Brown v. Montgomery County Detention Facility (INMATE 2)

Filing 4

REPORT AND RECOMMENDATIONS of the Magistrate Judge that Plf's complaint be DISMISSED with prejduice prior to service of process pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B)(i). Objections to R&R due by 6/19/2007. Signed by Judge Wallace Capel Jr. on 6/7/2007. (cb, ) Additional attachment(s) added on 6/7/2007 (cb, ).

Brown v. Montgomery County Detention Facility (INMATE 2)

Doc. 4

Case 2:07-cv-00487-WKW-WC

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Filed 06/07/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ____________________________ R O D E R IC K U S DEQUAN BROWN # 2 5 0 938 P l a in tif f , v. M .C . D .F . D e f e n d a n t. ____________________________ * * * * * 2:07-CV-487-WKW (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P lain tif f , an inmate incarcerated at the Ventress Correctional Facility located in C la yto n , Alabama, filed this 42 U.S.C. § 1983 action on June 4, 2007. He complains that w h ile incarcerated at the Montgomery County Detention Facility he received negligent tre a tm e n t with regard to an infection on his leg caused by either a staph infection or a spider b ite. The Montgomery County Detention Facility is the named defendant. U p o n review of the complaint, the court concludes that dismissal of the complaint a g a in s t the detention facility prior to service of process is appropriate under 28 U.S.C. § 1 9 1 5 ( e ) ( 2 ) ( B ) ( i) . D IS C U S S IO N The Montgomery County Detention Facility is not a legal entity and, therefore, is not s u b je c t to suit or liability under § 1983. See Dean v. Barber, 951 F.2d 1210, 1214 (11 th Cir.

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Case 2:07-cv-00487-WKW-WC

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1 9 9 2 ). In light of the foregoing, the court concludes that Plaintiff's complaint against this d e f en d a n t is due to be dismissed.1 Id. C O N C L U SIO N A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that Plaintiff's c o m p la in t be DISMISSED with prejudice prior to service of process pursuant to the p rov isio n s of 28 U.S.C. § 1915(e)(2)(B)(i). It is further O R D E R E D that the parties are DIRECTED to file any objections to the R e c o m m e n d a tio n on or before June 19, 2007. Any objections filed must specifically identify th e findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d v is e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . 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

The court further notes that the law is well settled that the Constitution is not implicated by negligent acts of an official causing unintended loss of life, liberty or property. Daniels v. Williams, 474 U.S. 327 (1986). Plaintiff's allegation that he was treated negligently at the Montgomery County Detention Facility when he experienced a delay in receiving medical treatment asserts only a lack of due care by prison officials which is not actionable under 42 U.S.C. § 1983. See also Hill v. Dekalb Regional Youth Detention Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994) (inmate must put verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment). The protections of the Constitution "are just not triggered by lack of due care by prison officials." Davidson v. Cannon, 474 U.S. 344, 348 (1986); Daniels v. Williams, 474 U.S. 327, 333 (1986); see also Whitley v. Albers, 475 U.S. at 319 (holding that a violation of the Eighth Amendment must involve "more than an ordinary lack of due care for the prisoner's . . . .safety").

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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 7 th day of June 2007.

/ s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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