Clemons v. McSlone (#118) et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
OVELL DANIEL CLEMONS, JR. 	PLAINTIFF
v. 	Civil No. 6:24-CV-06061-SOH-CDC
OFFICER MCSLONE (#118); OFFICER
RAMIREZ (#171);
OFFICER GIBSON (#105); JOHN OR JANE
DOE, Medical Staff,
Garland County Detention Center;
SHERIFF MIKE MCCORMICK, Sheriff’s
Medical Staff HSPD; and
CHI ST. VINCENT, Hot Springs, Arkansas 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions
of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief United States District
Judge, 	referred 	this 	case 	to 	the 	undersigned 	for 	the 	purpose 	of 	making 	a 	Report 	and
Recommendation.
The case is before the Court for preservice screening pursuant to 28 U.S.C. § 1915A.0F
1
Under § 1915A, the Court is required 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).
I. BACKGROUND
Plaintiff filed his Complaint on March 13, 2024. (ECF No. 1). That same day the Court
entered an Order directing Plaintiff to file an Amended Complaint and a completed in forma
1 Enacted as part of the Prison Litigation Reform Act (“PLRA”).
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pauperis ("IFP”) application. (ECF No. 3). Plaintiff filed his Amended Complaint on March 29,
2024. (ECF No. 5). He was granted IFP status on April 3, 2024. (ECF No. 7).
Plaintiff’s Amended Complaint alleges two separate incidents of excessive force used
against him during arrest. (ECF No. 5). Plaintiff alleges the first incident occurred at the
intersection of 143 Chestnut and 545 Crescent Avenue on September 26, 2022. 	(Id. at 4). 	He
alleges this incident involved Defendants Officer Jones #126 and Officer Smith #153. 	(Id.).
Plaintiff alleges that, during this incident, he was “slammed to the ground,” where his elbow and
knee were “busted open,” causing him to require seven staples in his knee and five staples in his
elbow. (Id.) Plaintiff further alleges he was punched in the mouth repeatedly, knocking out several
teeth and breaking his jaw. (Id.). Plaintiff further elaborates that Defendant Smith was “being real
brutal” while removing several gold rings from his fingers and placing them in his pockets. (Id.
at 5). Plaintiff alleges body camera footage should show the entire incident. Plaintiff proceeds
against both Defendants in their individual and official capacities for this incident. (Id.). As his
official capacity claim, Plaintiff alleges “failure to train, failure to direct, failure to discipline
clearly is a big part of why constitutional rights were violated due process must play a part to
correct such actions.” (Id.).
Plaintiff alleges the second incident of excessive force during arrest occurred at the “200
block of Palmetto Hot Springs AR” on May 1, 2023. (Id. at 6). He alleges this incident involved
Defendants Officer Malone #118, Officer Ramirez #171, and Officer Gibson #106.1F
2 	(Id.). 	For
this incident, Plaintiff alleges he was tazed repeatedly by Defendant Ramirez while also being
punched in the mouth. 	(Id.). 	He was also kneed repeatedly in the ribcage and his head was
repeatedly slammed to the ground. (Id.). Plaintiff alleges his jaw was rebroken and all the teeth
2 Officer Gibson is listed as #105 on the docket sheet for Case No. 24-06026.
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on the “left side bottom” of his jaw broken with the “help” of Defendant Malone and Defendant
Ramirez. 	(Id.). Plaintiff proceeds against both Defendants in their individual and official
capacities for this incident. (Id.). As his official capacity claim, Plaintiff alleges “[f]ailure to train,
failure to direct clearly was a big part of my constitutional rights being violated.” (Id. at 6-7).
Finally, Plaintiff alleges he was denied proper medical care and follow-up care post-arrest
on both September 26, 2022, and May 1, 2023. 	(Id. at 7). 	Plaintiff names CHI St. Vincent,2F
3
Sheriff McCormick, and Doe Medical Staff at Garland County Detention Center (GCDC) as
Defendants for this claim. 	He alleges his jaw was not repaired and his dislocated arm was not
“properly placed back” after police injured him. (Id.). While incarcerated at the Garland County
Detention Center (“GCDC”), Plaintiff alleges he was not given medical treatment. 	(Id.). 	He
alleges he exhausted the grievance procedure, and it “still took six months before I could get
medical staff to acknowledge my broken jaw. By this time, it was to[o] late, jaw was permanently
broke.” (Id.). Plaintiff seeks compensatory and punitive damages. (Id. at 9).
Because Plaintiff alleged two separate incidents of excessive force on arrest occurring
approximately 8 months apart and involving a different group of officers for each incident, the
Court entered an Order severing the second incident from the initial case (Case No. 6:24-cv-06026)
and opening this case with claims concerning the second incident. (ECF No. 9). As part of that
Order, the Court then ordered Plaintiff to either submit an in forma pauperis (“IFP”) application
or pay the full filing fee with respect to this case. Id. The Court also ordered Plaintiff to submit
an amended complaint describing those claims (and only those claims) that were severed into this
3 Plaintiff did not provide an address for the hospital. The Court takes judicial notice that CHI St.
Vincent Hot Springs is a private non-profit hospital located at 300 Werner Street, Hot Springs, AR
71913.3
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action. 	(ECF No. 4). 	Plaintiff has since submitted an IFP application, (ECF No. 5), and the
Amended Complaint. (ECF No. 8). 	As noted, this Court previously granted Plaintiff’s IFP
application. (ECF No. 6).
Plaintiff asserts two claims for relief. 	First, Plaintiff claims that on May 1, 2023,
Defendants McSlone, Ramirez, and Gibson used excessive force during his arrest. (ECF No. 8).
