Duncan v. Hagler et al (INMATE1)

Filing 5

REPORT AND RECOMMENDATIONS that: (1)The plaintiff's claims against the Houston County Sheriff's Department be dismissed with prejudice prior to service of process in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B)(i); (2)Th e Houston County Sheriff's Department be dismissed as a defendant; and (3) This case, with respect to the plaintiffs claims against defendants Hagler, Soden and Smoak, be referred back to the undersigned for appropriate proceedings. Objections to R&R due by 11/12/2008. Signed by Honorable Terry F. Moorer on 10/30/2008. (cb, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION L E R N A R D LAMONT DUNCAN, Plaintiff, v. ) ) ) ) ) ) ) ) ) ) ) C IV IL ACTION NO. 1:08-CV-867-TMH [WO] H O U S T O N COUNTY SHERIFF'S, D E P T ., et al., Defendants. RECOMMENDATION OF THE MAGISTRATE JUDGE This is a 42 U.S.C. 1983 action in which Lernard LaMont Duncan ["Duncan"], an inmate confined in the Houston County Jail, alleges officers failed to protect him from attack by another inmate and complains he is being denied adequate medical treatment for injuries suffered in this attack. Duncan names the Houston County Sheriff's Department as a defendant in this cause of action. Upon review of the complaint, the court concludes that Duncan's claims against the Houston County Sheriff's Department are due to be dismissed prior to service pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B)(i).1 1 A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in accordance with the provisions of 28 U.S.C. 1915(e)(2)(B). This screening procedure requires the court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is frivolous, 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). DISCUSSIO N 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's Department are due to be summarily dismissed as frivolous pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B)(i). Id. CONCLUSION Accordingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. The plaintiff's claims against the Houston County Sheriff's Department be dismissed with prejudice prior to service of process in accordance with the directives of 28 U.S.C. 1915(e)(2)(B)(i). 2. The Houston County Sheriff's Department be dismissed as a defendant in this cause of action. 3. This case, with respect to the plaintiff's claims against defendants Hagler, Soden and Smoak, be referred back to the undersigned for appropriate proceedings. It is further ORDERED that on or before November 12, 2008 the parties may file objections to this 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 2 that this Recommendation is not a final order of the court and, therefore, it is not a pp ea la bl e. 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 30th day of October, 2008. /s/ Terry F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE 3

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