United States District Court, E.D. Arkansas, Western Division
FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to United States District Judge Susan Webber Wright. 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
Lloyd Emerson Earl Palmer II, an inmate then-confined at the
Faulkner County Detention Center,  filed this pro se
42 U.S.C. § 1983 action complaining about various
conditions in the detention center (Doc. No. 2). Palmer was
granted leave to proceed in forma pauperis and
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, and describing the injuries he
sustained (Doc. No. 3). Palmer was cautioned that an amended
complaint would render his original complaint without legal
effect and that only claims properly set out in the amended
complaint would be allowed to proceed. Palmer filed two
amended complaints on April 10, 2018 (Doc. Nos. 6 & 7).
Palmer initially indicated he was suing defendants in both
their official and individual capacities. See Doc.
No. 2 at 2. For the reasons described below, Palmer's
complaint should be dismissed.
sent to Palmer May 14, 2018 was returned as undeliverable,
and the envelope was entered on the docket. See Doc.
No. 19. On May 22, 2018, the Court entered a text order
notifying Palmer that the mail could not be delivered to him
because he was no longer at the address he provided.
See Doc. No. 24. Palmer was directed to provide
notice of his current mailing address by no later than thirty
days from the entry of the May 22, 2018 text order. He was
warned that his failure to provide a current mailing address
would cause his complaint to be dismissed. Mail subsequently
sent to Palmer at the same address was not returned as
undeliverable. However, an inmate locator search on the ADC
website found no match, indicating Palmer is no longer in the
than 30 days have passed, and Palmer has not complied or
otherwise responded to the May 22 order. Accordingly, the
Court finds that this action may be dismissed without
prejudice for failure to comply with Local Rule 5.5(c)(2) and
failure to respond to the Court's orders. See Miller
v. Benson, 51 F.3d 166, 168 (8th Cir. 1995) (district
courts have inherent power to dismiss sua sponte a
case for failure to prosecute, and exercise of that power is
reviewed for abuse of discretion).
Palmer's case should be dismissed for failure to state a
claim. Before 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).
first amended complaint (Doc. No. 6), Palmer lists a number
of defendants but only makes allegations against Captain
Reidmueller, Corporal L. Phillips, Judge Claussen, the
Faulkner County Fire Department, Chief David Gagner, and Dr.
Gary Stewart. All other defendants should be dismissed from
this action because there are no allegations against them.
Further, Judge Claussen should be dismissed because he is
protected from suit by judicial immunity. A judge is
absolutely immune from liability for both monetary and
injunctive claims relating to his actions conducted in his
judicial capacity. Mireles v. Waco, 502 U.S. 9, 11
(1991); Robinson v. Freeze, 15 F.3d 107, 108 (8th
Cir. 1994). Finally, the Faulkner County Fire Department
should be dismissed because it is not an entity subject to
suit in a § 1983 action. See Ketchum v. City of West
Memphis, Arkansas, 974 F.2d 81, 82 (8th Cir. 1992)
(holding that “[t]he West Memphis Police Department and
West Memphis Paramedics Services are not juridical
entities” because “[t]hey are simply departments
or subdivisions of the City government.”). Palmer's
complaint against the remaining defendants is based on an
allegation that he fell on a wet floor and did not receive
adequate medical treatment for his resulting injuries. Doc.
No. 6 at 2-3. Because this claim is currently pending in
another case, Palmer v. Stewart, 4:18-cv-00171
BRW-JTR, it should be dismissed from this action.
Palmer's second amended complaint (Doc. No. 7) includes a
list of complaints about conditions in the Faulkner County
Detention Center. Palmer complains about the temperature,
sleeping arrangements, female officers viewing undressed
inmates, the lack of tuberculosis lights, roof leaks, black
mold, and the behavior of officers. The Court recommends
dismissal of all these claims because Palmer does not provide
specific facts to support his allegations, name defendants in
connection with any of these claims, or describe injuries he
has sustained as a result of the alleged conditions. Because
a § 1983 action is a type of tort claim, general
principles of tort law require that a plaintiff suffer some
actual injury before he can receive compensation. See
Irving v. Dormire, 519 F.3d 441, 448 (8th Cir. 2008)
(citing Carey v. Piphus, 435 U.S. 247, 253-55
reasons stated herein, it is recommended that:
1. Palmer's claims be dismissed without prejudice for
failure to comply with Local Rule 5.5 and for failure to
state a claim upon which relief may be granted.
2. The 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 accompanying