Banks-Davis et al v. Paul et al

Filing 27

ORDER. IT IS HEREBY ORDERED: 1. Plaintiff Lennora R. Banks-Davis's letter request for an extension of the deadline to file an objection to the Report and Recommendation until January 3, 2017 25 is GRANTED. 2. The Court ADOPTS the Repo rt and Recommendation of United States Magistrate Judge Franklin L. Noel filed December 13, 2016 24 . 3. This action is SUMMARILY DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915A. 4. Plaintiff's motions for emergency relief 3 22 are DENIED. 5. Plaintiff's application to proceed in forma pauperis 2 is DENIED. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Judge Michael J. Davis on 2/2/17. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

LENNORA R. BANKS-DAVIS,

Plaintiff,

v.

ORDER
Civil File No. 16-1729 (MJD/FLN)

DAVID PAUL, Warden, et al.,
Defendants.
Lennora R. Banks-Davis, pro se.

The above-entitled matter comes before the Court upon the Report and
Recommendation of United States Magistrate Judge Franklin L. Noel filed
December 13, 2016. Plaintiff Lennora R. Banks-Davis sent a letter to the Court
requesting an extension to file her response until January 3, 2017. [Docket No.
25] The Court grants that request. In response to the Report and
Recommendation, on January 5, Plaintiff filed a Second Amended Complaint.
[Docket No. 26] Plaintiff did not file objections to the Report and

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Recommendation. The Court will consider the Second Amended Complaint as a
request to amend Plaintiff’s Amended Complaint.
Leave to amend a complaint shall be given “freely . . . when justice so
requires,” Fed. R. Civ. P. 15(a)(2), and a court must construe a pro se complaint
liberally, Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996). However, “a court
may deny the motion based upon a finding of undue delay, bad faith, dilatory
motive, repeated failure to cure deficiencies in previous amendments, undue
prejudice to the non-moving party, or futility.” Baptist Health v. Smith, 477 F.3d
540, 544 (8th Cir. 2007). In this case, the Court concludes that Plaintiff’s motion
to amend is futile because the proposed Second Amended Complaint fails to
state a claim upon which relief may be granted.
The proposed Second Amended Complaint names the following
Defendants: Attorney General Loretta Lynch, FCI Waseca Warden David Paul,
Interim Director of the Bureau of Prisons Thomas Kaine, and former Bureau of
Prisons Director Charles Samuels. Although Plaintiff also wrote “* additional
sheet attached,” no other Defendants are named anywhere else in the filing.
Plaintiff’s Second Amended Complaint requests “proper medical treatment” and
asserts that the prison grievance procedure is not “meaningful and functional.”

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(Second Am. Compl. at 3, 5.) The allegations regarding the prison grievance
procedure are vague and conclusory. Plaintiff’s Second Amended Complaint
does provide details regarding her medical treatment. However, it does not
allege that any of the named Defendants were personally involved in or had
direct responsibility for incidents that injured Plaintiff. The only individuals
alleged to have ignored Plaintiff’s medical issues are Dr. Lauring and Dr.
Harvey. (Second Am. Compl. at pp. 9, 16.) Neither Lauring nor Harvey are
named as Defendants in the Second Amended Complaint. Harvey was named as
a Defendant in previous complaints; Lauring has not ever been named.
Additionally, Plaintiff fails to allege that they acted with a mental state akin to
criminal recklessness. Thus, the Court denies Plaintiff’s request to file her
Second Amended Complaint as futile.
Pursuant to statute, the Court has conducted a de novo review upon the
record. 28 U.S.C. § 636(b)(1); Local Rule 72.2(b). Based upon that review, the
Court adopts the Report and Recommendation of United States Magistrate Judge
Noel filed December 13, 2016, and denies Plaintiff’s request to file the proposed
Second Amended Complaint.

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Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
1. Plaintiff Lennora R. Banks-Davis’s letter request for an extension of the
deadline to file an objection to the Report and Recommendation until
January 3, 2017 [Docket No. 25] is GRANTED.
2. The Court ADOPTS the Report and Recommendation of United States
Magistrate Judge Franklin L. Noel filed December 13, 2016 [Docket No.
24].
3. This action is SUMMARILY DISMISSED WITHOUT
PREJUDICE pursuant to 28 U.S.C. § 1915A.
4. Plaintiff’s motions for emergency relief [Docket Nos. 3, 22] are
DENIED.
5. Plaintiff’s application to proceed in forma pauperis [Docket No.
2] is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: February 2, 2017

s/ Michael J. Davis
Michael J. Davis
United States District Court

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