Rowe v. Counts
PROPOSED FINDINGS AND RECOMMENDATIONS recommending 2 Plaintiff's Complaint be DISMISSED with prejudice; recommending this dismissal be considered a "strike" within the meaning of the Prison Litigation Reform Act; and recommending th e Court certify that an in forma pauperis appeal from an Order and Judgment dismissing this action not be taken in good faith. Objections to R&R due no later than 14 days from the date of this recommendation. Signed by Magistrate Judge Joe J. Volpe on 1/8/2014. (srw)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONATHAN D. ROWE
MARK COUNTS, Sheriff, Sharp County
PROPOSED FINDINGS AND RECOMMENDATIONS
The following 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 new hearing for this purpose before either the District Judge or
Magistrate Judge, you must, at the time you file your written objections, include the following:
Why the record made before the Magistrate Judge is inadequate.
Why the evidence to be proffered at the new hearing (if such a hearing is granted)
was not offered at the hearing before the Magistrate Judge.
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
Plaintiff Jonathan Rowe, an inmate at the Sharp County Detention Center, filed this pro se
action alleging inadequate medical care and treatment in violation of his Eighth Amendment rights.
The Court granted his Application to Proceed Without Prepayment of Fees on November 19, 2013,
and provided him with the opportunity to submit an Amended Complaint within thirty days, to
include specific allegations of unconstitutional conduct against the Defendant (Doc. No. 3).1
However, as of this date, Plaintiff has not submitted an Amended Complaint. Having reviewed the
Complaint, the Court finds it should be dismissed for failure to state a claim upon which relief may
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. §
The Court also informed Plaintiff of Local Rule 5.5(c)(2), which provides that pro se actions
may be dismissed if a Plaintiff does not respond to communications from the Court within thirty
An action is frivolous if “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 “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). The factual allegations must be weighted in favor of Plaintiff. Denton v.
Hernandez, 504 U.S. 25, 32 (1992). “In other words, the § 1915(d) frivolousness determination,
frequently made sua sponte before the defendant has even been asked to file an answer, cannot serve
as a factfinding process for the resolution of disputed facts.” Id.
FACTS AND ANALYSIS
The Court noted in the November 19, 2013, Order that Plaintiff failed to include any specific
allegations against Sheriff Counts and it appeared Plaintiff had sued him based on supervisory
authority. Supervisory liability is limited in § 1983 actions, and a supervisor cannot be held liable
on a theory of respondeat superior for his or her employee’s alleged unconstitutional actions. See
White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994). A supervisor incurs liability only when
personally involved in the constitutional violation or when his corrective inaction constitutes
deliberate indifference toward the violation. Choate v. Lockhart, 7 F.3d 1370, 1376 (8th Cir. 1993).
Absent allegations of Sheriff Counts’s personal involvement and/or knowledge in the alleged
incidents in the Complaint, the Court finds the Complaint should be dismissed.
IT IS THEREFORE RECOMMENDED that:
Plaintiff’s Complaint be DISMISSED with prejudice for failure to state a claim upon
which relief may be granted.
This dismissal be considered a “strike” within the meaning of the Prison Litigation
Reform Act (PLRA), 28 U.S.C. § 1915(g).2
The Court certify that an in forma pauperis appeal from an Order and Judgment
dismissing this action will not be taken in good faith. 28 U.S.C. § 1915(a)(3).
DATED this 8th day of January, 2014.
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE
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.
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