Mitchner v. Houston County Sheriff Dept. et al (INMATE1)

Filing 4

REPORT AND RECOMMENDATION re 1 Inmate 1983 Complaint filed by Ian Mitchner; that claims against Houston County Sheriff Department be dismissed prior to service and dismissed as a defendant in this action; Objections to R&R due by 11/14/2005. Signed by Judge Delores R. Boyd on 10/31/05. (ajr, )

Mitchner v. Houston County Sheriff Dept. et al (INMATE1)

Doc. 4

Case 1:05-cv-01036-MHT-DRB

Document 4

Filed 10/31/2005

Page 1 of 2

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION IAN MITCHNER, ) ) Plaintiff, ) ) v. ) ) ) HOUSTON COUNTY SHERIFF DEPT., et al., ) ) Defendants. )

CIVIL ACTION NO. 1:05-CV-1036-T WO

RECOMMENDATION OF THE MAGISTRATE JUDGE This is a 42 U.S.C. § 1983 action in which Ian Mitchner ["Mitchner"], a county inmate, challenges the conditions of confinement in the Houston County Jail. The plaintiff names the Houston County Sheriff Department as a defendant in this cause of action. Upon review of the complaint, the court concludes that the plaintiff's claims against the Houston County Sheriff Department are due to be dismissed pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i).1 DISCUSSION A county sheriff's department "is not a legal entity and, therefore, is not subject to suit or liability under section 1983." Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). In light of the foregoing, the court concludes that the plaintiff's claims against the Houston County Sheriff Department are due to be summarily dismissed. Id. CONCLUSION Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:

A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint s c r e e n e d in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires t h e court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is f r iv o lo u s , malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U. S . C . § 1915(e)(2)(B)(i)-(iii).

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Dockets.Justia.com

Case 1:05-cv-01036-MHT-DRB

Document 4

Filed 10/31/2005

Page 2 of 2

1. Mitchner's claims against the Houston County Sheriff Department be dismissed prior to service in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B)(i). 2. This department be dismissed as a defendant in this cause of action. 3. This case, with respect to the remaining defendants, be referred back to the undersigned for appropriate proceedings. It is further ORDERED that on or before November 14, 2005 the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this

Recommendation is not a final order of the court and, therefore, it is not appealable. Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Done this 31st day of October, 2005.

/s/ Delores R. Boyd DELORES R. BOYD UNITED STATES MAGISTRATE JUDGE