Thomas v. Montgomery City Jail et al (INMATE2)

Filing 6

REPORT AND RECOMMENDATIONS that Plaintiff's claims against the Montgomery City Jail be DISMISSED with prejudice prior to service of process pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i); that the Montgomery City Jail be DISMISSED as a party to this complaint; that this case with respect to the remaining defendants be referred back to the undersigned for additional proceedings. Objections to R&R due by 4/27/2009. Signed by Honorable Charles S. Coody on 4/14/2009. (cc, )

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ____________________________ DAVID THOMAS Plaintiff, v. MONTGOMERY CITY JAIL, et al., * * * * 2:09-CV-293-WHA (WO) Defendants. * _______________________________ RECOMMENDATION OF THE MAGISTRATE JUDGE Plaintiff is an inmate incarcerated at the Lowndes County Detention Center located in Hayneville, Alabama. He filed this 42 U.S.C. 1983 action on April 7, 2009. He complains that while incarcerated at the Montgomery City Jail in Montgomery, Alabama, in August 2008 Defendants failed to protect him from an inmate assault. Among the named defendants is the Montgomery City Jail. Upon review of the complaint, the court concludes that dismissal of Plaintiff's claims against the Montgomery City Jail prior to service of process is appropriate under 28 U.S.C. 1915(e)(2)(B)(i). DISCUSSION The Montgomery City Jail is not a legal entity and, therefore, is not subject to suit or liability under 1983. See Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). In light of the foregoing, the court concludes that Plaintiff's claims against this defendant should be dismissed. Id. CONCLUSION Accordingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. Plaintiff's claims against the Montgomery City Jail be DISMISSED with prejudice prior to service of process pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B)(i); 2. The Montgomery City Jail be DISMISSED as a party to this complaint; and 3. This case with respect to the remaining defendants be referred back to the undersigned for additional proceedings. It is further ORDERED that the parties are DIRECTED to file any objections to the said Recommendation on or before April 27, 2009. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which a party objects. 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 recommendations in the Magistrate Judge's report shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report 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 of the 2 decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Done this 14th day of April, 2009. /s/Charles S. Coody CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE 3

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