Muldrow v. Adams et al

Filing 3

RECOMMENDED DISPOSITION recommending that Plaintiff's claims be dismissed with prejudice. The Court recommends that this dismissal count as a strike for purposes of 28 U.S.C. § 1915(g) and that the Court certify that an in forma pauperis ap peal taken from the order and judgment dismissing this action would be frivolous and not taken in good faith; and denying as moot 1 Plaintiff's Application to Proceed in forma pauperis. Objections to R&R due by 9/16/2008. Signed by Magistrate Judge Beth Deere on 09/02/08. (hph)

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IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS PINE BLUFF DIVISION V E O T I S MULDROW A D C #123054 V. E D ADAM, et al. NO. 5:08CV000237 SWW-BD DEFENDANTS P L A IN T IF F R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following Recommended Disposition has been sent to United States District Ju d g e Susan Webber Wright. Any party may serve and file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a sis for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C lerk , United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B a c k gro u n d : P la in t if f , an Arkansas Department of Correction ("ADC") inmate, filed a pro se c o m p la in t (docket entry #2) under 42 U.S.C. 1983, seeking monetary damages from f o u r ADC employees in their official capacities, along with an application for leave to p ro c e ed in forma pauperis (#1). In Plaintiff's complaint, he alleges that on August 5, 2008, he was housed in the Cp o d of the W.C. Brassell Detention Center in Pine Bluff, Arkansas. On that date, Plaintiff a n d all other detainees in the C-pod were moved into the D.O.C. pod with other ADC in m a te s . Hours after Plaintiff and the other detainees were moved into the D.O.C. pod, p ris o n officials conducted a shakedown. Plaintiff states that after the shakedown, D.O.C. p o d inmates accused Plaintiff and the other C-pod detainees of causing the shakedown a n d being "snitches." Plaintiff complains about the lack of prison guards in the D.O.C. pod, and states th a t "his life was put at risk" while housed in that pod. Plaintiff also claims that the s itu a tio n was stressful, and that he could scarcely sleep while he was housed in the 2 D .O .C . pod. Based upon the facts alleged in Plaintiff's Complaint, the Court calculates th a t he was housed in the D.O.C. pod for two days.1 III. D is c u s s io n : A. Standa rd T h e Prison Litigation Reform Act ("PLRA") requires federal courts to dismiss a c o m p la in t or portion thereof if the prisoner has raised claims that: (a) are legally frivolous o r malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek m o n e ta ry relief from a defendant who is immune from such relief. 28 U.S.C. 1 9 1 5 (e )(2 )(B ). In conducting a review for failure to state a claim, the Court is mindful th a t a complaint should be dismissed only if it appears beyond doubt that a plaintiff can p ro v e no set of facts in support of the claim or claims that would entitle him to relief. Springdale Educ. Ass'n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998). The C o u rt must accept the factual allegations in the complaint as true and hold a plaintiff's p r o se complaint "to less stringent standards than formal pleadings drafted by Plaintiff has filed two other lawsuits in this Court in August 2008. See Muldrow v . Adam, Eastern District of Arkansas, Case No. 5:08cv219 and Muldrow v. Adam, E a ste rn District of Arkansas, Case No. 5:08cv220. Those cases now have been c o n so lid a te d in Muldrow v. Adam, Eastern District of Arkansas, Case No. 5:08cv219. The Court notes that although Plaintiff names Defendant Adam in those cases, the claims th a t Plaintiff raises in this case are distinct from those raised in Plaintiff's other two c o m p l a in t s . 3 1 la w ye rs . . . ." Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). However, b ro a d conclusory allegations, even in a pro se complaint are insufficient to state a claim u n d e r 42 U.S.C. 1983. Grady v. Wilken, 735 F.2d 303, 305 (8th Cir. 1984). B. O ffic ia l Capacity Liability P la in tif f 's claims for monetary damages against Defendants in their official c a p ac itie s are barred by the doctrine of sovereign immunity. The Eleventh Amendment b a rs a citizen from bringing suit in federal court against a state, a state agency, or a state o f f icia l sued in his or her official capacity for damages which must be paid from public f u n d s in the state treasury. Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1 9 8 9 ); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Barnes v. S t a te of Missouri, 960 F.2d 63, 64 (8th Cir.1992) (per curiam); Nix v. Norman, 879 F.2d 4 2 9 , 431-32 (8th Cir.1989). Only two exceptions exist to Eleventh Amendment im m u n ity: (1) "where Congress has statutorily abrogated such immunity by clear and u n m is ta k a b le language," or (2) where a state has waived its immunity to suit in federal c o u rt, but "only where stated by the most express language or by such overwhelming im p lic a tio n s from the text as will leave no room for any other reasonable construction." Barnes, 960 F.2d at 64-65 (citing Welch v. Texas Dep't of Highways & Pub. Transp., 483 U .S . 468, 473-74 (1987)). Neither exception is applicable to Plaintiff's case. See Will, 4 9 1 U.S. at 66. 4 P lain tiff has neither pled, nor is he able to prove, that the State has waived its im m u n ity with regard to 1983 lawsuits, and Congress did not abrogate Eleventh A m en d m en t sovereign immunity when it enacted 1983. Therefore, the Court re c o m m e n d s that Plaintiff's claims for money damages against Defendants in their o f f ic ia l capacities be dismissed. C. F a ilu r e to Protect It is established law that prison officials have a duty to protect inmates from v io le n c e at the hands of other inmates. Farmer v. Brennan, 511 U.S. 825, 833-34 (1994). Claims of failure to protect are governed by a "deliberate indifference" standard. "[D]eliberate indifference entails something more than mere negligence, the cases are a ls o clear that it is satisfied by something less than acts or omissions for the very purpose o f causing harm or with knowledge that harm will result." Ambrose v. Young, 474 F.3d 1 0 7 0 , 1076 (8th Cir. 2007) (quoting Farmer, 511 U.S. at 835 (1994)). Of course, not e v e ry injury "suffered by one prisoner at the hands of another that translates into c o n stitu tio n a l liability for prison officials responsible for the victim's safety." Farmer, 5 1 1 U.S. at 834, 114 S.Ct. at 1977. The duty to protect requires only that prison officials " ta k e reasonable measures to abate substantial risks of serious harm, of which the o f f ic ia ls are aware." Reece v. Groose, 60 F.3d 487, 491 (8th Cir. 1995). Here, Plaintiff claims that Defendants placed him in conditions posing a su b sta n tial risk of serious harm by allowing him to be housed in the D.O.C. pod. He fails 5 to state any harm or injury, however, that he actually suffered. To maintain a 1983 action, Plaintiff must have suffered physical injury. "No Federal civil action may b e brought by a prisoner confined in a jail, prison, or other correctional facility, for m e n ta l or emotional injury suffered while in custody without a prior showing of physical in ju ry." 42. U.S.C. 1997e. Although Plaintiff claims that he was threatened while h o u s e d in the D.O.C. pod, he does not allege that he suffered any injury. See Tribe v. S n ip e s, 19 Fed. Appx. 325 (6th Cir. 2001) (unpublished opinion) (upholding dismissal of 1983 action in which inmate plaintiff alleged that he suffered stress from the fear of a n o th e r attack when he was moved to a facility where inmates had previously attacked h im ) and Lefevre v. Luetzow, 2006 WL 3837724 (W.D. Mich. 2006) (unpublished o p in io n ) (dismissing plaintiff's 1983 complaint where plaintiff's sole claim was that d e f en d a n ts failed to ensure his safety from other prisoners when plaintiff failed to allege a n y actual injury). Accordingly, Plaintiff's claim fails, even if he amended the complaint to seek damages from Defendants in their individual capacities. IV . C o n c lu s io n : T h e Court recommends that Plaintiff's claims be DISMISSED with prejudice. Furthermore, the Court recommends that this dismissal count as a "strike" for purposes of 2 8 U.S.C. 1915(g) and that the Court certify that an in forma pauperis appeal taken f ro m the order and judgment dismissing this action would be frivolous and not taken in g o o d faith. 6 In addition, the Court recommends that Plaintiff's application to proceed in forma p a u p e r is be DENIED (#1) as moot. D A T E D this 2nd day of September, 2008. ___________________________________ U N IT E D STATES MAGISTRATE JUDGE 7

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