Cooper v. Nichols, et al (INMATE2) CANNOT ACCEPT PLEADINGS WITHOUT MOTION FOR LEAVE TO FILE

Filing 5

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by David Cooper, it is the Recommendation of the Mag Judge that: 1) Plaintiff's claims concerning access to the courts, taser guns, and respondeat superior, be dismissed with prejudic e prior to service of process pursuant to the directives of 28 USC 1915(e)(2)(B); 2) Plaintiff's complaint against Defendants Marshal and "law library clerk" be dismissed prior to service; 3) Dfts Marshall and "law library clerk&q uot; be dismissed as dfts to this complaint; 4) This case with respect to Plaintiff's allegation of inadequate medical care against Dft Miller be referred back to the undersigned for further proceedings; Objections to R&R due by 5/24/2006. Signed by Judge Delores R. Boyd on 5/12/06. (vma, )

Cooper v. Nichols, et al (INMATE2) CANNOT ACCEPT PLEADINGS WITHOUT MOTION FOR LEAVE TO FILE

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Case 2:06-cv-00418-MHT-TFM

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _______________________________ D A V ID COOPER, #7743 Plaintiff, v. D .T . MARSHAL, et al., D e f e n d a n ts . _______________________________ * * * * * 2:06-CV-418-MHT (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tiff is an inmate incarcerated at the Montgomery County Detention Facility. He files this complaint pursuant to 42 U.S.C. § 1983 alleging that he is being denied adequate m e d ic a l care, access to ink pens, and copies of pleading, and that guards are allowed to wear tasers. Named as defendants are Sheriff D.T. Marshal, "law library clerk," and Nurse Miller. P lain tiff seeks damages and injunctive relief. Upon review of the complaint, the court c o n c lu d e s that dismissal of some of Plaintiff's claims prior to service of process is proper u n d er 28 U.S.C. § 1915(e)(2)(B).1

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

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I. DISCUSSION A . The Access To Courts Claim P r is o n e rs are entitled to "a reasonably adequate opportunity to present claimed vio la tio n s of fundamental constitutional rights to the courts." Bounds v. Smith, 430 U.S. 817, 8 2 5 (1977). An essential element of any claim of violation of the right to meaningful access to the courts, however, is actual injury. Lewis v. Casey, 518 U.S. 343, 349 (1996). H e re , Plaintiff complains that he is not allowed ink pens and was denied free copies o f the instant law suit. A review of Plaintiff's complaint clearly demonstrates that Plaintiff h a s not been deprived of a writing implement. He has a writing instrument although it is a p p a re n tly different than the one which he would prefer. The restriction, however, does not fore clos e Plaintiff's right of access to the courts. Plaintiff also complains that despite his indigency, he is not provided with free p h o to c o p y in g services. Again, Plaintiff fails to demonstrate any actual injury accruing from h is inability to obtain photocopies of his legal documents. Lewis 518 U.S. at 349. There is n o indication that other means of making copies, e.g. handwritten or carbon copies, are u n a va ila b le to Plaintiff. Moreover, "a prisoner's right of access to the court does not include the right of free unlimited access to a photocopying machine, particularly when . . . there are s u ita b le alternatives." Harrell v. Keohane, 621 F.2d 1059, 1061 (10 th Cir. 1980); Johnson v . Parke, 642 F.2d 377, 380 (10 th Cir. 1981) (same). Plaintiff's allegations that he is denied in k pens and free photocopying services fail to articulate any "actual injury" accruing to him b a se d on these perceived impairments. This claim is, therefore, due to be dismissed under

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the provisions of 28 U.S.C. § 1915(e)(2)(B). B . Taser Guns P lain tiff complains that deputies at the Montgomery County Detention Facility are a llo w e d to wear taser guns. He alleges that he is concerned about the administrations' policy in allowing guards to wear tasers because he has a weak heart and worries he might get shot w ith one. [I]n any § 1983 action the initial inquiry must focus on whether the two e ss e n tia l elements to a § 1983 action are present: (1) whether the conduct c o m p la in e d of was committed by a person acting under color of state law; and (2 ) whether this conduct deprived a person of rights, privileges, or immunities s e c u r e d by the Constitution or laws of the United States. Pa r r a tt v. Taylor, 451 U.S. 527 (1981). P la in tiff's claims concerning the administration's policy in allowing guards to wear ta se rs is conclusory and speculative. Plaintiff states that he is concerned because he might ge t shot by a taser. This subjective concern, without more, is insufficient to demonstrate a c o n stitu tio n a l violation. See Laird v. Tatum, 408 U.S. 1 (1972) (subjective allegations "are n o t an adequate substitute for claims of specific, present objective harm or threat of a sp ec ific, future harm."). Accordingly, this claim is due to be dismissed. 28 U.S.C. § 1 9 1 5 (e)(2)(B ). C . Respondeat Superior P la in tiff files suit against Sheriff Marshall asserting that he responsible for the o p e ra tio n of the Montgomery County Detention Facility and the welfare of inmates. The law is settled that a defendant cannot be held liable in an action brought pursuant to 42 U.S.C.

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§ 1983 under the theory of respondeat superior or on the basis of vicarious liability. Belcher v . City of Foley, 30 F.3d 1390, 1396 (11 th Cir. 1994); Brown v. Crawford, 906 F.2d 667, 671 (1 1 th Cir. 1990); Zatler v. Wainwright, 802 F.2d 397, 401 (11 th Cir. 1986); Monell v. Dept. of Soc. Servs., 436 U.S. 658, 692 (1978). Consequently, Plaintiff's claims against

D efe n d an t Marshal are due to be dismissed. 28 U.S.C. § 1915(e)(2)(B). I I . CONCLUSION A c c o rd in gly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's claims concerning access to the courts, taser guns, and respondeat s u p e rio r, be DISMISSED with prejudice prior to service of process pursuant to the directives o f 28 U.S.C. § 1915(e)(2)(B); 2 . Plaintiff's complaint against Defendants Marshal and "law library clerk" be D ISM ISSE D prior to service; 3 . Defendants Marshal and "law library clerk" be DISMISSED as defendants to this c o m p lain t; 4 . This case with respect to Plaintiff's allegation of inadequate medical care against D efe n d an t Miller be REFERRED back to the undersigned for further proceedings. It is further O R D E R E D that the parties are DIRECTED to file any objections to the R e c o m m e n d a t i o n on or before May 24, 2006. Any objections filed must specifically id e n tify the findings in the Magistrate Judge's Recommendation to which the party is o b je c tin g. Frivolous, conclusive or general objections will not be considered by the District

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Court. The parties are advised that this Recommendation is not a final order of the court a n d , therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a gis 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 fin d in gs in the report accepted or adopted by the District Court except upon grounds of plain erro r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P ric h a r d , 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on Se p te m b e r 30, 1981. D o n e , this 12 th day of May 2006. /s / Delores R. Boyd D E LO R E S R. BOYD U N IT E D STATES MAGISTRATE JUDGE