Hurdsman et al v. Wright et al

Filing 10

ORDER APPROVING AND ADOPTING 6 PROPOSED FINDINGS AND PARTIAL RECOMMENDATIONS in part as this Court's findings; dismissing Ms. Hurdsman without prejudice as a plaintiff in this matter; denying Mr. Hurdsman's 4 motion in its entirety; all owing Mr. Hursdman to proceed with his First Amendment retaliation claims against defendant Loften; referring back to Judge Volpe for further consideration whether Mr. Hurdsman's due process claim, which appears to have been brought against defe ndants Pilgrim and Richardson, is viable to proceed past screening because he is a pretrial detainee and, if so, whether the claim arises out of the same transaction or occurrence as his retaliation claim against defendant Loften; and dismissing all other claims and defendants without prejudice from this action. Signed by Judge Kristine G. Baker on 04/28/2015. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
RODNEY A. HURDSMAN and
STEPHANIE M. HURDSMAN
v.

PLAINTIFFS

Case No. 4:15-cv-00090-KGB-JJV

RODENY WRIGHT, Sheriff,
Saline County; et al.

DEFENDANTS
ORDER

The Court has reviewed the Proposed Findings and Recommendations submitted by
United States Magistrate Judge Joe J. Volpe (Dkt. No. 6) and plaintiff Rodney A. Hurdsman’s
objections (Dkt. No. 8). After carefully considering the objections and making a de novo review
of the record, the Court concludes that the Proposed Findings and Recommendations should be,
and hereby are, approved and adopted in part as this Court’s findings.
The Court rejects the recommended dismissal of Mr. Hurdsman’s due process claim.
Judge Volpe recommends dismissal of Mr. Hurdsman’s due process claim based on Sandin v.
Conner, 515 U.S. 472, 486 (1995). Sandin states that, in prisoner cases, a constitutionally
protected liberty interest will arise only when the prisoner can show that he has suffered an
“atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” Id. In
his objections, Mr. Hurdsman states he is a pretrial detainee. The Eighth Circuit has held that
Sandin does not apply to pretrial detainees. Hanks v. Prachar, 457 F.3d 774, 776 (8th Cir. 2006)
(citing Surprenant v. Rivas, 424 F.3d 5, 17 (1st Cir. 2005)); see Bell v. Wolfish, 441 U.S. 520,
535-36 (1979) (“[U]nder the Due Process Clause, a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law.”). Whether Mr. Hurdsman’s due
process claim is viable to proceed past screening because he is a pretrial detainee and, if so,

whether the claim arises out of the same transaction or occurrence as his retaliation claim against
defendant Loften is referred back to Judge Volpe for further consideration.
Mr. Hurdsman also sent a letter to the Court regarding (1) his wife plaintiff Stephanie M.
Hurdsman’s safety; (2) his wife’s mail to the Court; and (3) his health. The Court notes that,
besides Mr. Hurdsman’s own conclusory assumptions regarding his wife’s safety, there is
nothing in the record showing she is unsafe. Likewise, there is no evidence that Ms. Hurdsman
properly attempted to send mail to the Court. Again, if Ms. Hurdsman wishes, she may write the
Court to request a section 1983 complaint form to file a separate action.
It is therefore ordered that:
1.

Ms. Hurdsman is dismissed without prejudice as a plaintiff in this matter

for failure to comply with Local Rule 5.5(c)(2).
2.

Mr. Hurdsman’s motion for temporary restraining order is denied in its

entirety (Dkt. No. 4).
3.

Mr. Hurdsman is allowed to proceed with his First Amendment retaliation

claims against defendant Loften.
4.

Whether Mr. Hurdsman’s due process claim, which appears to have been

brought against defendants Pilgrim and Richardson, is viable to proceed past screening because
he is a pretrial detainee and, if so, whether the claim arises out of the same transaction or
occurrence as his retaliation claim against defendant Loften is referred back to Judge Volpe for
further consideration.
5.

All other claims and defendants are dismissed without prejudice from this

action.

2

SO ORDERED this the 28th day of April, 2015.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

3