Peppers v. Norris et al

Filing 28

RECOMMENDED DISPOSITION recommending that the 20 ADC Defendants' Motion for Summary Judgment be granted and that Plaintiff's claims against these Defendants be dismissed with prejudice. Objections to R&R due by 3/26/2009. Signed by Magistrate Judge Beth Deere on 3/12/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION

A D A M SCOTT PEPPERS A D C # 115580 VS. L A R R Y NORRIS, et al. R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: CASE NO. 5:08CV00314-JMM-BD

P L A IN T IF F

DEFENDANTS

T h e following recommended disposition has been sent to United States District C o u rt Judge James M. Moody. Any party may serve and file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a sis for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Partial Recommended Disposition. A c o p y will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C lerk , United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325

II.

B a c k gro u n d : O n November 28, 2008, Plaintiff, an inmate currently housed at the Varner Unit of

th e Arkansas Department of Correction ("ADC"), brought this action pro se under 42 U .S .C . § 1983 (docket entry #1). In his Complaint, Plaintiff alleges that on June 22, 2 0 0 4 , he was injured while working on a construction project at the Varner Unit. Plaintiff c la im s that he sustained injuries to his foot as a result of the incident. Plaintiff names as D e f e n d a n ts various ADC staff members, including Director Larry Norris and Deputy D ire c to r of Health Services Wendy Kelley,1 as well as several doctors and nurses. P la in tif f claims that the ADC officials are liable for the injuries that he sustained and that th e medical staff acted with deliberate indifference to his medical needs. He seeks c o m p e n s a to ry and punitive damages against Defendants in both their individual and o f f ic ia l capacities. D e f en d a n ts Norris, Langhammer, and Kelley (the "ADC Defendants") have filed a M o tio n for Summary Judgment (#20). In the Motion, the ADC Defendants argue that th e y are entitled to judgment as a matter of law because: (1) Plaintiff's claims are timeb a rre d ; (2) Plaintiff's official capacity claims for money damages are barred by sovereign im m u n ity; (3) Plaintiff's claims are barred by res judicata; (4) Plaintiff's claims sound in n e g lig e n c e, which is not a permissible theory of recovery for § 1983 claims; and

Plaintiff lists this Defendant as Defendant Windy Kelly. However, in the M o tio n for Summary Judgment, Defendants identify this individual as Defendant Wendy K e lle y. Accordingly, the Court will refer to this Defendant as Defendant Kelley. 2

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(5 ) Plaintiff's claims against Defendants Norris and Kelley fail because they are based u p o n a respondeat superior theory of recovery. Plaintiff has responded to the ADC's M o tio n (#23). The ADC Defendants' Motion (#20) should be GRANTED. III. D is c u s s io n : A. S u m m a r y Judgment Standard

S u m m a r y judgment is appropriate when the evidence, viewed in the light most f a v o ra b le to the nonmoving party, presents no genuine issue of material fact. FED. R. C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 246 (1986). Once the moving party has successfully carried its b u rd e n under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the p le a d in g s and by depositions, affidavits, or otherwise, designate "specific facts showing th a t there is a genuine issue for trial." FED. R. CIV. P. 56(e); Mosley v. City of N o r th w o o d s , 415 F.3d 908, 910-11 (8th Cir. 2005) ("The nonmoving party may not `rest o n mere allegations or denials, but must demonstrate on the record the existence of s p e c if ic facts which create a genuine issue for trial.'" (quoting Krenik v. County of Le S u e u r, 47 F.3d 953, 957 (8th Cir. 1995))). If the opposing party fails to carry that burden o r fails to establish the existence of an essential element of its case on which that party w ill bear the burden of proof at trial, summary judgment should be granted. See Celotex, 4 7 7 U.S. at 322. "Although it is to be construed liberally, a pro se complaint must

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c o n ta in specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1334, 1 3 3 7 (8th Cir. 1985). B. S ta tu te of Limitations

