United States District Court, E.D. Arkansas, Jonesboro Division
May 28, 2015
NICHOLAS CORTEZ ADDISON, Plaintiff,
JANE DOE, Philis, Kitchen Cook; et al., Defendant.
PROPOSED FINDINGS AND RECOMMENDATIONS
JOE J. VOLPE, Magistrate Judge.
The following recommended disposition has been sent to United States District Judge D. P. Marshall, Jr. 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 (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the new hearing 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 new hearing.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and "Statement of Necessity" to:
Nicholas Cortez Addison ("Plaintiff") filed this action pro se and pursuant to 42 U.S.C. § 1983. After review of Plaintiff's Amended Complaint (Doc. No. 7), the Court finds that he has failed to state any claim upon which relief may be granted.
The Prison Litigation Reform Act (PLRA) requires federal courts to screen prisoner complaints seeking relief against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
An action is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Whether a plaintiff is represented by counsel or is appearing pro se, his complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.1985).
An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The factual allegations must be weighted in favor of Plaintiff. Denton v. Hernandez, 504 U.S. 25, 32 (1992). "In other words, the § 1915(d) frivolousness determination, frequently made sua sponte before the defendant has even been asked to file an answer, cannot serve as a fact-finding process for the resolution of disputed facts." Id.
Plaintiff initially brought this action alleging that Defendant Jane Doe was denying him adequate nutrition by putting too much water in his prison meals. (Doc. No. 2 at 2.) Additional information was needed to complete the mandated screening process and the Court invited him to submit an Amended Complaint. (Doc. No. 5.) He has done so, and the Court will look exclusively to that filing in determining the scope of this action. See In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000) ("[A]n amended complaint supercedes an original complaint and renders the original complaint without legal effect.").
Plaintiff has left the Statement of Claim in his Amended Complaint blank. (Doc. No. 7 at 4.) Additionally, he has failed to specify what relief, if any, he seeks. ( Id. at 5.) The lone attachment to the Amended Complaint is a grievance form which asks when a new menu will be approved at the Poinsett County Detention Facility. ( Id. at 6.) An official response to that grievance states that the menu will be implemented upon approval. ( Id. ) No actionable claim against either Defendant Jane Doe or Defendant Wander Humpheis can be interpreted from the Amended Complaint. Accordingly, the Court recommends that this action be dismissed without prejudice for failure to state a claim upon which relief may be granted.
IT IS THEREFORE RECOMMENDED that:
1. Plaintiff's Amended Complaint (Doc. No. 7) be DISMISSED without prejudice for failure to state a claim upon which relief may be granted.
2. Dismissal of this action count as a "strike" for purposes of 28 U.S.C. § 1915(g).
3. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any Order adopting these recommendations would not be taken in good faith.