Bridgewater v. Davis et al

Filing 29

ORDER ADOPTING 27 REPORT AND RECOMMENDATIONS and granting 22 Motion for Judgment on the Pleadings. Signed by Honorable Jimm Larry Hendren on March 7, 2013. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JOHN WAYNE BRIDGEWATER
v.

PLAINTIFF
Civil No. 11-5221

CORPORAL DAVIS; SERGEANT
FLANNIGAN; SERGEANT MCCRANIE;
DEPUTY RICHARDSON; DEPUTY
BARTLEY; and DEPUTY RICHARDS

DEFENDANTS

O R D E R
Now on this 7th day of March, 2013, come on for consideration
the following:
*

defendants'

Motion

For

Judgment

On

The

Pleadings

(document #22);
*

Report And Recommendation Of The Magistrate Judge ("R&R)

(document #27); and
*

plaintiff's Written Objections (document #28),

and from said documents, the Court, being well and sufficiently
advised, finds and orders as follows:
1.

In this suit brought pursuant to 42 U.S.C. § 1983,

plaintiff complains of verbal threats by employees of the Benton
County Sheriff's Office while incarcerated and awaiting trial, and
interference with his mail.
2.

Magistrate Judge James R. Marschewski reported that

verbal threats, barring truly exceptional circumstances presenting
a threat of immediate harm, do not constitute a constitutional
violation.

He also reported that plaintiff had sued defendants

only

in

their

official

capacities,

not

their

individual

capacities, and had not alleged that any interference with his
mail was the result of a policy, custom or practice of the Benton
County Sheriff's Office.

For these reasons, Judge Marschewski

recommended that plaintiff's claims be dismissed.
3.

Plaintiff's Objections do not fairly meet the substance

of the R&R.

He contends that he is "still scared," and that

defendants could hurt or kill him, now or after he is released,
because they might not care if they get caught. These allegations
do not present the threat of immediate harm required to state a
constitutional violation on the basis of mere words.
Plaintiff also contends that "all claims are legit against
the defendants," and that they deprived him of his constitutional
rights "by taking my mail and legal mail and throwing it away."
This does not touch on the legal impediment created by the fact
that defendants are not sued in their individual capacities, and
that there is no allegation of a policy, custom or practice of
mail violations on the part of the Benton County Sheriff's Office.
4.

For the foregoing reasons, the Court finds that the R&R

is sound and should be adopted; that plaintiff's Objections are
without merit and should be overruled; and that defendant's Motion
For Judgment On The Pleadings should be granted.
IT IS THEREFORE ORDERED that the Report And Recommendation Of
The Magistrate Judge (document #27) is adopted in toto.

-2-

IT IS FURTHER ORDERED that plaintiff's Written Objections
(document #28) are overruled.
IT IS FURTHER ORDERED that defendants' Motion For Judgment On
The Pleadings (document #22) is granted, and plaintiff's claims
are hereby dismissed.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

-3-