United States District Court, E.D. Arkansas, Western Division
PROPOSED FINDINGS AND RECOMMENDATIONS
VOLPE UNITED STATES MAGISTRATE JUDGE.
following 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
1. Why the record made before the Magistrate Judge is
2. Why the evidence proffered at the hearing (if such a
hearing is granted) was not offered at the hearing before the
3. The 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:
Clerk, United States District Court Eastern District of
Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR
Hamblin (“Plaintiff”) is incarcerated at the
Pulaski County Detention Facility and filed this action
pro se pursuant to 42 U.S.C. § 1983. (Doc. Nos.
1, 7.) He alleges he has been subjected to lockdowns and
excessive force. (Doc. No. 7 at 4.) He seeks $1.5 million in
damages. (Id. at 5.) After careful review of
Plaintiff's Amended Complaint, I find it should be
dismissed without prejudice for failure to state a claim upon
which relief may be granted.
Prison Litigation Reform Act (“PLRA”) requires
federal courts to screen prisoner complaints seeking relief
against a governmental entity, officer, or employee. 28
U.S.C. § 1915A(a). The Court must dismiss a complaint or
portion thereof if the prisoner has raised claims that (a)
are legally frivolous or malicious; (b) fail to state a claim
upon which relief may be granted; or (c) seek monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
action is frivolous if “it lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). An action fails to
state a claim upon which relief can be granted if it does not
plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The factual
allegations must be weighted in favor of Plaintiff.
Denton v. Hernandez, 504 U.S. 25, 32 (1992).
“In other words, the § 1915(d) frivolousness
determination, frequently made sua sponte before the
defendant has even been asked to file an answer, cannot serve
as a factfinding process for the resolution of disputed
facts.” Id. But whether ...