Lunsford v. State of Alabama et al (INMATE2)

Filing 4

REPORT AND RECOMMENDATIONS that plaintiff's claims against the City of Montgomery Police Department and the State of Alabama be Dismissed with prejudice prior to service of process in accordance with the provisions of 28 U.S.C. 1915(e)(2)(B)(i) ; that the City of Montgomery Police Department and the State of Alabama be Dismissed as parties from this cause of action ; that this case, with respect to the claims presented against the remaining defendants, be referred back to the undersigned for additional proceedings ; Objections to R&R due by 4/17/2006. Signed by Judge Vanzetta P. McPherson on 4/3/2006. (ag, )

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Lunsford v. State of Alabama et al (INMATE2) Doc. 4 Case 2:06-cv-00279-MHT-VPM Document 4 Filed 04/03/2006 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _______________________________ R O D N E Y ANDRE LUNSFORD P l a i n t if f , v. S T A T E OF ALABAMA, et al., D e f e n d a n ts . _______________________________ * * * * * 2:06-CV-279-MHT (WO) R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is is a 42 U.S.C. 1983 action in which Plaintiff, an inmate at the Montgomery C o u n ty Detention Facility, contends that he was subjected to excessive force and false arrest. A m o n g the named defendants are the State of Alabama and the Montgomery City Police D e p a rtm e n t. Upon review of the complaint filed in this case, the court concludes that d is m is s a l of Plaintiff's claims against the City of Montgomery Police Department and the S tate of Alabama is appropriate under 28 U.S.C. 1915(e)(2)(B).1 Under the provisions of 28 U.S.C. 1915(e)(2)(B), a court may dismiss a case at any time, r e g a r d l e s s of the payment of any filing fee, if the court determines that the action is frivolous, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from t h i s relief. 1 Dockets.Justia.com Case 2:06-cv-00279-MHT-VPM Document 4 Filed 04/03/2006 Page 2 of 4 I . DISCUSSION A . The City of Montgomery Police Department T h e City of Montgomery Police Department is not a legal entity subject to suit or lia b ility under section 1983. Cf. Dean v. Barber, 951 F.2d 1210, 1214 (11 th Cir. 1992). In lig h t of the foregoing, the court concludes that Plaintiff's claims for relief lodged against this d e fe n d a n t are subject to dismissal as frivolous under 28 U.S.C. 1915(e)(2)(B)(i). Id. B. The State of Alabama P lain tiff's complaint against the State of Alabama is subject to dismissal. The Eleventh A m e n d m e n t bars suit directly against a state or its agencies, regardless of the nature of relief s o u g h t. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984); Papasan v. A lla in , 478 U.S. 265 (1986). Consequently, Plaintiff's claims against this defendant are su b jec t to dismissal in accordance with the provisions of 28 U.S.C. 1915(e)(2)(B)(i), (ii) a n d (iii). Neitzke v. Williams, 490 U.S. 319, 327 (1989). II. CONCLUSION A c c o rd in g ly , it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's claims against the City of Montgomery Police Department and the State o f Alabama be DISMISSED with prejudice prior to service of process in accordance with the p rov isio n s of 28 U.S.C. 1915(e)(2)(B)(i). 2 . The City of Montgomery Police Department and the State of Alabama be D IS M IS S E D as parties from this cause of action. 2 Case 2:06-cv-00279-MHT-VPM Document 4 Filed 04/03/2006 Page 3 of 4 3 . This case, with respect to the claims presented against the remaining defendants, b e referred back to the undersigned for additional proceedings. It is further ORDERED that the parties shall file any objections to the said Recommendation on o r before April 17, 2006 . Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tr ic t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D istric t Court except upon grounds of plain error or manifest injustice. Nettles v. W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. D o n e , this 3 rd day of April 2006. /s / Vanzetta Penn McPherson V A N Z E T T A PENN MCPHERSON U N IT E D STATES MAGISTRATE JUDGE 3 Case 2:06-cv-00279-MHT-VPM Document 4 Filed 04/03/2006 Page 4 of 4 4

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