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Gamble v. Little Rock School District

United States District Court, E.D. Arkansas, Western Division

April 29, 2016

VERONICA GAMBLE, Guardian and Next Friend of L.M., a minor, Plaintiff,
v.
LITTLE ROCK SCHOOL DISTRICT, et al., Defendants.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          JEROME T. KEARNEY, Magistrate Judge.

         Instructions

         The following recommended disposition has been sent to United States District Judge J. Leon Holmes. Plaintiff 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 Clerk no later than fourteen (14) days from the date of the findings and recommendations. 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 United States District Judge, you must, at the same time that you file your written objections, include a "Statement of Necessity" that sets forth the following:

1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the requested hearing before the United States District Judge was not offered at the hearing before the Magistrate Judge.
3. An offer of proof setting forth the details of any testimony or other evidence (including copies of any documents) desired to be introduced at the requested hearing before the United States District Judge.

         From this submission, the United States 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:

         Disposition

         This matter was referred to the undersigned for recommended disposition, as appropriate, of all pretrial matters. Pending before the Court are Plaintiff's Motion for Leave to Proceed in forma pauperis (DE #1) and Motion to Appoint Counsel (DE #3).

         The Complaint is illegible at times and lacks compliance with the Federal Rules of Civil Procedure. Plaintiff Gamble is the parent or guardian of L.M., the named minor in this matter. Pursuant to Fed.R.Civ.P. 5.2, and to protect the privacy of the named minor, the Clerk is directed to restyle the case as Veronica Gamble, Guardian and Next Friend of L.M., a minor. The original complaint is ordered to be placed under seal.

         Along with the Complaint, Plaintiff submitted an application to proceed in forma pauperis (DE #1). Based on the declaration submitted with the application, the Court grants the application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

         The in forma pauperis statute requires the Court to perform a screening function and to dismiss certain types of suits; the statute requires that a lawsuit be dismissed if it is (1) frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). While sua sponte dismissals are disfavored, "[s]ection 1915(e)(2)(B) applies to both prisoner and non-prisoner in forma pauperis cases." Fletcher v. Jasper Police Dep't, Case No. 1:09-cv-977, 2012 WL 5878807 (E.D. Tex. Oct. 18, 2012) (citing Newsome v. EEOC,301 F.3d 227, 231-33 (5th Cir. 2002)). See also Charles Alan Wright, et al., 16AA Fed, Prac. & Proc. Juris. § 3970 (4th ed.) ("The [Prison Litigation Reform Act (PRLA)] also made some changes that affect non-prisoner litigants. In particular, the PRLA amended what is now Section 1915(e)(2) concerning the dismissal of a case. The current statutory language is mandatory (shall dismiss') and adds to the list of reasons for dismissal that the action fails to state a claim or that it seeks monetary relief against a defendant who is immune from such relief."); Bey v. Superior Protection, Inc., Case No. 4:08-cv-04191 JLH, 2009 WL 1058054 (E.D. Ark. Apr. 20, 2009) ("Although many of the provisions in § 1915 specifically refer to and apply only to prison inmates, the language in § 1915(e)(2) does not distinguish between prisoner and non-prisoner complaints. Under this provision, the court must dismiss a complaint at any time it determines the claims raised are ...


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