Bennett v. Alabama Dept. of Corrections et al (INMATE1)

Filing 4

REPORT AND RECOMMENDATIONS of the Mag Judge that this case be dismissed with prejudice prior to service of process in accordance with the provisions of 28 USC § 1915(e)(2)(B)(i); Objections to R&R due by 10/27/2009. Signed by Honorable Wallace Capel, Jr on 10/14/09. (djy, )

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION G L O R IA D. BENNETT, A IS # 2 6 1 7 3 5 , Plaintiff, v. ) ) ) ) ) ) ) ) ) ) ) ) C IV IL ACTION NO. 2:09-CV-933-TMH [W O ] A L A . DEPT. OF CORRECTIONS, et al., Defendants. R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE In this 42 U.S.C. 1983 action, Gloria D. Bennett ["Bennett"], a state inmate, makes g e n e ra l allegations regarding the treatment of female inmates in the Alabama prison system. P la in tiff' s Complaint Court Doc. No. 1 at 2-3. Bennett also complains that more men are re lea se d on parole than are women and asserts women should be given preferential parole c o n sid e ra tio n because "women are wife, mother, grandmother [and] women are need[ed] m o re than men..." Id. at 3.1 Bennett names the Alabama Department of Corrections and the A la b a m a Board of Pardons and Paroles as defendants in this cause of action. Upon review of the complaint, the court concludes that this case is due to be 1 The preferential treatment for women sought by the plaintiff is prohibited by the Equal Protection Clause as i t is clear beyond cavil that a state agency cannot favor women over men based solely on their gender. su m m arily dismissed in accordance with the provisions of 28 U.S.C. 1915(e)(2)(B)(i).2 DISCUSSION T h e law is well-settled that state agencies are absolutely immune from suit. Papasan v . Allain, 478 U.S. 265 (1986) (Unless the State or its agency consents to suit, the plaintiff c a n n o t proceed against such defendant as the action is proscribed by the Eleventh A m e n d m e n t and "[t]his bar exists whether the relief sought is legal or equitable."). The c la im s lodged against the Alabama Department of Corrections and the Alabama Board of P a rd o n s and Paroles are therefore frivolous as such claims are "based on an indisputably m e ritle ss legal theory." Neitzke v. Williams, 490 U.S. 319, 327 (1989).3 In light of the f o re g o in g , the court concludes that the plaintiff's complaint is subject to summary dismissal p u rs u a n t to the directives of 28 U.S.C. 1915(e)(2)(B)(i). CONCLUSION A c c o r d in g ly, it is the RECOMMENDATION of the Magistrate Judge that this case b e dismissed with prejudice prior to service of process in accordance with the provisions of 2 8 U.S.C. 1915(e)(2)(B)(i). It is further 2 The court granted Bennett leave to proceed in forma pauperis. Order of October 8, 2009 - Court Doc. No. 3 . A prisoner who is allowed to proceed in forma pauperis will have her 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 d e t e r m in e s that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks m o n e t a r y damages from a defendant who is immune from such relief. 3 28 U.S.C. 1915(e)(2)(B)(i)-(iii). Although Neitzke interpreted 28 U.S.C. 1915(d), the predecessor to 28 U.S.C. 1915(e)(2), the analysis c o n ta in e d therein remains applicable to the present statute. 2 O R D E R E D that on or before October 27, 2009, the parties may file objections to the R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a i l u r e to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of those issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal any factual findings contained in the Recommendation accepted or a d o p te d by the District Court except upon grounds of plain error or manifest injustice. N e ttle s v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v. Reynolds Securities, Inc., 6 6 7 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th Cir. 1 9 8 1 , en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit h a n d e d down prior to the close of business on September 30, 1981. D o n e this 14th day of October, 2009. /s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 3

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