Jernigan v. Montgomery County et al (INMATE2)

Filing 4

REPORT AND RECOMMENDATION that Plaintiff's 1 Inmate 1983 Complaint be dismissed with prejudice prior to service of process under 28 U.S.C. 1915(e)(2)(B)(i)-(ii). Objections to R&R due by 7/8/2009. Signed by Honorable Terry F. Moorer on 6/25/2009. (dmn)

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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 _____________________________ J E R E M IA H SHANE JERNIGAN, #92651 Plaintiff, v. M O N T G O M E R Y , COUNTY, et al., D e f e n d a n ts . _____________________________ * * * * * 2:09-CV-552-ID (WO) R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in t if f , Jeremiah Jernigan, is incarcerated in the Montgomery County Detention F a c ility. He files this pro se 42 U.S.C. 1983 action against Montgomery County, Alabama a n d the Montgomery County Detention Facility. Plaintiff contends that in December 2008 h e requested a bond reduction and a preliminary hearing but to date has not received either o n e . Plaintiff also contends that appointed counsel will not meet with him. As relief, P la in tif f seeks to have the charges against him reduced. (Doc. No. 1) Upon review of the c o m p lain t, the court concludes that dismissal of this case prior to service of process is ap p rop riate under 28 U.S.C. 1915(e)(2)(B).1 1 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). I. DISCUSSION A . The Montgomery County Detention Facility T h e Montgomery County Detention Facility is not a legal entity and, therefore, is not s u b je c t to suit or liability under 1983. See Dean v. Barber, 951 F.2d 1210, 1214 (11 th Cir. 1 9 9 2 ). Consequently, Plaintiff's claims against this defendant are due to be dismissed under 2 8 U.S.C. 1915(e)(2)(B)(i). B . Montgomery County, Alabama P la in t if f 's claims against Montgomery County are due to be dismissed as frivolous. S e c tio n 1983 imposes liability on a municipality, such as Montgomery County, only if it d e p riv e s a plaintiff of rights protected by the Constitution or federal law pursuant to an o f f ic ia l municipal policy. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-91 (1978). A d d itio n a lly, governmental entities, such as Montgomery County, cannot be held liable under 4 2 U.S.C. 1983 on a theory of respondeat superior. See Id. at 694; Canton v. Harris, 489 U .S . 378, 385 (1989) ("[A] municipality can be found liable under 1983 only where the m u n ic ip a lity itself causes the constitutional violation at issue. Respondeat superior or v ic a rio u s liability will not attach under 1983." (emphasis in original)). . In this case, Plaintiff does not sue Montgomery County for any policy, practice or c u s to m that violated his civil rights nor can the County be liable under 1983 simply because it employs a tortfeasor. See Monell, supra. Consequently, Plaintiff's claims against M o n tgo m ery County are subject to dismissal under 28 U.S.C. 1915(e)(2)(B)(i). 2 C . The Bond Reduction Claim Plaintiff complains that he had not received a bond reduction. Plaintiff, however, c a n n o t sustain a claim for failure to provide reasonable bond against the named defendants. P u r s u a n t to the relevant Alabama Rules of Criminal Procedure, judges and magistrates of the sta te courts are responsible for and have authority to set and reduce bond/bail. S e e Ala.R.Crim.P., Rule 7.2. Because the named defendants have no authority to set or re d u c e bond, Plaintiff has failed to state a viable 1983 claim against them for an alleged v io la tio n of the right to reasonable bail. This claim, therefore, is due to be dismissed under the provisions of 28 U.S.C. 1915(e)(2)(B)(i). D . The Preliminary Hearing Claim T h e re is no federal requirement that States afford preliminary hearings to persons a c cu s e d of state criminal offenses. Furthermore, if the omissions about which Plaintiff c o m p la in s were found to violate his federal rights, it is clear that his claims concern criminal charge s which are currently pending before the state courts of Montgomery County, Alabama a n d , thus, not currently appropriate for consideration by this court. In Younger v. Harris, 401 U.S. 37, 43-44 (1971), the Supreme Court held that a f e d era l court must refrain from interfering with pending state criminal proceedings "when th e moving party has an adequate remedy at law and will not suffer irreparable injury if d e n ie d injunctive relief." The Younger abstention doctrine is premised upon a fundamental " p u b lic policy against federal interference with state criminal prosecutions." Id. at 43. 3 In this case, Plaintiff has an adequate remedy at law because he may pursue all of his f e d e ra l constitutional issues through the state court system. See generally Doby v. Strength, 7 5 8 F.2d 1405 (11 t h Cir. 1985). Plaintiff can present the factual and legal bases for the alleg ed constitutional violations in the on-going state court criminal proceedings. Moreover, P la in tif f has not alleged the existence of any special circumstances which create a threat of irre p a r a b le harm. The mere fact that Plaintiff must endure state criminal prosecution fails to demonstrate irreparable harm. Younger, 401 U.S. at 45. The court must, therefore, abstain f r o m considering the merits of any challenge Plaintiff makes to his confinement. In light o f the foregoing, dismissal of this claim is appropriate under 28 U.S.C. 1915(e)(2)(B)(ii). I I . CONCLUSION A cc o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that Plaintiff's c o m p la in t be dismissed with prejudice prior to service of process under 28 U.S.C. 1 9 1 5 ( e ) ( 2 ) ( B ) ( i) - ( i i) . It is further ORDERED that on or before July 8, 2009 the parties are DIRECTED to file any o b je c tio n s to the Recommendation. Any objections filed must specifically identify the f in d in g s in the Magistrate Judge's Recommendation to which a party objects. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d v is e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . 4 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 r r 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 25 th day of June 2009. /s /T e r r y F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE 5

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