Lee v. Cummins et al (INMATE1)

Filing 5

REPORT AND RECOMMENDATIONS of the Mag Judge that: (1) plf's claims against the Alabama Dept of Corrections be dismissed with prejudice pursuant to the directives of 28 USC 1915(e)(2)(B)(i); (2) the Alabama Dept of Corrections be dismissed as a d efendant in this cause of action; (3) the plf's claims of threatening and abusive language and his claims arising from alleged violations of the constitutional rights of other inmates be dismissed with prejudice in accordance with the provisions of 28 USC 1915(e)(2)(B)(i); (4) this case, with respect to the remaining claims against the individual defendants, be referred back to the undersigned for appropriate proceedings. Objections to R&R due by 2/20/2007. Signed by Judge Charles S. Coody on 2/2/07. (djy, )

Lee v. Cummins et al (INMATE1)

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Case 2:07-cv-00082-MHT-CSC

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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 A L V IN ALPHONSE LEE, #152056, Plaintiff, ) ) ) v. ) ) ) A LAB A M A DEPT. OF CORRECTIONS, et al., ) ) Defendants )

C IV IL ACTION NO. 2:07-CV-82-MHT [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, Calvin Alphonse Lee ["Lee"], a state inmate, c h a lle n g e s the conditions of confinement at the Frank Lee Youth Center. Upon review of the complaint, the court concludes that the plaintiff's claims against th e Alabama Department of Corrections, his claims of threatening or abusive language d ire c te d at him by correctional officers and his allegations with respect to adverse actions ta k e n against other inmates are due to be dismissed prior to service of process in accordance w ith the provisions of 28 U.S.C. § 1915(e)(2)(B)(i).1 D IS C U S S IO N A . The Alabama Department of Corrections T h e law is well-settled that state agencies are absolutely immune from suit. Papasan

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).

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v . Allain, 478 U.S. 265 (1986). Thus, the plaintiff's claims against the Alabama Department o f Corrections are frivolous as they are "based on an indisputably meritless legal theory." N eitz k e v. Williams, 490 U.S. 319, 327 (1989).2 The claims presented by the plaintiff against t h i s defendant are therefore subject to summary dismissal pursuant to the directives of 28 U .S .C .§ 1915(e)(2)(B)(i). B. Threatening and Abusive Language L e e complains that correctional officers use threatening and abusive language in an e f f o rt to provoke a reaction from him. An essential element of a 42 U.S.C. § 1983 action is th a t the conduct complained of deprived the plaintiff of rights, privileges or immunities s e c u re d by the Constitution or laws of the United States. American Manufacturers Mutual In s . Co. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999); Parratt v. T a y lo r , 451 U.S. 527 (1981). Threatening, derogatory or abusive comments made by a c o rre c tio n a l officer to an inmate do not rise to the level of a constitutional violation. M c F a d d e n v. Lucas, 713 F.2d 143 (5 th Cir. 1983); see also Johnson v. Glick, 481 F.2d 1028 (2 n d Cir. 1973). Thus, the actions about which Lee complains fail to demonstrate that the d e f en d a n ts deprived him of any protected right, privilege or immunity. Consequently, the c la im s presented in the instant complaint arising from threatening and abusive comments by c o rr e c tio n a l officers are frivolous as they lack an arguable basis in law. Neitzke, supra. Such c la im s are therefore subject to summary dismissal in accordance with the provisions of 28
2 Although Neitzke interpreted 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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U .S .C . § 1915(e)(2)(B)(i). C. Claims on Behalf of Other Inmates L e e attempts to present claims relative to alleged violations of other inmates' co n stitutio n al rights. In accordance with applicable federal law, Lee lacks standing to assert th e constitutional rights of other persons. Saladin v. City of Milledgeville, 812 F.2d 687 (1 1 th Cir. 1987); Allen v. Wright, 468 U.S. 737, 751 (1984). A plaintiff must assert legally cognizable injury in fact, whether real or threatened, b e f o re federal courts have jurisdiction. Schlesinger v. Reservists Committee to Stop the War, 4 1 8 U.S. 208, 218-19 (1974). Standing involves two aspects. The first is the minimum "case o r controversy" requirement of Article III. This requirement mandates that the plaintiff h im s e lf suffer actual or threatened injury resulting from the action challenged and that such in ju ry is likely to be redressable in a judicial action. Warth v. Seldin, 422 U.S. 490, 499 (1 9 7 5 ). In addition, the Supreme Court has established several requirements based on p ru d e n tia l considerations. Saladin, supra. The prudential limitation applicable in this case is that a litigant may not assert the legal rights or interests of another person. Allen v. Wright, 4 6 8 U.S. 737, 751 (1984). W i t h respect to claims arising from the alleged violations of other inmates' c o n stitu tio n a l rights, Lee is not "asserting his . . . own legal rights and interests [but] rather . . . the legal rights and interests of [a] third part[y]." Saladin, 812 F.2d at 690. These claims a lle g e "infringement of a legal interest which clearly does not exist." Neitzke, 490 at 327.

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T h u s , the claims raised on behalf of other inmates are frivolous and subject to dismissal u n d e r the provisions 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 w ith prejudice pursuant to the directives of 28 U.S.C. § 1915(e)(2)(B)(i). 2 . The Alabama Department of Corrections be dismissed as a defendant in this cause o f action. 3 . The plaintiff's claims of threatening and abusive language and his claims arising f ro m alleged violations of the constitutional rights of other inmates be dismissed with p rejud ice in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i). 4 . This case, with respect to the remaining claims against the individual defendants, b e referred back to the undersigned for appropriate proceedings. It is further ORDERED that on or before February 15, 2007 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

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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 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 (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 down prior to the close of business on September 30, 1981. D o n e this 2 n d day of February, 2007.

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

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