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Bower v. Arkansas Department of Correction

United States District Court, E.D. Arkansas, Pine Bluff Division

July 29, 2016

RICHARD BOWER, ADC #144498, Plaintiff,
v.
ARKANSAS DEPARTMENT OF CORRECTION, Defendant.

          Richard Bower, Plaintiff, Pro Se.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          JOE J. VOLPE, Magistrate Judge.

         INSTRUCTIONS

         The following partial 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:

         DISPOSITION

         Richard Bower ("Plaintiff") is incarcerated at the Cummins Unit of the Arkansas Department of Correction ("ADC"), and filed this action pro se pursuant to 42 U.S.C. § 1983. (Doc. No. 2.) Plaintiff claims because he has been sleeping on ADC mattresses for eight years, he has developed sores on both hips. ( Id. ) He alleges the mattresses are insufficient because they are essentially two inch "styrofoam mat[s]." ( Id. at 1.) After filing grievances and receiving no relief, he filed this action claiming ADC is deliberately indifferent to his serious medical need. ( Id. )

         As a part of the screening process, I notified Plaintiff that he failed to state a claim upon which relief may be granted. (Doc. No. 3 at 2.) Plaintiff was given thirty (30) days to cure the Complaint's defects or I would recommend dismissal. ( Id. ) Plaintiff's Complaint is deficient because he has sued only the Arkansas Department of Correction. And it is settled law that neither the Arkansas Department of Correction nor any of its prison facilities are suable under section 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 & 70 (1989) (a state and its agencies are not "persons" within the meaning of section 1983); see also Quern v. Jordan, 440 U.S. 332, 345 (1979) (section 1983 does not abrogate a state's Eleventh Amendment immunity); Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en banc) (holding that a state agency may not be sued under section 1983).

         IT IS, THEREFORE, RECOMMENDED that:

         1. Plaintiff's Complaint (Doc. No. 2) be DISMISSED without prejudice for failure to state a claim ...


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