Hawes v. Bowden et al (INMATE2)

Filing 6

RECOMMENDATION of the Magistrate Judge that: (1) plaintiff's request to institute criminal proceedings against defendant Bowden be dismissed with prejudice prior to service; (2) plaintiff's request for injunctive or declaratory relief be di smissed as moot; (3) plaintiff's respondeat superior claim against defendants Roberts, Bowers, and Franklin be dismissed with prejudice; (4) plaintiff's complaint against the Elmore Co. Jail be dismissed with prejudice; (5) plaintiff's complaint against the Elmore Co. Commission be dismissed with prejudice; (6) plaintiff's complaint against defendants Bowers, Franklin, Roberts, and the Elmore Co. Community Hospital be dismissed without prejudice; (7) this case with respect to the remaining defendant be referred back to the magistrate Judge. Objections to R&R due by 12/31/2008. Signed by Honorable Wallace Capel, Jr on 12/18/08. (sl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _____________________________ C H R IS T O P H E R P. HAWES, 258 240 P l a in tif f , v. T R A C E Y M. BOWDEN, et al., D e f e n d a n ts . _____________________________ * * * * * 2:08-CV-930-TMH (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tif f , an inmate proceeding pro se, files this 42 U.S.C. § 1983 action against s e v e ra l employees of the Elmore County Jail including Nurse Tracey Bowden, Warden Sue R o b e rts, Sheriff Bill Franklin, and Gary Bowers. Plaintiff also names the Elmore County J a il/C o m m is s io n and the Elmore County Community Hospital as defendants. In the c o m p lain t, Plaintiff alleges that Defendant Bowden violated his Eighth and Fourteenth A m e n d m e n t rights during his incarceration at the Elmore County Jail by forcing him to h a v e sexual intercourse with her as well as "multipl[e] counts of deviate sexual intercourse." P la in tif f complains that instead of Defendant Bowden losing her job or being transferred as a result of her conduct, he was transferred from the Elmore County Jail. Plaintiff asks that th e court institute criminal charges against Defendant Bowden and find the named d e f e n d a n ts responsible for his pain, suffering, mental anguish, and lasting harm. (Doc. No. 1 at 2-4.) Upon review of the complaint, the court concludes that dismissal of certain claims

a n d defendants prior to service of process is appropriate in accordance with the directives o f 28 U.S.C. § 1915(e)(2)(B)(i), (ii) and (iii).1 I . DISCUSSION A . The Request to File Criminal Charges Against Defendant Bowden P la in tif f requests that criminal charges be filed against Defendant Bowden for f o rc in g him to engage in various sexual acts with her. Plaintiff does not have a

c o n stitu tio n a l right to see his alleged persecutor punished for her conduct, nor, as a private c itiz e n , can he commence criminal proceedings on his own. Linda R. S. v. Richard D., 410 U .S . 614, 619 (1973) (a "private citizen lacks a judicially cognizable interest in the p ro sec u tio n or non-prosecution of another."); Leeke v. Timmerman, 454 U.S. 83 (1981) (sa m e ); see also Savage v. Arnold, 403 F. Supp. 172, 174 (E.D. Pa. 1975) (private citizens h a v e no right to institute criminal prosecutions in federal court); United States v. Panza, 381 F . Supp 1133 (W.D. Pa. 1974) (same); see also Shaw v. Neece, 727 F.2d 947, 949 (10 th Cir. 1 9 8 4 ) (plaintiff cannot recover civilly under a criminal statute). The decision whether to p ro s e c u te a particular case is in the discretion of the prosecutorial authority. United States v . Batchelder, 442 U.S. 114, 124 (1979); Otero v. United States Attorney General, 832 F.2d 1 4 1 (11 th Cir. 1987). Such decision is not generally subject to judicial review. Massey v.

