Vornes v. Ellis et al

Filing 8

ORDER that Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE for failure to state a claim upon which relief may be granted. This dismissal counts as a "strike" for purposes of 28 U.S.C. Section 1915(g). The Court certifies that an in forma pauperis appeal taken from this Order & the Judgment dismissing this action is considered frivolous & not in good faith. Signed by Judge Susan Webber Wright on 11/10/2010. (jct)

Vornes v. Ellis et al

Doc. 8

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION TERRICK A. VORNES ADC #112874 V. CHRIS ELLIS et al. ORDER NO: 3:10CV00240 SWW

PLAINTIFF

DEFENDANTS

Plaintiff, currently held at the Mississippi County Detention Facility, filed a pro se complaint (docket entry #2), pursuant to 42 U.S.C. § 1983, on September 29, 2010, naming as Defendants Ray Rigsby, Osceola Police Department Chief of Police, and investigators Chris Ellis and Jennifer Ephellin, also of the Osceola Police Department. I. Screening Before docketing the complaint, or as soon thereafter as practicable, the Court must review the complaint to identify cognizable claims or dismiss the complaint if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A. Fed.R.Civ.P. 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007) (overruling Conley v. Gibson, 355 U.S. 41 (1967), and setting new standard for failure to state a claim upon which relief may be granted), the Court stated, "a plaintiff's obligation to provide the `grounds' of his `entitle[ment]to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do....Factual allegations must be enough to raise a right to relief above the speculative level," citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235236 (3d ed. 2004). A complaint must contain enough facts to state a claim to relief that is plausible

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on its face, not merely conceivable. Twombly at 570. However, a pro se plaintiff's allegations must be construed liberally. Burke v. North Dakota Dept. of Corr. & Rehab., 294 F.3d 1043, 1043-1044 (8th Cir.2002) (citations omitted). II. Analysis According to Plaintiff's complaint, he is being slandered, and charged with a burglary and theft he did not commit. Plaintiff contends that he is being jailed and that there is no evidence to connect him to the crime. For relief, Plaintiff seeks for his name to be cleared, for the crime to be fully investigated and the right person be arrested, and for all charges against him to be dropped. In Younger v. Harris, 401 U.S. 37, 43-45 (1971), the Supreme Court held that federal courts should abstain from interfering in ongoing state proceedings. The Court explained the rationale for such abstention as follows: [The concept of federalism] represent[s] . . . a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. Id. at 44. Accordingly, a federal court must abstain from entertaining constitutional claims when: (1) there is an ongoing state judicial proceeding; (2) the state proceeding implicates important state interests; and (3) there is an adequate opportunity in the state proceedings to raise the constitutional challenges. Yamaha Motor Corp. v. Stroud, 179 F.3d 598, 602 (8th Cir. 1999); Yamaha Motor Corp. v. Riney, 21 F.3d 793, 797 (8th Cir. 1994). If all three questions are answered affirmatively, a federal court should abstain unless it detects "bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate." Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 435 (1982).

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It is clear from the complaint that Plaintiff is involved in an ongoing criminal proceeding. Given that the criminal matter is ongoing, that the state clearly has an important interest in enforcing criminal laws, and Plaintiff's ability to raise constitutional challenges in the context of his criminal case, the Court believes it should abstain from entertaining Plaintiff's constitutional claims. There is no indication of bad faith, harassment, or any other extraordinary circumstance which would make abstention inappropriate. Because abstention is called for in this case, the Court must determine whether dismissal or a stay is the appropriate mode of abstention. When Younger abstention applies in a case where only injunctive or equitable relief is sought, it is clear that the appropriate disposition is dismissal of the federal action. Night Clubs, Inc. v. City of Fort Smith, 163 F.3d 475, 481 (8th Cir. 1998). Accordingly, because Plaintiff seeks only declaratory and injunctive relief, Plaintiff's complaint must be dismissed. III. Conclusion IT IS THEREFORE ORDERED THAT: 1. Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE for failure to state a

claim upon which relief may be granted. 2. 3. This dismissal counts as a "strike" for purposes of 28 U.S.C. § 1915(g). The Court certifies that an in forma pauperis appeal taken from the order and

judgment dismissing this action is considered frivolous and not in good faith. DATED this 10th day of November, 2010. /s/Susan Webber Wright UNITED STATES DISTRICT JUDGE

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