United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to United States District Judge D.P. Marshall 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
Rickey Terrell Givens, an inmate at the Barbara Ester Unit of
the Arkansas Department of Corrections (ADC), filed a pro
se complaint pursuant to 42 U.S.C. § 1983 alleging
that his constitutional rights were violated. See
Doc. No. 1. Givens was granted leave to proceed in forma
pauperis on December 1, 2017 (Doc. No. 6). Givens was
subsequently ordered to file an amended complaint identifying
claims relating to only one issue; containing a short
statement of the specific role each defendant had in the
alleged constitutional violations; describing the injuries he
sustained; and specifying whether he is suing defendants in
their individual and/or official capacities. See
Doc. No. 7. Givens filed an amended complaint on December 29,
2018 (Doc. No. 8). For the reasons described herein, the
undersigned finds Givens fails to state a claim for relief
and his complaint should be dismissed without prejudice.
law requires courts to screen prisoner complaints. 28 U.S.C.
§ 1915A, 1915(e)(2). Claims that are legally frivolous
or malicious; that fail to state a claim for relief; or that
seek money from a defendant who is immune from paying damages
should be dismissed before the defendants are served. 28
U.S.C. § 1915A, 1915(e)(2). Although a complaint
requires only a short and plain statement of the claim
showing that the pleader is entitled to relief, the factual
allegations set forth therein must be sufficient to raise the
right to relief above the speculative level. See
Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corporation v.
Twombly, 550 U.S. 544, 555 (2007) (“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. . . .”).
While construed liberally, a pro se complaint must
contain enough facts to state a claim to relief that is
plausible on its face, not merely conceivable.
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. Givens claims that his constitutional
rights were violated due to loopholes in the ADC's
grievance procedures. See Doc. No. 5 at 2. Givens
sues the ADC, Lieutenant Baker, Sergeant Baker, Sergeant
Morris, Sergeant Wilkerson, and Sergeant McCoulgh on this
claim. The ADC is not a person subject to suit under §
1983. See Brown v. Missouri Department of
Corrections, 353 F.3d 1038, 1041 (8th Cir. 2004).
Additionally, inmates do not have a constitutionally
protected right to a grievance procedure. See Flick v.
Alba, 932 F.2d 728, 729 (8th Cir. 1991) (per curiam)
(federal grievance regulations providing for administrative
remedy procedure do not create liberty interest in access to
that procedure). “‘[A prison] grievance procedure
is a procedural right only, it does not confer any
substantive right upon the inmates. Hence, it does not give
rise to a protected liberty interest requiring the procedural
protections envisioned by the fourteenth
amendment.'” Buckley v. Barlow, 997 F.2d
494, 495 (8th Cir. 1993) (quoting Azeez v.
DeRobertis, 568 F.Supp. 8, 10 (N.D. Ill. 1982)).
Accordingly, Givens' complaints regarding the ADC's
grievance policy are not actionable under section 1983.
also sues the Arkansas Community Corrections (ACC) Re-Entry
Team and the Arkansas Parole Board claiming that he was
wrongfully dismissed from the ACC's reentry program.
See Doc. No. 5 at 3-4. Neither entity is a person
subject to suit under § 1983. See Brown, 353
F.3d at 1041.
reasons stated herein, it is recommended that:
Givens' claims 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
this recommendation or the ...