Opinion
4:16CV00609-BSM-JTK
11-10-2016
JOSH BRITTON, ADC #163838 PLAINTIFF v. PULASKI COUNTY REGIONAL DETENTION FACILITY DEFENDANT
PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The following recommended disposition has been sent to United States District Judge Brian S. Miller. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
Clerk, United States District Court
Eastern District of Arkansas
600 West Capitol Avenue, Suite A149
Little Rock, AR 72201-3325
DISPOSITION
Plaintiff Britton originally filed this pro se 42 U.S.C. § 1983 action while incarcerated at the Pulaski County Regional Detention Facility (Jail) (Doc. No. 1). He notified the Court of his change in address, to the Grimes Unit of the Arkansas Department of Correction (ADC), on October 7, 2016 (Doc. No. 9).
By Order dated September 14, 2016, this Court granted Plaintiff's Motion to Proceed in forma pauperis (IFP), and directed him to file an Amended Complaint in thirty days, noting that the sole Defendant Jail is not considered a "person" within the meaning of 42 U.S.C. § 1983 (Doc. No. 4). The Court also provided directions about how to amend his Complaint, such as naming all the parties he believes deprived him of his constitutional rights and providing specific facts against each named Defendant. (Id., p. 4) The Court further cautioned Plaintiff that failure to file an Amended Complaint could result in the dismissal of his action, for failure to prosecute, pursuant to Local Rule 5.5(c)(2). The copy of the Order sent to Plaintiff at the Jail was returned to Sender on September 21, 2016 (Doc. No. 8), and remailed to him at his new address (Grimes Unit) on October 7, 2016 (Doc. No. 9). As of this date, however, Plaintiff has not submitted an Amended Complaint.
As noted in the September 14, 2016 Order, the sole named Defendant, Pulaski County Regional Detention Facility (Jail), is not considered a "person" within the meaning of 42 U.S.C. § 1983. See Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (holding that police and sheriff's departments are not usually considered legal entities subject to suit); Ketchum v. City of West Memphis, 974 F.2d 81 (8th Cir. 1992) (holding that the West Memphis Police Department and Paramedic Services are departments or subdivisions of the City government and not separate juridical entities). Therefore, absent submission of an Amended Complaint designating individuals as Defendants and setting forth specific facts against those Defendants, the Court finds Plaintiff's Complaint should be dismissed, for failure to state a claim upon which relief may be granted.
IT IS, THEREFORE, RECOMMENDED that:
1. Plaintiff's Complaint against Defendants be DISMISSED without prejudice, for failure to state a claim upon which relief may be granted.
2. Dismissal of this action constitute a "strike" within the meaning of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g).
The statute provides that a prisoner may not file an in forma pauperis civil rights action or appeal if the prisoner has, on three or more prior occasions, filed an action or appeal that was dismissed as frivolous, malicious or for failure to state a claim, unless the prisoner is under imminent danger of serious physical injury. --------
3. The Court certify that an in forma pauperis appeal from an Order and Judgment dismissing this action would not be taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3).
IT IS SO RECOMMENDED this 10th day of November, 2016.
/s/_________
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE