JEROME T. KEARNEY UNITED STATES MAGISTRATE JUDGE
PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS
JEROME T. KEARNEY UNITED STATES MAGISTRATE JUDGE
The following recommended disposition has been sent to United States District Judge Kristine G. Baker. 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 before the District Judge (if such a Hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge 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 hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
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
Plaintiff Corey Ellis filed this pro se 42 U.S.C. § 1983 action while incarcerated at the Pulaski County Detention Facility (Jail) and alleged excessive force by Defendants. (Doc. No. 2). By Order dated July 1, 2021, this Court granted Plaintiff's Motion to Proceed in forma pauperis and directed him to submit an Amended Complaint within thirty days, noting that his allegations were too vague and conclusory to support a constitutional claim for relief. (Doc. No. 6) Plaintiff submitted an Amended Complaint which did not comply with the Court's Order (Doc. No. 7), and on July 22, 2021 the Court provided him with one final opportunity to amend in accordance with the Court's directions. (Doc. No. 8) As of this date, however, Plaintiff has not submitted a second Amended Complaint.
Having reviewed Plaintiff's Complaints, the Court finds the case should be dismissed, for failure to state a claim upon which relief may be granted.
II. Screening
The 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. § 1915A(b).
An action is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). 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). 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). In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32 (1992).
Additionally, to survive a court's 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1) screening, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Twombly, 550 U.S. at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 556-7. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of entitlement to relief.” Id.
III. Facts and Analysis
Plaintiff alleged in his original Complaint that “extreme use of deadly force was used against me,” and he named three individuals as Defendants. (Doc. No. 2, p. 4) However, he did not include specific allegations of improper conduct by the three Defendants and the Court directed him to amend. The Court specifically asked Plaintiff to: Aname all the parties he believes deprived him of his constitutional rights and whom he wishes to sue in this action; 2) provide specific facts against each named Defendant in a simple, concise, and direct manner; 3) indicate whether he is suing each Defendant in his/her individual or official capacity, or in both capacities; 4) state how he was harmed; and 5) state whether he is incarcerated as a pretrial detainee. Plaintiff must set forth specific facts concerning the allegations he has set forth including, where applicable, dates, times and places.@ (Doc. No. 6, p. 4)
In his Amended Complaint, Plaintiff alleged Defendant Hefley (Herfair?) sprayed him with “quail,” and Defendant Murphy bent back his fingers. (Doc. No. 7) However, he was not specific about the actions of Defendants Hefley and Camacho, and also failed to name or identify any person who participated in actions related to denying him medical care. Therefore, the Court provided Plaintiff one final opportunity to amend within the directives set forth in the July 1, 2021 Order.
Since Plaintiff stated in his Complaint that he was a pretrial detainee at the time of his incarceration, the due process standard of the Fourteenth Amendment applies to determine the constitutionality of his conditions of confinement. “Under the Fourteenth Amendment, pretrial detainees are entitled to ‘at least as great' protection as that afforded convicted prisoners under the Eighth Amendment.” Owens v. Scott County Jail, 328 F.3d 1026 (8th Cir. 2003) (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). Pretrial detainees are protected from “the use of excessive forced that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989) In determining if the force is excessive, “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable,” which “turns on the ‘facts and circumstances of each particular case.'” Kingsley v. Hendrickson, 576 U.S. 389, 396-7 (2015) (quoting Graham, 490 U.S. at 396).
In Kingsley, the Court noted that facts which are relevant to consider when determining the objective reasonableness of force include “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” 576 U.S. at 397.
In this case, Plaintiff alleged that officer Hefley sprayed him with “quail,” and Sgt. Murphy bent back his fingers. He did not include any allegations against Defendant Camacho and made vague references to a denial of adequate medical care. These allegations, however, are insufficient to support an excessive force or failure to protect claim as he failed to include specific facts about the incidents which occurred and the Defendants who allegedly were involved.
Therefore, because Plaintiff failed to submit a second Amended Complaint to clarify his allegations against Defendants, the Court finds the Complaint should be dismissed, for failure to state a claim upon which relief may be granted.
IV. Conclusion
IT IS, THEREFORE, RECOMMENDED that:
1. Plaintiff's Complaint against Defendants be DISMISSED without prejudice, for failure to state a claim upon which relief may be granted.
2. Dismissal of this action constitute a “strike” within the meaning of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g).
The statute provides that a prisoner may not file an in forma pauperis civil rights action or appeal if the prisoner has, on three or more prior occasions, filed an action or appeal that was dismissed as frivolous, malicious or for failure to state a claim, unless the prisoner is under imminent danger of serious physical injury.
3. The Court certify that an in forma pauperis appeal from an Order and Judgment dismissing this action would not be taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3).
IT IS SO RECOMMENDED.