Hamilton v. USA et al
ORDER partly adopting and partly declining without prejudice 6 Recommendation. The Court returns this case to the Magistrate Judge for further proceedings, including handling Hamilton's pending 8 Motion to amend his complaint. Signed by Judge D. P. Marshall Jr. on 4/25/2017. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
TONY L. HAMILTON
USA; and K. BRISTER, Officer,
Individually and in official capacities
1. On de nova review, the Court partly adopts the recommendation, and
partly declines it, returning some issues to the Magistrate Judge for further
consideration. FED. R. Crv. P. 72(b)(3).
2. The Court sustains Hamilton's objections about his retaliatory-threat
claim. Ng 10 at 3. Threats made in retaliation for using the grievance
procedure can state a claim. E.g., Burgess v. Moore, 39 F.3d 216, 218 (8th Cir.
1994). This claim, Ng 2 at 2-3, needs screening and a further recommendation.
3. The Magistrate Judge correctly pointed out that Hamilton's FTCA
claim for assault is explicitly exempted from the statutory sovereign
immunity waiver. 28 U.S.C. § 2680(h). And the defamation claim is likewise
exempted. McAdams v. Reno, 64 F.3d 1137, 1144-45 (8th Cir. 1995). But the
statute doesn't exempt a claim for intentional infliction of emotional distress.
Raz v. United States, 343 F.3d 945, 948 (8th Cir. 2003).
NQ 2 at 2, 10-11, needs screening and a recommendation, too.
4. Hamilton's state law claims should remain in the case until the Court
decides whether Hamilton has stated any federal claims for retaliatory threats
or intentional infliction of emotional distress. All of Hamilton's other claims
are dismissed without prejudice for failure to state a claim.
Recommendation, NQ 6, partly adopted and partly declined without
prejudice. The Court returns this case to the Magistrate Judge for further
proceedings, including handling Hamilton's pending motion to amend his
complaint, NQ 8.
D .P. Marshall
United States District Judge
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