Araiza v. Elmore County Commission et al (INMATE2)

Filing 4

REPORT AND RECOMMENDATIONS; Plaintiff's claims against the Elmore County Commission be DISMISSED with prejudice prior to service of process pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i) and (iii); The Elmore County Commission b e DISMISSED as a defendant to this cause of action; and; This case, with respect to Plaintiff's claims against the remaining defendants, be referred back to the undersigned for appropriate proceedings. Objections to R&R due by 3/15/2010. Signed by Honorable Wallace Capel, Jr on 3/1/2010. (jg, ) Modified on 3/1/2010 clarify text (jg, ).

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ____________________________ C O D Y ALLEN ARAIZA, P l a in tif f , v. E L M O R E COUNTY COMMISSION, e t al., D e f e n d a n ts . ____________________________ * * * * * 2:10-CV-163-ID (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tif f , an inmate incarcerated at the Elmore County Jail, filed this 42 U.S.C. § 1983 a c tio n on February 25, 2010. Plaintiff asserts allegation of excessive force and u n c o n stitu tio n a l conditions of confinement against the named defendants for which he seeks m o n e tar y damages. Named as defendants are the Elmore County Commission, Sheriff Bill F ra n k lin , Sergeant Fox, Officer Potts, and Officer Easterling. Upon review of the complaint, th e court concludes that Plaintiff's claims against the Elmore County Commission should be d is m is s e d prior to service of process in accordance with the directives of 28 U.S.C. § 1 9 1 5 (e)(2)(B )(i) and (iii).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, regardless of the payment of a filing fee, 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).

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I . DISCUSSION P lain tiff names the Elmore County Commission as a defendant. County

c o m m is s io n e rs cannot be held liable for actions undertaken during the daily operation of a c o u n ty jail. Turquitt v. Jefferson County, Alabama, 137 F.3d 1285, 1289 (11 th Cir. 1998). M o re o v e r, county commissioners are entitled to absolute immunity under § 1983 for claims a ris in g from the appropriation of funds for the maintenance of a county jail. Woods v. G a r n e r, 132 F.3d 1417, 1420 (11 th Cir. 1998) ("The budgetary decisions made by defendants f o r funding the county--including the jail--are legislative acts protected by legislative im m u n ity."). Thus, Plaintiff's claims against the Elmore County Commission are subject to s u m m a ry dismissal upon application of the directives of 28 U.S.C. § 1915(e)(2)(B)(i) and ( i i i) . I I . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's claims against the Elmore County Commission be DISMISSED with p re ju d ic e prior to service of process pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i) and (iii); 2 . The Elmore County Commission be DISMISSED as a defendant to this cause of a c tio n ; and 3 . This case, with respect to Plaintiff's claims against the remaining defendants, be re f e rr e d back to the undersigned for appropriate proceedings.

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It is further ORDERED that on or before March 15, 2010 the parties may file objections to this 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 a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re 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 issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D is t r i c t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. D o n e , this 1 st day of March 2010.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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