Plaintiff says that Defendant Ramirez repeatedly tased him and that Defendant Gibson knocked
his teeth out and broke his jaw “with the help of [Defendant] McSlone and [Defendant] Ramirez.”
(Id. at 4-5). Plaintiff says that during his arrest, he was repeatedly punched in the mouth, kneed in
the ribs, his head was slammed on the ground, his jaw was broken, and all the teeth on the bottom
left side of his jaw were knocked out. (Id.).
Second, Plaintiff says that he was not provided adequate medical care on May 1, 2023, to
treat the injuries he sustained during his arrest, including his broken jaw. (Id. at 6). Plaintiff names
staff at CHI St. Vincent,3F
4 Sheriff McCormick, and GCDC medical staff for this claim. (Id. at 6).
Plaintiff says that he exhausted his administrative remedies while incarcerated at GCDC and it
took six months before medical staff acknowledged his broken jaw, but by that time, his jaw was
permanently broken. 	(Id.). 	Plaintiff identifies all defendants in their official and individual
capacities. 	He requests compensatory and punitive damages, his jaw repaired, and his teeth
replaced. (Id. at 9). As his official capacity claim, Plaintiff alleges that “[h]ospital policies were
neglected given me improper care which in turn violated my constitutional rights.” (Id.).
II. LEGAL STANDARD
Under § 1915A, the Court is obliged to screen the case prior to service of process being
issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are
4 Plaintiff appears to provide an incorrect address for CHI St. Vincent Hospital in Hot Springs,
Arkansas. (Id. at 3).
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frivolous, malicious, or fail to state a claim upon which relief may be granted, or (2) seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams,
490 U.S. 319, 325 (1989). An action is malicious when the allegations are known to be false, or
it is undertaken for the purpose of harassing or disparaging the named defendants rather than to
vindicate a cognizable right. 	Spencer v. Rhodes, 656 F. Supp. 458, 464 (E.D.N.C. 1987); In re
Tyler, 839 F.2d 1290, 1293-94 (8th Cir. 1988). A claim fails to state a claim upon which relief
may be granted if it does not allege “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“In evaluating whether a pro se plaintiff has asserted sufficient facts to state a claim, we
hold ‘a pro se complaint, however inartfully pleaded . . . to less stringent standards than formal
pleadings drafted by lawyers.’” 	Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)). This means “that if the essence of an allegation is
discernable, even though it is not pleaded with legal nicety, then the district court should construe
the complaint in a way that permits the layperson’s claim to be considered within the proper legal
framework.” 	Jackson, 747 F.3d at 544 (cleaned up). 	However, the complaint must still allege
specific facts sufficient to support a claim. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
III. ANALYSIS
Section 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. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that the defendant acted
under color of state law and violated a right secured by the Constitution. West v. Atkins, 487 U.S.
42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999). 	The deprivation must be
intentional; mere negligence will not suffice to state a claim for deprivation of a constitutional
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right under § 1983. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344
(1986).
Plaintiff’s claims against the CHI Saint Vincent Hospital are subject to dismissal. 	In
Montano v. Hedgepeth, 120 F.3d 844 (8th Cir. 1997), the Eighth Circuit set forth the analysis to
be applied in determining whether state action exists for purposes of § 1983. 	Specifically, the
Court said:
In ascertaining the presence of state action, we must examine the record to
determine whether “the conduct allegedly causing the deprivation of a federal right
[is] fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922,
937, 102 S. Ct. 2744, 2753, 73 L. Ed. 2d 482 (1982). Resolving this question entails
a journey down a particularly fact-bound path, see id. at 939, 102 S. Ct. at 2754-55,
but the Supreme Court has identified two legal touchstones to provide guidance
along the way. To begin with, there can be no “fair attribution” unless the alleged
constitutional violation was “caused by the exercise of some right or privilege
created by the State or by a rule of conduct imposed by the State or by a person for
whom the State is responsible.” Id. at 937, 102 S. Ct. at 2753. Furthermore, “the
party charged with the deprivation must be a person who may fairly be said to be a
state actor. This may be because he is a state official, because he has acted together
with or has obtained significant aid from state officials, or because his conduct is
otherwise chargeable to the State.” Id.; see also Roudybush v. Zabel, 813 F.2d 173,
176-77 (8th Cir.1987) (repeating two-part test).
Montano, 120 F.3d at 848.
Nothing in Plaintiff’s Complaint permits the inference that CHI St. Vincent Hospital was
a state actor. 	Instead, he alleges only that he did not receive proper medical care at a private
hospital when taken to that hospital following his arrest. 	“[P]rivate conduct, no matter how
egregious, discriminatory, or harmful, is beyond the reach of § 1983.” 	Wickersham v. City of
Columbia, 481 F.3d 591, 597 (8th Cir. 2007). Further, mere negligence or medical malpractice is
insufficient to rise to the level of a constitutional violation. Dulany v. Carnahan, 132 F.3d 1234,
1239 (8th Cir. 1997) (citation omitted). 	Plaintiff’s claims against CHI St. Vincent Hospital are
therefore subject to dismissal.
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IV. CONCLUSION
Accordingly, it is recommended that Plaintiff claims against CHI St. Vincent Hospital be
DISMISSED and CHI St. Vincent Hospital be TERMINATED as a Defendant.
The remaining claims will proceed.
Referral Status: This case should remain referred for all matters not recommended for
dismissal in this Report and Recommendation.
The parties have fourteen days from receipt of the Report and Recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 29th day of May 2024.
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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