Anderson v. Whaley et al (INMATE 1)

Filing 4

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, )

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Anderson v. Whaley et al (INMATE 1) Doc. 4 Case 2:06-cv-00620-WKW-CSC Document 4 Filed 07/20/2006 Page 1 of 3 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). Dockets.Justia.com Case 2:06-cv-00620-WKW-CSC Document 4 Filed 07/20/2006 Page 2 of 3 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. 2 2 Case 2:06-cv-00620-WKW-CSC Document 4 Filed 07/20/2006 Page 3 of 3 D is tric 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 (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 3

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