiff's allegations
against Defendant Harrison satisfy these standards.
Plaintiff alleges it was Defendant Harrison who refused to
pay for surgery on his face after he was injured by three
police officers who allegedly used excessive force against
him. Whether Plaintiff's Complaint is sufficient in all
respects is a matter yet to be determined. The case cannot,
however, be dismissed on the ground that Plaintiff's
allegations are too conclusory. Accordingly, at this stage of
the litigation, the Court finds Plaintiff's allegations
are enough to withstand Defendant Harrison's Motion to
foregoing reasons, I recommend Defendant Harrison's
Motion to Dismiss (ECF No. 34) be DENIED and
Plaintiff's claims against Defendant Harrison proceed.
parties have fourteen days from receipt of the Report and
Recommendation in which to file written objections pursuant
to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal
questions of fact. The parties are reminded that objections