Adams v. Bolen et al

Filing 44

ORDER ADOPTING REPORT AND RECOMMENDATIONS in its entirety and defendants' 28 MOTION for Summary Judgment is denied with regard to plaintiff's individual capacity claim against defendant Donald Koppenhavener stemming from the 10/27/06 inci dent in which Koppenhavener allegedly aimed a gun at plaintiff and threatened him; further defendants' 28 MOTION for Summary Judgment is granted in all other respects, and plaintiff's remaining claims against Koppenhavener, as well as all of plaintiff's claims against the other three named defendants are dismissed with prejudice; further this matter is referred back to Magistrate Judge Marschewski for further disposition. Signed by Honorable Jimm Larry Hendren on September 12, 2008. (rw)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION KELWIN DEWAYNE ADAMS v. Civil No. 06-3074 DEFENDANTS ORDER Now on this 12th day of September, 2008, comes on for PLAINTIFF

ALVIN DALE BOLEN, Transport Officer, et al.

consideration the Magistrate Judge's Report and Recommendation (Doc. 39) herein and the Plaintiffs' Objections to the Magistrate Judge's Report and Recommendation (Docs. 41, 43). reviewed this case de novo and, being well and The Court has sufficiently

advised, finds and orders as follows: 1. Magistrate Judge James R. Marschewski issued a Report and

Recommendation on August 18, 2008, recommending that defendants' Motion for Summary Judgment (Doc. 28) be granted in part and denied in part. Specifically, Magistrate Judge Marschewski recommended

that the motion be granted on all of plaintiff's claims except for his individual capacity claim against defendant Donald

Koppenhavener stemming from an incident on October 27, 2006, when Koppenhavener, in responding to a disturbance in plaintiff's cell, allegedly aimed a gun at plaintiff and threatened to blow his head off if he moved. 2. In his objections to the Report and Recommendation,

plaintiff takes issue with the fact that he has not been provided

the jail's security camera tapes from the date in question and asserts that the tapes will "clearly show what he states is true." Plaintiff was not prejudiced in any way by his lack of access to the security camera tapes, as Magistrate Judge Marschewski, in ruling on defendants' summary judgment motion, assumed the facts stated by plaintiff to be true and viewed those facts in the light most favorable to the plaintiff. Further, in an order issued subsequent to the filing of the Report and Recommendation (Doc. 40), Magistrate Judge Marschewski directed the defendants to either produce the tapes or provide an affidavit explaining why the tapes no longer existed and when they were destroyed or taped over. Accordingly, the Court finds that

plaintiff's objection regarding the tapes is without merit and it is, hereby, overruled. 3. Plaintiff next objects that a "[p]olice officer who is

present at [a] s[cene] and who does not take reasonable measures to protect suspects from another officer[`s] use of excessive force may be liable...." The Court assumes that plaintiff is referring

to defendant Alvin Bolen, who accompanied defendant Koppenhavener into plaintiff's cell and was present when Koppenhavener allegedly pointed a gun at plaintiff and threatened him. There is no

evidence that Bolen was deliberately indifferent to a substantial risk of serious harm posed by Koppenhavener to the plaintiff. Absent such evidence, Bolen cannot be held liable for failing to intervene when Koppenhavener allegedly threatened the plaintiff.

See Estate of Davis by Ostenfeld v. Delo, 115 F.3d 1388, 1395 (8th Cir. 1997). overruled. 4. Plaintiff also objects that his Eighth Amendment rights Plaintiff's objection in this regard is, therefore,

were violated when he was handcuffed for 45 minutes after the situation which precipitated the defendants entering his cell had been resolved. A challenge to the way in which prison officials

respond to a disturbance must show that they acted "maliciously and sadistically for the very purpose of causing harm." Key v.

McKinney, 176 F.3d 1083, 1086 (8th Cir. 1999) (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). As pointed out by Magistrate Judge Marschewski, plaintiff does not allege that the handcuffs were applied too tightly or that he otherwise suffered any injury. Accordingly, the Court finds plaintiff's objection to be without merit and it is hereby overruled. 5. Plaintiff's remaining objections offer neither law nor

fact requiring departure from the Report and Recommendation and they too are overruled. 6. Based on the foregoing, the Court hereby ADOPTS the

Report and Recommendation in its entirety and orders as follows: * Defendants' Motion for Summary Judgment (Doc. 28) is DENIED with regard to plaintiff's individual capacity claim against defendant Donald Koppenhavener stemming from the October 27, 2006 incident in which Koppenhavener allegedly aimed a gun at plaintiff and threatened him.

*

Defendants' Motion for Summary Judgment (Doc. 28) is GRANTED in all other respects, and plaintiff's remaining claims against Koppenhavener, against as well other as three all of

plaintiff's

claims

the

named

defendants, are DISMISSED WITH PREJUDICE. * This matter is referred back to Magistrate Judge

Marschewski for further disposition. IT IS SO ORDERED. /s/Jimm Larry Hendren HON. JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE