United States District Court, D. Minnesota
Courtney Bernard Clark, pro se.
Margaret E. Jacot and Kelly S. Kemp, Minnesota Attorney General's Office, Counsel for Defendants Commissioner Tom Roy and Officer Nate Drevlow.
Andrea Pavelka Hoversten, Geraghty, O'Loughlin & Kenney, PA, Counsel for Defendants Dr. Lisa Staber and Dr. Steven Klapmeier.
James S. McAlpine and Steven R. Schwegman, Quinlivan & Hughes, PA, Counsel for Defendant Dr. James Wichser.
MEMORANDUM OF LAW & ORDER
MICHAEL J. DAVIS, Chief District Judge.
The above-entitled matter comes before the Court upon the Report and Recommendation of United States Magistrate Judge Hildy Bowbeer dated November 10, 2014. Plaintiff Courtney Bernard Clark filed Objections to the Report and Recommendation. [Docket Nos. 75, 79]
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 upon that review, the Court adopts in part the Report and Recommendation of United States Magistrate Judge Bowbeer. The Court declines to adopt the conclusion in Section III(A)(2) that Plaintiff has failed to allege claims against Defendants Tom Roy and Nate Drevlow in their individual capacities; however, the Court does adopt the conclusion in Section III(A)(2) that Plaintiff has failed to state a claim against Roy or Drevlow in their official capacities. Additionally, to the extent that Plaintiff has alleged new facts in his Objections to the Report and Recommendation, the Court has considered the Objections as a motion for leave to amend the complaint. See Thornton v. Phillips County, Ark. , 240 F.3d 728, 729 (8th Cir. 2001).
I. Allegations Against Staber, Klapmeier, and Wichser
The Court adopts the Report and Recommendation's analysis of the Eighth Amendment claims against Lisa Staber, Steven Klapmeier, and James Wichser, Section III(B)(1) through Section III(B)(2). Additionally, to the extent that Plaintiff has alleged new facts in his Objections to the Report and Recommendation, the Court has considered the Objections as a motion for leave to amend the complaint; however, Plaintiff has failed to allege any new facts that would alter the analysis in the Report and Recommendation. The Court concludes that these Defendants are entitled to judgment on the pleadings on the claims against them.
II. Individual Capacity Allegations Against Roy and Drevlow
Under § 1983, litigants 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. 5], Plaintiff filed the Amended Complaint, but failed to re-allege that the Defendants were being sued 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.
III. Allegations Against Roy
The Amended Complaint is devoid of allegations that Defendant Roy deprived Plaintiff of any federal constitutional right. 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 "deliberate indifference" or intentional conduct required. 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 life, liberty, or property."); Popoalii v. Corr. Med. Servs. , 512 F.3d 488, 499 (8th Cir. 2008) (noting that to allege a violation of the Eighth Amendment, the inmateplaintiff 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 Roy for the purposes of a § 1983 claim. See Harris v. Pirch , 677 F.2d 681, 685 (8th Cir. 1982) ("Liability [under § 1983] may be found only if there is personal involvement of the officer being sued.") (citation omitted). Merely serving as Commissioner of the Department of Corrections and viewing the potholes does not give rise to a cognizable claim under § 1983. See, e.g., Choate v. Lockhart , 7 F.3d 1370, 1376 (8th Cir. 1993) (holding director of Arkansas Department of Correction not liable for allegedly unsafe inmate work conditions based on his position as director and periodic visits to the worksite). Finally, Plaintiff has failed to allege any new facts in ...