Perry v. Crane et al

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 39 Report and Recommendations; granting in part and denying in part 25 Motion for Summary Judgment filed by Mike Gray, Lori Jones, Simeon Ames, Shawn Garland, denying 37 Motion for Summary Judgment filed by Michael R. Perry. Defendants Lori Jones Simeon Ames and Shawn Garland terminated. Signed by Honorable Harry F. Barnes on September 9, 2008. (cap)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION MICHAEL PERRY VS. LT. MIKE GRAY; SGT. SIMEON AMES; SHAWN GARLAND; and LORI JONES ORDER Before the Court is the Report and Recommendation filed August 11, 2008 by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (Doc. 39). Plaintiff Michael Perry, proceeding pro se and in forma pauperis, brings this lawsuit against Defendants pursuant to 42 U.S.C. § 1983, alleging violations of his civil rights in the form of excessive force and denial of adequate medical care. A Motion for Summary Judgment was filed on behalf of all named Defendants, and Plaintiff has also moved for summary judgment in his favor. Judge Bryant recommends that Defendants' Motion for Summary Judgment be granted in part and denied in part, dismissing all claims against Defendants Ames, Garland and Jones, and that Plaintiff's Motion for Summary Judgment be denied. Plaintiff Perry has responded with timely objections. (Doc. 40). After reviewing the record de novo, the Court adopts Judge Bryant's Report and Recommendation as its own. In his Objections to the Report and Recommendation, Perry argues that, while a pretrial detainee, Hempstead County was "responsible for [his] well being." (Doc. 40, pg. 4). To a limited extent, the Court agrees, but the law in this Circuit allows prison officials to utilize non-lethal chemicals for the purpose of controlling a "recalcitrant inmate." Jones v. Shields, 207 F.3d 491, 496 (8th Cir. 2000). In addition, the Court has reviewed Plaintiff's objections, and finds that they do not CASE NO. 4:07-CV-4013 PLAINTIFF

DEFENDANTS

specify a single fact or basis for the Court to reject the Report and Recommendation. Upon de novo review, the Court agrees with Judge Bryant that Plaintiff's claims against Defendants Ames, Garland and Jones should be dismissed. The summary judgment record before the Court indicates that genuine issues of material fact are only present with regard to Defendant Lt. Mike Gray's conduct during the December 29, 2006 altercation with Plaintiff. CONCLUSION For reasons stated herein and above, as well as those contained in Judge Bryant's Report and Recommendation, (Doc. 39), Defendants' Motion for Summary Judgment should be and hereby is GRANTED IN PART and DENIED IN PART. Defendants' Motion for Summary Judgment is GRANTED with regard to all Defendants on Plaintiff's denial of adequate medical care claim. Accordingly, Plaintiff's denial of adequate medical care claim is hereby DISMISSED WITH PREJUDICE. With respect to Plaintiff's excessive force claims, Defendants' Motion for Summary Judgment is GRANTED as to Defendants Simeon Ames, Shawn Garland and Lori Jones. Plaintiff's excessive force claims against Defendants Simeon Ames, Shawn Garland and Lori Jones are hereby DISMISSED WITH PREJUDICE. Defendants' Motion for Summary Judgment is DENIED with regard to Defendant Mike Gray­and only with regard to Plaintiff's excessive force allegations against Lt. Gray arising out of the December 29, 2006 incident. Finally, Plaintiff's Motion for Summary Judgment should be and hereby is DENIED. IT IS SO ORDERED, this 9th day of September, 2008. /s/Harry F. Barnes Hon. Harry F. Barnes United States District Judge

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