Campbell v. Mt Ida Arkansas, City of et al

Filing 9

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Mark E Campbell, recommending that claims against Dr. Verser and Saint Joshue's Mercy Medical be dismissed. Objections to R&R due by 2/18/2010. Signed by Honorable James R. Marschewski on February 1, 2010. (cap)

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IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS H O T SPRINGS DIVISION M A R K E. CAMPBELL v. C iv il No. 6:09-cv-06101 PLAINTIFF CITY OF MT. IDA, ARKANSAS; S H E R IF F WENDELL ADAMS, M o n tgo m e ry County, Arkansas; C H IE F DEPUTY SHERIFF GARY D . HOGUE; FORMER JAIL ADMINISTRATOR EDITH YOUNG; E T AL. DEFENDANTS R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE M a rk E. Campbell, currently an inmate of the Varner Unit of the Arkansas Department of C o rrectio n , filed this civil rights action under 42 U.S.C. 1983. He proceeds pro se and in forma p a u p e r is. The case is currently before the undersigned for preservice screening under the provisions of the Prison Litigation Reform Act. Specifically, pursuant to 28 U.S.C. 1915A the Court has the obligation to screen any complaint in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 1915A(a). On review, the Court is to dismiss the complaint, or any portion of the complaint, that is frivolous, malicious, or fails to state a claim upon which relief may be granted, or seeks monetary relief from a Defendant who is immune from such relief. 28 U.S.C. 1915A(b). See also 28 U.S.C. 1915(e)(2)(B). Discussion Campbell asserts that the defendants violated his rights in the following ways: he was -1- subjected to excessive force; his right to the free exercise of religion was interfered with; he was denied adequate medical care; his legal mail was interfered with; and he was denied the right to a fair trial and to the effective assistance of counsel by virtue of a lack of privacy for confidential communications and defendants' leaking information to the prosecuting attorney. Campbell's claims against Dr. Michael Verser and Saint Joshue's Mercy Medical are subject to dismissal. Campbell alleges Darrell Atkins, is a physician's assistant "employed at Dr. Michael Verser's office Saint Joshue's Mercy Medical in Mt. Ida, AR, and is retained by Montgomery County Sheriff's Office. and is generally responsible for ensuring the provision of medical care to inmates." Complaint at page 10. Campbell asserts he would like to take "Dr. Verser's office to court because of PA Daniel lack of profession[alism] which is mal-practice." Id. S e c tio n 1983 provides a federal cause of action for the deprivation, under color of law, of a citizen 's "rights, privileges, or immunities secured by the Constitution and laws" of the United States. In order to state a claim under 42 U.S.C. 1983, a plaintiff must allege that each defendant acted u n d e r color of state law and that he or she violated a right secured by the Constitution. West v. A tk in s , 487 U.S. 42, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988); Dunham v. Wadley, 195 F.3d 1007, 1 0 0 9 (8th Cir.1999). The deprivation must be intentional; mere negligence will not suffice to state a claim for deprivation of a constitutional right under 1983. Daniels v. Williams, 474 U.S. 327, 1 0 6 S. Ct. 662, 88 L. Ed. 2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 88 L. E d . 2d 677 (1986). Dr. Verser1 is a private physician who was not employed by the Montgomery County S h e riff's Office. In this case, Campbell has alleged only that he was treated by Atkins. He does not 1 In the complaint, Campbell refers to Michael Verser as a physician's assistant and as a doctor. It is therefore not entirely clear what title should be applied to Michael Verser. -2- allege he was treated by Dr. Verser or at Saint Joshue's Mercy Medical. Under 1983 a party cannot b e held liable on a theory of respondeat superior. Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2 0 0 1 )(s u p e r v i s o r s not liable for constitutional violations of subordinates on respondeat superior t h e o r y) . C o n c lu s io n I therefore recommend that the claims against Dr. Verser and Saint Joshue's Mercy Medical b e dismissed. By separate order the remaining defendants will be served. P la in tif f has fourteen (14) days from receipt of this report and recommendation in w h ic h to file written objections pursuant to 28 U.S.C. 636(b)(1). The failure to file timely o b je c tio n s may result in waiver of the right to appeal questions of fact. Plaintiff is reminded th a t objections must be both timely and specific to trigger de novo review by the district court. D A T E D this 1st day of February 2010. /s / J. Marschewski HON. JAMES R. MARSCHEWSKI CHIEF UNITED STATES MAGISTRATE JUDGE -3-

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