Johnson v. Giles et al (INMATE 2)

Filing 16

ORDER directing that: (1) Johnson's 12 Objections are OVERRULED; and (2) The 11 Recommendation that the case be dismissed prior to service of process pursuant to 28 USC 1915(e)(2)(B) is ADOPTED, and the case is DISMISSED with prejudice. Signed by Honorable William Keith Watkins on 7/30/2009. (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 D A V ID LAMAR JOHNSON, P la in tif f , v. J .C . GILES, Warden, et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) ) C A S E NO. 2:09-CV-339-WKW ORDER O n June 23, 2009, the Magistrate Judge filed a recommendation that this case be d is m is s e d prior to service of process pursuant to 28 U.S.C. 1915(e)(2)(B)(i)-(ii).1 (Doc. # 11.) Plaintiff David Lamar Johnson objected to the recommendation. (Doc. # 12.) The p o rtio n s of the recommendation to which a party objects are reviewed de novo. 28 U.S.C. 636(b)(1). A de novo review of the record and law confirms that the recommendation (Doc. # 11) is due to be adopted. The court only adds that to the extent Johnson's complaint can b e read to allege, in addition, a violation under 42 U.S.C. 1983 of his Fourth Amendment rig h t to be free from unreasonable searches and seizures, the complaint fails to state a claim o n which relief may be granted. Johnson complains of an unreasonable search and seizure Under 1915(e)(2)(B), a court must dismiss a proceeding in forma pauperis at any time if it determines that the action (i) is frivolous or malicious or (ii) fails to state a claim on which relief may be granted. The recommendation states in its conclusion that the dismissal should be pursuant to subsection (i) (Doc. # 11, at 8), but throughout, refers to Johnson's failure to state a claim (see, e.g., Doc. # 11, at 5). 1 outside of his presence. (Doc. # 10.) The disciplinary report attached to the amended c o m p la in t states that officers opened a bag that was found in the law library. It contained a p ic k and papers with Johnson's name on them. This incident was the basis for a disciplinary a c tio n . T h e re was no Fourth Amendment violation with respect to the search of Johnson's b e lo n g in g s , which were not on his person and were exposed in a prison common area, nor w ith respect to the continued search of his bag once the officers detected a potential weapon in s id e of it. See Hudson v. Palmer, 468 U.S. 517, 526 (1984) ("A right of privacy in tra d itio n a l Fourth Amendment terms is fundamentally incompatible with the close and c o n tin u a l surveillance of inmates and their cells required to ensure institutional security and in te rn a l order."); id. at 528 n.8 ("[T]he same reasons that lead us to conclude that the Fourth A m e n d m e n t's prescription against unreasonable searches is inapplicable in a prison cell, a p p ly with controlling force to seizures. Prison officials must be free to seize from cells any a rtic le s which, in their view, disserve legitimate institutional interests."); Bell v. Wolfish, 441 U .S . 520, 555-57 (1979) (holding that unannounced searches of inmate areas at irregular in te rv a ls in which all inmates are cleared of the residential units, are constitutional under the F o u rth Amendment with respect to pretrial detainees). Accordingly, it is ORDERED that: 2 (1) (2 ) J o h n s o n 's objections (Doc. # 12) are OVERRULED;2 and T h e recommendation (Doc. # 11) that the case be dismissed prior to service of p ro c e s s pursuant to 28 U.S.C. 1915(e)(2)(B) is ADOPTED, and the case is DISMISSED w ith prejudice. D O N E this 30th day of July, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE Johnson states in his objections that the conspiracy was retaliation for his filing previous lawsuits. (Doc. # 12, at 5.) Johnson's amended complaint (Doc. # 10), however did not raise a retaliation claim. His complaint discussed retaliation (see Doc. # 1, at 5), but Johnson was warned, before filing his amended complaint, that the case would proceed based on only those claims in the amended complaint, not those claims in the original complaint (Doc. # 7, at 2). Resurrecting that theory of liability in the objections would thwart the court's warning that Johnson must state all of the claims in the amended complaint. 2 3

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