Wilkins v. Ferguson et al

Filing 43

ORDER ADOPTING IN PART 40 REPORT AND RECOMMENDATIONS ; granting 32 Motion for Summary Judgment. Plaintiff's complaint is dismissed with prejudice. Signed by Honorable Jimm Larry Hendren on September 16, 2011. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
WILLIAM SEAN WILKINS
v.

PLAINTIFF
Civil No. 09-5204

SHERIFF KEITH FERGUSON, et al.

DEFENDANTS
ORDER

NOW on this 16th day of September 2011, this case comes on for
consideration on the Magistrate Judge’s Report and Recommendation
(Doc. 40) and defendants’ objection thereto (Doc. 41).

Plaintiff

has not filed any objections to the Report and Recommendation.
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 (“BCDC”), he
slipped coming out of the shower and injured his right hand.
Plaintiff claims that he was denied adequate medical care for his
injury.
Plaintiff named as defendants in his complaint Sheriff Keith
Ferguson, BCDC’s physician, Dr. John Huskins, and Captain Holly.
Plaintiff did not state in his complaint whether he was bringing
his claims against defendants in their official and/or individual
capacities.

3.

Defendants filed a motion for summary judgment seeking

the dismissal of plaintiff’s claims.

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 his case.

One of the questions posed to plaintiff was

whether he was suing the defendants in their individual or official
capacities.

Plaintiff did not directly answer the question.

Rather, he stated: “I have only ask[ed] for my problem to be
resolved to have my hand back to normal like it was before I fell
in their county jail.”
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 the Court liberally construe the complaint to
include claims against defendants in both their individual and
official capacities.
Further, the Magistrate Judge recommends that the Court make
the following rulings on the pending summary judgment motion:

*

deny summary judgment on plaintiff’s individual capacity
claim against Dr. Huskins because genuine issues of
material

fact

exist

as

to

whether

Dr.

Huskins

was

deliberately indifferent to plaintiff’s serious medical
needs;
*

grant summary judgment on plaintiff’s individual capacity
claims against Sheriff Ferguson and Captain Holly as
there is no evidence that they made any decisions with
respect to plaintiff’s medical care; and

*

grant summary judgment on plaintiff’s official capacity
claims as there is no evidence that a BCDC policy or
custom caused plaintiff’s constitutional rights to be
violated.

6.

Defendants

Recommendation

that

object

to

recommends

the

part

that

the

of

the

Court

Report

and

construe

the

complaint against them in both their individual and official
capacities.

In support of their objection, defendants cite to,

among other cases, 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

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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.”
Johnson, 172 F.3d at 535. (citations omitted).
7.

The Eighth Circuit has also held that a pro se plaintiff

“is entitled to have his pleadings interpreted liberally and his
petition should be construed to encompass any allegation stating
federal relief. . . .”
Cir. 1976).

White v. Wyrick, 530 F.2d 818, 819 (8th

Thus, in cases where a pro se plaintiff has indicated

in his response to a summary judgment motion that he is suing
defendants in both their individual and official capacities, this
Court has held that it is proper to construe the complaint as
asserting claims against defendants in both their individual and
official capacities.

See, e.g., Sorrells v. Hickman, 2006 U.S.

Dist. LEXIS 99319 (W.D. Ark.

Aug. 7, 2006) adopting Report and

Recommendation of Magistrate Judge, 2006 U.S. Dist. LEXIS 99362
(June 8, 2006).
8.

As defendants point out, however, in this case plaintiff

has not indicated in any pleading or paper filed with the Court
that he is suing defendants in both their individual and official
capacities.

Specifically,

when

asked

whether

he

was

suing

defendants in their individual or official capacities, plaintiff’s
answer was non-responsive.

Thus, under the rule set out by the

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Eighth Circuit in Johnson, it must be assumed that the defendants
are sued only in their official capacities.
9.
Magistrate

Therefore, the Court declines to adopt the portion of the
Judge’s

Report

and

Recommendation

in

which

she

recommends that the Court liberally construe the complaint to
include claims against defendants in both their individual and
official capacities.

For the reasons set forth above, the Court

will construe the complaint as suing defendants in their official
capacities only.
Further, the Court will adopt that portion of the Magistrate
Judge’s Report and Recommendation in which the Magistrate Judge
recommends that defendants’ summary judgment motion be granted with
respect to plaintiff’s official capacity claims because there is no
evidence that a BCDC policy or custom played a role in the alleged
constitutional violation.
IT IS THEREFORE ORDERED that the defendants’ objection to the
Magistrate Judge’s Report and Recommendation is sustained;
IT IS FURTHER ORDERED that the Magistrate Judge’s Report and
Recommendation (Doc. 40) is rejected in part and adopted in part as
set forth above; and
IT IS FURTHER ORDERED that, for the reasons stated in the
Magistrate Judge’s Report and Recommendation, defendants’ Motion
for Summary Judgment (Doc. 32) is hereby GRANTED.
complaint is hereby DISMISSED WITH PREJUDICE.
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Plaintiff’s

IT IS SO ORDERED.

/s/ Jimm Larry Hendren
HON. JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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