Anderson v. Whaley et al (INMATE 1)
RECOMMENDATION of the Magistrate Judge that: (1) the plaintiff's claims against the State of Alabama be dismissed with prejudice as further set out; (2) the 1983 claims presented against Paul Whaley, Mike Slatton and A. Coleman be referred back to the Magistrate Judge for further proceedings. Objections to R&R due by 8/1/2006. Signed by Judge Charles S. Coody on 7/20/06. (sl, )
Anderson v. Whaley et al (INMATE 1)
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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION M IC H A E L D. ANDERSON, #156270, Plaintiff, v. ) ) ) ) ) ) ) ) ) )
C A S E NO. 2:06-CV-620-WKW [WO]
PAUL WHALEY, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE In this 42 U.S.C. § 1983 action, Michael D. Anderson ["Anderson"], a state inmate, c h a lle n g e s his custody classification. Anderson names the State of Alabama as one of the d e f e n d a n ts in this cause of action. Upon review of the complaint, the court concludes that Anderson's claims against the S ta te of Alabama should be dismissed prior to service of process in accordance with the p rov isio n s of 28 U.S.C. § 1915(e)(2)(B)(i) and (iii).1 I . DISCUSSION T h e State of Alabama is immune from suit. Papasan v. Allain, 478 U.S. 265 (1986). M o re o v e r, "a State is not a `person' within the meaning of § 1983 . . ." Will v. Michigan D e p t. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309 (1989). Thus, Anderson's
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).
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claim s against this defendant are "based on an indisputably meritless legal theory" and are d u e to be dismissed pursuant to 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).2 C O N C L U SIO N A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . The plaintiff's claims against the State of Alabama be dismissed with prejudice p u rsua n t to the directives of 28 U.S.C. § 1915(e)(2)(B)(i) and (iii). 2 . The § 1983 claims presented against Paul Whaley, Mike Slatton, and A. Coleman b e referred back to the undersigned for further proceedings. It is further ORDERED that on or before August 1, 2006 the parties may file objections to the R e c o m m e n d a ti o n . 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 tric 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
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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D is tric t Court except upon grounds of plain error or manifest injustice.
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 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th Cir. 1981, en b a n c ), 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. D o n e this 20th day of July, 2006.
/s/Charles S. Coody CHARLES S. COODY C H IE F UNITED STATES MAGISTRATE JUDGE
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