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, regardless of the payment of a filing fee, 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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S m ith , 555 F.2d 1355, 1356 (8 th Cir. 1977). Consequently, Plaintiff's request that criminal c h a rg e s be initiated against Defendant Bowden is due to be dismissed under 28 U.S.C. § 1 9 1 5 (e )( 2 )( B )( i). Neitzke 490 U.S. 319, 325 (1989). B . Request for Injunctive or Declaratory Relief P la in t if f is currently incarcerated at the Kilby Correctional Facility and was so in c a r c e r a te d at the time he filed the instant action. To the extent his complaint asserts a re q u e st for injunctive or declaratory relief, such claim is due to be dismissed. Courts do not s it to render advisory opinions. North Carolina v. Rice, 404 U. S. 244, 246 (1971). An a c tu a l controversy must exist at all times when the case is pending. Steffel v. Thompson, 415 U . S. 452, 459 n.10 (1974). In cases where the only relief requested is injunctive in nature, it is possible for events subsequent to the filing of the complaint to make the matter moot. N a tio n a l Black Police Assoc. v. District of Columbia, 108 F.3d 346, 350 (D.C. Cir. 1997) (c h a n g e in statute); Williams v. Griffin, 952 F.2d 820, 823 (4 th Cir. 1991) (transfer of p riso n e r); Tawwab v. Metz 554 F.2d 22, 23 (2 nd Cir. 1977) (change in policy). A claim becomes moot when the controversy between the parties is no longer alive b e c a u s e one party has no further concern in the outcome. Weinstein v. Bradford, 423 U.S. 1 4 7 (1975); Flast v. Cohen, 392 U.S. 83, 95 (1968) ("Where the question sought to be a d ju d ic a te d has been mooted by developments subsequent to filing of the complaint, no justiciab le controversy is presented."). Article III of the United States Constitution confers ju ris d ic tio n on the district courts to hear and determine "cases" or "controversies." Federal

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c o u rts are not permitted to rule upon questions which are hypothetical in nature or which d o not affect the rights of the parties in the case before the court. Lewis v. Continental Bank C o r p ., 494 US. 472, 477 (1990). In Saladin v. Milledgeville, 812 F.2d 687, 693 (11 th Cir. 1987), the Eleventh Circuit C o u rt of Appeals determined: A case is moot when the issues presented are no longer "live" or the parties la c k a legally cognizable interest in the outcome of the litigation, such as w h e re there is no reasonable expectation that the violation will occur again or w h e re interim relief or events have eradicated the effects of the alleged v io la tio n . (c itatio n s omitted); see also Darring v. Kincheloe, 783 F.2d 874, 876-77 (9 th Cir. 1986) (a fter an inmate is transferred, there is neither a "reasonable expectation" nor a " d e m o n s tra te d probability" that the inmate will return to the prison against which he sought in j u n c tiv e relief and therefore claim for injunctive relief is moot). "This case-or-controversy re q u ire m e n t subsists through all stages of federal judicial proceedings, trial and appellate . . . [I]t is not enough that a dispute was very much alive when the suit was filed." Id. Plaintiff is no longer an inmate in the Elmore County Jail. He is, therefore, no longer s u b je c t to the conditions about which he complains. Because Plaintiff has been transferred to another penal institution, any request for injunctive or declaratory relief is subject to d is m is s a l as moot. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Murphy v . Hunt, 455 U.S. 478, 481-82 (1982); Cotterall v. Paul, 755 F.2d 777, 780 (11 th Cir. 1985) (p a st exposure to even illegal conduct does not in and of itself show a pending case or

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co n tro v ersy regarding injunctive relief if unaccompanied by any continuing present injury o r real and immediate threat of repeated injury). C . Respondeat Superior T o the extent Plaintiff seeks to hold Defendants Bowers, Roberts, and Franklin liable f o r the conduct of Defendant Bowden under a theory of respondeat superior, he is entitled to no relief. The law is settled that a defendant cannot be held liable in an action brought p u rs u a n t to 42 U.S.C. § 1983 under the theory of respondeat superior or on the basis of v ic a rio u s liability. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 692 (1978); Belcher v. City o f Foley, 30 F.3d 1390, 1396 (11 th Cir. 1994) (42 U.S.C. § 1983 does not allow a plaintiff to h o ld supervisory officials liable for the actions of their subordinates under either a theory of r e s p o n d e a t superior or vicarious liability); see also Cottone v. Jenne, 326 F.3d 1352, 1360 (1 1 th Cir. 2003) (holding that a supervisory official is liable only if he "personally p a rtic ip a t e [ d ] in the alleged unconstitutional conduct or [if] there is a causal connection b e tw e e n [his] actions. . . and the alleged constitutional deprivation."). P la in tif f 's claim against Accordingly,

