REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

BARRY A. BRYANT, Magistrate Judge.

This is a civil rights action filed by the Plaintiff, Delrae McKenzy Smith, pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation.

Currently before the Court is a Motion to Dismiss by Defendants Bruce and Emerson. ECF No. 11.

I. BACKGROUND

The events that are the subject of this lawsuit occurred while Plaintiff was incarcerated in the Miller County Correctional Facility. ECF No. 1. Plaintiff filed this Complaint on September 25, 2014. ECF No. 1. Plaintiff alleges his constitutional rights were violated when his hands were broken during his arrest, and Defendants Bruce and Emerson denied him medical care for them. ECF 1, p. 10. He also alleges his constitutional rights were violated when he was placed in isolation and made to wear ankle restraints in the shower and on recreation time, and further was only allowed one hour of recreation every seventy-two (72) hours. Plaintiff brought this action against all Defendants in both their official and personal capacities. ECF. No. 1.

Defendants Bruce and Emerson filed this Motion to Dismiss on March 30, 2015, requesting the official capacity claims against them be dismissed for failure to state a claim. ECF No. 11.

II. APPLICABLE LAW

Rule 8(a) contains the general pleading rules and requires a complaint to present "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), `a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, 556 U.S. at 678. While the Court will liberally construe a pro se plaintiff's complaint, the plaintiff must allege sufficient facts to support their claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).

III. DISCUSSION

Defendants Bruce and Emerson argue Plaintiff has failed to allege any policy or custom of their employer Southern Health Partners, Inc. which could support a claim of official capacity liability. ECF No. 12, p. 3.

Under Section 1983, a defendant may be sued in either his individual capacity, or in his official capacity, or in both. In Gorman v. Bartch, the Eighth Circuit Court of Appeals ("Eighth Circuit") discussed the distinction between individual and official capacity suits. As explained by the Gorman case:

Gorman, 152 F.3d 907, 914 (8th Cir.1998). "[R]igorous standards of culpability and causation must be applied to ensure that the [county] is not held liable solely for the actions of its employee" in cases where a plaintiff claims a county has caused an employee to violate the plaintiff's constitutional rights. Board of County Commissioners, Oklahoma v. Brown, 520 U.S. 397, 405 (1997).

An official capacity claim in this case is a claim against Defendant Bruce and Emerson's employer, Southern Health Partners, Inc. ("SHP").1 SHP is a private correctional medical services corporation contracted with the ADC to provide those services. Through this contract, SHP is acting under color of state law and is subject to suit under § 1983. West v. Atkins, 487 U.S. 42 (1988); Burke v. North Dakota Dept. of Corrections and Rehab., 294 F.3d 1043 (8th Cir. 2002); Montano v. Hedgepeth, 120 F.3d 844, 849-50 (8th Cir. 1997). However, "[a] claim of deprivation of a constitutional right cannot be based on a respondeat superior theory of liability. Monell v. Department of Social Services, 436 U.S. 654, 694 (1978); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982) (stating Monell's holding is "equally applicable to the liability of private corporations" as to municipal corporations).

Caldwell v. Corr. Med. Services, 2010 WL 4959859, at *4 (E.D. Ark. Nov. 12, 2010); see also Burke, 294 F.3d at 1044, Crabb v. Southern Health Partners, 2015 WL 1578936, at *2-4 (E.D. Ark. April 9, 2015).

Plaintiff did not state a claim against Defendants Bruce and Emerson in their official capacity. Plaintiff's Complaint makes no allegations concerning any custom or policy of SHP. Nor does it make allegations concerning Defendants Bruce or Emerson which could be construed to imply they were following any custom or policy of SHP. Instead, the sole medical allegation states Plaintiff wrote a medical concerning his hands, and received a response from Defendant Emerson stating: "If you wouldn't be punching an object you wouldn't have that problem. [Buy] pain pills off store." ECF No. 1, p. 10.

IV. CONCLUSION

Accordingly, I recommend Defendants Bruce and Emerson's Motion to Dismiss Plaintiff's Official Capacity Claims against them (ECF No. 11) be GRANTED. Plaintiff's official capacity claims against Defendants Bruce and Emerson should be DISMISSED with prejudice. Plaintiff's personal capacity claims against these Defendants should remain for further consideration.

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. Plaintiff is reminded that objections must be both timely and specific to trigger de novo review by the district court.