Hicks v. Alabama Department of Corrections et al (INMATE1)

Filing 5

RECOMMENDATION of the Magistrate Judge that: (1) the plaintiff's claims against the Alabama Department of Corrections be dismissed prior to service; (2) the Alabama Department of Corrections be dismissed from this cause of action; (3) this case, with respect to the claims lodged against the remaining defendants be referred back to the Magistrate Judge. Objections to R&R due by 11/22/2006. Signed by Judge Charles S. Coody on 11/9/06. (sl, )

Hicks v. Alabama Department of Corrections et al (INMATE1)

Doc. 5

Case 2:06-cv-00990-MEF-CSC

Document 5

Filed 11/09/2006

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 C H A R L E S HICKS, #246241, ) ) Plaintiff, ) ) v. ) ) ) A LAB A M A DEPT. OF CORRECTIONS, et al., ) ) Defendant. )

C I V I L ACTION NO. 2:06-CV-990-MEF [W O ]

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE In this 42 U.S.C. § 1983 action, Charles Hicks ["Hicks"], a state inmate, challenges th e adequacy of medical treatment provided to him at the Frank Lee Youth Center. Upon review of the complaint, the court concludes that dismissal of the plaintiff's c laim s against the Alabama Department of Corrections prior to service of process is ap p rop riate under 28 U.S.C. § 1915(e)(2)(B)(i).1 D IS C U S S IO N T h e plaintiff names the Alabama Department of Corrections as a defendant in this c a u s e of action. The law is well-settled that state agencies are immune from suit, Papasan v . Allain, 478 U.S. 265 (1986), and are not persons within the meaning of 42 U.S.C. § 1983.

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).

1

Dockets.Justia.com

Case 2:06-cv-00990-MEF-CSC

Document 5

Filed 11/09/2006

Page 2 of 3

S e e Will v. Michigan Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309 (1989). T h u s , the plaintiff's claims against the Alabama Department of Corrections are frivolous as th e y are "based on an indisputably meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 3 2 7 (1989).2 Such claims are therefore subject to dismissal pursuant to the directives of 28 U .S .C .§ 1915(e)(2)(B)(i). CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . The plaintiff's claims against the Alabama Department of Corrections be dismissed p rio r to service of process in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i). 2 . The Alabama Department of Corrections be dismissed from this cause of action. 3 . This case, with respect to the claims lodged against the remaining defendants, be r e f e rr e d back to the undersigned for appropriate proceedings. It is further ORDERED that on or before November 22, 2006 the parties may file objections to t h e Recommendation. 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.

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

2

2

Case 2:06-cv-00990-MEF-CSC

Document 5

Filed 11/09/2006

Page 3 of 3

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 t r i c 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 istrict 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 9 th day of November, 2006.

/s/Charles S. Coody CHARLES S. COODY C H IE F UNITED STATES MAGISTRATE JUDGE

3