Gray v. Wilson et al (INMATE2)

Filing 4

REPORT AND RECOMMENDATIONS that plf's 1 Inmate 1983 Complaint be dismissed with prejudice prior to service of process in accordance with the directives of 28 USC 1915(e)(2)(B); Objections to R&R due by 5/9/2005. Signed by Judge Susan Russ Walker on 4/26/05. (djy, )

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Gray v. Wilson et al (INMATE2) Doc. 4 Case 3:05-cv-00369-MEF-SRW Document 4 Filed 04/26/2005 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE M IDDLE DISTRICT OF ALABAM A EAST ERN DIVISION _______________________________ OT IS GRAY Plaint iff, v. JENNY WILSON, et al., Defendant s. _______________________________ * * * CIVIL ACTION NO. 3:05-CV-369-F WO * * RECO MMENDATIO N OF THE MAGIS TRATE JUDGE Plaint iff, Otis Gray, is incarcerated in t h e Opelika City Jail located in Opelika, Alabama. He filed this 42 U.S.C. 1983 action on April 21, 2005 complaining that on M arch 7, 2005 and A p r i l 13, 2005 he received mail that was torn and "re-taped." Named as defendant s are Jenny Wils o n, Latonya Gary and Sergeant Clark. t o investigate the matter about which he complains. Upon consideration of the pleadings filed in t h i s cas e , the court concludes that dismissal of Plaintiff's complaint prior to service of process is appropriate under 28 U.S.C. 1915(d).1 Plaintiff asks the court A prisoner who is allowed to proceed in for m a pauper is 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 m a y 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). 1 Case 3:05-cv-00369-MEF-SRW Document 4 Filed 04/26/2005 Page 2 of 3 DIS CUS S IO N Plaint iff's complaint that on t w o occasions he received mail that had been torn and t ap ed fails to state a claim of constitutional magnitude. Assuming, arguendo, that the damage to Plaintiff's mail occurred at the jail facility and not through the postal service, the law is well s et t led that the Constitution is not implicated by negligent acts of an official causing unintended loss of life, liberty or property. Daniels v. Williams, 474 U.S. 327, 333 (1986). In this case, Plaintiff's claim of negligence against Defendant s shows, at best, only a lack of due care by prison officials which is not actionable under 42 U.S.C. 1983. The p rot ect ions of the Constitution "are just not triggered by lack of due care by p r i s o n officials." Davidson v. Cannon, 474 U.S. 344, 348 (1986); Daniels, 474 U.S. at 333. Based on the foregoing, t h e court concludes that the allegation about which Plaint iff complains does not rise to the level of a constitutional violation and provides no basis for relief in this 42 U.S.C. 1983 action. P l a i n t i f f ' s complaint is, therefore, subject to summary dismissal pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B). CO NCLUS IO N Accordingly , it is the RECOM M ENDAT I O N of the M agist rat e Judge that Plaintiff's complaint be dismissed with prejudice prior to service of process in accordance wit h the directives of 28 U.S.C. 1915(e)(2)(B). It is further 2 Case 3:05-cv-00369-MEF-SRW Document 4 Filed 04/26/2005 Page 3 of 3 O R D ERED that the parties shall file any objections to the said Recommendation on or before May 9, 2005. Any objections filed must specifically identify the findings in the M agist rat e Judge's Recommendation to which t h e p a r t y is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. T h e p a r t ies are advised t hat this Recommendation is not a final order of the court and, therefore, it is not ap p ealable. Failure to file written object ions to the proposed findings and advisements in the M agist rat e Judge's Recommendation shall bar t h e party from a de novo determination by t he District Court of issues covered in the Recommendation and shall bar the party from at t acking on appeal factual findings in the Recommendation accepted or adopted by the Dist rict Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), 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. DONE, this 26th day of April, 2005. /s/ Susan Russ Walker SUSAN RUSS WALKER UNIT ED STATES M AGIST RAT E JUDGE 3

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