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Derx v. Yancey

United States District Court, E.D. Arkansas, Eastern Division

November 19, 2019

DENNIS R. DERX ADC #162003 PLAINTIFF
v.
ALVIN D. YANCEY, Chaplain, East Arkansas Regional Max Unit; et al. DEFENDANTS

          PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS

          JOE J. VOLPE UNITED STATES MAGISTRATE JUDGE.

         The following recommended disposition has been sent to Chief 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.

         If 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:

1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
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.

         From 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 72201-3325

         DISPOSITION

         I. INTRODUCTION

         Dennis R. Derx (“Plaintiff”) is a prisoner in the Arkansas Department of Correction. In this pro se action, he alleges Chaplains Alvin D. Yancey, Albert McKinney, and Arlen Parham violated the First Amendment, as protected by 42 U.S.C. § 1983, and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by restricting his ability to practice his Wiccan beliefs at the East Arkansas Regional Maximum Unit (“EARMU”).[1] (Doc. No. 8.) Plaintiff brings these claims against Defendants in their official capacities. (Id.) He seeks injunctive and declaratory relief, but not monetary damages. (Id.)

         Defendants have filed a Motion for Judgment on the Pleadings, pursuant to Fed.R.Civ.P. 12(b)(1) and (h)(3), arguing this case should be dismissed due to a lack of subject matter jurisdiction. (Doc. Nos. 48, 49.) Plaintiff has not filed a Response, and the time to do so has expired. After careful consideration and for the following reasons, I find the Motion should be granted and recommend this case be dismissed with prejudice.

         II. DISCUSSION

         Plaintiff alleges Defendants prevented him from practicing his Wiccan beliefs at the EARMU, which is where he was in prison when he filed this lawsuit in 2018. (Doc. Nos. 2, 8.) But, sometime in October 2019, Plaintiff was transferred to the ...


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