McGowan v. Skorup et al

Filing 17

ORDER ADOPTING IN PART AND DENYING IN PART 8 REPORT AND RECOMMENDATIONS. All official capacity claims against Billy Burris are dismissed. All individual capacity claims against Billy Burris and service of process should proceed. Signed by Honorable Jimm Larry Hendren on January 14, 2013. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
GRADY LARKIN McGOWAN
v.

PLAINTIFF
Civil No. 12-5190

SERGEANT SKORUP, Transportation,
Benton County Detention Center (BCDC);
SHERIFF KEITH FERGUSON, Benton County;
BILLY BURRIS, Director of the Arkansas State
Hospital; LIEUTENANT CARTER, BCDC; and
CAPTAIN ROBERT HOLLY, BCDC

DEFENDANTS

ORDER

Now on this 14th day of January, 2013, comes on for consideration
the Report and Recommendation of the Magistrate Judge (document #8),
and the objections to the Report and Recommendation (document #10).
The Court, being well and sufficiently advised, finds and orders as
follows:
1.

The plaintiff filed this civil rights action under the

provisions of 42 U.S.C. § 1983, proceeding pro se and in forma
pauperis.

Pursuant to 28 U.S.C. § 1915(e), the Court has the

obligation to screen any complaint filed in forma pauperis.
2.
(document

In the Report and Recommendation filed December 4, 2012
#8),

U.S.

Magistrate

Judge

James

R.

Marschewski,

recommends that the claims against Billy Burris, Director of the
Arkansas State Hospital, be dismissed as they are frivolous in that
the State and its agencies are immune from suit.

See Fowler v.

Arkansas State Hospital, 2007 WL 990260 (E.D. Ark. 2007).
3.

In the plaintiff’s objections, he notes that he also

intends to sue the defendants in their individual capacities.
4.

In section V of the Complaint (document #1), the plaintiff

marks that he is suing the defendants in both their official and
personal capacities.
5.

The

Court,

therefore,

finds

that

the

Report

and

Recommendation should be adopted in part, and denied in part as
follows:
* the Report and Recommendation is adopted to the extent that
all official capacity claims against Billy Burris are dismissed for
the reasons set forth in the Report and Recommendation.

See 28

U.S.C. § 1915(e)(2)(B)(I)-(iii).
* the Report and Recommendation is not adopted with respect to
all individual capacity claims against Billy Burris and service of
process should proceed against Burris in that regard.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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