Swift v. McAulifee

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS 14 ; Motion 8 for Summary Judgment filed by McAulifee is granted and denied in parts; granted on the official capacity claim asserted against Defendant McAulifee and the official capacity claim is dismisse d with prejudice; denied on the individual capacity claim asserted against Defendant. Signed by Honorable Harry F. Barnes on September 18, 2008. (cnn) Modified on 9/19/2008 to correct clerical error (cnn). Modified on 9/29/2008 to edit docket text (mfr).

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION

RICKEY R. SWIFT

PLAINTIFF

V.

CASE NO. 07-CV-1055

SGT. McAULIFEE, El Dorado Police Department

DEFENDANT

ORDER Before the Court is the Report and Recommendation filed August 20, 2008, by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (Doc. 14). Judge Bryant recommends that Defendant's summary judgment motion be granted on the official capacity claim asserted against Defendant McAulifee. Judge Bryant further recommends that the summary judgment motion be denied on Plaintiff's individual capacity claim against Defendant. Defendant has responded with a timely, partial objection. (Doc. 15). After reviewing the record de novo, the Court adopts Judge Bryant's Report and Recommendation (Doc. 14) as its own. Defendant objects to Judge Bryant's recommendation that the motion for summary judgment be denied in part as to the individual capacity claim against Defendant. Defendant argues that the individual claim against McAulifee was never properly asserted. The Court is aware that the individual claim was not specifically asserted in the complaint. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (holding that, in a §1983 action, a

plaintiff must expressly and unambiguously state an individual capacity claim in the pleading or it will be assumed that the defendant is sued only in his or her official capacity). However, as Judge Bryant correctly noted in his Report and Recommendation, the Court "has an obligation to liberally construe a pro se complaint." Bracken v. Dormire, 247 F.3d 699, 704 (8th Cir. 2001). Here, Plaintiff indicated in his response to the summary judgment motion that he intended to sue Defendant McAulifee in both his individual and official capacities. In this light, the Court construes Plaintiff's complaint to be asserting both an individual claim and an official capacity claim against Defendant. For reasons stated herein and above, as well as those contained in Judge Bryant's Report and Recommendation (Doc. 14), Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. The summary judgment motion is GRANTED on the official capacity claim asserted against Defendant McAulifee, and the official capacity claim is dismissed with prejudice. The summary judgment motion is DENIED on the individual capacity claim asserted against Defendant. IT IS SO ORDERED, this 18th day of September, 2008.

/s/ Harry F. Barnes Hon. Harry F. Barnes United States District Judge

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