Mack v. Stovall et al

Filing 33

ORDER adopting Re 31 Report and Recommendations and granting 22 Motion for Summary Judgment. See Order for specifics. Signed by Honorable Susan O. Hickey on April 12, 2012. (adw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION

JAMES MACK

VS.

PLAINTIFF

CASE NO. 4:10-CV-04129

SHERIFF RON STOVALL;
SGT. JOHNNY WELCH;
CPL. TRACEY SMITH; and
OFFICER RACHEL JONES

DEFENDANTS

ORDER
Before the Court is the Report and Recommendation filed January 30, 2012 by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 31). Judge Bryant has examined the Defendants’ Motion for Summary Judgment (ECF
No. 22), the Plaintiff’s Response (ECF No. 27), and the Defendants’ Reply. (ECF No. 29). Judge
Bryant recommends granting the Defendants’ motion in part and denying their motion in part.
The Plaintiff has filed an objection to Judge Bryant’s report (ECF No. 32), and the Defendants
have not. The time for objecting has passed. After conducting a de novo review of the record, the
Court adopts Judge Bryant’s Report and Recommendation as its own.
The Plaintiff’s claims arise out of a single event: his tasing on June 10, 2010. On that
date, Corporal Tracy Smith tried to remove the Plaintiff’s black-weave cap. The Plaintiff
verbally resisted Smith, and told Sgt. Johnny Welch that he would remove the cap by himself.
Welch then tried to remove the Plaintiff’s cap, and the Plaintiff told Welch not to place his hands
on him. A physical confrontation ensued, during which Officer Rachel Jones tased the Plaintiff
on Welch’s order.
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After the Plaintiff was tased, Officer Jones removed the taser prongs from the Plaintiff’s
back, and swabbed the entry wounds with alcohol and covered them with band-aids. There is a
dispute about whether the Plaintiff requested additional treatment or received any.
The Plaintiff filed suit against the Defendants under 42 U.S.C. § 1983 alleging excessive
force and denial of medical care. The Defendants moved for summary judgment on all of the
Plaintiff’s claims. Judge Bryant recommends granting the Defendants’ summary-judgment
motion on: 1) all of the Plaintiff’s official-capacity claims; 2) all of the Plaintiff’s individual- and
official-capacity denial-of-medical-care claims; and 3) the Plaintiff’s individual-capacity
excessive-force claim against Sheriff Stovall. Judge Bryant recommends denying the
Defendants’ summary-judgment motion on the Plaintiff’s individual-capacity excessive-force
claims against Defendants Welch, Smith, and Jones.
The Plaintiff objects to Judge Bryant’s recommendation to grant summary judgment for
Sheriff Stovall in his individual capacity on both the excessive-force and denial-of-medical-care
claims. The Plaintiff contends that Sheriff Stovall might have been aware of what happened to
him on June 15, 2010. He also contends that Sheriff Stovall became liable when the jail allowed
a camera to fail, causing a lack of security.
Sheriff Stovall may be liable in his individual capacity for the Plaintiff’s claims only if he
directly participated in the use of excessive force or the denial of medical care, or if he failed to
train or supervise those who did participate and that failure caused the violation. Parrish v. Ball,
594 F.3d 993, 1001 (8th Cir. 2010) (quoting Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir.
1997) (internal citation omitted)).
Neither of the Plaintiff’s allegations show Sheriff Stovall’s direct participation in the
Plaintiff’s harm or Sheriff Stovall’s failure to train those who harmed the Plaintiff, much less that

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a failure to train caused the harm. The Plaintiff’s objection to Judge Bryant’s report is thus not
persuasive.
Based on the information in Judge Bryant’s Report and Recommendation (ECF No. 31),
and the reasoning in this Order, the Court adopts Judge Bryant’s Report and Recommendation in
its entirety. Therefore, the Defendants’ Motion for Summary Judgment (ECF No. 22) is
GRANTED as to 1) all of the Plaintiff’s official-capacity claims; 2) all of the Plaintiff’s
individual- and official-capacity denial-of-medical-care claims; and 3) the Plaintiff’s individualcapacity excessive-force claim against Sheriff Stovall. The Defendants’ Motion is DENIED as
to the Plaintiff’s individual-capacity excessive-force claims against Defendants Welch, Smith,
and Jones.
IT IS SO ORDERED, this 12th day of April, 2012.

/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge

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