Cameron v. State of Alabama et al (INMATE1)

Filing 5

REPORT AND RECOMMENDATIONS of the Magistrate Judge that: 1) The plf's claims against the State of Alabama and the Alabama Department of Corrections be dismissed prior to service of process in accordance with the provisions of 28 USC 1915(e)(2)(B )(i); 2) The State of Alabama and the Alabama Department of Corrections be dismissed from this cause of action; 3) This case, with respect to the claims lodged against dft King, be referred back to the undersigned for appropriate proceedings; Objections to R&R due by 1/23/2007. Signed by Judge Terry F. Moorer on 1/10/2007. (wcl, )

Cameron v. State of Alabama et al (INMATE1)

Doc. 5

Case 2:07-cv-00035-WHA-TFM

Document 5

Filed 01/11/2007

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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 J IM M Y FRANK CAMERON, #105591, Plaintiff, v. ) ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 2:07-CV-35-WHA [W O ]

S T A T E OF ALABAMA, et al., Defendants.

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, Jimmy Frank Cameron ["Cameron"], a state inmate, c h a lle n g e s his classification as a sex offender and the constitutionality of the Alabama C o m m u n ity Notification Act. Upon review of the complaint, the court concludes that dismissal of the plaintiff's c laim s against the State of Alabama and the Alabama Department of Corrections prior to serv ice of process is appropriate under 28 U.S.C. § 1915(e)(2)(B)(i).1 D IS C U S S IO N C a m e r o n names the State of Alabama and the Alabama Department of Corrections a s defendants in this cause of action. The law is well-settled that both the State and all d e p a rtm e n ts thereof are immune from suit. Papasan v. Allain, 478 U.S. 265 (1986).

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A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint

s c r e e n e d in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires t h e court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is f r iv o lo u s , 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 2:07-cv-00035-WHA-TFM

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Filed 01/11/2007

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M o re o v e r, the Alabama Department of Corrections is not a person within the meaning of 42 U .S .C . § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309 (1 9 8 9 ). Thus, the plaintiff's claims against the State of Alabama and the Alabama

D e p a rtm e n t of Corrections are frivolous as these claims are "based on an indisputably m e r itle s s legal theory." Neitzke v. Williams, 490 U.S. 319, 327 (1989).2 Such claims are th e re fo re 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 State of Alabama and the Alabama Department o f Corrections be dismissed prior to service of process in accordance with the provisions of 2 8 U.S.C. § 1915(e)(2)(B)(i). 2 . The State of Alabama and the Alabama Department of Corrections be dismissed fr o m this cause of action. 3. This case, with respect to the claims lodged against defendant King, be referred b a c k to the undersigned for appropriate proceedings. It is further ORDERED that on or before January 23, 2007 the parties may file objections to the R e c o m m e n d a tio 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

2

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.

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Case 2:07-cv-00035-WHA-TFM

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Filed 01/11/2007

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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 D istric 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 (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 10th day of January, 2007.

/s/ Terry F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

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