Carter v. Gordon (INMATE2)

Filing 4

RECOMMENDATION OF THE MAGISTRATE JUDGE that: 1. The § 1983 claims presented against Defendants Dothan Police Department, Houston County Sheriff's Department, and Judge Rose Gordon be DISMISSED with prejudice; 2. Plaintiff's § 1983 claims against Defendant Dothan Chief of Police be DISMISSED without prejudice; 3. Plaintiff's challenge to the constitutionality of his current detention be DISMISSED without prejudice as such claim is not properly before the court at this time; 4. This case be DISMISSED prior to service of process. Objections to R&R due by 9/15/2009. Signed by Honorable Wallace Capel, Jr on 9/2/09. (br, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION ____________________________ M O S E S CARTER, JR., P l a in tif f , v. C IT Y POLICE FOR DOTHAN, et al., * * * * 1:09-CV-813-ID (WO)

D e f e n d a n ts . * _______________________________

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tif f is an inmate incarcerated at the Houston County Jail located in Dothan, A la b a m a . He filed this 42 U.S.C. § 1983 action on August 27, 2009. He complains that o f f ic e rs with the Dothan Police Department conducted an illegal search of his car. During th e search the police confiscated Plaintiff's nitroglycerine believing it to be cocaine. Plaintiff a ss e rts that testing subsequently revealed that the substance taken from him was n itro g lyc e rin e but goes on to state that his case was upgraded from a misdemeanor possession c h a r g e to a felony charge. Finally, Plaintiff complains that he was hospitalized with chest p a in and breathing difficulties as a result of the seizure of his nitroglycerine. Plaintiff names a s defendants the Dothan Police Department, the Houston County Sheriff's Department, J u d g e Rose Gordon, and the Dothan Chief of Police. 1 He seeks damages for pain and

The court notes that Plaintiff seeks to name "Narcotics Officers with Dothan City PD" as a defendant. Plaintiff is advised, however, that the Federal Rules of Civil Procedure do not provide for

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su f f e rin g as a result of "almost los[ing] [his] life 2 times" due to the confiscation of his m e d ic a tio n by law enforcement officials. Upon review of the complaint, the court concludes t h a t dismissal of Plaintiff's complaint prior to service of process is appropriate under 28 U .S .C . § 1915(e)(2)(B).2 I . DISCUSSION A. The Dothan Police Department and the Houston County Sheriff's Department T h e Dothan Police Department and the Houston County Sheriff's Department are not le g a l entities and, therefore, they are not subject to suit or liability under § 1983. See Dean v . Barber, 951 F.2d 1210, 1214 (11 th Cir. 1992). In light of the foregoing, the court c o n c lu d e s that Plaintiff's claims against these defendants should be dismissed as frivolous. Id . 28 U.S.C. § 1915(e)(2)(B)(i). B . Judge Rose Gordon T o the extent Plaintiff's seeks to challenge actions taken by Judge Gordon in her ju d ic ia l capacity during state court proceedings over which she had jurisdiction, such claims a re due to be dismissed. The law is well established that a state judge is absolutely immune

fictitious party practice as it is incompatible with federal procedure. See Rule 10(a) ("[i]n the complaint, the title of the action shall include the names of all the parties . . ."); New v. Sports and Recreation, Inc., 114 F.3d 1092, 1094 at n.1 (11th Cir. 1997) (fictitious party practice not permitted in federal court and plaintiff's failure to name parties required that court strike parties). 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).
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f ro m civil liability for acts taken pursuant to her judicial authority. Forrester v. White, 484 U . S. 219, 227-229 (1988); Paisey v. Vitale in and for Broward County, 807 F.2d 889 (11 th C ir. 1986); Stump v. Sparkman, 435 U.S. 349 (1978). Accordingly, any claims for monetary d a m a g e s against Judge Gordon are "based on an indisputably meritless legal theory" and are, there fo re, due to be dismissed under the provisions of 28 U.S.C. § 1915(e)(2)(B)(i) and (iii). N eitz k e v. Williams, 490 U.S. 319, 327 (1989). C . Dothan Chief of Police T o the extent Plaintiff names the Dothan Chief of Police as a defendant based on his su p erv isory position, the law is settled that supervisory personnel cannot be liable under § 1 9 8 3 for a constitutional violation of one of their subordinates via a theory of respondeat s u p e rio r or on the basis of vicarious liability. Monell v. Dep't of Social Servs., 436 U.S. 658, 6 9 1 -9 5 (1978) (doctrine of respondeat superior is inapplicable to § 1983 actions); Belcher v . City of Foley, 30 F.3d 1390, 1396 (11 th Cir. 1994) (42 U.S.C. § 1983 does not allow a p la in tif f to hold supervisory officials liable for the actions of their subordinates under either a theory of respondeat superior or vicarious liability); see also Cottone v. Jenne, 326 F.3d 1 3 5 2 , 1360 (11 th Cir. 2003) (holding that a supervisory official is liable only if he "personally p a rtic ip a te [ d ] in the alleged unconstitutional conduct or [if] there is a causal connection b e tw e e n [his] actions ... and the alleged constitutional deprivation."); Antonelli v. Sheahan, 8 1 F.3d 1422, 1428 (7 th Cir. 1996) ("a prisoner may not attribute any of his constitutional c la im s to higher officials by the doctrine of respondeat superior; the official must actually

