Wortham v. Pocpm et al

Filing 12

ORDER adopting Report and Recommendations re 10 . Plaintiff's Complaint is dismissed. Clerk directed to place a § 1915(g) strike flag on this case. Signed by Honorable Susan O. Hickey on April 8, 2016. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
CLINTON DUDLEY WORTHAM, III
v.

PLAINTIFF

Case No. 4:14-cv-4103

POCPM; GARY D. GREGORY;
and HAYS MCWHIRTHER

DEFENDANTS
ORDER

Before the Court is the Report and Recommendation filed June 4, 2015, by the Honorable
Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 10).
Judge Bryant Recommends that Plaintiff’s Complaint (ECF No. 2) be dismissed. Plaintiff has
responded with objections.1 (ECF No. 11). The Court finds the matter ripe for consideration.
Plaintiff first objects to Judge Bryant’s finding that he has failed to state a claim under § 1983
that a correctional officer violated his constitutional rights by pointing a gun at his mother. As stated
by Judge Bryant, a claim that an individual’s constitutional rights have been violated is personal in
nature. See Broaderick v. Oklahoma, 413 U.S. 601, 610-611 (1973). Ordinarily, one individual
cannot assert a claim on behalf of another individual. See Johns v. County of San Diego, 114 F.3d 874,
876 (9th Cir. 1997) (citing C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987))
(“While a non-attorney may appear pro se on his own behalf, [h]e has no authority to appear as an
attorney for others than himself.”). Plaintiff makes no allegations that Defendant Pocpm took any
actions against Plaintiff, and Plaintiff cannot assert a claim on behalf of his mother. Thus, this claim
must fail.
Plaintiff next objects to Judge Bryant’s finding that he has failed to state a claim under § 1983
that his constitutional rights were violated when the mail he attempted to send to lawyers and the
media regarding the pointing of a gun at his mother never reached its destination. Plaintiff is
essentially challenging the finding that his First Amendment rights were not violated. The Court
1

Plaintiff filed his objections after the due date. The Court, however, will consider Plaintiff’s objections.

agrees with Judge Bryant’s finding that Plaintiff has not shown that the alleged isolated incidences of
his mail not arriving at its intended destination are sufficient to establish a constitutional violation. See
Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997). Plaintiff does not argue that this mail not
arriving has interfered with his right to counsel or access to the courts. Id. Further, Plaintiff has not
suggested that there was an ongoing practice of censorship or that the application of any policy resulted
in the alleged interference. See Murchison v. Rogers, 779 F.3d 882, 887 (8th Cir. 2015); White v.
Kautzky, 494 F.3d 677, 680 (8th Cir. 2007). By making broad allegations, Plaintiff has not
successfully framed his claim as a constitutional issue.
Plaintiff’s last objection challenges Judge Bryant’s finding that Plaintiff does not have an
independent constitutional right to a grievance procedure. The Court agrees with Judge Bryant’s
findings that inmates do not have an independent constitutional right to a grievance procedure. See
Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). The alleged failure to process Plaintiff’s
grievances is not actionable under § 1983 because Plaintiff has failed to show how Defendants’ actions
led to violations of his constitutional rights. Id. Thus, Plaintiff’s claim regarding his grievances fails
as a matter of law.
For the reasons stated above, based on its own de novo review, the Court overrules Defendant’s
objections and adopts the Report and Recommendation (ECF No. 10) in toto. The Court finds that
Plaintiff has failed to state a claim upon which relief may be granted. Accordingly, Plaintiff’s
Complaint (ECF No. 2) is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i-iii) and 1915A(a).
The dismissal constitutes a “strike” under 28 U.S.C. § 1915(g), and the Clerk is directed to place a §
1915(g) strike flag on the case.
IT IS SO ORDERED, this 8th day of April, 2016.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

2