Reese v. Reyes et al

Filing 54

ORDER granting in part and denying in part 37 Motion for Summary Judgment; adopting Report and Recommendations 51 in toto; terminating motion 52 to Amend/Correct deemed objections to the R&R. Signed by Honorable Jimm Larry Hendren on March 12, 2009. (src)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS F A Y E T T E V I L L E DIVISION J E R E M Y DALE REESE v. O F F I C E R REYES; SHERIFF KEITH FERGUSON; C A P T . HUNTER PETRAY; C O R P O R A L THOMPSON ORDER N o w on this 12th day of March, 2009, come on for consideration t h e following: * #37); * Report And Recommendation Of The Magistrate Judge C o u n t y Defendant's Motion For Summary Judgment (document C i v i l No. 07-5227 PLAINTIFF

DEFENDANTS

( d o c u m e n t #51)("R&R"); and * p l a i n t i f f ' s Motion To Amend Complaint (document #52),

w h i c h appears to be, and has been deemed, objections to the R&R, a n d the Court, being well and sufficiently advised, finds and o r d e r s as follows: 1. P l a i n t i f f makes three claims relating to the conditions

o f his confinement at the Benton County Detention Center ("BCDC"), a s against all defendants in both their official and individual capacities: * * * t h a t he was subjected to the use of excessive force; t h a t he was denied medical care; and t h a t he was denied access to the courts. The

D e f e n d a n t s moved for summary judgment as to all counts.

Magistrate Judge assisted plaintiff with the presentation of his side of the case by use of a questionnaire. and the An R&R is issued, for

o b j ection decision. 2.

has

been

made

thereto,

matter

ripe

T h e Magistrate Judge reported that plaintiff had alleged

n o custom, policy, or procedure of Benton County, Arkansas, to s u p p o r t his official capacity claims against the defendants, and r e c o m m e n d e d that those claims be dismissed. There is no objection

t o this aspect of the R&R, and it will be adopted. 3. T h e Magistrate Judge reported that a genuine issue of

m a t e r i a l fact existed with regard to the excessive force claim, and r e c o m m e n d e d that summary judgment be denied as to that claim. Although plaintiff appears to have some objections to the R&R in t h i s regard, the Court need not address them, as the Magistrate J u d g e ' s recommendation is favorable to plaintiff and the Court will a d o p t it. 4. W i t h regard to the denial of medical care claim, the

M a g i s t r a t e Judge reported that plaintiff was not denied medical c a r e , but rather he disagreed with the type care that he was given. The Magistrate Judge also reported that there was no evidence any n a m e d defendant provided medical care to plaintiff. As a result,

h e recommended that summary judgment be granted as to this claim. Plaintiff does not object, and the R&R will be adopted as to this claim. 5. F i n a l l y , the Magistrate Judge reported that the nature

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of plaintiff's denial of access claim was his contention that he w a s unable to file a motion contesting defendant Reyes' right to an a t t o r n e y provided at the expense of Benton County. Judge recommended dismissal of this claim, as The Magistrate there was no

p r e j u d i c e to plaintiff in the representation provided to Reyes and t h e claim was frivolous. In his objections, plaintiff questions why taxpayers are He

p a y i n g for the defense of a person no longer employed by BCDC.

o f f e r s no legal support for the proposition that this claim is p e r s o n a l to him, however, and this objection will be overruled. The R&R will be adopted as to this claim. I T IS THEREFORE ORDERED that the the Report And Recommendation O f The Magistrate Judge (document #51) is adopted in toto, and p l a i n t i f f ' s Motion To Amend Complaint (document #52), being deemed o b j e c t i o n s to the R&R, is overruled. IT IS FURTHER ORDERED that County Defendant's Motion For

S u m m a r y Judgment (document #37) is granted in part and denied in part. The motion is denied as to plaintiff's claim of excessive

f o r c e against defendants Reyes and Thompson in their individual c a p a c i t i e s , and granted in all other respects. I T IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN U N I T E D STATES DISTRICT JUDGE

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