Hayes v. Henderson

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

RON WESLEY HAYES PLAINTIFF

v. Case No. 4:21-cv-04069

SGT. HENDERSON, Miller County,

Arkansas; CORPORAL DILLON MCCRAY,

Texarkana, Arkansas Police Department;

OFFICER CLAUDIA PHELPS Texarkana,

Arkansas Police Department; and OFFICER

PAYTON HARRIS, Texarkana, Arkansas

Police Department

DEFENDANTS

ORDER

Before the Court is the Report and Recommendation filed on April 5, 2023, by the

Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.

ECF No. 104. Plaintiff Ron Wesley Hayes has objected. ECF No. 105. The matter is ripe for

consideration.

I. BACKGROUND

Plaintiff filed the instant action on October 20, 2021. ECF No. 1. He later filed a second

amended complaint, which now governs. ECF No. 9. Plaintiff named several police officers as

defendants, as well as prosecuting attorney Connie Mitchell and Nurse King. Pursuant to 42

U.S.C. § 1983, Plaintiff brought false imprisonment, excessive force, and denial of medical care

claims against the named defendants. ECF No. 9. On February 23, 2023, the Court adopted Judge

Bryant’s recommendation to grant Defendant Nurse King’s motion for summary judgment and

dismissed Plaintiff’s claims against Defendant Nurse King. ECF No. 100. The Court noted that

two additional motions for summary judgment were pending and explained that its dismissal of

Plaintiff’s claims against Defendant Nurse King had no effect on the other summary judgment

motions or on Plaintiff’s claims against the other defendants. ECF No. 100, at 4 n.1.

In Judge Bryant’s instant Report and Recommendation, he considers the other two motions

for summary judgment mentioned in the Court’s February 23 order, which were brought by

Defendants Corporal Dylan McCrary, Officer Claudia Phelps, and Officer Payton Harris of the

Texarkana Police Department (the TAPD Officers’ Motion) (ECF No. 81) and by Defendant

Sergeant Henderson of the Miller County Detention Center (Defendant Henderson’s Motion) (ECF

No. 84). ECF No. 104. Judge Bryant first recommends granting the TAPD Officers’ Motion.

ECF No. 104. Judge Bryant explains that Plaintiff fails to “make out” a constitutional violation

and that the TAPD Officers are entitled to qualified immunity. ECF No. 104, at 7. Judge Bryant

then recommends granting Defendant Henderson’s Motion, finding that Plaintiff failed to exhaust

his administrative remedies as against Defendant Henderson. ECF No. 104, at 11.

Plaintiff objects. ECF No. 105. Plaintiff first argues that Judge Bryant erred when he

considered any version of the facts besides the version presented in Plaintiff’s second amended

complaint. In Plaintiff’s view, “there is no genuine issue as to any material facts.” ECF No. 105,

at 1.1 Plaintiff then “objects” and asks the Court to appoint an attorney to represent him. He states

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that despite repeatedly asking for an attorney, he has not been provided one. For the following

reasons, the Court overrules Plaintiff’s objections and adopts Judge Bryant’s Report and

Recommendation in its entirety.

1Although Plaintiff objects to Judge Bryant’s recommendation that summary judgment is appropriate, he also argues

that there is no dispute of material fact. ECF No. 105, at 1. The Court notes that Plaintiff is proceeding pro se and

construes his argument to mean that Judge Bryant did not need to look beyond Plaintiff’s complaint. ECF No. 105,

at 1 (“[T]here is no genuine issue as to any material facts. When considering this report and recommendation the

Judge need only to look at my complaint.”).

II. DISCUSSION

“The Court may designate a magistrate judge to hear pre- and post-trial matters and to

submit to the Court proposed findings of fact and recommendations for disposition.” Bramlett v.

