Case Information
*1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION
CHARLES DOBBINS, PLAINTIFF #31296-009
v. 5:17CV00210-JM-JTK
ADAMS, et al. DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS
The following recommended disposition has been sent to United States District Judge James M. Moody, Jr. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a Hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the *2 District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and Statement of Necessity to:
Clerk, United States District Court
Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR 72201-3325
DISPOSITION
I. Introduction
Plaintiff Charles Dobbins filed this pro se 42 U.S.C. 1983 action while confined as an inmate at the W.C. “Dub” Brassell Adult Detention Center (Jail), complaining that he was attacked by other inmates (Doc. No. 2). [1] This Court granted his Motion to Proceed in forma pauperis on August 16, 2017, and directed him to file an Amended Complaint, noting that the Jail cannot be sued in a § 1983 action and that he did not allege facts sufficient to state a failure to protect claim against Defendant Adams (Doc. No. 4). Plaintiff has submitted an Amended Complaint (Doc. No. 5) which is nearly identical to his Original Complaint.
Having reviewed the Amended Complaint, the Court finds it should be dismissed, for failure to state a claim upon which relief may be granted.
II. Screening
*3 The Prison Litigation Reform Act (PLRA) requires federal courts to screen prisoner complaints seeking relief against a governmental entity, officer, or employee. 28 U.S.C. ' 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. ' 1915A(b).
An action is frivolous if A it lacks an arguable basis either in law or in fact. @ Neitzke v. Williams, 490 U.S. 319, 325 (1989). Whether a plaintiff is represented by counsel or is appearing pro se, his complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F .2d 1334, 1337 (8th Cir.1985). An action fails to state a claim upon which relief can be granted if it does not plead A enough facts to state a claim to relief that is plausible on its face. @ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In reviewing a pro se complaint under ' 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32 (1992).
Additionally, to survive a court's 28 U.S.C. 1915(e)(2) and 42 U.S.C. ' 1997e(c)(1) screening, a complaint must contain sufficient factual matter, accepted as true, to A state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Twombly, 550 U.S. at 570. 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. Twombly , 550 U.S . at 556-7. The plausibility standard is not akin to a probability *4 requirement, @ but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with @ a defendant's liability, it A stops short of the line between possibility and plausibility of entitlement to relief. Id.
III. Facts and Analysis
Plaintiff indicates in his Amended Complaint that he is incarcerated at the Jail as a convicted inmate. (Doc. No. 5, p. 3) Therefore, in order to support a constitutional claim for failure to protect, Plaintiff must allege that Defendant Adams acted with deliberate indifference by incarcerating him under conditions which posed a substantial risk of serious harm. Nelson v. Shuffman, 603 F.3d 439, 446 (8th Cir. 2010). As alleged in his Original Complaint, Plaintiff states in his Amended Complaint that he was housed in the wrong pod where other inmates attacked him (Doc. No. 5, p. 4). He does not, however, name or refer to Defendant Adams in his statement of claim, and fails to allege that Defendant Adams was aware of a risk of harm to him. Therefore, Plaintiff’s allegation against Defendant Adams fails to state a constitutional claim for relief.
In addition, as noted in the August 16, 2017 Order, Plaintiff cannot sue the Jail in this § 1983 action. See Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (holding that police and sheriff's departments are not usually considered legal entities subject to suit); Ketchum v. City of West Memphis , 974 F.2d 81 (8th Cir. 1992) (holding that the West Memphis Police Department and Paramedic Services are departments or subdivisions of the City government and not separate juridical entities). Therefore Defendant Dub Brassell Detention Center also should be dismissed, for failure to state a claim upon which relief may be granted.
IV. Conclusion
IT IS, THEREFORE, RECOMMENDED that:
1. Plaintiff = s Amended Complaint against Defendants be DISMISSED, for failure to state a claim upon which relief may be granted.
2. Dismissal of this action constitute a strike within the meaning of the Prison Litigation Reform Act (PLRA), 28 U.S.C. ' 1915(g). [2]
3. The Court certify that an in forma pauperis appeal from an Order and Judgment dismissing this action would not be taken in good faith, pursuant to 28 U.S.C. 1915(a)(3).
IT IS SO RECOMMENDED this 19th day of September, 2017. _________________________________ JEROME T. KEARNEY UNITED STATES MAGISTRATE JUDGE
[1] On September 1, 2017, mail sent to Plaintiff at the Jail was returned to the Court as undeliverable (Doc. No. 6).
[2] The statute provides that a prisoner may not file an in forma pauperis civil rights action or appeal if the prisoner has, on three or more prior occasions, filed an action or appeal that was dismissed as frivolous, malicious or for failure to state a claim, unless the prisoner is under imminent danger of serious physical injury.