Nelson v. Yang

Filing 3

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION recommending this case be dismissed, with prejudice; recommending that dismissal of this action constitute a strike as defined by 28 U.S.C. § 1915(g); and recommending that the Court certify that an in forma pauperis appeal from any Order adopting this Recommended Disposition would not be taken in good faith. Objections to R&R due by 10/16/2008. Signed by Magistrate Judge J. Thomas Ray on 10/02/08. (hph)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS HELENA DIVISION BRYANT NELSON ADC #601638 V. 2:08CV00172 JMM/JTR PLAINTIFF DR. YANG, East Arkansas Regional Unit, Arkansas Department of Correction, et al. DEFENDANT PROPOSED FINDINGS AND RECOMMENDED DISPOSITION INS T RUCT IONS The following recommended disposition has been sent to United States District Judge James M. Moody. 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 Clerk no later than eleven (11) 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 United States District Judge, you must, at the same time that you file your written objections, include a "Statement of Necessity" that sets forth the following: 1. Why the record made before the Magistrate Judge is inadequate. 2. Why the evidence to be proffered at the requested hearing before the United States District Judge was not offered at the hearing before the Magistrate Judge. An offer of proof setting forth the details of any testimony or other evidence (including copies of any documents) desired to be introduced at the requested hearing before the United States District Judge. 3. From this submission, the United States 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 I. Discussion Plaintiff, who is currently incarcerated at the East Arkansas Regional Unit of the Arkansas Department of Correction, has filed a pro se 1983 Complaint alleging that Defendant, Dr. Yang, who is a dentist for the ADC, is failing to provide him with adequate dental care. See docket entry #2. As relief, Plaintiff is requesting monetary damages and an injunction ordering the ADC to take him to a freeworld dentist to have two teeth removed. Id. Plaintiff's claim and requests for relief are identical to those in his previously filed case, Nelson v. Yang and Moore, 2:08CV00144 WRW/JTR, which is currently pending in this District. Thus, pursuant to the screening function mandated by 28 U.S.C. 1915A, the Court recommends that this case be dismissed, with prejudice, as frivolous.1 The Prison Litigation Reform Act 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 a portion thereof if the prisoner has raised claims that: (a) are legally -21 II. Conclusion IT IS THEREFORE RECOMMENDED THAT: 1. Pursuant to the screening function mandated by 28 U.S.C. 1915A, this case be DISMISSED, WITH PREJUDICE, as being frivolous and redundant of Nelson v. Yang and Moore, 2:08CV00144 WRW/JTR. 2. 1915(g).2 3. The Court CERTIFY, pursuant to 28 U.S.C. 1915(a)(3), that an in forma pauperis Dismissal of this action CONSTITUTE a "strike," as defined by 28 U.S.C. appeal from any Order adopting this Recommended Disposition would not be taken in good faith. Dated this 2nd day of October, 2008. UNITED STATES MAGISTRATE JUDGE 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). The Court is mindful that when making this determination, the court must "accept as true all factual allegations in the complaint, [while] giving no effect to conclusory allegations of law." Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007). Importantly, the complaint must "assert facts that affirmatively and plausibly suggest," "above the speculative level," that the plaintiff is entitled to relief and mere conclusions or a "formulaic recitation of the elements of a cause of action will not do." Stalley, 509 F.3d at 521; see also Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007) (abrogating the "no set of facts" standard set forth in Conely v. Gibson, 355 U.S. 41, 45-46 (1957)). Nevertheless, in Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), the Supreme Court emphasized that a pro se prisoner's 1983 complaint must be "liberally construed" and "held to less stringent standards than formal pleadings drafted by lawyers." 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 or proceeding 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, unless the prisoner is under imminent danger of serious physical injury." -32

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