Bell v. Norris et al

Filing 5

RECOMMENDED DISPOSITION recommending that 2 Plaintiff's 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 st rike for 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 8/24/2009. Signed by Magistrate Judge Beth Deere on 8/10/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION

A N D R E W JAMES BELL, ADC #140259 V. L A R R Y NORRIS, et al. C A S E NO. 5:09CV00212 BSM/BD

P L A IN T IF F

DEFENDANTS

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e s for Filing Objections The following recommended disposition has been sent to United States District J u d g e Brian S. Miller. 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 s is for the objection. If the objection is to a factual finding, specifically identify that fin 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 receipt of the recommendations. A copy will be furnished to th e opposing party. Failure to file timely objections may result in a waiver of the right to a p p e a l questions of fact. M a il your objections and/or request for a hearing to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325

II.

I n t r o d u c t io n P la in tiff, an inmate at the Arkansas Department of Correction ("ADC"), brings this

a c tio n pro se under 42 U.S.C. § 1983 (docket entry #2), along with a motion for leave to p ro c e e d in forma pauperis (#1). For the following reasons, this Court recommends that P la in tiff's Complaint (#2) be DISMISSED with prejudice, and that his motion for leave to p ro c e e d in forma pauperis (#1) be DENIED as moot. In addition, the Court recommends th a t the dismissal count as a "strike" for purposes of 28 U.S.C. § 1915(g), and that the D is tric t Court certify that an in forma pauperis appeal taken from the order and judgment d is m is s in g this action would be frivolous and not taken in good faith. III. B ackground In the Complaint, Plaintiff alleges that Defendants violated his Fourteenth A m e n d m e n t right to Due Process by failing to process his administrative grievances. Plaintiff contends that he has a constitutional right to exhaust his administrative remedies th ro u g h the grievance procedure. Though Plaintiff mentions being struck by a prison o ffic e r, it appears clear from the Complaint that he is only pursuing a Fourteenth A m e n d m e n t claim in this action. Accordingly, this Recommended Disposition does not a d d re s s Plaintiff's potential Eighth Amendment claim. IV. D is c u s s io n A. S ta n d a r d

F e d e ra l courts are required to screen prisoner complaints seeking relief against a g o v e rn m e n ta l entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court must 2

dismiss a complaint or portion thereof if the prisoner has raised claims that are frivolous, m a lic io u s , fail to state a claim upon which relief may be granted, or seek monetary relief fro m a defendant who is immune from such relief. 28 U.S.C § 1915A(b). To 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 her of a right, privilege, or im m u n ity secured by the federal Constitution or laws of the United States. 42 U.S.C. § 1 9 8 3 . While a court must accept the factual allegations in the complaint as true and hold a plaintiff's pro se complaint "to less stringent standards than formal pleadings drafted by la w y e rs ," Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), a plaintiff still m u s t assert facts sufficient to state a claim as a matter of law. Martin v. Sargent, 780 F .2 d 1334, 1337 (8th Cir. 1985). Even construing Plaintiff's Complaint liberally, he fails to state a claim upon which relief may be granted. B. D u e Process

T o prevail on a Fourteenth Amendment Due Process claim, Plaintiff must d e m o n s tra te that he was deprived of life, liberty or property by government action. Phillips v. Norris, 320 F.3d 844, 846 (8th Cir. 2003). The only cognizable interest c la im e d in this case is a liberty interest. Inmates, however, have no liberty interest in the a d m in is tra tiv e remedy procedure. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). In addition, Plaintiff has no constitutional interest in having state officers follow state law o r prison officials follow prison regulations. Kennedy v. Blankenship, 100 F.3d 640, 643

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(8th Cir. 1996). Accordingly, Defendants' alleged failure to process Plaintiff's g rie v a n c e s is not actionable under 42 U.S.C. § 1983. V. C o n c lu s io n : T h e Court recommends that Plaintiff's Complaint (#2) be DISMISSED WITH P R E J U D IC E , and that his motion for leave to proceed in forma pauperis (#1) be D E N IE D as moot. In addition, the Court recommends that the dismissal count as a " s trik e " for purposes of 28 U.S.C. § 1915(g), and that the District Court certify that an in fo r m a pauperis appeal taken from the order and judgment dismissing this action would be friv o lo u s and not taken in good faith. D A T E D this 10th day of August, 2009.

_____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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