Defendants Bowers, Franklin, and Roberts on the basis of

r e s p o n d e a t superior is subject to dismissal under 28 U.S.C. § 1915(e)(2)(B)(i). N o tw ith s ta n d in g that Plaintiff may not seek to hold a defendant liable in a § 1983 a c t io n under a theory of respondeat superior, the court notes further that Plaintiff's c o m p l a in t fails to allege any specific claims against Defendants Bowers, Franklin, Roberts, o r the Elmore County Community Hospital. Rather, Plaintiff's complaint merely lists these

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in d iv id u a ls and the hospital as defendants but fails to allege how they were each personally in v o lv e d in the constitutional violations. See Potter v. Clark, 497 F.2d 1206, 1207 (7 th Cir. 1 9 7 4 ) (per curiam) (court properly dismissed pro se complaint that was silent as to defendant e x c e p t for his name appearing in caption). Accordingly, Plaintiff's complaint against these d e f e n d a n ts , as pled, does not support a cause of action against them. See Magluta v. Samples, 2 5 6 F .3 d 1282, 1284 (11 th Cir. 2001). D . The Elmore County Jail P la in tif f names the Elmore County Jail as a defendant. A county jail is not a legal e n tity and, therefore, is not subject to suit or liability under § 1983. See Dean v. Barber, 951 F .2 d 1210, 1214 (11 th Cir. 1992). In light of the foregoing, the court concludes that Plaintiff's c la im s against this defendant is due to be dismissed. Id. E . The Elmore County Commission P lain tiff names the Elmore County Commission as a defendant. County

c o m m is s io n e rs cannot be held liable for actions undertaken during the daily operation of a c o u n ty jail. Turquitt v. Jefferson County, Alabama, 137 F.3d 1285, 1289 (11 th Cir. 1998). M o re o v e r, county commissioners are entitled to absolute immunity under § 1983 for claims a ris i n g from the appropriation of funds for the maintenance of a county jail. Woods v. G a r n e r, 132 F.3d 1417, 1420 (11 th Cir. 1998) ("The budgetary decisions made by defendants f o r funding the county--including the jail--are legislative acts protected by legislative im m u n ity."). Thus, Plaintiff's claims against the Elmore County Commission are subject to

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s u m m a ry dismissal upon application of the directives of 28 U.S.C. § 1915(e)(2)(B)(i) and ( i i i) . II. CONCLUSION In light of the foregoing, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's request to institute criminal proceedings against Defendant Bowden be D IS M IS S E D with prejudice prior to service pursuant to the provisions of 28 U.S.C. § 1 9 1 5 ( e ) ( 2 ) ( B ) ( i) ; 2 . Plaintiff's request for injunctive or declaratory relief be DISMISSED as moot; 3 . Plaintiff's respondeat superior claim against Defendants Roberts, Bowers, and F ran k lin be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i); 4. Plaintiff's complaint against the Elmore County Jail be DISMISSED with

p rejud ice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i); 5 . Plaintiff's complaint against the Elmore County Commission be DISMISSED w ith prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (iii); 6. Plaintiff's complaint against Defendants Bowers, Franklin, Roberts, and the E lm o re County Community Hospital be DISMISSED without prejudice under 28 U.S.C. § 1 9 1 5 (e )(2 )(B )(ii); and 7 . This case with respect to the remaining defendant be referred back to the u n d e r s ig n e d for further proceedings. It is further

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O R D E R E D that the parties are DIRECTED to file any objections to the said R ec o m m en d atio n on or before December 31, 2008. 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 f in 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 18 th day of December 2008.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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