Collins v. Lane
RECOMMENDED DISPOSITION recommending that 1 Plaintiff's Complaint be dismissed with prejudice; this dismissal will count as a "strike" for purposes of 28 USC 1915(g), and the court certifies that an ifp appeal taken from the order an d judgment dismissing this action would be frivolous and not taken in good faith; objections are due no later than 11 days from the receipt of these recommendations. Signed by Magistrate Judge Beth Deere on 10/30/09. (hph) (The docket text was modified on 11/2/2009 to add language regarding "strike" and objection ddl. (mkf)
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION K I N G R A L E COLLINS, ADC #SK945 V. LANE 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 C A S E NO. 5:09CV00324 BSM/BD DEFENDANT
P L A IN T IF F
I n t r o d u c t io n : P la in tiff, an inmate at the Varner Supermax Unit of the Arkansas Department of
C o rre c tio n ("ADC"), brings this action pro se under 42 U.S.C. § 1983 (docket entry #1). Plaintiff has not filed a motion for leave to proceed in forma pauperis or paid the s ta tu to ry filing fee. For the following reasons, this Court recommends that Plaintiff's C o m p la in t (#1) be DISMISSED WITH PREJUDICE. 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: P la in tiff alleges that on October 2, 2009, he noticed a couple of ants in his b re a k fa s t apple juice cup. Plaintiff states that he told Defendant Lane about the ants and re q u e s te d more juice. Plaintiff alleges Defendant Lane refused this request, in violation o f ADC policy. Plaintiff seeks $75,000.00 for the alleged cruel and unusual punishment in violation of his Eighth Amendment rights. 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 d is m is s a complaint or portion thereof if the prisoner has raised claims that are frivolous,
malicious, 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 him of a right, privilege, o r immunity secured by the federal Constitution or laws of the United States. 42 U.S.C. § 1983. The Court must accept the factual allegations in the complaint as true and hold a p la in tiff'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). Even so, a p la in tiff must plead facts with enough specificity so as "to raise a right to relief above the s p e c u la tiv e level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1 9 6 5 (2007)(citations omitted). A complaint cannot simply "[leave] open the possibility th a t a plaintiff might later establish some `set of undisclosed facts' to support recovery." Id. at 1968 (citation omitted). Rather, the facts set forth in the complaint must be s u ffic ie n t to "nudge the[ ] claims across the line from conceivable to plausible." Id. at 1 9 7 4 . Even construing the Complaint in this case liberally, it fails to state a claim upon w h ic h relief may be granted. B. E ig h th Amendment
A d e q u a te nourishment to maintain health is a basic human need protected by the E ig h th Amendment. Keenan v. Hall, 89 F.3d 1083, 1091 (8th Cir. 1996). Plaintiff, h o w e v e r, does not allege inadequate nourishment. He alleges one instance of finding ants in his juice. This allegation falls far short of a constitutional violation. See e.g., Curtis v. 3
West, 253 F.3d 701 (5th Cir. 2001) (claim that prisoner missed a meal was properly d is m is s e d as frivolous); LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) ("The fact th a t the food occasionally contains foreign objects . . . , while unpleasant, does not a m o u n t to a constitutional violation."); Hamm v. DeKalb County, 774 F.2d 1567, 1575 (1 1 th Cir. 1985) (same). P la in tiff alleges that Defendant Lane's refusal to get him more juice violated ADC p o lic y . A state officials failure to follow state law or policy does not provide the basis for a constitutional violation. Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996). Because Plaintiff's claims are frivolous and cannot state a claim for relief, this action s h o u ld be DISMISSED WITH PREJUDICE. V. C o n c lu s io n : T h e Court recommends that Plaintiff's Complaint (#1) be DISMISSED WITH P R E J U D IC E . In addition, the Court recommends that the dismissal count as a "strike" fo r purposes 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 friv o lo u s and not taken in good faith.
DATED this 30th day of October, 2009.
____________________________________ UNITED STATES MAGISTRATE JUDGE
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