Terven v. Helder et al

Filing 28

ORDER adopting in part 24 Report and Recommendations and denying 14 & 21 Motions to Dismiss. Signed by Honorable P. K. Holmes, III on August 13, 2014. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
DALE J. TERVEN
v.

PLAINTIFF
Case No. 5:14-CV-05003

SHERIFF TIM HELDER, Washington County,
Arkansas; ARAMARK CORRECTIONAL
SERVICES, LLC; and JENNIFER LAUB

DEFENDANTS

ORDER
Currently before the Court are the proposed findings and recommendations (Doc. 24) filed
in this case on July 7, 2014, by the Honorable Erin L. Setser, United States Magistrate Judge for the
Western District of Arkansas. The time for filing objections has passed, and no objections have been
filed by any party.
The Court has reviewed this case and finds that the report and recommendation should be
ADOPTED IN PART. While the Court agrees with and adopts the analysis and general findings
contained in the magistrate’s report, the Court declines to adopt the magistrate’s ultimate
recommendation that certain of Plaintiff’s claims are subject to dismissal. While the magistrate
recommended dismissal of Plaintiff’s official capacity claims, the report and recommendation did
not contain any analysis of these claims or any reason for recommending dismissal. It does not
appear that the issue was raised in Defendants’ motions to dismiss. The Court, therefore, cannot find
that Plaintiff’s official capacity claims should be dismissed at this time.
As to any claims for compensatory damages, while the Court agrees that a showing of a prior
physical injury as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(e),
has not been made by Plaintiff at this time, a failure in pleading a prior physical injury does not
necessitate dismissal of a claim brought pursuant to 42 U.S.C. § 1983. Royal v. Kautzky, 375 F.3d

720, 723 (8th Cir. 2004) (Congress did not intent § 1997e(e) to bar all forms of relief, and plaintiffs
may still seek nominal or punitive damages for first amendment claims brought pursuant to 42
U.S.C. § 1983). Rather, an ultimate failure to show a prior physical injury would result in barring
Plaintiff from recovering any compensatory damages. Failure to comply with § 1997e(e) is not an
adequate basis, therefore, for the Court to grant dismissal of any claim or claims of Plaintiff.
Furthermore, the Court is hesitant to conclusively bar such recovery at this early stage of litigation
without allowing the pro se Plaintiff a chance to amend his allegations. It is not beyond the realm
of possibility that Plaintiff could allege facts to support a showing that he sustained a physical injury
as a result of not receiving an adequate religious diet. Given the fact that the Court finds that
Plaintiff’s claims are not otherwise subject to dismissal at this stage, the Court sees no harm in
preserving consideration of compensatory damages for a later date.
Accordingly, for the reasons stated in the magistrate’s report and recommendations and
herein, IT IS ORDERED that Defendants’ motions to dismiss (Docs. 14 and 21) are DENIED.
IT IS SO ORDERED this 13th day of August, 2014.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE