Woods v. Napier et al
ORDER: that the Report and Recommendation 43 is not adopted.; Amanda Sowa, Deputy R. Covey and Deputy Walker added and that plaintiff's claims against Mike Conger are dismissed. That Woods' motions to assert a claim of civil conspiracy; f or polygraph examination; for disclosure of exculpatory evidence; for disclosure of electronic surveillance; for a bill of particulars; and for an extension of time to file pre-trial motions are denied. Further it is Ordered that this mater is remanded to Magistrate Judge James R. Marschewski for further proceedings consistent with this Order. Signed by Honorable Jimm Larry Hendren on March 5, 2009. Motions referred to James R. Marschewski.(lw)
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION ELAINA WOODS v. Civil No. 07-2065 PLAINTIFF
GREGORY NAPIER; JOHNNY BOLINGER; LOU DOE; and MIKE CONGER ORDER
Now on this 5th day of March, 2009, come on for consideration the Report And Recommendation Of The Magistrate Judge ("R&R") (document #43) and plaintiff's Objections thereto, (documents #46 and #47), and from said documents the Court finds and orders as follows: 1. Plaintiff Elaina Woods ("Woods") brought suit pursuant
to 42 U.S.C. §1983, alleging that she was subjected to excessive force during an arrest by Fort Smith Police while running to pick up her daughter from school. Following her arrest, she alleges
she was subjected to an illegal injection, sexually touched while receiving the injection, slandered, falsely charged with criminal mischief, unlawfully in the detained, Sebastian denied County bail, Adult and -while Center
("SCADC") -- pepper sprayed. 2. The Court dismissed all of Woods' claims except the As to that claim, SCADC Jail
claim that she was pepper sprayed.
Administrator Mike Conger ("Conger") was made a party for the limited purpose of identifying any officers involved in using
substituted in his place. 3. Conger answered, stating that he was unable to identify
any officers who had used pepper spray on Woods; that there were no reports of such; and that Amanda Sowa ("Sowa"), who had been responsible for booking Woods and supervision of her shower, had no recollection of any such incident. The Magistrate Judge,
therefore, recommended dismissal of Woods' pepper spray claim. 4. The Court did not adopt this recommendation, observing
that Woods was booked in to SCADC under the influence of a sedative, allowed to shower, and then taken to a cell, where she alleges she was pepper sprayed by persons she cannot identify. The Court further observed that Sowa signed an Intake Form showing the Intake Time as 7:43 p.m. on April 19, 2007, but a mug shot of Woods was not taken until 9:40 a.m. on April 20, and Woods' Prisoner Booking Record was not completed until 3:29 p.m. on April 20. The Court found this timeline -- booking delayed for almost
a full day after arrest -- raised a genuine issue of material fact about the allegation of pepper spraying and remanded the case to the Magistrate Judge to determine if an identity could be
established for: * the person or persons who assisted with Woods' shower on
April 19, 2007; * the person or persons who escorted Woods to a cell on
that date; and * Woods' cellmates with whom she allegedly discussed the
pepper spraying and the condition of her eyes during the remainder of her incarceration. 5. Jackson, Conger responded by filing the Affidavit of Lt. Gayla SCADC Assistant Jackson Jail listed Administrator deputies during Woods' the
relevant time, and stated that none of them has any recollection of a pepper spraying incident involving Woods. 6. Plaintiff objects that Jackson did not list all the
deputies at work during the time she was allegedly pepper sprayed, and states that she has narrowed down the prospects, by a process of elimination, to the point that she "believe[s] main persons of interest besides Sowa is Dep. R. Covey/Dep. Walker, either being directly involved in pepper spraying or has knowledge of it." Plaintiff does not say why she believes these particular officers were involved, but it may be because Deputy Covey was working in the cell pod to which Woods was ultimately assigned and where she alleges she talked to cellmates about being pepper sprayed, and because Deputy Walker is female. 7. While the basis for suit against Sowa, Covey, and Walker
is admittedly thin, given Woods' drugged condition; the lack of records of things that should be recorded; and the lack of explanation for the delay in booking, the Court believes it fair
to allow Woods to substitute these officers for Conger, and to direct the Magistrate Judge to conduct an evidentiary hearing at which Woods can question these officers personally about the alleged pepper spraying incident. 8. Woods suggests that she should be allowed to expand her
claim to include a claim of criminal conspiracy against a long list of SCADC employees. There is nothing to support this other
than the fact that none of these employees has any recollection of any pepper spray incident involving Woods, and this is not
No recovery could be predicated on such a flimsy This motion will be denied.
evidentiary basis. 9.
Woods incorporates in her Objections boilerplate motions
for a polygraph examination (though she does not say of whom); for disclosure of exculpatory evidence; for disclosure of electronic surveillance; for a bill of particulars; and for an extension of time to file pre-trial motions. These motions are apropos of
criminal proceedings, and the Court finds no basis to grant them here. 10. Finally, Woods suggests that Conger himself should be
held liable, citing Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) because "every staff member up the chain of command is under Mike Conger, therefore he is responsible for their actions." This is clearly not the holding of Martin, which holds to the contrary: claims predicated on a respondeat superior theory do -4-
not apply in §1983 suits for damages. Conger will, therefore, be dismissed.
Woods' claims against
IT IS THEREFORE ORDERED that the Report And Recommendation Of The Magistrate Judge (document #43) is not adopted. IT IS FURTHER ORDERED that SCADC employees Amanda Sowa, Deputy R. Covey, and Deputy Walker be substituted for defendant Mike Conger. IT IS FURTHER ORDERED that plaintiff's claims against Conger are dismissed. IT IS FURTHER ORDERED that Woods' motions to assert a claim of civil conspiracy; for polygraph examination; for disclosure of exculpatory evidence; for disclosure of electronic surveillance; for a bill of particulars; and for an extension of time to file pre-trial motions are denied. IT IS FURTHER ORDERED that this matter is remanded to the Magistrate Judge for further proceedings consistent with this Order. IT IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE
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