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, )

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Hicks v. Richard Allen et al (INMATE 1) Doc. 5 Case 2:07-cv-00064-WKW-CSC Document 5 Filed 01/23/2007 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 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). 1 Dockets.Justia.com Case 2:07-cv-00064-WKW-CSC Document 5 Filed 01/23/2007 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. 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. 2 2 Case 2:07-cv-00064-WKW-CSC Document 5 Filed 01/23/2007 Page 3 of 3 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 3

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