Mixon v. Mosley et al (INMATE1)

Filing 4

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by Bernard Montez Mixon that: 1. The plaintiff's claims against the State of Alabama be dismissed with prejudice pursuant to the directives of 28 U.S.C. 1915(e)(2)(B)(i) and (iii). 2. The 1983 claims presented against Steven B. Canty, officer Pryor, Sgt. Hullet and Warden Gwendolyn Mosley be referred back to the undersigned for further proceedings. Objections to R&R due by 5/1/2006. Signed by Judge Susan Russ Walker on 4/18/2006. (dmn)

Mixon v. Mosley et al (INMATE1)

Doc. 4

Case 2:06-cv-00342-MHT-SRW

Document 4

Filed 04/18/2006

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION BERNARD MONTEZ MIXON, #219783, ) ) Plaintiff, ) ) v. ) CIVIL ACTION NO. 2:06-CV-342-MHT ) [WO] ) STATE OF ALABAMA, et al., ) ) Defendants. ) RECOMMENDATION OF THE MAGISTRATE JUDGE In this 42 U.S.C. § 1983 action, Bernard Montez Mixon ["Mixon"], a state inmate, challenges actions taken against him during his confinement in the Easterling Correctional Facility. Mixon names the State of Alabama as one of the defendants in this cause of action. Upon review of the complaint, the court concludes that Mixon's claims against the State of Alabama should be dismissed prior to service of process in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i) and (iii).1 I. DISCUSSION The State of Alabama is immune from suit. Papasan v. Allain, 478 U.S. 265 (1986). Moreover, "a State is not a `person' within the meaning of § 1983 . . ." Will v. Michigan Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309 (1989). Thus, Mixon's claims

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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Dockets.Justia.com

Case 2:06-cv-00342-MHT-SRW

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Filed 04/18/2006

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against this defendant are "based on an indisputably meritless legal theory" and are due to be dismissed pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i) and (iii). Neitzke v. Williams, 490 U.S. 319, 327 (1989).2 CONCLUSION Accordingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. The plaintiff's claims against the State of Alabama be dismissed with prejudice pursuant to the directives of 28 U.S.C. § 1915(e)(2)(B)(i) and (iii). 2. The § 1983 claims presented against Steven B. Canty, officer Pryor, Sgt. Hullet and warden Gwendolyn Mosley be referred back to the undersigned for further proceedings. It is further ORDERED that on or before May 1, 2006 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

Although Neitzke interpreted the provisions of 28 U.S.C. § 1915(d), the predecessor to § 1915(e)(2), the analysis contained therein remains applicable to the directives contained in the present statute.

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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 decisions of the former Fifth Circuit Court of Appeals handed down prior to the close of business on September 30, 1981. DONE, this 18th day of April, 2006.

/s/ Susan Russ Walker SUSAN RUSS WALKER UNITED STATES MAGISTRATE JUDGE

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