United States District Court, E.D. Arkansas, Pine Bluff Division
Richard Bower, Plaintiff, Pro Se.
PROPOSED FINDINGS AND RECOMMENDATIONS
VOLPE, Magistrate Judge.
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.
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
the record made before the Magistrate Judge is inadequate.
the evidence proffered at the hearing (if such a hearing is
granted) was not offered at the hearing before the Magistrate
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.
this submission, the District Judge will determine the
necessity for an additional evidentiary hearing. Mail your
objections and "Statement of Necessity" to:
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. Â§ 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. )
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
THEREFORE, RECOMMENDED that:
Plaintiff's Complaint (Doc. No. 2) be DISMISSED without
prejudice for failure to state a claim ...