Carter v. Arkansas Department of Correction

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATIONS 3 that complaint be dismissed with prejudice and that this dismissal will count as a "strike" and that an ifp appeal taken from the order and judgment would be frivolous and not taken in good faith: 1 Motion for Leave to Proceed in forma pauperis filed by Floyd Wayne Carter is moot. Signed by Judge James M. Moody on 9/3/08. (bkp)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION FLOYD WAYNE CARTER V. CASE NO.: 5:08CV00222 JMM/BD DEFENDANT PLAINTIFF

ARKANSAS DEPARTMENT OF CORRECTION

ORDER The Court has received the Recommended Disposition from Magistrate Judge Beth Deere and plaintiff's objections to the Recommended Disposition. Plaintiff's has raised two issues in his objections. He contends that Arkansas Department of Corrections ("ADC") employees violated his rights by not following prison procedures and that the ADC has not adequately addressed his medical needs. Neither of these objections have any merit as failure to follow prison regulations does not state a claim for the deprivation of a constitutional right under § 1983 and plaintiff's complaints regarding his medical treatment are raised for the first time in this objection. See Phillip v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (no federal constitutional interest in having state officers follow prison regulations); Johnson v. Jones, 340 F.3d 624, 628 (8th Cir. 2003) (prisoner required to exhaust his claims through administrative process before making a § 1983 claim). In fact the record reflects that plaintiff has repeatedly stated that he had no complaints concerning his medical treatment.

After careful review of the Recommended Disposition, the timely objections filed thereto, as well as a de novo review of the record, the Court concludes that the Recommended Disposition should be, and hereby is, approved and adopted as this Court's findings in all respects in its entirety. Accordingly, the Complaint (docket entry #2) is DISMISSED with prejudice. The dismissal will count 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 would be frivolous and would not be taken in good faith. IT IS SO ORDERED this 3 day of September , 2008. ________________________________ UNITED STATES DISTRICT JUDGE