Kelsey v. Cobb

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION TONY KELSEY PLAINTIFF ADC #164630 v. No: 4:22-cv-00064 JM-PSH

MARY COBB, et al. DEFENDANTS

ORDER The Court has reviewed the Proposed Findings and Partial Recommendation submitted by United States Magistrate Judge Patricia S. Harris, and the objections filed. In his objections, Plaintiff argues that the Court should not dismiss the Arkansas Department of Correction sua sponte. However, it is well settled that the Arkansas Department of Correction is not a suable entity under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 & 70 (1989) (a state and its agencies are not “persons” within the meaning of § 1983); see also Quern v. Jordan, 440 U.S. 332, 345 (1979) (§ 1983 does not abrogate a state's Eleventh Amendment immunity); Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en banc) (a state agency may not be sued under § 1983). It is also well settled that the Court is required under 28 U.S.C.A. § 1915A to screen cases where a prisoner seeks redress from a governmental entity or employee “before docketing, if feasible or, in any event, as soon as practicable after docketing” and to dismiss the claim that fails to state a claim upon which relief may be granted. 28 ULS.C.A. § 1915A (West). Plaintiff also argues that 28 U.S.C.A § 1915A violates the Due Process Clause of the United States Constitution. The Court finds this argument to be without merit.

After carefully considering the objections and making a de novo review of the record in this case, the Court concludes that the Proposed Findings and Partial Recommendation should be, and hereby are, approved and adopted in their entirety as this Court’s findings in all respects.

IT IS THEREFORE ORDERED THAT Kelsey’s claim(s) against the ADC is dismissed without prejudice for failure to state a clatm upon which relief may be granted.

DATED this 7th day of April, 2022.

OE