Opinion
5:16CV00200-DPM-JJV
07-29-2016
RICHARD BOWER, ADC # 144498 PLAINTIFF v. ARKANSAS DEPARTMENT OF CORRECTION DEFENDANT
PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The following partial recommended disposition has been sent to United States District Judge D. P. Marshall 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 (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the new hearing 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 new hearing.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. 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
Richard Bower ("Plaintiff") is incarcerated at the Cummins Unit of the Arkansas Department of Correction ("ADC"), and filed this action pro se pursuant to 42 U.S.C. § 1983. (Doc. No. 2.) Plaintiff claims because he has been sleeping on ADC mattresses for eight years, he has developed sores on both hips. (Id.) He alleges the mattresses are insufficient because they are essentially two inch "styrofoam mat[s]." (Id. at 1.) After filing grievances and receiving no relief, he filed this action claiming ADC is deliberately indifferent to his serious medical need. (Id.)
As a part of the screening process, I notified Plaintiff that he failed to state a claim upon which relief may be granted. (Doc. No. 3 at 2.) Plaintiff was given thirty (30) days to cure the Complaint's defects or I would recommend dismissal. (Id.) Plaintiff's Complaint is deficient because he has sued only the Arkansas Department of Correction. And it is settled law that neither the Arkansas Department of Correction nor any of its prison facilities are suable under section 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 & 70 (1989) (a state and its agencies are not "persons" within the meaning of section 1983); see also Quern v. Jordan, 440 U.S. 332, 345 (1979) (section 1983 does not abrogate a state's Eleventh Amendment immunity); Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en banc) (holding that a state agency may not be sued under section 1983).
IT IS, THEREFORE, RECOMMENDED that:
1. Plaintiff's Complaint (Doc. No. 2) be DISMISSED without prejudice for failure to state a claim upon which relief may be granted.
2. Dismissal of this action count as a "strike" for purposes of 28 U.S.C. § 1915(g).
Title 28 U.S.C. § 1915(g) provides that: "In no event shall a prisoner bring a civil action or appeal a judgment in a civil action under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted . . . ." --------
3. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any Order adopting these recommendations would not be taken in good faith.
Dated this 29th day of July, 2016.
/s/_________
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE