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)

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

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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.

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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

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