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 James M. Moody, 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.
you 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 following:
Why the record made before the Magistrate Judge is
Why the evidence proffered at the hearing (if such a
hearing is granted) was not offered at the hearing before
the Magistrate Judge.
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
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
Lee Nelson (“Plaintiff”) is a pretrial detainee
in the Pulaski County Regional Detention Facility
(“PCRDF”). He has filed a pro se Amended
Complaint, pursuant to 42 U.S.C. § 1983, alleging
Defendants Sheriff Higgins, Deputy Mitchem, Dr. Roberts, and
Dr. Tilley violated his constitutional rights. (Doc. No. 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 a plaintiff is
represented by counsel or is appearing pro se, his
complaint must allege specific facts sufficient to state a
claim. See Martin v. Sargent, 780 F.2d 1334, 1337
(8th Cir. 1985).
alleges that on February 23, 2019, he slipped on water on the
floor at the PCRDF and fell, sustaining a concussion and
unspecified injuries to his head, neck, and back. (Doc. No.
5.) Defendant Mitchem called a “code-red”
emergency and had Plaintiff transported to a local hospital
where he received a prescription medication for pain and
migraines. (Id.) Allegedly, Drs. Roberts and Tilley,
who are the regularly treating physicians at the PCRDF,
decreased the medications prescribed for ...