United States District Court, E.D. Arkansas, Northern Division
DERRICK S. GALVIN, ADC #163461 PLAINTIFF
v.
BRANDON CARROLL, et al. DEFENDANTS
RECOMMENDED DISPOSITION
I.
Procedures for Filing Objections:
This
Recommended Disposition (Recommendation) has been sent to
Judge Kristine G. Baker. Any party to this suit may file
written objections with the Clerk of Court if they disagree
with the findings or conclusion. To be considered, objections
must be filed within 14 days. Objections should be specific
and should include the factual or legal basis for the
objection.
If
parties do not file objections, they risk waiving the right
to appeal questions of fact. And, if no objections are filed,
Judge Baker can adopt this Recommendation without
independently reviewing the record.
II.
Background:
Plaintiff
Derrick Galvin, an Arkansas Department of Correction (ADC)
inmate, filed this lawsuit without the help of a lawyer under
42 U.S.C. § 1983. (Docket entry #2) Mr. Galvin sued a
number of ADC employees, as well as Entergy and various
Entergy employees.
The
Court ordered service of process for Defendants Carroll,
Shipman, Gibson, King, Higgins, and Kelley (ADC Defendants),
but not for Entergy or its employees.[1] The ADC Defendants have now
moved to dismiss for failure to state a claim. (#7) Mr.
Galvin has not responded to the motion, and the time for
filing a response has expired.
III.
Standard:
Under
Federal Rule of Civil Procedure 12(b)(6), the Court may
dismiss a complaint that fails to state a claim upon which
relief can be granted. In deciding whether a plaintiff has
failed to state a claim, the Court must determine whether the
plaintiff has pleaded facts with enough specificity “to
raise a right to relief above the speculative level.”
Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555
(2007)(citations omitted). A complaint cannot simply
“[leave] open the possibility that a plaintiff might
later establish some ‘set of undisclosed facts' to
support recovery.” Id. at 1968 (citation
omitted). Rather, the facts set forth in the complaint must
be sufficient to “nudge [the] claims across the line
from conceivable to plausible.” Id. at 1974.
IV.
Discussion:
Mr.
Galvin complains that since Entergy improperly repaired
various electric circuits, including the lighting system and
the electric fence outside his cell, he has experienced
“headaches, burning my scalp, burning my skin, ringing
my ear drums, popping my ear drums, damaging my brain cells,
effecting [sic] my nervous system causing me to shake, to
have minor seizures, causing shortness of breath, minor
strokes, blurred vision, loss of memory.” (#2, p. 8)
Defendants
argue that Mr. Galvin's allegations about emissions from
lighting and the electric fence surrounding the prison do not
state a plausible claim for relief. (#8) Mr. Galvin had an
opportunity to respond with facts to demonstrate the
plausibility of his allegations. He failed to do so.
Mr.
Galvin's complaint lacks plausible factual allegations
that would give rise to a constitutional claim. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(explaining
that “labels and conclusions” and “naked
assertions devoid of further factual enhancement” are
insufficient to plead a § 1983 claim; and instead, a
prisoner must set forth sufficient factual matter that states
a claim that plausible on its face); Howard v. Columbia
Pub. Sch. Dist., 363 F.3d 797, 800 (8th Cir.
2004)(explaining that a court is not required to
“accept unreasonable inferences or sheer speculation as
fact”).
V.
Conclusion:
The
Court recommends that ADC Defendants' motion to dismiss
this lawsuit (#7) be GRANTED, and that all claims, including
claims against ADC Defendants, Entergy, and Entergy
Defendants identified as Doe defendants be DISMISSED, without
prejudice. Furthermore, this dismissal should count as a
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