McKissic v. Randoloph County Jail et al (INMATE 1)

Filing 5

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by Marvin McKissic, it is the Recommendation of the Mag. Judge that: 1) The plaintiff's claims against the Randolph Co. Jail be dismissed prior to service of process pursuant to the p rovisions of 28 U.S.C. 1915(e)(2)(B)(i); 2) The Randolph Co. Jail be dismissed as a dft in this cause of action; 3) This case, with respect to the plaintiff's claims against dfts Wilks, Johnson, Davidson and Haynes, be referred back to the undersigned for appropriate proceedings; Objections to R&R due by 8/18/2005. Signed by Judge Charles S. Coody on 8/5/05. (vmc, )

McKissic v. Randoloph County Jail et al (INMATE 1)

Doc. 5

Case 3:05-cv-00728-MHT-CSC

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Filed 08/05/2005

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION MARVIN McKISSIC, Plaintiff, v. RANDOLPH COUNTY JAIL, et al., Defendants. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 3:05-CV-728-T WO

RECOMMENDATION OF THE MAGISTRATE JUDGE This is a 42 U.S.C. § 1983 action in which the plaintiff, Marvin McKissic, challenges the medical treatment provided to him during his confinement in the Randolph County Jail. Upon review of the complaint, the court concludes that the Randolph County Jail should be dismissed from this cause of action prior to service of process in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B)(i).1 DISCUSSION The plaintiff names the Randolph County Jail as a defendant in this cause of action. A county jail is not a legal entity subject to suit or liability under section 1983. Cf. Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). In light of the foregoing, the court concludes

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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Case 3:05-cv-00728-MHT-CSC

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that the plaintiff's claims against the Randolph County Jail are due to be dismissed. Id. CONCLUSION Accordingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. The plaintiff's claims against the Randolph County Jail be dismissed prior to service of process pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i). 2. The Randolph County Jail be dismissed as a defendant in this cause of action. 3. This case, with respect to the plaintiff's claims against defendants Wilks, Johnson, Davidson and Haynes, be referred back to the undersigned for appropriate proceedings. It is further ORDERED that on or before August 18, 2005 the parties may file objections to this Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District 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 2

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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 5th day of August, 2005.

/s/Charles S. Coody CHARLES S. COODY CHIEF UNITED STATES MAGISTRATE JUDGE

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