United States District Court, E.D. Arkansas, Jonesboro Division
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
Delosangeles Harper filed a pro se complaint
pursuant to 42 U.S.C. § 1983 on November 6, 2017, while
incarcerated at the Craighead County Detention Facility (Doc.
No. 1). Harper was subsequently granted leave to proceed
in forma pauperis on November 27, 2017, and ordered
to file an amended complaint describing who he intended to
sue and how he was injured by the defendant's actions.
See Doc. No. 4. Harper was also instructed to
describe specific facts to show how the defendant violated
his constitutional rights. Id. Harper filed an
amended complaint on December 5, 2017. See Doc. No.
5. For the reasons stated herein, Harper'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 to
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).
seeks compensation for medical negligence and abuse of
authority because Officer A. Volner allegedly told a nurse to
send his HIV medications to the jail, and these medications
are expensive. See Doc. No. 5 at 3-4. The very few
facts provided by Harper are insufficient to state a
constitutional claim. To state a claim under 42 U.S.C. §
1983, a plaintiff must allege that the conduct of a defendant
acting under color of state law deprived him of a right,
privilege, or immunity secured by the United States
Constitution or by federal law. 42 U.S.C. § 1983. Harper
does not identify any constitutional right that has been
violated,  and he does not state how he has been
injured. Further, even if he alleged facts that
described medical negligence, the Eighth Circuit has held
that to state an Eighth Amendment inadequate medical care
claim, a “prisoner must show more than negligence, more
even than gross negligence, and mere disagreement with
treatment decisions does not rise to the level of a
constitutional violation.” Estate of Rosenberg by
Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995).
reasons stated herein, it is recommended that:
1. Harper's complaint 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”
within the meaning 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
the order adopting this recommendation ...