Hicks v. Richard Allen et al (INMATE 1)

Filing 5

RECOMMENDATION of the Magistrate Judge that: (1) the plaintiff's claims against the Alabama Department of Corrections be dismissed prior to service as further set out; (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 2/5/2007. Signed by Judge Charles S. Coody on 1/23/07. (sl, )

Hicks v. Richard Allen et al (INMATE 1)

Doc. 5

Case 2:07-cv-00064-WKW-CSC

Document 5

Filed 01/23/2007

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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 C H A R LE S HICKS, #246241, ) ) Plaintiff, ) ) v. ) ) ) ALAB AM A DEPT. OF CORRECTIONS, et al., ) ) Defendant. )

C IV IL ACTION NO. 2:07-CV-64-WKW [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 the adequacy of the law library 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 ca u se 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).

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Dockets.Justia.com

Case 2:07-cv-00064-WKW-CSC

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Filed 01/23/2007

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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. 3 1 9 , 327 (1989).2 Such claims are therefore subject to dismissal pursuant to the directives o f 28 U.S.C.§ 1915(e)(2)(B)(i). CONCLUSION A c c o rd in gly, 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 fe r re d back to the undersigned for appropriate proceedings. It is further ORDERED that on or before February 5, 2007 the parties may file objections to the R e c o m m e n d atio n . Any objections filed must specifically identify the findings in the M a gis 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.

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Case 2:07-cv-00064-WKW-CSC

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Filed 01/23/2007

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F a i l u r e to file written objections to the proposed findings and advisements in the M a gis tra te Judge's Recommendation shall bar the party from a de novo determination by the D i s tric t Court of issues covered in the Recommendation and shall bar the party from a tta c kin g on appeal factual findings in the Recommendation accepted or adopted by the D i s tric t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in wr 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, e n banc), adopting as binding precedent all of the decisions of the former Fifth Circuit h a n d e d down prior to the close of business on September 30, 1981. D o n e this 23 r d day of January, 2006.

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

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