Briskey v. Fuller et al (INMATE 2)(JC)

Filing 3

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by Durward O'Neal Briskey, it is the Recommendation of the Mag. Judge that: 1) Plaintiff's claims against Commissioner Wright be dismissed with prejudice prior to service of proc ess pursuant to the provisions of 28 U.S.C. 1915 (e)(2)(B)(i) and (iii); 2) Commissioner Wright be dismissed as a party to this complaint; and 3) This case with respect to the remaining defendants be referred back to the undersigned for additional proceedings; Objections to R&R due by 8/24/2005. Signed by Judge Vanzetta P. McPherson on 8/10/05. (vmc, )

Briskey v. Fuller et al (INMATE 2)(JC)

Doc. 3

Case 3:05-cv-00725-MHT-VPM

Document 3

Filed 08/10/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA E A S T ER N DIVISION _______________________________ D U R W A R D O'NEAL BRISKEY Plaintiff, v. CO M M ISS IO NE R W RIG HT , et al., Defendants. _______________________________ * * * CIVIL ACTION NO. 3:05-CV-725-T (WO) * *

R E C O M M E N D A TI O N OF THE MAGISTRATE JUDGE P l a i n ti f f is currently incarcerated in the Randolph County Jail located in Wedowee, A l a b a m a . He filed this 42 U.S.C. § 1983 complaint on August 3, 2005 alleging that the c o n d i t io n s of confinement in the jail are unconstitutional. Plaintiff names as defendants Co unty Commissioner Wright, Sheriff Jeff Fuller, Chief Shirley Johnson, and Captain Craig D a v i d s o n . Upon review of the complaint, the court concludes that dismissal of Plaintiff's c la im s against Commissioner Wright prior to service of process is appropriate under 28 U.S.C . § 1915(e)(2)(B)(i).

D I SC U S S I O N Plaintiff's complaint regarding the conditions under which he is housed in the R a n d o l p h County Jail may not proceed against County Commissioner Wright. A county

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Case 3:05-cv-00725-MHT-VPM

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Filed 08/10/2005

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c o m m i s s i o n e r cannot be held liable for actions undertaken during the daily operation of a coun ty jail. Turquitt v. Jefferson County, Alabama, 137 F.3d 1285, 1289 (11 th Cir. 1998). Mo reover, county commissioners are entitled to absolute immunity under § 1983 for claims a r i si n 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). Consequently, Plaintiff's claims against C o m m i s s i o n e r Wright are due to be dismissed under 28 U.S.C. § 1915(e)(2)(B)(i) and (iii).

C O N C L U S IO N Ac cord ingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. Plaintiff's claims against Commissioner Wright be DISMISSED with prejudice

p r i o r to service of process pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i) and (iii); 2 . Commissioner Wright be DISMISSED as a party to this complaint; and 3 . This case with respect to the remaining defendants be referred back to the und ersig ned for additional proceedings. It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a t i o n on or before 24 August 2005. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation objected to. Frivolous, c o n c l u s iv e or general objections will not be considered by the District Court. The parties are a d v i s e d that this Recommendation is not a final order of the court and, therefore, it is not 2

Case 3:05-cv-00725-MHT-VPM

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a p p e a l a b le . Failu re to file written objections to the proposed findings and recommendations in the M a g i s trate Judge's report shall bar the party from a de novo determination by the District Cou rt of issues covered in the report and shall bar the party from attacking on appeal factual f i n 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 i c h a r d , 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the d e c i s io n s of the former Fifth Circuit handed down prior to the close of business on S e p t e m b e r 30, 1981. D o n e this 10th day of August, 2005.

/s/ Vanzetta Penn McPherson V A N Z E T TA PENN MCPHERSON U N I TE D STATES MAGISTRATE JUDGE

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