Johnson v. Flynn et al

Filing 12

RECOMMENDED DISPOSITION recommending that the District Court dismiss the 1 Complaint without prejudice, under Local Rule 5.5(c)(2) and for failure to state a claim upon which relief may be granted. Objections to R&R due by 6/1/2009. Signed by Magistrate Judge Beth Deere on 5/18/09. (hph)

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IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION C A R R O L L JOHNSON A D C # 138237 V. S H E R I FLYNN, 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 T h e following Recommended Disposition has been sent to United States District Ju d g e William R. Wilson, Jr. 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 C A S E NO. 5:09CV00034 WRW/BD DEFENDANTS P L A IN T IF F II. B a c k gro u n d O n February 2, 2009, Plaintiff filed this action under 42 U.S.C. 1983 (docket e n try #1). This Court ordered Plaintiff to file an application to proceed in forma pauperis o r pay the statutory filing fee (#2). The next day, Plaintiff paid the statutory filing fee (#4 ). O n March 16, 2009, this Court ordered Plaintiff to file an amended complaint (#5). On April 6, 2009, Plaintiff moved to extend the time to file an amended complaint (#9) a n d this Court granted his motion. Despite this extension, Plaintiff has failed to file an a m e n d e d complaint within the extended time allotted by Order (#10). Plaintiff was warned (#5, #10) that failure to file an amended complaint as ordered c o u ld result in dismissal of his action under Local Rule 5.5(c)(2) of the Eastern District of A rk a n sa s and the Federal Rules of Civil Procedure. Plaintiff has not responded to the C o u rt's Order and the time for doing so has passed. Despite two separate Orders and an e x te n s io n of time, Plaintiff has failed to file an amended complaint. Accordingly, P la in tif f 's complaint should be DISMISSED without prejudice. II I. A n a ly sis In addition to failing to follow the local rules and Court Orders, Plaintiff's current c o m p la in t (#1) fails to state a claim upon which relief may be granted. To state a c o g n iz a b le claim under 42 U.S.C. 1983, a plaintiff must allege that the conduct of a 2 d e f e n d a n t acting under color of state law deprived him of a right, privilege, or immunity s e c u re d by the federal Constitution or laws of the United States. 42 U.S.C. 1983. In the present case, Plaintiff alleges that numerous individuals failed to follow the p ro c e d u re s in the Sex Offender Registration Act of 1997. A state official's failure to f o llo w state law, however, does not give rise to an action under 42 U.S.C. 1983. Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996). Plaintiff also alleges that the state court judge 1 did not have the legal authority to se n ten c e him as a violent sexual predator. Insofar as Plaintiff is challenging his c o n v i c tio n and sentence, this action is Heck barred. Until Plaintiff's conviction is re v e rs e d , expunged, or called into question by a state tribunal or federal court, he cannot p re v a il under 42 U.S.C. 1983. See Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1 9 9 4 ) (where success in a prisoner's 1983 action would implicitly question the validity o f a conviction, the litigant must first successfully challenge the underlying conviction or s e n te n c e ). Plaintiff also alleges that the Sex Offender Assessment Committee failed to c o n d u c t a proper assessment. If this complaint regards the administrative process in v o lv e d in the sex offender classification, Plaintiff's immediate remedy lies with the s ta te through the administrative procedures act. ARK. CODE ANN. 25-15-201, et seq. 1 The Honorable Chris Piazza, Pulaski County Circuit Judge. 3 F o r a number of reasons, Plaintiff's complaint should be dismissed. Depending on th e exact nature of Plaintiff's grievance, he may be able to bring a similar action in the f u tu re . Accordingly, this dismissal should be without prejudice. IV. C o n c lu s io n T h e Court recommends that the District Court dismiss the Complaint (#1) without p re ju d ic e , under Local Rule 5.5(c)(2) and for failure to state a claim upon which relief m a y be granted. DATED this 18th day of May, 2009. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE 4

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