Floyd v. Conner (JCMAG+)

Filing 6

ORDER granting 1 Motion for Leave to Proceed in forma pauperis. REPORT AND RECOMMENDATIONS re 2 Complaint that this action be DISMISSED without prejudice prior to service of process pursuant to 28 U.S.C. 1915(e)(2)(B)(ii). Objections to R&R due by 10/6/2005. Signed by Judge Susan Russ Walker on 9/23/2005. (dmn)

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Floyd v. Conner (JCMAG+) Doc. 6 Case 1:05-cv-00889-MEF-SRW Document 6 Filed 09/23/2005 Page 1 of 5 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE M IDDLE DISTRICT OF ALABAM A SOUT HERN DIVISION DARRELL DAN FLOYD, SR., Plaint iff, v. SPECIAL AGENT CONNER, Defendant . ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 1:05CV889-F O RDER AND RECOMMENDATION OF THE MAGIS TRATE JUDGE T h i s act i o n is presently before the court on plaintiff's motion to proceed in form a pauperis. It is ORDERED that the mot i o n is GRANTED. Upon review of the complaint filed in this case, the court concludes that dismissal of the complaint prior to service of p rocess is appropriate under 28 U.S.C. § 1915(e)(2)(B).1 Plaintiff Darrell Dan Floyd, Sr. proceeds pr o se in this action. claims are difficult to discern from the complaint. The nature of his Plaintiff sues "Special Agent Conner," who apparently resides in Dothan (see style of Complaint), but provides no other informat ion about Conner. Plaintiff uses a form complaint provided by the District Court for the M iddle District of Georgia. In a blank space on the form in which plaintiff was The statute provides, in pertinent part: "[T]he court shall dismiss the case at any time if t he court determines that . . . the action or appeal­ (i) is frivolous or malicious, (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). 1 Dockets.Justia.com Case 1:05-cv-00889-MEF-SRW Document 6 Filed 09/23/2005 Page 2 of 5 inst ruct ed to state his legal claim or reason for filing suit, plaint i f f has written: "Human Right ­ Employ m e n t , Civil Right ­ M ake Funniny of M e Tight - Chair." (Complaint, p. 1). In another blank space in which plaint i ff was to provide a concise statement of the specific fact s involved in his case, plaintiff has written nothing at all. (Complaint, p.2). He has also failed to provide any statement of the relief he is requesting. Id. Plaintiff has attached several documents to his complaint. The first at t achment is corresp ond e n c e from the Internal Revenue Service assigning an employer identification number to "Living Word M inist r i e s " in care of "Brother Darrell D. Floyd." The second is a copy of a record of plaintiff's request for medical treatment at t he Southeast Alabama M edical Center emergency room on M ay 24, 2004 for complaints of back and abdominal p a i n aft e r he was allegedly "`fazed' multiple times when arrested + in jail . . . ." The third and fourth attachments are "Summar[ies] of What the Bible Teaches About Jesus['] Church." Plaintiff has als o at t a ched a form letter addressed to him from the examining sect ion of the Federal Bureau of Prisons which appears t o find plaintiff ineligible for emp loy ment as a correctional officer. The final attachment is a copy of an affidavit signed by plaintiff on October 4, 2004. In the affidavit, plaintiff complains of "police brutality by t h e cit y of Dothan Police Dep art m e n t . " 2 He alleges that he was physically assaulted by "Officer Allum and M ark," Plaintiff has another lawsuit pending in this court in which he brings excessive force and ot her claims against the City of Dothan arising from his arrest and detention. Floyd v. City of 2 2 Case 1:05-cv-00889-MEF-SRW Document 6 Filed 09/23/2005 Page 3 of 5 and that "Sgt. Andrew" and numerous other unnamed police officers physically abused him and st r a p p e d him to a chair while he was in a holding cell in the middle of the night. On the copy of this affidavit, plaintiff has handw r i t t en two additional names ­ "Sgt M ark Nelms," and "FBI Steven Zequarino." Plaintiff makes no allegation of physical abuse by t h e defendant, Special Agent Conner, either in the body of the complaint or the attachment s ­ and, in fact, does not ment ion Conner at all except in the style of the complaint. He does not