United States District Court, E.D. Arkansas, Eastern Division
WILLIAM SHANE COWART Reg. #10438-003 PLAINTIFF
JOHNATHAN FUTRELL, et al. DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to United States District Judge James M. Moody Jr. You may
file written objections to all or part of this
Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your
objection, and (2) be received by the Clerk of this Court
within fourteen (14) days of this Recommendation. By not
objecting, you may waive the right to appeal questions of
William Shane Cowart filed a pro se complaint on
August 22, 2017, while incarcerated at the Edgefield Federal
Correctional Institute (Doc. No. 2). Cowart was granted leave
to proceed in forma pauperis on August 23, 2017, and
ordered to file an amended complaint describing the facts
supporting his claim (Doc. No. 3). Cowart was also ordered to
explain why he named defendant Futrell in his official
capacity only. Id. Cowart filed his amended
complaint on October 23, 2017, naming additional defendants
and indicating he is suing them in their official capacities
only. See Doc. No. 6 at 2. For the reasons stated
herein, Cowart's claims should be dismissed for failure
to state a claim upon which relief may be granted.
docketing the complaint, or as soon thereafter as
practicable, the Court must review the complaint to identify
cognizable claims or dismiss the complaint if it: (1) is
frivolous or malicious; (2) fails to state a claim upon which
relief may be granted; or (3) seeks monetary relief against a
defendant who is immune from such relief. See 28
U.S.C. § 1915A. Rule 8 of the Federal Rules of Civil
Procedure requires only “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” In Bell Atlantic Corporation v.
Twombly, 550 U.S. 544, 555 (2007), the Court stated,
“a plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do. . . . Factual allegations must be enough to
raise a right to relief above the speculative level, ”
citing 5 C. Wright & A. Miller, Federal Practice
and Procedure § 1216, pp. 235-236 (3d ed. 2004). A
complaint must contain enough facts to state a claim for
relief that is plausible on its face, not merely conceivable.
Twombly at 570. However, a pro se
plaintiff's allegations must be construed liberally.
Burke v. North Dakota Dept. of Corr. & Rehab.,
294 F.3d 1043, 1043-1044 (8th Cir.2002) (citations omitted).
sues three federal correctional officers at the Forrest City
Federal Correctional Institution in Forrest City, Arkansas,
the Federal Bureau of Prisons, and the Department of Justice.
Cowart seeks $250, 000 in damages and claims he suffered
cruel and unusual punishment and denial of medical care.
Although his complaint was filed on a § 1983 civil
rights form, the Court treats the complaint as one brought
pursuant to Bivens v. Six Unknown Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388 (1971)
(“Bivens”). A Bivens claim is a cause of
action brought directly under the United States Constitution
against a federal official acting in his or her individual
capacity for violations of constitutionally protected rights.
“An action under Bivens is almost identical to
an action under section 1983, except that the former is
maintained against federal officials while the latter is
against state officials.” Gordon v. Hansen,
168 F.3d 1109, 1113 (8th Cir. 1999). A Bivens action
may not be brought against federal agencies or agents acting
in their official capacities because such claims are barred
by sovereign immunity. See Buford v. Runyon, 160
F.3d 1199, 1203 (8th Cir. 1998). Because Cowart sues federal
agencies and individual defendants in their official
capacities only, Cowart's complaint fails to state a
claim upon which relief may be granted and should be
reasons stated herein, it is recommended that:
Cowart's complaint be dismissed without prejudice for
failure to state a claim upon which relief may be granted.
Dismissal of this action count as a “strike”
within the meaning of 28 U.S.C. § 1915(g).
Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that
an in forma pauperis appeal from the order adopting