Barnes v. Arkansas Department of Correction et al

Filing 3

RECOMMENDED DISPOSITION recommending that 2 Plaintiffs Complaint be DISMISSED with prejudice, and that his 1 motion for leave to proceed in forma pauperis be DENIED as moot. In addition, the Court recommends that the dismissal count as a strike f or purposes of 28 U.S.C. § 1915(g), and that the District Court certify that an in forma pauperis appeal taken from the order and judgment dismissing this action would be frivolous and not taken in good faith. Objections to R&R due by 1/23/2009. Signed by Magistrate Judge Beth Deere on 1/9/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION H A L D. BARNES A D C #124499 VS. C A S E NO.: 5:08CV00328 SWW/BD P L A IN T IF F

A R K A N S A S DEPARTMENT OF CORRECTION, et al. 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:

DEFENDANTS

T h e following Recommended Disposition has been sent to United States District Ju d g e Susan Webber Wright. Any party may 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 an 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 A-149 L ittle Rock, AR 72201-3325

II.

I n tr o d u c tio n : P la in tif f , who is incarcerated at the Varner Unit of the Arkansas Department of

C o rre c tio n ("ADC"), filed a pro se Complaint (docket entry #2) under 42 U.S.C. §1983, a lo n g with an Application for Leave to Proceed In Forma Pauperis (#1). For the f o llo w i n g reasons, the Court recommends that Plaintiff's Complaint (#2) be DISMISSED w ith prejudice, and that his Application for Leave to Proceed In Forma Pauperis (#1) be D E N IE D as moot. III. D is c u s s io n : P la in tif f alleges that officials at the ADC received a check in Plaintiff's name from th e National Union Fire Insurance Company of Pittsburgh. Plaintiff states that the check, in the amount of $10,000.00, was part of his inheritance. Instead of giving the check to P la in tif f or allowing him to send it back, the check was sent to the ADC Trust Fund C e n tra lize d Banking Office and deposited in Plaintiff's inmate account. A t some point after the ADC received the check, the Arkansas Attorney General b rou g h t a Petition for Reimbursement for Cost of Care under the State Prison Inmate Care a n d Custody Reimbursement Act ("SPICCRA"), ARK. CODE ANN. §§ 12-29-501, et seq. In response to the petition, Plaintiff offered to pay $2,500.00 to settle the matter with the A tto rn e y General. The Attorney General declined, and eventually Plaintiff agreed to a c c e p t $1,500.00 of the $10,000.00 to settle the petition, forfeiting the balance to the State o f Arkansas. Plaintiff brought this action alleging that his right to Due Process was

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d e n ie d because he was "coerced, shown hostility, and pressure[d]" into settling the p e titio n with the Attorney General (#2). Plaintiff's allegations fail to state a claim for re lie f under 42 U.S.C. § 1983. T o state a cognizable claim under 42 U.S.C. § 1983, a plaintiff must allege that the c o n d u c t of a defendant acting under color of state law deprived him of a right, privilege, o r immunity secured by the federal Constitution or laws of the United States. 42 U.S.C. § 1983. In Hudson v. Palmer, 468 U.S. 517, 529-30, 104 S.Ct. 3194 (1984), the United S ta te s Supreme Court held that when a state actor deprives a person of personal property, th e person does not have a Due Process § 1983 claim if state law provides an adequate p o s t-d e p riv a tio n remedy. The State of Arkansas provides such a remedy through the A rk a n sa s Claims Commission. See ARK. CODE ANN. § 19-10-204(a) (vesting the A r k a n s a s State Claims Commission with "exclusive jurisdiction over all claims against th e State of Arkansas and its several agencies, departments and institutions"). In addition, P la in tif f had the opportunity to address this issue before the state trial court. If he had d is a g re e d with the outcome, he could have appealed the decision to the Arkansas S u p r e m e Court. See Burns v. State, 303 Ark. 64, 793 S.W.2d 779 (1990) (Arkansas S u p r e m e Court affirmed trial judge's determination that the SPICCRA did not violate a p ris o n e r's Due Process rights). Accordingly, Plaintiff has not stated a Due Process claim. T h e Eighth Circuit Court of Appeals has upheld a pre-service dismissal in a similar c a se . See Skinner v. Missouri, 215 Fed.Appx. 555, 2007 WL 315364 (8th Cir. Feb. 5,

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2 0 0 7 ) (unpublished) (affirming district court's 28 U.S.C. § 1915A order dismissing p ris o n e r's 42 U.S.C. § 1983 challenge to the confiscation of money in his inmate account u n d e r the Missouri Incarceration Reimbursement Act ("MIRA")). SPICCRA and MIRA a re strikingly similar. As in Skinner, Plaintiff's allegations in the present case do not rise to the level of a constitutional violation. Accordingly, pre-service dismissal under 28 U .S .C . § 1915A is appropriate. IV . C o n c lu s io n : T h e Court recommends that Plaintiff's Complaint (#2) be DISMISSED with p re ju d ic e , and that his motion for leave to proceed in forma pauperis (#1) be DENIED as m o o t. In addition, the Court recommends that the dismissal count as a "strike" for p u rp o s e s of 28 U.S.C. § 1915(g), and that the District Court certify that an in forma p a u p e ris appeal taken from the order and judgment dismissing this action would be f riv o lo u s and not taken in good faith. D A T E D this 9th day of January, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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