allege that Special Agent Conner was even present when plaintiff was allegedly physically assaulted either during his arrest or his detention. While the court is obligated to construe the pro se comp laint liberally, t h i s obligation does not "allow [the court] to conjure up unpled allegat ions." M c Fadden v. Lucas, 713 F.2d 143 (5th Cir. 1983).3 Plaint iff's allegation in the comp laint that Special Agent Conner (or someone else) made fun of him ­ if t h a t is w h a t t he notation " M a k e F unniny of M e Tight-Chair" means ­ is not sufficient to state a claim for a violation of either the Fourth Amendment or the Fourteenth A m e n d m e n t . See Omar v. Casterline, 288 F. Supp. 2d 775 (W.D. La. 2003)("Omar's contention that unknown Dothan, Civil Action No. 1:05CV848-T. For this reason, the court does not construe the two words "tight" and "chair" in plaintiff's comp laint as an allegation that Conner strapped plaintiff to the chair too tightly. To conclude ot herwise would require the court to frame a complaint for plaintiff using its own imagination, which t he court declines to do. The court notes that plaint iff made no such allegation in the verified st at ement of claim filed with his complaint against the City of Dothan. See Civil Action No. 1:05CV848-T (Attachment 1 to Complaint). 3 3 Case 1:05-cv-00889-MEF-SRW Document 6 Filed 09/23/2005 Page 4 of 5 officers laughed at him while Phillips conducted the [strip] search falls s hort of any cogniz able cons t i t u t ional claim."); Awdish v. Pappas, 159 F. Supp. 2d 672, 678 (E.D. M ich. 2001)(verbal abuse of a suspect during arrest does not violate Fourth Amendment); Burton v. Cameron County, Texas, 884 F.Supp. 234 (S.D. Tx. 1995)(pretrial detainee's allegation of verbal harassment by jail guards did not rise to the level of a constitutional violation and was frivolous). It further appears that plaintiff may intend to bring s o m e s o r t of em p l o y m ent claim against Special Agent Conner, perhaps one for discrimination, since he alleges "Human Right - Employment." However, plaintiff makes no factual allegation what soever that Conner was involved in any way in the employment decision (the det erminat ion that plaintiff was ineligible in 1994 for employment as a correct i o n al officer) t hat may be at issue.4 Accord i n gl y , plaintiff's complaint, even construed liberally, fails to state a claim against Special Agent Conner upon which relief may be granted. CO NCLUS IO N For the foregoing reasons, it is the RECOM M ENDAT ION of the M agist rat e Judge t hat the present action be DISM ISSED without prejudice p ursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff does not list the Federal Bureau of Prisons as a defendant and the court declines t o construe the complaint to include an additional, unnamed defendant. Even if plaintiff intended to bring a Title VII employment discrimination claim against the Bureau, he has not alleged exhaustion of administrative remedies and, thus, would not be entitled to proceed with such a claim. 4 p r i o r t o service of process 4 Case 1:05-cv-00889-MEF-SRW Document 6 Filed 09/23/2005 Page 5 of 5 T h e Clerk of the Court is ORDERED to file the Recommendation of the M agist rat e Judge and t o s e r v e a cop y on the parties to this action. The parties are DIRECTED to file any objections to the said Recommendation on or before October 6, 2005. Any objections filed must specifically identify the findings in the M agist rat e Judge's Recommendat i o n object ed to. Dist rict Court. Failure to file written objections to the proposed findings and recommendations in t he M agist rat e Judge's report shall bar the party from a de novo determination by the Dist rict Court of issues covered in the report and shall bar t h e p a r t y from attacking on ap p eal factual findings in the report accepted or adopted by the District Court except upon gro u n d s of p lain error or manifest injustice. Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989). DONE, this 23rd day of September, 2005. Frivolous, conclus i ve or general objections will not be considered by the /s/ Susan Russ Walker SUSAN RUSS WALKER UNIT ED STATES M AGIST RAT E JUDGE 5

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