O'Hagan v. Winters et al
ORDER ADOPTING 5 REPORT AND RECOMMENDATIONS and dismissing case. Signed by Honorable Jimm Larry Hendren on November 17, 2011. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JESSICA WINTERS, ET AL.
O R D E R
consideration the Report and Recommendation of the Magistrate Judge
(Doc. 5), and plaintiff’s Objection (Doc. 6) thereto.
being well and sufficiently advised, finds and orders as follows:
Plaintiff is proceeding pro se in this case.
probation/parole officer, her supervisor and the State of Arkansas.
The relevant facts alleged by plaintiff in his complaint are
In October 2009, plaintiff was on probation pursuant to a
criminal judgment filed on April 2, 2001.
Plaintiff says that,
sometime in October 2009, Ms. Winters visited him at his home and
observed that he was under the influence of drugs (methamphetamine)
while his children were present, but she took no action to ensure
his safety, the safety of his children or the public in general.
Plaintiff asserts that when Ms. Winters observed him under the
influence of drugs, as well as other suspicious circumstances, she
had a duty to take some action to help him and his family, such as
taking him into custody and/or helping him get drug counseling.1
Plaintiff asserts that Ms. Winters’ actions constitute gross
negligence and caused him and his family to suffer serious damages.
Plaintiff does not articulate the nature of the damages that he and
his family suffered, however, he seeks to recover $2,000,000 to be
paid to himself and his three minor children.
This case was referred to the Magistrate Judge, who
conducted a preservice screening of the complaint under the Prison
Litigation Reform Act, 28 U.S.C. § 1915A.
On October 25, 2011, the Magistrate Judge issued a Report and
Recommendation in which she found that plaintiff’s complaint fails
to state a claim because defendants had no constitutional duty to
protect plaintiff from the consequences of his own actions.
Plaintiff has objected to the Report and Recommendation
in a nineteen-page document in which he generally argues for the
proposition that once Ms. Winters saw that he was under the
influence of drugs, she had a duty to act to protect him and his
“The Due Process Clause of the Fourteenth Amendment
provides that ‘[n]o State shall . . . deprive any person of life,
liberty, or property, without due process of law.’”
Winnebago County Dept. of Social Servs., 489 U.S. 189, 194-95
Plaintiff’s probation was eventually revoked in
September of 2010 and he is now serving out a sentence in the
Cummins Unit of the Arkansas Department of Corrections.
constitutional rights were violated when defendants failed to
protect him from himself invokes “the substantive rather than the
procedural component of the Due Process Clause.”
U.S. at 195.
The Supreme Court in DeShaney stated that “the Due Process
Clauses generally confer no affirmative right to governmental aid,
even where such aid may be necessary to secure life, liberty, or
property interests of which the government itself may not deprive
DeShaney, 489 U.S. at 196.
Thus, “a State’s
failure to protect an individual against private violence simply
does not constitute a violation of the Due Process Clause.”
In light of the Supreme Court’s holding in DeShaney, the
Court agrees with the Magistrate Judge that defendants owed no duty
to plaintiff to protect him from the consequences of his own
Therefore, plaintiff’s due process claim fails to state
a claim under 42 U.S.C. § 1983.
There are two recognized exceptions to this rule: the
custody exception and the state-created danger exception. See
Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992).
Neither of these exceptions apply here.
IT IS THEREFORE ORDERED that plaintiff’s Objection (Doc. 5) is
IT IS FURTHER ORDERED that the Report and Recommendation of
the Magistrate Judge (Doc. 5) is hereby adopted in toto; and
IT IS FURTHER ORDERED that plaintiff’s complaint is dismissed
for failure to state a claim.
The dismissal of this lawsuit shall
constitute a strike under the Prison Litigation Reform Act, 28
U.S.C. § 1915(g).
The Clerk is hereby directed to place a §
1915(g) strike flag on this case.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
HON. JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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