Brown v. Hickman et al

Filing 52

ORDER adopting 47 Report and Recommendations in toto, and plaintiff's objections to the Repor and Recommendation are overruled; further 23 Motion for Summary Judgment filed by Danny Hickman, Ryan Watson, Boone County, AR is granted and case is dismissed with prejudice. Signed by Honorable Jimm Larry Hendren on March 11, 2011. (rw)

Brown v. Hickman et al

Doc. 52

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION DANIEL RAY BROWN v. SHERIFF DANNY HICKMAN; DEPUTY RYAN WATSON; and BOONE COUNTY, ARKANSAS O R D E R Now on this 11th day of March, 2011, comes on for Civil No. 10-3006 PLAINTIFF

DEFENDANTS

consideration the Report and Recommendation of the Magistrate Judge (Doc. 47) in this matter. The Court, having carefully reviewed

said Report and Recommendation, finds as follows: 1. Plaintiff, Daniel Ray Brown, is proceeding pro se and in

forma pauperis. 2. Plaintiff filed his complaint on January 10, 2011, under

42 U.S.C. § 1983. Specifically, plaintiff alleges that Deputy Ryan Watson detained and arrested him while he was attempting to load his property into his personal storage unit. Plaintiff further

alleges that -- after Deputy Watson arrested him -- Deputy Watson refused to close and lock the door to the plaintiff's storage unit and, as a result, valuable and sentimental personal property was stolen from his unit. by the defendants. Plaintiff also alleges that he was harassed Plaintiff asks the Court to order the I

defendants "to replace my property with equal value of money.

want to be paid in full and also for sentimental things that were lost. I want to be paid for harassment also, $100,000.00."

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3.

The plaintiff subsequently filed motions to amend his

complaint to name the defendants in their individual and official capacities. The Magistrate Judge granted those motions. Thus,

this case is proceeding against the individual defendants in their individual and official capacities. 4. Defendants filed a Motion for Summary Judgment (Doc. 23), This matter was

and the plaintiff filed a timely response (45).

referred to the Magistrate Judge for consideration. 5. On March 1, 2011, the Magistrate Judge entered his Report

and Recommendation in which he found that plaintiff's claim for deprivation of property fails as a matter of law because: * plaintiff does not allege that the missing property was taken or destroyed by the defendants and

intentionally

inadvertence, negligence or even gross negligence is insufficient to state a claim under § 1983. See Sellers by and through Sellers

v. Baer, 28 F.3d 895, 902-03 (8th Cir. 1994); and * even if plaintiff alleges that the deprivation was

intentional, he has an adequate remedy at law because he could bring a claim for conversion under Arkansas state law. v. Palmer, 468 U.S. 517, 533 (1984). 6. The Magistrate also found that plaintiff's claim for See Hudson

verbal abuse and harassment failed because such acts do not state a constitutional claim. (8th Cir. 1993). See McDowell v. Jones, 990 F.2d 422, 434

7. because

Plaintiff has objected to the Report and Recommendation he claims that he is not alleging a deprivation of

property, but is alleging a "loss of property."

Regardless of how

the plaintiff chooses to describe his claim, the Court agrees that the plaintiff has an adequate remedy at law because he could bring a state-law claim for conversion and, thus, his § 1983 claim must be dismissed. 8. Plaintiff also raises for the first time in his objection

to the Report and Recommendation that he wants to assert new claims for "Illegal Search and Seizure," and "Cruel and Unusual

Punishment." The Court finds that plaintiff's request to amend his complaint to add these new claims comes too late in this case. Plaintiff filed this lawsuit over one year ago and the Court finds that justice would not be served by an amendment at this late stage in the case. 9. Finally, plaintiff asks the Court to order that the

Magistrate Judge recuse from this case or that this case be "referred or reassigned," but plaintiff cites no basis for recusal, other than the adverse rulings he has received in this case. Because there has been no showing of a basis for the Magistrate Judge or the undersigned to recuse, or to reassign this case, plaintiff's request is denied. 10. The Court finds that the Magistrate Judge's Report and

Recommendation is sound in all respects and should be adopted in toto.

IT IS THEREFORE ORDERED that the plaintiff's objections to the Report and Recommendation of the Magistrate Judge (Doc. 47) are hereby OVERRULED. IT IS FURTHER ORDERED that the Report and Recommendation of the Magistrate Judge is adopted in toto. IT IS FURTHER ORDERED that the defendants' Motion for Summary Judgment (Doc. 23) is GRANTED and this case is hereby dismissed with prejudice. IT IS SO ORDERED.

/s/Jimm Larry Hendren HON. JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE