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)

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).

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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.

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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 .

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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

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