T h e ADC Defendants argue that Plaintiff's case against them is time-barred. The a p p lic a b le state law tort statute of limitations governs § 1983 claims. See Board of R e g e n ts v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790 (1980). Consequently, Plaintiff's c la im s against the ADC Defendants are subject to Arkansas's three-year statute of lim ita tio n s . Morton v. City of Little Rock, 934 F.2d 180, 182 (8th Cir. 1991). Here, the incident giving rise to this lawsuit occurred on June 22, 2004. Plaintiff f ile d this action on November 28, 2008, more than three years after the incident. Although Plaintiff continues to grieve his concerns regarding the follow-up care that he h a s received for his injuries and alleges both negligence and medical malpractice by " C M S and its agents," those grievances do not reference the ADC Defendants (#1 at p.42 a n d p.44).2 Plaintiff's allegations against the ADC Defendants fall outside the relevant s ta tu te of limitations.3 Further, although Defendant Kelley responded to at least one of
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The Court notes that in Grievance VU-05-00304, Plaintiff specifically complains th a t he was not x-rayed (#1 at p.32). However, Plaintiff later provided a grievance waiver s ta tin g that this issue had been resolved and that he no longer wanted to pursue that m a tte r (#1 at p.35) In his Complaint, Plaintiff claims that he "filed many requests for relief, and e v e n tu a lly fil[ed] grievances to address theses issues that were otherwise being ignored b y the medical and ADC staff." However, Plaintiff fails to include any grievances re g a rd in g Defendants Norris, Langhammer, or Kelley filed within the previous three ye a r s . 4
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P la in tif f 's grievances, such conduct is insufficient to establish liability under § 1983 (#1 a t p.56). The United States Court of Appeals for the Eighth Circuit has held that a prison o f f ic ia l's denial of grievances was insufficient to impose liability under § 1983. See R o w e v. Norris, 198 Fed. Appx. 579, *1 (8th Cir. 2006) (unpublished) (per curiam). In a d d itio n , in Keeper v. King, 130 F.3d 1309, 1314 (8th Cir.1997), the Court explained that th e claims of medical indifference should be filed against those individuals directly re s p o n s ib le for the inmate's medical care. Accordingly, the Court finds that the ADC D e f en d a n ts are entitled to summary judgment because Plaintiff's claims are time-barred.4 C. S o v e re ig n Immunity

P la in tif f 's official capacity claims against the ADC Defendants also are barred b e c au s e a person sued in his or her official capacity is not a "person" for purposes of 42 U .S .C . § 1983. The law is well established that a civil litigant cannot obtain monetary d a m a g e s on a claim brought against state actors in their official capacities. Will v. M ic h ig a n Dep't of State Police, 491 U.S. 58 (1989). Accordingly, Plaintiff's claims a g a i n s t the ADC Defendants for monetary damages in their official capacities fail as a m atte r of law.

In his Response to the Motion for Summary Judgment, Plaintiff states that his c la im s are not time-barred and asserts the equitable defenses of laches and estoppel. However, Plaintiff fails to include any factual allegations to support such defenses. 5

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D.

R e s Judicata

T h e ADC Defendants also claim that they are entitled to judgment as a matter of la w because Plaintiff previously litigated his claim with the Arkansas State Claims C o m m is s io n ("the Commission"). In his Complaint and his Response to the ADC D e f e n d a n ts' Motion for Summary Judgment, Plaintiff admits that he brought a claim b e f o re the Commission. Plaintiff argues, however, that those claims were "not claims of v io la tio n of the United States Constitution, and[,] therefore, are not barred by the d o ctrin es of res judicata and collateral estoppel" (#23). T h e Eighth Circuit has held that when an administrative agency acts in a judicial c a p ac ity to resolve disputed issues of fact properly before it, which the parties have had a n opportunity to litigate, the principles of res judicata apply to bar further claims by the p a rtie s or their privies based on the same cause of action. Price v. Harris, 722 F.2d 427, 4 2 8 (8th Cir. 1983); Steffen v. Housewright, 665 F.2d 245, 247 (8th Cir. 1981). A claim is precluded under res judicata principles if: (1) the first suit resulted in a final judgment o n the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involve the s a m e parties (or those in privity with them); and (4) both suits are based upon the same c la im s or causes of action. In re Anderberg-Lund Printing Co., 109 F.3d 1343, 1346 (8th C ir. 1997). A preclusion analysis generally turns on whether the claims arise out of the " sa m e nucleus of operative facts." United States v. Gurley, 43 F.3d 1188, 1195 (8th Cir. 1 9 9 4 ) (quoting Lane v. Peterson, 899 F.2d 737, 742 (8th Cir. 1990)).

