United States District Court, E.D. Arkansas, Pine Bluff Division
DERRICK S. GALVIN ADC #163461 PLAINTIFF
WENDY KELLEY, et al. DEFENDANT
PROPOSED FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to Chief United States District Brian S. Miller. 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 fact.
Derrick S. Galvin filed a pro se complaint pursuant
to 42 U.S.C. § 1983 on December 19, 2018, while
incarcerated at the Arkansas Department of Corrections'
Varner Unit (Doc. No. 2). Galvin was subsequently granted
leave to proceed in forma pauperis (Doc. No. 3). For
the reasons stated herein, Galvin's claims should be
dismissed for failure to state a claim upon which relief may
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. 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), and the Court must weigh all
factual allegations in favor of the plaintiff, unless the
facts alleged are clearly baseless. See Denton v.
Hernandez, 504 U.S. 25, 32-33 (1992) (explaining that
clearly baseless facts include those that are fanciful,
fantastic, and delusional).
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. Galvin sues five prison officials, 26
private individuals and/or entities, and a number of Doe
defendants. Galvin alleges that defendants created and/or
used technology to control his thoughts, dreams, and body. He
alleges that use of the technology causes him physical pain,
heart attacks, strokes, seizures, and ear problems. Galvin
claims that some of the defendants use the technology to rape
or sexually assault him during his sleep. Because
Galvin's factual allegations are purely speculative and
fanciful, Galvin's complaint should be dismissed as
frivolous. See Denton v. Hernandez, 504 U.S. at 33
(“a finding of factual frivolousness is appropriate
when the facts alleged rise to the level of the irrational or
the wholly incredible”).
reasons stated herein, it is recommended that:
1. Galvin's complaint be dismissed without prejudice as
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 and accompanying