Gutierrez v. Kelley et al
Filing
37
ORDER ADOPTING 35 REPORT AND RECOMMENDATIONS. ORDER granting in part and denying in part 21 Motion for Summary Judgment. Signed by Honorable Jimm Larry Hendren on August 22, 2011. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
ARMANDO GUTIERREZ
PLAINTIFF
v.
Civil No. 09-5189
DEPUTY KELLEY and
DEPUTY HARTMAN
DEFENDANTS
O R D E R
NOW on this 22nd day of August 2011, comes on for consideration
the Magistrate Judge’s Report and Recommendation (Doc. 35) and
defendants’
objection
thereto
(Doc.
36).
Plaintiff
has
submitted any objections to the Report and Recommendation.
not
The
Court, being well and sufficiently advised, finds and orders as
follows:
1.
Plaintiff, who is proceeding pro se, filed this civil
rights action under 42 U.S.C. § 1983.
2.
In
his
complaint,
plaintiff
alleges
that,
while
incarcerated at the Benton County Detention Center, he was denied
procedural due process in connection with certain disciplinary
actions taken against him.
In addition, plaintiff alleges that he
was denied an adequate diet, denied responses to his grievances,
and was subjected to excessive force.
Plaintiff named as defendants in his complaint Deputies Kelley
and Hartman.
Plaintiff did not state in his complaint whether he
was bringing his claims against Deputies Kelley and Hartman in
their official and/or individual capacities.
3.
Defendants filed a motion for partial summary judgment on
all of plaintiff’s claims except the excessive force claim.
In
order to assist plaintiff in responding to the summary judgment
motion, the Magistrate Judge provided plaintiff with a list of
questions for him to answer regarding the facts of his case.
When
asked whether he was suing the defendants in their individual or
official
capacities,
plaintiff
indicated
that
he
was
suing
defendants in both their individual and official capacities.
4.
Claims against individuals in their official capacities
“generally represent only another way of pleading an action against
an entity of which an officer is an agent.”
Hafer v. Melo, 502
U.S. 21, 24 (1991) (internal citations omitted).
In official-
capacity suits, the plaintiff must show that the entity’s “policy
or custom” played a part in the violation of federal law.
Id.
Individual capacity claims “seek to impose individual liability
upon a government officer for actions taken under color of state
law.”
5.
Id.
In her Report and Recommendation, the Magistrate Judge
recommends that plaintiff’s official capacity claims be dismissed
because plaintiff has not alleged that his rights were violated as
a result of any policy or custom of Benton County.
Neither party has objected to this portion of the Report and
Recommendation.
The Court finds that this part of the Report and
Recommendation is sound in all respects and will be adopted.
6.
With respect to the individual capacity claims, the
Magistrate Judge recommends that the Court deny the motion for
summary judgment on plaintiff’s claim that he was denied due
process, and grant defendants summary judgment on plaintiff’s
claims regarding an inadequate diet and failure to respond to
grievances.
Defendants
object
to
this
part
of
the
Report
and
Recommendation on the grounds that plaintiff did not specify that
he was suing defendants in their individual capacities in his
complaint and, thus, it is not proper for the Court to construe the
complaint as asserting individual capacity claims.
In support of their objection, defendants cite to Johnson v.
Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) where the
Eighth Circuit stated the rule that, “[i]n order to sue a public
official in his or her individual capacity, a plaintiff must
expressly and unambiguously state so in the pleadings, otherwise,
it will be assumed that the defendant is sued only in his or her
official capacity.” (citations omitted).
The court explained that
“[b]ecause section 1983 exposes public servants to civil liability
and damages, we have held that only an express statement that they
are being sued in their individual capacity will suffice to give
proper notice to the defendants.”
Id. (citations omitted).
Thus, defendants assert that, because plaintiff has failed to
specifically plead whether defendants are being sued in their
-3-
official
or
individual
capacities,
the
Court
should
construe
plaintiff’s complaint as asserting official capacity claims only.
7.
The Court agrees with defendants that plaintiff did not
expressly state in his complaint that he is asserting individual
capacity
claims.
However,
the
Court
liberally construe a pro se complaint.”
“has
an
obligation
to
Bracken v. Dormire, 247
F.3d 699, 704 (8th Cir. 2001). Further, plaintiff indicated in his
response to defendants’ summary judgment motion that he was suing
defendants
in
both
their
individual
and
official
capacities.
Therefore, as this Court has previously held, it is proper to
construe the complaint as asserting claims against defendants in
both their individual and official capacities.
See Savage v.
Turner, 2007 U.S. Dist. LEXIS 36383 at *27 (W.D. Ark. May 17,
2007).
8.
The Court finds that the Magistrate Judge’s Report and
Recommendation as to the individual capacity claims is sound in all
respects and will be adopted.
IT IS THEREFORE ORDERED that the defendants’ objection to the
Magistrate Judge’s Report and Recommendation is overruled;
IT IS FURTHER ORDERED that the Magistrate Judge’s Report and
Recommendation (Doc. 35) is hereby adopted in toto;
IT IS FURTHER ORDERED that, for the reasons stated in the
Magistrate Judge’s Report and Recommendation, defendants’ Motion
-4-
for Summary Judgment (Doc. 21) is hereby GRANTED IN PART and DENIED
IN PART.
*
Specifically:
defendants’ motion for summary judgment on plaintiff’s
official
capacity
claims
is
GRANTED
and
plaintiff’s
official capacity claims are DISMISSED;
*
defendants’ motion for summary judgment on plaintiff’s
individual capacity claims that he was denied an adequate
diet and was denied responses to his grievances are also
GRANTED and those claims are DISMISSED; and
*
defendants’ motion for summary judgment on plaintiff’s
individual capacity claim that he was denied due process
is DENIED.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
HON. JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
-5-
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