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