Thompson v. Upshaw et al (INMATE 1)

Filing 4

RECOMMENDATION of the Magistrate Judge that: (1) the claims presented by Thompson with respect to actions taken against him during his confinement in the Barbour County Jail be dismissed as moot; (2) the claims presented on behalf of other inmates co nfined in the Barbour County Jail be dismissed with prejudice; (3) this case be dismissed prior to service of process in accordance with the directives of 28 USC 1915(e)(2)(B)(i) and (ii). Objections to R&R due by 4/14/2009. Signed by Honorable Susan Russ Walker on 4/2/09. (sl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION JOSEPH THOMPSON, Plaintiff, v. LEROY UPSHAW, et al., Defendants. ) ) ) ) ) CIVIL ACTION NO. 2:09-CV-210-TMH ) [WO] ) ) ) )

RECOMMENDATION OF THE MAGISTRATE JUDGE In this 42 U.S.C. § 1983 action, Joseph Thompson ["Thompson"], an indigent inmate, complains that the defendants violated his constitutional rights during his confinement in the Barbour County Jail. Thompson seeks only injunctive relief. The documents filed in this case demonstrate that Thompson is no longer incarcerated in the Barbour County Jail.1 Upon review of the complaint, the court concludes that dismissal of this case prior to service of process is proper under 28 U.S.C. § 1915 § 1915(e)(2)(B)(i) and (ii).2 DISCUSSION Thompson complains that while incarcerated in the Barbour County Jail the

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The plaintiff is presently incarcerated at the Joseph V. Conte Facility in Pompano Beach, Florida.

The court granted Thompson leave to proceed in forma pauperis in this cause of action. Court Doc. No. 3. A prisoner who is allowed to proceed in forma pauperis will have his complaint screened under the provisions of 28 U.S.C. § 1915(e)(2)(B) which requires this 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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defendants denied him adequate medical treatment and exposed him to second-hand smoke. Thompson requests that the court investigate the Barbour County Jail, require the jail to employ an on-site professional medical staff, and forbid smoking in the jail. Court Doc. No. 1 - Plaintiff's Complaint at 4. Thompson is no longer incarcerated in the Barbour County Jail. Courts do not sit to render advisory opinions. North Carolina v. Rice, 404 U. S. 244, 246 (1971). An actual 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. National Black Police Assoc. v. District of Columbia, 108 F.3d 346, 350 (D.C. Cir. 1997) (change in statute); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (transfer of prisoner); Tawwab v. Metz 554 F.2d 22, 23 (2nd Cir. 1977) (change in policy). A claim becomes moot when the controversy between the parties is no longer alive because one party has no further concern in the outcome. Weinstein v. Bradford, 423 U.S. 147 (1975); Flast v. Cohen, 392 U.S. 83, 95 (1968) ("Where the question sought to be adjudicated has been mooted by developments subsequent to filing of the complaint, no justiciable controversy is presented."). Article III of the United States Constitution confers jurisdiction on the district courts to hear and determine "cases" or "controversies." Federal courts are not permitted to rule upon questions which are hypothetical in nature or which do not affect the rights of the parties in the case before the court. Lewis v. Continental Bank

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Corp., 494 US. 472, 477 (1990). In Saladin v. Milledgeville, 812 F.2d 687, 693 (11th Cir. 1987), the Eleventh Circuit Court of Appeals determined: A case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome of the litigation, such as where there is no reasonable expectation that the violation will occur again or where interim relief or events have eradicated the effects of the alleged violation. (citations omitted); see also Darring v. Kincheloe, 783 F.2d 874, 876-77 (9th Cir. 1986) (after an inmate is transferred, there is neither a "reasonable expectation" nor a "demonstrated probability" that the inmate will return to the prison against which he sought injunctive relief and therefore claim for injunctive relief is moot). "This case-or-

controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate...." Id. Thompson is not incarcerated in the Barbour County Jail. He is, therefore, no longer subject to the conditions about which he complains and any request for injunctive or declaratory relief is subject to dismissal 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 (11th Cir. 1985) (past exposure to even illegal conduct does not in and of itself show a pending case or controversy regarding injunctive relief if unaccompanied by any continuing present injury or real and immediate threat of repeated injury). In addition, to the extent Thompson attempts to present claims relative to the

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violation of the constitutional rights of other inmates who remain confined in the Barbour County Jail, Thompson lacks standing to proceed on these claims as he may not assert the legal rights of other persons. Saladin, 812 F.2d at 690; Allen v. Wright, 468 U.S. 737, 751 (1984). Thus, with respect to claims attacking the alleged violations of other inmates' constitutional rights, Thompson is not "asserting his ... own legal rights and interests [but] rather ... the legal rights and interests of third parties." Saladin, 812 F.2d at 690. These claims allege "infringement of a legal interest which clearly does not exist[,]" Neitzke v. Williams, 490 U.S. 319, 324 (1989),3 and are therefore subject to dismissal under the provisions of 28 U.S.C. § 1915(e)(2)(B)(i). CONCLUSION Accordingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. The claims presented by Thompson with respect to actions taken against him during his confinement in the Barbour County Jail be dismissed as moot. 2. The claims presented on behalf of other inmates confined in the Barbour County Jail be dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(B)(i) as the plaintiff lacks standing to assert these claims. 3. This case be dismissed prior to service of process in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). It is further ORDERED that on or before April 14, 2009 the parties may file objections to this
Although Neitzke interpreted 28 U.S.C. § 1915(d), the predecessor to § 1915(e)(2), the analysis contained therein remains applicable to the directives of the present statute.
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Recommendation. Any objections filed must clearly identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Done, this 2nd day of April, 2009. /s/ Susan Russ Walker SUSAN RUSS WALKER CHIEF UNITED STATES MAGISTRATE JUDGE