Smith v. Adams et al

Filing 33

ORDER ADOPTING IN PART re 28 Report and Recommendations.; granting 11 Motion to Dismiss; plaintiffs official capacity claims against defendants are DISMISSED WITHOUT PREJUDICE; personal capacity claimsagainst these Defendants remain for further consideration. Signed by Honorable Susan O. Hickey on March 10, 2016. (cnn)

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

DELRAE MCKENZY SMITH
VS.

PLAINTIFF
CASE NO. 4:14-CV-4126

LT. ADAMS, et al.

DEFENDANTS
ORDER

Before the Court is the Report and Recommendation filed February 16, 2016 by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 28). Judge Bryant recommends that a Motion to Dismiss filed on behalf of Separate
Defendants Nurse Emerson and Nurse Bruce (ECF No. 11) be granted. Plaintiff has filed objections.
(ECF No. 29). After reviewing the record de novo, the Court adopts Judge Bryant’s Report and
Recommendation in part.
Defendants Bruce and Emerson filed a Motion to Dismiss requesting that the official capacity
claims against them be dismissed for failure to state a claim. Defendants Bruce and Emerson argue
that Plaintiff has failed to allege any policy or custom of their employer Southern Health Partners,
Inc. which could support a claim of official capacity liability. Judge Bryant agrees with Defendants
and recommends that the official capacity claims against them be dismissed with prejudice.
Plaintiff does not object to the substance of Judge Bryant’s findings. Rather, Plaintiff
requests that the dismissal of the official capacity claims be without prejudice. The Court agrees
with Plaintiff that a dismissal without prejudice is more appropriate in this case since it is
conceivable that Plaintiff could, at a later date, sufficiently allege a custom or policy. Accordingly,
the Court declines to adopt the portion of the Report and Recommendation that recommends

dismissal with prejudice.
For the reasons stated herein and above, as well as those contained in the Report and
Recommendation, Separate Defendants Nurse Emerson and Nurse Bruce’s Motion to Dismiss (ECF
No. 11) should be and hereby is GRANTED. Plaintiff’s official capacity claims against these
Defendants are DISMISSED WITHOUT PREJUDICE. Plaintiff’s personal capacity claims
against these Defendants remain for further consideration.
IT IS SO ORDERED, this 10th day of March, 2016.

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

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