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

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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

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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

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