Garcia Campos v. Miss Free et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS and granting in part and denying in part 16 Motion for Summary Judgment; ORDER REFERRING MOTION: 16 First MOTION for Summary Judgment filed by Miss Free, Day, Thompson and Petray. Signed by Honorable Jimm Larry Hendren on February 26, 2009. Motions referred to James R. Marschewski.(tg)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION LUIS E. GARCIA CAMPOS v. DEPUTY FREE; DEPUTY THOMPSON; DEPUTY DAY; CAPTAIN PETRAY ORDER Now on this 26th day of February, 2009, come on for Civil No. 07-5161 PLAINTIFF DEFENDANTS consideration County Defendant's Motion For Summary Judgment (document #16); the Report And Recommendation Of The Magistrate Judge (document #23); and plaintiff's Objections thereto (document #24), and the Court, being well and sufficiently advised, finds and orders as follows: 1. Plaintiff contends that he was subjected to excessive force, subjected to discrimination, and denied medical care while an inmate at the Benton County Detention Center ("BCDC"). Defendants moved for summary judgment, and the Magistrate Judge propounded responding. a questionnaire to plaintiff to assist him in The Magistrate Judge then issued the Report And Recommendation now under consideration. 2. The Magistrate and no Judge found no evidence would of racial an discrimination, evidence that support unconstitutional denial of medical care, and recommended that these claims be dismissed. He recommended that summary judgment be denied as to plaintiff's claim of excessive force against defendants Day and Thompson. 3. Plaintiff's Objections to the Report And Recommendation are without merit. He offers nothing of substance with regard to his denial of medical care claim. With regard to his discrimination claim, plaintiff says that "after they hit me" -- which the Court understands to be a reference to Thompson and Day -- they "tell me move beano." is not sufficient. This Even if the use of "beano" indicates racial animus, under Eighth Circuit law, more than an isolated incident is required to prove discrimination. Clayton v. White Hall School District, 875 F.2d 676, 680 (8th Cir. 1989). Plaintiff also states that when he asked for medical help, "if I wasn't hispanic maybe the answer would be differen[t]!!" This is mere supposition, and will not support a cause of action. For these reasons, the Court finds plaintiff's Objections to be without merit. IT IS THEREFORE ORDERED that the Report And Recommendation Of The Magistrate Judge (document #23) is adopted in toto, and plaintiff's Objections (document #24) are overruled. IT IS FURTHER ORDERED that the County Defendant's Motion For Summary Judgment (document #16) is granted in part and denied in part. The motion is granted insofar as it seeks dismissal of plaintiff's claims for discrimination and denial of medical care, -2- and those claims are hereby dismissed. The motion is denied insofar as it seeks dismissal of plaintiff's claim for excessive force, and that claim is remanded to the Magistrate Judge for further proceedings. IT IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE -3-

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