Clark v. Roy et al

Filing 77

ORDER ADOPTING REPORT AND RECOMMENDATIONS 70 . IT IS HEREBY ORDERED that: 1. Defendants Dr. Steven Klapmeier and Dr. Lisa Staber's Motion to Dismiss 36 is GRANTED; 2. Defendant Dr. James Wichser's Motion to Dismiss 40 is GRANTE D; 3. Plaintiff's Motion for Legal Assistance 57 is DENIED; 4. Plaintiff's Motion for Subpoena 58 is DENIED; 5. Defendants Commissioner Tom Roy and Officer Nate Drevlow's Motion for Judgment on the Pleadings 17 is GRANTED for the reasons stated above; and6. This case is DISMISSED WITH PREJUDICE.LET JUDGMENT BE ENTERED ACCORDINGLY.Dated:(Written Opinion). Signed by Chief Judge Michael J. Davis on 1/26/15. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Courtney Bernard Clark,
Plaintiff,
ORDER ON REPORT
AND RECOMMENDATION
Civil No. 13-2849 (MJD/HB)

v.
Commissioner Tom Roy, Officer Nate
Drevlow, Dr. Lisa Staber, Dr. Steven
Klapmeier, and Dr. James Wischer, 1
Defendants.

The above-entitled matter came before the Court upon the Report and
Recommendation of the United States Magistrate Judge Hildy Bowbeer dated
November 10, 2014. [Docket No. 70] Plaintiff filed objections to the Report and
Recommendation. [Docket No. 75] Pursuant to statute, the Court has conducted
a de novo review upon the record. 28 U.S.C. § 636(b)(1); Local Rule 72.2(b).
Based on that review, the Court adopts the Report and Recommendation of
United States Magistrate Judge Bowbeer, with the exception of Section III.A.2’s

Plaintiff misspelled Dr. James Wichser’s name as “Wischer.” Henceforth, the
Court will use the correct spelling of Dr. Wichser’s name.

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conclusion that Plaintiff failed to allege claims against Defendants Roy and
Drevlow in their individual capacities.
Litigants under Section 1983 seeking to sue defendants in an individual
capacity must indicate their intention to do so in the complaint, to “guarantee[]
that the defendant receives prompt notice of his or her potential personal
liability.” Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989). Because Plaintiff is a
pro se litigant, the Court must construe his pleadings liberally. See Haines v.
Kerner, 404 U.S. 519, 520 (1972) (noting that pro se pleadings, “however inartfully
pleaded” are held “to less stringent standards than formal pleadings drafted by
lawyers”); In re Cook, 928 F.2d 262, 263 (8th Cir. 1991). While the Amended
Complaint does not indicate whether Plaintiff is suing Defendants in an
individual or official capacity, Plaintiff filed as an exhibit to the original
Complaint [Docket No. 1] a “Request for Relief” which, after articulating the
relief sought by Plaintiff, states: “8. All in there [sic] individual capacity.”
[Docket No. 1-2] This express statement provides unambiguous notice that
Plaintiff intended to sue Defendants in their individual capacities. After the
Magistrate Judge ordered Plaintiff to amend the Complaint to identify the alleged
violation of Plaintiff’s constitutional rights [Docket No. 29], Plaintiff filed the
Amended Complaint, but failed to re-allege that the Defendants were being sued

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in their individual capacities. Despite this technical omission, however,
Defendants were on sufficient notice from the Complaint that Plaintiff’s claims
were against the Defendants in their individual capacities. Construing Plaintiff’s
pleadings liberally, the Court holds that Plaintiff adequately alleged claims
against Defendants Roy and Drevlow in their individual capacities.
While the Court finds that Defendants Roy and Drevlow were sued in
their individual capacities, it is still compelled to grant their motion for judgment
on the pleadings and dismiss the claims against them. The Amended Complaint
is devoid of allegations that Defendants Roy or Drevlow deprived Plaintiff of any
federal constitutional right or has any federal cause of action that would allow
him to proceed against these Defendants. See Kentucky v. Graham, 473 U.S. 159,
166 (1985) (“On the merits, to establish personal liability in a § 1983 action, it is
enough to show that the official, acting under color of state law, caused the
deprivation of a federal right.”) (citations omitted). To the extent Plaintiff asserts
a claim under the Eighth or Fourteenth Amendment, the Amended Complaint
alleges at best a claim for negligence, and not the required “deliberate
indifference” or intentional conduct contemplated by those claims. See Daniels v.
Williams, 474 U.S. 327, 328 (1986) (“[T]he Due Process Clause is simply not
implicated by a negligent act of an official causing unintended loss of or injury to

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life, liberty, or property.”); Popoalli v. Corr. Med. Servs., 512 F.3d 488, 499 (8th
Cir. 2008) (to allege a violation of the Eighth Amendment, the inmate-plaintiff
must show deliberate indifference, which is “more than negligence, more than
even gross negligence . . . .”) (citations omitted). Moreover, Plaintiff has not
alleged sufficient personal involvement of Defendant Roy for the purposes of a
Section 1983 claim. See Harris v. Pirch, 677 F.2d 681, 685 (8th Cir. 1982)
(“Liability [under Section 1983] may be found only if there is personal
involvement of the officer being sued.”) (citation omitted); Rizzo v. Goode, 423
U.S. 362, 376-77 (1976).
Accordingly, based upon the Report and Recommendation of the
Magistrate Judge, and all the files, records and proceedings herein,
IT IS HEREBY ORDERED that:
1.

Defendants Dr. Steven Klapmeier and Dr. Lisa Staber’s Motion to
Dismiss [Doc. No. 36] is GRANTED;

2.

Defendant Dr. James Wichser’s Motion to Dismiss [Doc. No. 40] is
GRANTED;

3.

Plaintiff’s Motion for Legal Assistance [Doc. No. 57] is DENIED;

4.

Plaintiff’s Motion for Subpoena [Doc. No. 58] is DENIED;

5.

Defendants Commissioner Tom Roy and Officer Nate Drevlow’s
Motion for Judgment on the Pleadings [Doc. No. 17] is GRANTED
for the reasons stated above; and

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6.

This case is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: January 26, 2015

s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court

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