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Mills v. Does

March 27, 2007

JON MILLS, ADC #86911 PLAINTIFF
v.
DOES DEFENDANTS



The opinion of the court was delivered by: Susan Webber Wright United States District Judge

MEMORANDUM AND ORDER

Introduction

Plaintiff, a state inmate proceeding pro se, seeks relief in a civil rights action under 42 U.S.C. § 1983 (#2), and has requested leave to proceed in forma pauperis under 28 U.S.C. § 1915 (#1). For the following reasons, Plaintiff's Complaint (#2) is dismissed with prejudice, and his request for leave to proceed in forma pauperis (#1) is denied.

Allegations of the Complaint

Plaintiff names the Governor of Arkansas, the Mayor of Benton, Arkansas, the "Saline County, County Judge," Phillip H. Shirron, Dan Harmon, Richard Garrett, Tamara Jane Pelton, and the Benton Police Department CID Division as Defendants in his Complaint demanding injunctive relief as well as compensatory and punitive damages. Plaintiff also mentions Larry Norris, Director of the Arkansas Department of Correction ("ADC"), in regard to a potential claim for denial of access to parole hearing documents. However, Plaintiff states that he has not filed any grievances or attempted to exhaust his administrative remedies on this potential claim because his current claims are not against ADC employees. Construing Plaintiff's complaint liberally, Plaintiff attempts to allege violations of his Due Process and Equal Protection rights through the following conduct: (1) criminal conspiracy and criminal deprivation of rights under 18 U.S.C. §§ 241 and 242; (2) denial of power-of-attorney given to Plaintiff so that Plaintiff could represent two inmates in their cases; (3) retaliation for filing lawsuits; (4) abuse of process in connection with filing false criminal charges against Plaintiff; (5) denial of parole revocation documents regarding a parole hearing on April 13, 1994; (6) insufficiency of evidence required to convict Plaintiff of rape; (7) failure of public officials to uphold their oaths of office; (8) denial of a "prompt first appearance" for 6000 days; (9) reckless indifference, bias and deceit by the named Defendants and unnamed Justices of the Arkansas Supreme Court; (10) conspiracy against taxpayers to overcrowd prisons; and (11) failure to uphold the law.

The Complaint must be dismissed as frivolous. Plaintiff attempts to sue parties for damages who are immune from such suits; he improperly attempts to sue parties who are not state actors under 42 U.S.C. § 1983; he attacks the validity of his state convictions even though the conviction has not been invalidated; he fails to state a claim for relief; and he lacks standing to sue on behalf of others not named as plaintiffs. Furthermore, most of the allegations contained in this Complaint have already been dismissed for failure to state a claim in a previous lawsuit, Mills v. Saline County, et al., Case No. 4:05CV475-SWW, thus precluding Plaintiff's attempt to proceed in forma pauperis in this lawsuit.

Background

Plaintiff, using variations of his name, has been involved in the filing of twenty separate lawsuits in this district.*fn1 None of Plaintiff's previous filings have resulted in a successful outcome for him. The vague and conclusory allegations involved in the present case are strikingly similar to at least two previous filings by Plaintiff, one a §1983 claim*fn2 and the other a habeas petition.*fn3 Plaintiff does not deny this fact, and openly admits that he has begun other lawsuits dealing with the same set of operative facts involved in this action, lawsuits that he contends were "dismissed wrongly."

Discussion

The Court is required to screen prisoner complaints seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §1915A. On review, the court shall dismiss any portion of the complaint that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). When an inmate seeks to proceed in forma pauperis, the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g), requires the Court to review the inmate's previous filing to determine if Plaintiff is eligible to proceed in forma pauperis. Section 1915(g) of the PLRA states:

[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on three (3) or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

As noted, Plaintiff has a long history of unsuccessful filings in this district. Yet based on guidance provided in Mills v. White, et. al., 182 Fed.Appx. 615, 2006 WL 1458312 (8th Cir. 2006) (unpublished), Plaintiff has not reached the "three strike" threshold that would preclude his ability to qualify for in forma pauperis status.

A. Due Process and Equal Protection

To prevail on a Due Process claim, Plaintiff must show that he improperly was deprived of life, liberty or property by government action. Phillips v. Norris, 320 F.3d 844, 846 (8th Cir. 2003). Based on Plaintiff's allegations, the only cognizable deprivation is a potential liberty interest. An inmate's liberty interests are limited to freedom from restraint which imposes an atypical and significant hardship in relation to the ordinary incidents of prison life. Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300 (1995). Plaintiff alleges that the named public officials failed to follow the law and failed to uphold their oaths of office. Construing Plaintiff's complaint liberally, Plaintiff's numerous allegations stem from this alleged failure to follow the law. These allegations do not state a claim for relief because there is no federal ...


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