Mills v. Hobbs et al
ORDER adopting as modified 58 Partial Recommended Disposition; granting 40 Motion to Dismiss; adopting as modified 60 Recommended Disposition; dismissing Mills's 2 complaint without prejudice; denying 67 Motion to Amend Complaint; denying as moot 47 , 50 , 66 , & 68 Motions; and, denying 57 & 69 Mills's Motions for Writ of Mandamus and a show-cause order. Signed by Judge D. P. Marshall Jr. on 5/31/2012. (dmn)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ADC # 86911
RAY HOBBS, Director, ADC; LARRY MAY,
Chief Director, ADC; TODD BALL, Deputy Warden,
East Arkansas Regional Unit, ADC; DANNY BURL,
Warden, East Arkansas Regional Unit, ADC;
DEXTER PAYNE, Deputy Warden, East Arkansas
Regional Unit, ADC; S. PALMER; CHARLES STEWART;
and ALLCARE PHARMACY
Mills is serving a life sentence. He filed a shotgun complaint in March
2011 against various persons inside and outside the East Arkansas Regional
Unit where he is confined. In January this Court adopted Magistrate Judge
Joe J. Volpe's screening recommendation that some defendants and claims be
dismissed. The remaining defendants have moved to dismiss the rest of
Mills's claims. Several other matters are ripe for decision too.
1. Judge Volpe has now recommended, Document No. 58, that the Court
grant Allcare Pharmacy's motion to dismiss for failure to state a claim. Mills
has not objected. The Court sees no legal error or clear factual error in the
recommendation, and the Court adopts it with one clarification: the dismissal
is modified to be without prejudice.
R. CIV. P. 72(b).
2. Judge Volpe has issued a second recommendation, Document No. 60,
that Mills's other claims be dismissed for failure to state a claim on which
relief can be granted. Mills has filed an objection. The objection is rambling
and nonresponsive. The Court has nonetheless conducted a de novo review
of the record. The Court adopts the recommendation; but the dismissal is
modified to be without prejudice. The defense motions seeking the same
relief, Document Nos. 47 & 50, are denied as moot.
3. Mills has also filed what seems to be a challenge to the lawfulness of
his conviction and confinement-a motion seeking a writ of mandamus or
prohibition. Document No. 57. He seeks compensation for "18 years of
confinement and no arraignment on the so[-]called charges." Document No.
57, at 11. A judgment in his favor would imply that his conviction is invalid.
So the claim is barred so long as his conviction stands. Heck v. Humphrey, 512
U.S. 477 (1994).
Mills has filed two motions since Judge Volpe made his last
recommendation. The first, Document No. 66, is a motion to proceed in forma
paupens. It is denied as moot. The Court granted Mills leave to proceed in
forma pauperis in this Court in March 2011. And it is too soon for Mills to
appeal. The second, Document No. 67, is an amended complaint. The Clerk
has styled it as a motion for leave to amend, and with good reason - it is too
late for Mills to amend his complaint without the Court's permission.
CIV. P. 15(a) (2). The Court should grant leave to amend uwhen justice so
requires." Ibid. Justice does not require granting leave here. Mills's proposed
complaint suffers from the same deficiencies as his current one. Amendment
would be futile.
5. Allcare Pharmacy has moved to dismiss the allegations Mills makes
against it in his proposed amended complaint. Because the Court has rejected
that amended complaint, Allcare's motion, Document No. 68, is denied as
6. Mills has also filed a motion for injunctive relief. He says [t]here has
been one woman murdered 2-20-12 from mouth running towards prisoners."
He says that anytime a woman enters the prison barracks, two able man
should enter for their protection." Document No. 69, at 1. Mills's other filings
make it clear that the murdered woman was a member of the prison staff.
Mills has no standing to seek relief on behalf of prison employees. He has not
alleged facts that would suggest a "real and immediate" threat that his own
constitutional rights will be violated. Rogers v. Scurr, 676 F.2d 1211, 1214 (8th
Cir.1982). His motion for injunctive relief is denied.
7. On 11 March 2011, Chief Judge J. Leon Holmes dismissed another of
Mills's cases and certified that the dismissal would count as a strike" under
28 U.S.C. § 1915(g), a provision of the Prison Litigation Reform Act. The
Eighth Circuit affirmed that dismissal on 7 July 2011. Case No. 4:11-cv-169
JLH, Document No. 16.
That affirmance made Judge Holmes's March
dismissal Mills's third strike. Jennings v. Natrona County Detention Center
Medical Facility, 175 F.3d 775 (10th Cir. 1999); see also Case Nos. 4:05-cv-475
SWW,4:07-cv-44-SWW. Mills may not appeal in forma pauperis unless he
meets the exception in 28 U.S.C. § 1915(g).
Partial recommend disposition, Document No. 58, adopted as modified.
Motion to dismiss, Document No. 40, granted. Recommended disposition,
Document No. 60, adopted as modified: Mills's complaint, Document No.2, is
dismissed without prejudice. His motion to amend that complaint, Document
No. 67, is denied. Motions, Document Nos. 47, 50, 66 & 68, are denied as moot.
Mills's motions for a writ of mandamus and a show-cause order, Document
Nos. 57 & 69, are denied.
D.P. Marshall Jr.
United States District Judge
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