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h a v e participated in the constitutional wrongdoing."). Moreover, other than naming the D o th a n Chief of Police in the caption of his complaint, Plaintiff makes no specific allegations a g a in s t him nor does he indicate that this individual was personally involved in the c o n s titu tio n a l violations about which he complains. See Potter v. Clark, 497 F.2d 1206, 1 2 0 7 (7 th Cir. 1974) (per curiam) (court properly dismissed pro se complaint that was silent a s to defendant except for his name appearing in caption). Accordingly, the court finds that P la in tif f 's complaint against Defendant Dothan Chief of Police is subject to dismissal under 2 8 U.S.C. § 1915(e)(2)(B) on this basis as well. D. Plaintiff's Confinement T o the extent Plaintiff seeks to challenge his current detention and/or a conviction, a c iv il rights lawsuit under 42 U.S.C. § 1983 is not an appropriate remedy. Where a prisoner is challenging the very fact or duration of his physical imprisonment and the relief sought is a determination that he is entitled to immediate release or a speedier release from that im p ris o n m e n t, the inmate's federal remedy is by way of a writ of habeas corpus. See Preiser v . Rodriquez, 411 U.S. 475, 500 (1973) (habeas corpus is the exclusive remedy for prisoners a tta c k in g the validity of their conviction or confinement). Further, § 1983 may not be used to challenge the fact of a plaintiff's state court criminal conviction and/or sentence. Rather, th e proper vehicle for mounting such a challenge would be the filing of a petition under 28 U .S .C . § 2254. In filing this action, Plaintiff appears to challenge matters related to the validity and

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th e legality of his current confinement. When the effect of granting equitable relief under the c iv il rights statute would be to substitute a § 1983 action for a federal writ of habeas corpus c h a lle n g in g the basis for ongoing detention or for a petition pursuant to § 2254 to attack a s ta te court conviction, a prisoner fails to state a claim under § 1983. See Eutzy v. Tesar, 880 F .2 d 1010, 1011 (8 th Cir. 1989); Preiser, 411 U.S. at 500. A plaintiff, therefore, cannot seek d e c la ra to ry or injunctive relief relating to his confinement and/or conviction in a § 1983 a c tio n .3 See Edwards v. Balisok, 520 U.S. 641, 648 (1997); Heck v. Humphrey, 512 U.S. 477, 4 8 3 -8 9 (1994); Preiser, 411 U.S. at 500; St. Germaine v. Isenhower, 98 F. Supp.2d 1366, 1 3 7 3 (S .D . Fla. 2000). In light of the foregoing, the court concludes that Plaintiff's complaint, to the extent it seeks to challenge the legality of his current detention, is due to be dismissed without p rejud ice in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(ii). I I . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . The § 1983 claims presented against Defendants Dothan Police Department, H o u sto n County Sheriff's Department, and Judge Rose Gordon be DISMISSED with p rejud ice in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B)(i) and (iii);

Compensatory and punitive damages are available in a 42 U.S.C. § 1983 action but not by way of a writ of habeas corpus or a § 2254 petition. To recover damages for an allegedly unconstitutional confinement in a civil rights action, a plaintiff must prove that his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by a federal court's issuance of a writ of habeas corpus. Heck, 512 U.S. 486-87.

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2 . Plaintiff's § 1983 claims against Defendant Dothan Chief of Police be DISMISSED w ith o u t prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); 3 . Plaintiff's challenge to the constitutionality of his current detention be DISMISSED w ith o u t prejudice pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(ii) as such claim is not properly before the court at this time; and 4. This case be DISMISSED prior to service of process in accordance with the d irec tiv es of 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). It is further ORDERED that the parties are DIRECTED to file any objections to the R e c o m m e n d a tio n on or before September 15, 2009. Any objections filed must clearly id e n t if y the findings in the Magistrate Judge's Recommendation to which a party objects. A n y objections filed must specifically identify the findings in the Magistrate Judge's R e c o m m e n d a tio n objected to. Frivolous, conclusive or general objections will not be c o n sid e re d by the District Court. The parties are advised that this Recommendation is not a f in a l order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v.

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R e y n o ld s Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of Prichard, 6 6 1 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the decisions of th e former Fifth Circuit handed down prior to the close of business on September 30, 1981. D o n e this 2nd day of September, 2009.

/s/ Wallace Capel, Jr. W A L L A C E CAPEL, JR. UNITED STATES MAGISTRATE JUDGE

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