Mack v. Stovall et al

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 42 Report and Recommendations, and Plaintiff's complaint is dismissed with prejudice. Signed by Honorable Susan O. Hickey on November 28, 2012. (cap)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION JAMES MACK vs. PLAINTIFF Civil No. 4:10-cv-04129 SGT. JOHNNY WELSH; CPL. TRACEY SMITH; and OFFICER RACHEL JONES DEFENDANTS ORDER Before the Court is the Report and Recommendation filed October 25, 2012 by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 42). Judge Bryant held a hearing on Plaintiff’s excessive force claims on October 4, 2012. (ECF No. 41). Based on the testimony at that hearing, Judge Bryant recommends that judgment be entered in Defendant’s favor and that Plaintiff’s Complaint (ECF No. 1) be dismissed. The parties have not filed objections to the Report and Recommendation, and the time for doing so has passed. See 28 U.S.C. § 636(b)(1). After reviewing the record de novo, the Court finds that Judge Bryant’s Report and Recommendation should be adopted in its entirety. Plaintiff claims that he was subjected to excessive force when he was tased for violating a ban on wearing certain “do-rags” while being detained at the Miller County Detention Center. Judge Bryant found that Defendants’ actions were objectively reasonable under the circumstances, and that the force used was justified under the Fourteenth Amendment. The Court agrees. After Plaintiff was notified to remove his banned do-rag, he defied a direct order, resisted restraints, and posed a security risk in an open pod with approximately thirty-three other inmates. Such circumstances warranted the force used against him. See Jasper v. Thalacker, 999 F.2d 353 (8th Cir. 1993). Accordingly, the Court hereby adopts Judge Bryant’s Report and Recommendation, and Plaintiff’s Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. IT IS SO ORDERED, this 28th day of November, 2012. /s/ Susan O. Hickey Hon. Susan O. Hickey United States District Judge

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