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T h e Plaintiff's claim before the Commission was a negligence claim against the A D C , based on the same facts as those alleged in his current Complaint. In his C o m m iss io n complaint, Plaintiff alleged that: On 6-22-04, the Claimant reported to work detail at the Varner Fence Project at the V a rn e r Unit of the ADC. He was informed by R. Langhammer, Construction Supervisor and CO II D. Collins to take material and load it onto a trailer . . . [ a n d ] was given orders to "trip" override the safety mechanism. While performing th is task, the Claimant's right foot was trapped in the Bobcat and crushed causing m u ltip le compound fractures and nerve damage. The ADC was negligent in f a ilin g to supervise the Claimant and in instructing the Claimant to engage in d a n g e ro u s activity . . . and in failing to provide training in the safe operation of the B o b c a t which proximately caused the injuries suffered by the Claimant (#1 at p .3 7 ) . O n February 6, 2007, after a hearing at which Plaintiff was represented by counsel, th e Commission ruled in Plaintiff's favor (#1 at p.52). The Commission unanimously a w a rd e d Plaintiff $10,000.00 for his `pain and suffering'" (#1 at p.52). The ADC a p p e ale d the Commission's decision and Plaintiff cross-appealed (#20-2). On January 23, 2 0 0 8 , the Arkansas General Assembly's Legislative Council reviewed and affirmed the C o m m is s io n 's $10,000.00 monetary award (#20-3). Plaintiff's case before the Commission was based on proper jurisdiction and re su lte d in a final judgment on the merits between the same parties or privies as in the c a s e before this Court. Plaintiff's claim in the Commission case was a negligence claim, a n d Plaintiff's claim here is an Eighth Amendment claim. Unfortunately for the Plaintiff, h is Eighth Amendment claim in this lawsuit imposes on him a higher burden of proof th a n did his negligence claim in his case before the Commission. Walker v. Reed, 104 7

F .3 d 156, 157 (8th Cir. 1997) ("simple negligence" on the part of a prison officials is not a violation of a state prisoner's Eighth Amendment rights against cruel and unusual p u n is h m e n t). Plaintiff is trying to re-litigate the same claim in this lawsuit that he s u c c es s f u lly raised before the Commission. Accordingly, the Court recommends that the D is tr ic t Court grant the ADC Defendants' Motion for Summary Judgment because P la in tif f 's claim is precluded by his prior case before the Commission. Williams v. C a m p b e ll, 163 F.3d 404, 1998 WL 514547 at *2 (8th Cir. 1998) (dismissing prisoner's § 1983 claim for prison officials' failure to properly train and supervise as precluded by p lain tiff "s successful negligence case before the Arkansas State Claims Commission). E. N e g lig e n c e

T h e ADC Defendants also argue that Plaintiff's claims are precluded against them b e c au s e they sound in negligence. The Court agrees. Here, Plaintiff attempts to hold the A D C Defendants liable based upon their failure to prevent the accident that resulted in P la in tif f 's injuries. Such a claim can best be characterized as a negligence claim. However, "[m]ere negligence [is] insufficient to rise to a constitutional violation." Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). Even grossly negligent c o n d u c t does not state a claim under 42 U.S.C. §1983. See Roach v. City of F r e d e ric k to w n , Mo., 882 F.2d 294, 297 (8th Cir. 1989)(internal quotations omitted). Accordingly, Plaintiff's claims against the ADC Defendants fail as a matter of law.

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F.

R e sp o n d e a t Superior

F in a lly, the ADC Defendants contend that Plaintiff's claims against Defendants N o rris and Kelley fail because he is attempting to hold them liable under a respondeat s u p e rio r theory of recovery. The Court, again, agrees. In his Complaint, Plaintiff simply alleges that Defendants Norris and Kelley "had a u th o rity over Plaintiff." Plaintiff does not mention these Defendants when describing th e events that gave rise to this lawsuit; nor does Plaintiff attribute any unconstitutional c o n d u c t to either of these Defendants. Accordingly, Plaintiff is attempting to hold these D ef en d an ts liable based upon their positions as supervisors within the ADC. However, s u c h claims are predicated on a theory of respondeat superior, a theory which does not a p p ly to claims brought under 42 U.S.C. § 1983. Marchant v. City of Little Rock, 741 F .2 d 201, 204-05 (8th Cir. 1984). "Liability under § 1983 requires a causal link to, and d ire c t responsibility for, the deprivation of rights." Madewell v. Roberts, 909 F.2d 1203, 1 2 0 8 (8th Cir. 1990). An individual cannot be held liable solely on the action or inactions o f his subordinate. Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995). P la in tif f 's Complaint fails to include any references to any specific acts or o m is s io n s by Defendants Norris and Kelley. In addition, Plaintiff does not reference th e s e Defendants in the grievances he attaches to his Complaint. Accordingly, D e f e n d a n ts Norris and Kelley also are entitled to judgment as a matter of law on this b a s is .

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IV .

C o n c lu s io n : T h e Court recommends that the ADC Defendants' Motion for Summary Judgment

(# 2 0 ) be GRANTED and that Plaintiff's claims against these Defendants be DISMISSED W IT H PREJUDICE. D A T E D this 12th day of March, 2009. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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