Henley et al v. McGriff et al (INMATE 2)

Filing 5

REPORT AND RECOMMENDATION of the Magistrate Judge that: 1) Plf's claims against the Alabama Board of Pardons and Paroles and the State of Alabama be DISMISSED with prejudice prior to service of process under 28 USC 1915(e)(2)(B)(i) and/or (iii); 2) The Alabama Board of Pardons and Paroles and the State of Alabama be DISMISSED as parties to this cause of action; 3) This case be referred back to the undersigned for further proceedings; Objections to R&R due by 1/22/2009. Signed by Honorable Wallace Capel, Jr on 1/9/2009. (wcl, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ____________________________ R IC H A R D EARL HENLEY, #123 127 P l a in tif f , v. T H E ALA. BD. OF PARDONS/PAROLES, et al., D e f e n d a n ts . ____________________________ * * * * * 2:08-CV-1004-WKW (WO) R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P lain tiff , Richard Henley, files this 42 U.S.C. 1983 alleging a violation of his F o u r te e n th Amendment rights to a fair, unbiased, and accessible parole hearing. Named as th e defendants are the Alabama Board of Pardons and Paroles and the State of Alabama. U p o n review of the complaint, the court concludes that Plaintiff's claims against the named d e f e n d a n ts are subject to dismissal in accordance with the provisions of 28 U.S.C. 1 9 1 5 ( e ) ( 2 ) ( B ) .1 I . DISCUSSION A . The Alabama Board of Pardons and Paroles T h e Alabama Board of Pardons and Paroles is not subject to suit or liability under 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 1 9 8 3 . The Eleventh Amendment bars suit directly against a state or its agencies, regardless o f the nature of relief sought. Papasan v. Allain, 478 U.S. 265 (1986); Pennhurst State S c h o o l & Hosp. v. Halderman, 465 U.S. 89 (1984). Thus, Plaintiff's claims against the A la b a m a Board of Pardons and Paroles are "based on an indisputably meritless legal theory," a n d are, therefore, subject to dismissal as frivolous under 28 U.S.C. 1915(e)(2)(B). See N eitz k e v. Williams, 490 U.S. 319, 327 (1989).2 B . The State of Alabama The State of Alabama is immune from suit. Papasan v. Allain, 478 U.S. 265 (1986). Moreover, "a State is not a `person' within the meaning of 1983...." Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989). Thus, Plaintiff's claims against the State of Alabama are "based on an indisputably meritless legal theory" and are due to be dismissed pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B)(i) and (iii). Neitzke, 490 U.S. at 327. 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 Board of Pardons and Paroles and the State o f Alabama be DISMISSED with prejudice prior to service of process under 28 U.S.C. 1 9 1 5 (e)(2)(B )(i) and/or (iii); Although Neitzke interpreted the provisions of 28 U.S.C. 1915(d), the predecessor to 1915(e)(2), the analysis contained therein remains applicable to the directives contained in the present statute. 2 2 2 . The Alabama Board of Pardons and Paroles and the State of Alabama be D IS M IS S E D as parties to this cause of action; and 3 . This case be referred back to the undersigned for further proceedings. It is further ORDERED that the parties shall file any objections to the said Recommendation on o r before January 22, 2009. Any objections filed must specifically identify the findings in th e Magistrate Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is 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 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 tt a 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 d o w n prior to the close of business on September 30, 1981. 3 Done, this 9th day of January 2009. /s/ Wallace Capel,Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE 4

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