Collins v. Lane

Filing 2

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)

Download PDF
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 II. 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, 2 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. 4 DATED this 30th day of October, 2009. ____________________________________ UNITED STATES MAGISTRATE JUDGE 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?