Berrios v. Bailey

Opinion

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION

MITCHELL L. BERRIOS PLAINTIFF

V. CASE NO. 5:23-CV-5019

OFFICER JOSHUA BAILEY, Fayetteville Police Department; NANCY PRYOR, Washington County Public Defender; and CORPORAL D. HARWOOD DEFENDANTS

ORDER

Before the Court is the Report and Recommendation (“R&R”) (Doc. 11) filed on March 21, 2023, by the Honorable Christy Comstock, United States Magistrate Judge for the Western District of Arkansas. Magistrate Judge Comstock performed a preservice screening of the Amended Complaint under 28 U.S.C. § 1915A and now recommends that claims against public defender Nancy Pryor be dismissed for failure to state a claim and that claims against the remaining Defendants be stayed pending resolution of Plaintiff’s pending criminal charges. On April 10, Plaintiff filed Objections to the R&R (Doc. 13), which triggered this Court’s de novo review of the case pursuant to 28 U.S.C. § 636(b)(1). Plaintiff does not appear to lodge any factual or legal objection to the recommended dismissal of Nancy Pryor. As for the recommended stay of his other claims due to abstention principles explained in Younger v. Harris, 401 U.S. 37 (1971), Plaintiff argues that staying the instant case will delay his attempts to achieve timely justice and will negatively impact himself and his elderly mother. However, he adds: “If, in fact, a ‘stay’ is the only appropriate mode of abstention . . . then I guess that will just have to do!” (Doc. 13, p. 9). Accordingly, the Court finds that Plaintiff has not asserted any substantive objections to the R&R. To the extent any objections may be construed, they are OVERRULED, and the R&R is ADOPTED IN FULL.

IT IS THEREFORE ORDERED that: (1) the Clerk ADD Corporal Harwood to the docket as a defendant in this action; (2) Plaintiff’s Complaint (Doc. 1) and Supplement (Doc. 7) be read together as setting forth Plaintiff’s claims; (3) all of Plaintiff’s claims against Defendant Nancy Pryor be DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1); and (4) all remaining claims against Defendants Officer Joshua Bailey and Corporal D. Harwood be STAYED AND ADMINISTRATIVELY TERMINATED pending

resolution of Plaintiff’s state criminal case. Plaintiff shall have thirty (30) days after the final resolution of his pending criminal case to file a motion to reopen this case. Failure to file the Motion to Reopen within this deadline will result in the summary dismissal of this case. IT IS SO ORDERED on this 20th day of April, 2023. /s/ Timothy L. Brooks___________ TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE