White v. Arkansas Board of Pardons & Paroles et al

Filing 7

PROPOSED FINDINGS AND RECOMMENDATIONS that Pltf's 2 Complaint be DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted; this dismissal count as a "strike" pursuant to 28 USC 1915(g); the Court certify that an ifp appeal taken from the Order and Judgment dismissing this action be considered frivolous and not in good faith; Objections to R&R due by 4/9/2009. Signed by Magistrate Judge H. David Young on 3/26/09. (vjt)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION RODNEY CHARLES WHITE, SR. ADC #109629 V. ARKANSAS BOARD OF PARDONS & PAROLES et al. PROPOSED FINDINGS AND RECOMMENDATIONS INS T RUCT IONS The following recommended disposition has been sent to United States District Judge William R. Wilson, 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 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 District Judge, you must, at the same time that you file your written objections, include the following: 1. 2. Why the record made before the Magistrate Judge is inadequate. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge. NO: 4:09CV00090 WRW/HDY DEFENDANTS PLAINTIFF 1 3. The detail of any testimony desired to be introduced at the hearing before the District Judge 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 hearing before the District Judge. From this submission, the 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 DISPOSITION Plaintiff, an inmate at the Wrightsville Unit of the Arkansas Department of Correction ("ADC"), filed a pro se complaint (docket entry #2), pursuant to 42 U.S.C. 1983, on February 5, 2009. 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, 127 S.Ct. 1955, 1964-5 (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 2 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. 235-236 (3d ed. 2004). A complaint must contain enough facts to state a claim to relief that is plausible on its face, not merely conceivable. Twombly at 1974. Although Twombly involved allegations of conspiracy in violation of the Sherman Act, 15 U.S.C. 1, the holding has been applied in a 1983 context as well. See Robbins v. Oklahoma, Case No. 07-7021, 2008 U.S. App. LEXIS 5915 (10th Cir. March 21, 2008). 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 has been denied proper consideration for parole. As Defendants, Plaintiff has named Leroy Brownlee, Lynn Story, John Felts, John Belkins, Carolyn Robinson, Richard Mays, Jr., and Abraham Carpenter, all of whom are members of the Arkansas Board of Pardon and Parole, along with the board itself. However, Plaintiff's claims against the board are essentially against the State of Arkansas, and are barred by the doctrine of sovereign immunity. Because "a state agency which is the sole creation of the state has no separate identity," it cannot be stripped of it's official character. Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); see also Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997)(stating that it is well settled that the Eleventh Amendment bars 1983 claims against the State of Arkansas and its agencies). Similarly, Plaintiff's claims against the board members themselves must be dismissed because the board members enjoy absolute immunity for their actions in considering parole issues. Patterson 3 v. Von Reisen, 999 F.2d 1235, 1238-39 (8th Cir. 1993). Accordingly, Plaintiff's complaint should be dismissed in its entirety for failure to state a claim upon which relief may be granted. III. Conclusion IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's complaint be DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted. 2. 3. This dismissal count as a "strike" for purposes of 28 U.S.C. 1915(g). The Court certify that an in forma pauperis appeal taken from the order and judgment dismissing this action be considered frivolous and not in good faith. DATED this 26 day of March, 2009. UNITED STATES MAGISTRATE JUDGE 4

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