Wellpath, LLC, No. 6:19-cv-6070, 2020 WL 4748049, at *1 (W.D. Ark. Aug. 17, 2020). After

reviewing a magistrate judge’s report and recommendations under the appropriate standard of

review, the Court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

“[T]he specific standard of review depends, in the first instance, upon whether or not a

party has objected to portions of the report and recommendation.” Anderson v. Evangelical

Lutheran Good Samaritan Soc’y, 308 F. Supp. 3d 1011, 1015 (N.D. Iowa 2018). “The Court

applies a liberal construction when determining whether pro se objections are specific.” Raper v.

Maxwell, No. 4:21-cv-4067, 2022 WL 1978690, at *1 (W.D. Ark. June 6, 2022) (citation omitted).

If the prisoner “files timely and specific objections” to the magistrate’s report and

recommendations, then “the district court makes ‘a de novo determination of those portions of the

report or specified findings or recommendations to which objection is made.’” Branch v. Martin,

886 F.2d 1043, 1045 (8th Cir. 1989) (citation omitted). “When conducting de novo review, the

district court makes its own determinations of disputed issues and does not decide whether the

magistrate’s proposed findings are clearly erroneous.” Id. at 1046. Alternatively, if the plaintiff

does not timely and specifically object to the report and recommendation, the Court reviews that

report and recommendation for clear error. See Raper, 2022 WL 1978690, at *2; see also Thornton

v. Walker, No. 4:22-cv-4114, 2023 WL 3063381, at *1 (W.D. Ark. Apr. 24, 2023) (applying a

clear-error standard where plaintiff’s objections did not “specifically address any aspect of [the

magistrate judge’s] analysis or reasoning”); Engledow v. Comm’r of Soc. Sec., No. 20-cv-4, 2021

WL 916925, at *3 (N.D. Iowa Mar. 10, 2021) (explaining that de novo review is appropriate where

objections are not “more than . . . conclusory” and are not “accompanied by legal authority and

argument in support” (citations omitted)).

First, Plaintiff does not object to Judge Bryant’s Report and Recommendation insofar as

Judge Bryant recommends granting Defendant Henderson’s Motion. Thus, reviewing Judge

Bryant’s recommendation as it pertains to Defendant Henderson for clear error and finding none,

the Court adopts that recommendation in toto. 2

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Next, Plaintiff objects to the following portion of Judge Bryant’s Report and

Recommendation:

Corporal McCrary interviewed Hines who stated that Hayes became irate after

Hines stated he did not have access to any methamphetamine. Hines attempted to

calm Hayes down but was unable to do so. When he attempted to leave the room,

Hines reported that “Hayes grabbed him in a bear hug and started slinging him

around. Hines[] headbutted Hayes in the face.” Hayes then threw Hines to the

ground and grabbed a handgun that was in the closet and pointed it at Hines.

ECF No. 104, at 3 (alteration in original) (citations omitted). Plaintiff explains that his “objection

is in opposition to Hines’[s] version of the incident,” before providing his own version of events.

ECF No. 105, at 2. In his view,

What really took place was the Mr. Hines picked me up from Walmart and

eventually took me to his home. Hines began to argue with me because of his

request for meth. He began moving toward a closet while making threats to cause

bodily harm to me. At that time, I grabbed Mr. Hines from behind in a bear hug

and began trying to dislodge a gun in a plastic bag from his hands in order to stop

him[.] When the gun in the bag fell to the floor I immediately went for it to prevent

Mr. Hines from acting on his threat that he was going to get his gun and get the

methamphetamine from me.

2In his objections, Plaintiff does not mention Defendant Henderson and instead mentions only “Mr. Hines” and “the

TAPD.” ECF No. 105, at 2. Plaintiff does mention “law enforcement” generally. ECF No. 105, at 1 (“[I]t is well

verified that law enforcement personnel will falsify documents in order to cover themselves. So of course everyone

involved are going to have matching versions of what happened.”). However, this is not specific enough to trigger de

novo review of Judge Bryant’s Report and Recommendation insofar as it pertains to Defendant Henderson.

