Krause v. Alabama Department of Corrections et al (INMATE2)

Filing 5

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by Robert D. Krause, it is the Recommendation of the Mag Judge that: 1) Plaintiff's claims against the ADOC and Bob Riley be dismissed with prejudice prior to service of process pursu ant to the provisions of 28 USC 1915(e)(2)(B)(i); 2) The ADOC and Bob Riley be dismissed as parties to this complaint; and 3) This cae with respect to the remaining defendanfs be referred bak to the undersigned for additional proceedings; Objections to R&R due by 6/11/2007. Signed by Judge Terry F. Moorer on 5/30/07. (vma, )

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Krause v. Alabama Department of Corrections et al (INMATE2) Doc. 5 Case 2:07-cv-00468-MEF-TFM Document 5 Filed 05/30/2007 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ____________________________ R O B E R T D. KRAUSE, #248 039 P l a i n t if f , v. A .D .O .C ., et al., D e f e n d a n ts . ____________________________ * * * * * 2:07-CV-468-MEF (WO) R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tiff, an inmate incarcerated at the Ventress Correctional Facility located in C la y to n , Alabama, files this 42 U.S.C. 1983 action complaining that he is being denied a d e q u ate medical care and treatment and being subjected to unconstitutional conditions of c o n fin e m e n t. Plaintiff names as defendants the Alabama Department of Corrections, Prison H e a lth Services, Inc., Commissioner Richard Allen, and Governor Bob Riley. Upon review o f the complaint, the court concludes that dismissal of Plaintiff's claims against the Alabama D e p artm en t of Corrections and Governor Riley prior to service of process is appropriate u n d er 28 U.S.C. 1915(e)(2)(B)(i). I . DISCUSSION A. The Alabama Department of Corrections T h e Alabama Department of Corrections is not subject to suit or liability under Dockets.Justia.com Case 2:07-cv-00468-MEF-TFM Document 5 Filed 05/30/2007 Page 2 of 3 1 9 8 3 . The Eleventh Amendment bars suit directly against a state or its agencies, regardless o f the nature of relief sought. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1 9 8 4 ). In light of the foregoing, the court concludes that Plaintiff's claims against the A la b a m a Department of Corrections are due to be dismissed. Id. B . Governor Riley P la in tiff names the Governor of Alabama as a defendant to this cause of action. G o v e rn o r Riley, however, is subject to dismissal as there is no respondeat superior liability u n d e r 1983. Monell v. Dep't of Social Servs., 436 U.S. 658, 690-92 (1978); Harris v. O s tr o u t, 65 F.3d 912, 917 (11 th Cir. 1995); Belcher v. City of Foley, 30 F. 3 d 1390, 1396 (1 1 th Cir. 1994). II. CONCLUSION A c c o rd in g ly , it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's claims against the Alabama Department of Corrections and Bob Riley b e DISMISSED with prejudice prior to service of process pursuant to the provisions of 28 U .S .C . 1915(e)(2)(B)(i); 2 . The Alabama Department of Corrections and Bob Riley be DISMISSED as parties to this complaint; and 3. This case with respect to the remaining defendants be referred back to the u n d e rs ig n e d for additional proceedings. It is further O R D E R E D that the parties are DIRECTED to file any objections to the said 2 Case 2:07-cv-00468-MEF-TFM Document 5 Filed 05/30/2007 Page 3 of 3 R e c o m m e n d a tio n on or before June 11, 2007. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that 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 recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual fin d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e , this 30 th day of May 2007. / s /T e r r y F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE 3

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