Yancey v. Payne et al

Filing 6

ORDER adopting 4 recommended disposition; dismissing without prejudice 2 John Yancey's complaint for failing to state a claim upon which relief may be granted; counting this dismissal as a strike under 28 U.S.C. section 1915(g); certifying t hat an in forma pauperis appeal from this order and accompanying judgment would not be taken in good faith; and denying as futile Yancey's request to amend his complaint in 5 response to the recommended disposition because the proposed amendment would not survive screening. Signed by Judge Brian S. Miller on 7/9/2024. (ljb)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS DELTA DIVISION JOHN B. YANCEY ADC #95844 v. PLAINTIFF CASE NO. 2:24-CV-00114-BSM DEXTER PAYNE, et al. DEFENDANTS ORDER After careful review of the record, United States Magistrate Judge Joe J. Volpe’s recommended disposition [Doc. No. 4] is adopted. John Yancey’s complaint [Doc. No. 2] is dismissed without prejudice for failing to state a claim upon which relief may be granted; it is recommended that, in the future, dismissal of this action be counted as a strike under 28 United States Code section 1915(g); and it is certified, pursuant to 28 United States Code section 1915(a)(3), that an in forma pauperis appeal from this order and the accompanying judgment would not be taken in good faith. Moreover, Yancey’s request to amend his complaint in his response to the recommended disposition [Doc. No. 5] is denied as futile because the proposed amendment would also not survive screening. See Bowman v. Prudential Ins. Co. of Am., 260 F. Supp. 3d 1072, 1079 (W.D. Ark. 2017) (citing Hintz v. JPMorgan Chase Bank, N.A., 686 F.3d 505, 511 (8th Cir. 2012)) (proposed amendment to complaint is considered futile if it would not survive subsequent motion to dismiss); see also Harris v. Ruthenberg, 62 F. Supp. 3d 793, 800 (N.D. Ill 2014) (citing Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013)) (judicial screening of a prisoner’s civil complaint against a government entity or government officer is done under the same standard applicable to a motion to dismiss for failure to state a claim). IT IS SO ORDERED this 9th day of July, 2024. ________________________________ UNITED STATES DISTRICT JUDGE 2

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