ECF No. 105, at 2. In Plaintiff’s view, Judge Bryant should have looked only to the complaint

and not elsewhere in the record.

However, at the summary judgment phase, a judge may look to the entire record,

considering things like “the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits.” Kirklin v. United Parcel Serv., No. 4:03-cv-00985, 2005 WL

8164293, at *1 (E.D. Ark. Mar. 16, 2005) (quoting Fed. R. Civ. P. 56(c)). Thus, pursuant to

Federal Rule of Civil Procedure 56(c), Judge Bryant was allowed to look beyond the complaint

itself. Judge Bryant was required to view the facts in the light most favorable to Plaintiff, but he

was not required to accept Plaintiff’s version of the facts where other evidence in the record—

namely, police narratives and incident reports—contradicts that version. See Scott v. Harris, 550

U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for summary judgment.”). Moreover, as

the non-moving party, Plaintiff must “come forward with ‘specific facts showing that there is a

genuine issue for trial.’” Kirklin, 2005 WL 8164293, at *1. He offers only a general recitation of

his version of the facts. This recitation pertains only to “Mr. Hines,” an individual not named as a

defendant in this action. See ECF No. 105.3 Ultimately, the Court finds that Plaintiff does not

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offer law or fact requiring a departure from Judge Bryant’s characterization of the facts, and the

Court overrules Plaintiff’s objection.

Plaintiff’s final “objection” is a request for the Court to appoint counsel. He states that

“over and over, throughout these proceedings, [he has] attempted to have the Court to give [him]

an attorney,” but the Court has not yet appointed an attorney to him. ECF No. 105, at 3-4.

3Plaintiff includes a recitation of facts from a separate, now-closed case. ECF No. 9, at 8-12; Hayes v. Harrison,

4:21-cv-04071 (W.D. Ark. 2021). However, the facts contained in that case are not currently before the Court.

“Generally, a party cannot raise arguments in its objections which were not previously raised

before the magistrate judge. This is a legitimate concern, as the parties’ objections to a Report and

Recommendation cannot serve as an avenue to raise additional arguments to which the opposing

party is not given the opportunity to respond.” Pankey v. W. Ark. Rock, Inc., No. 4:13-cv-04046,

2015 WL 11117922, at*2 (W.D. Ark. Mar. 5, 2015). Appointment of counsel was not an issue

considered by Judge Bryant in his Report and Recommendation. See ECF No. 104. Thus, in

accordance with Pankey, the Court overrules Plaintiff’s “objection” regarding appointment of

counsel.4

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III. CONCLUSION

For the foregoing reasons, the Court ADOPTS Judge Bryant’s Report and

Recommendation (ECF No. 104) in toto. Accordingly, the TAPD Officers’ Motion (ECF No. 81)

and Defendant Henderson’s Motion (ECF No. 84) are hereby GRANTED. Plaintiff’s Second

Amended Complaint (ECF No. 9) is hereby DISMISSED WITH PREJUDICE.

IT IS SO ORDERED, this 1st day of June, 2023.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge

4The Court notes that Plaintiff requested appointment of counsel on May 12, 2022, and on May 12, 2022, Judge Bryant

denied that motion. ECF Nos. 49, 50. Plaintiff again requested appointment of counsel on June 29, 2022, and on June

30, 2022, Judge Bryant again denied Plaintiff’s request. ECF Nos. 55, 56. Plaintiff requested the appointment of

counsel for a third time on November 28, 2022, and Judge Bryant denied that request on December 1, 2022. In all

three denials, Judge Bryant has cited 28 U.S.C. § 1915(e)(1), which provides that “[t]he court may request an attorney

to represent any person unable to afford counsel.” See Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013) (explaining

that the district court has “a good deal of discretion to determine whether representation is warranted given the nature

of the case and the litigants” (citation omitted)).