McCorkle v. Arkansas County Detention Center et al

Filing 7

REPORT AND RECOMMENDATIONS that pltf's complt be dismissed without prejudice for failure to state a claim upon which relief may be granted 2 . This dismissal count as a "strike" for purposes of 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 2/27/2009. Signed by Magistrate Judge H. David Young on 2/13/2009. (lej)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION RICHARD McCORKLE, JR. V. ARKANSAS COUNTY DETENTION CENTER et al. PROPOSED FINDINGS AND RECOMMENDATIONS INS T RUCT IONS The following recommended disposition has been sent to United States District Judge James M. Moody. 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. The detail of any testimony desired to be introduced at the 1 NO: 5:09CV00011 JMM/HDY DEFENDANTS PLAINTIFF 3. 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, currently held at the Arkansas County Detention Center, filed this pro se complaint pursuant to 42 U.S.C. 1983, on January 13, 2009, seeking damages for allegedly wrongful confinement, and "bad treatment." Plaintiff contends that he has been wrongfully incarcerated for furnishing prohibited articles, and seems to contest his being held for an unrelated charge. 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, 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 his 2 `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 Plaintiff's complaint should be dismissed pursuant to Heck v. Humphrey, 512 U.S. 477, 4867 (1994). In Heck, the Court held that if a judgment in favor of a prisoner in a 1983 action would necessarily imply the invalidity of the conviction, continued imprisonment, or sentence, then no claim for damages lies unless the conviction or sentence is reversed, expunged or called into question by issuance of a federal writ of habeas corpus. In this particular case, Plaintiff is asking the Court to order that he be paid or compensated based on his incarceration. There is no indication that Plaintiff's sentence has been reversed, expunged or called into question by issuance of a federal writ of habeas corpus. If the Court were to find in Plaintiff's favor, it would certainly imply the invalidity of his continued imprisonment. Thus, Plaintiff's complaint falls within Heck, supra, and must be dismissed for failure to state a claim upon which relief may be granted. To the extent that Plaintiff may be seeking his release, the Court notes that such relief is not 3 appropriate in a 1983 claim, but must be sought t in a habeas action. See Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) (state prisoners may use only habeas remedies when they seek to invalidate duration of confinement, either directly through injunction compelling speedier release or indirectly through judicial determination that necessarily implies unlawfulness of State's custody); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (challenge to fact or duration of confinement must be through habeas corpus). III. Conclusion IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's complaint be DISMISSED WITHOUT 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 13 day of February, 2009. UNITED STATES MAGISTRATE JUDGE 4

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