Opinion
No. 5:13-cv-291-DPM-JJV
10-21-2015
ROBERT THOMAS MAXWELI/G-DOFFEE ADC #108778 PLAINTIFF v. RICHARD CLARK, Sgt., ADC Maximum Security Unit, et al. DEFENDANTS
ORDER
After de novo review, the Court adopts in part and declines in part the recommendation, No 113. FED. R. CRV. P. 72(b)(3). Maxwell/G-Doffee's objections, No 114, are overruled in part and sustained in part.
1. The Court declines without prejudice Section IV(C)(2) about the verbal-abuse claims against Clark and Cooksey. Their sole argument for summary judgment on this point is that verbal threats can't support a § 1983 claim. No 97 at 25-26; see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985). But this general rule has exceptions. Retaliatory threats can support a § 1983 claim, as can some threats against a prisoner's life. E.g., Proctor v. Harmon, 257 F.3d 867, 868 (8th Cir. 2001) (per curiam); Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994); Burton v. Livingston, 791 F.2d 97, 100-01 (8th Cir. 1986). And in light of these exceptions, Maxwell/G-Doffee has alleged facts that, taken as true, at least state a claim. E.g., No 2 at 9-11, 16-17, 42-43. Clark and Cooksey's motion for summary judgment, No 96, is therefore denied without prejudice on this point.
2. The Court adopts the remainder of the recommendation and overrules Maxwell/G-Doffee's other objections. The ADC Defendants' motion for summary judgment, No 96, is granted in part, denied in part, and denied without prejudice in part. Beverly Hillard's separate motion for summary judgment, No 107, is granted. And Maxwell/G-Doffee's motion for preliminary injunctive relief, No 112, is denied.
3. Maxwell/G-Doffee's claims against Defendants Chambers, Butler, Engstrom, Straughn, Williams, Gooley, Turner, Jenkins, Hillard, LaKenya Jackson, and Anothony Jackson are dismissed without prejudice for failure to exhaust.
4. Maxwell/G-Doffee's official-capacity claims are dismissed with prejudice.
5. Maxwell/G-Doffee's claims against Justine Minor are dismissed with prejudice.
6. Maxwell/G-Doffee's state-law claims that aren't related to his claims for excessive force, failure to protect, and verbal abuse are dismissed without prejudice.
7. Maxwell/G-Doffee's claims seeking criminal prosecution are dismissed without prejudice for failure to state a claim.
* * *
Maxwell/G-Doffee's August 2013 excessive-force and failure-to-protect claims (federal and state) must be tried. A final scheduling order will issue soon. Any second motion for summary judgment should be filed by 31 December 2015.
So Ordered.
/s/_________
D.P. Marshall Jr.
United States District Judge
21 October 2015