Harris v. Abbett et al (INMATE1)

Filing 4

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by Antione Roosevelt Harris, that: 1. The plaintiff's claims against the Alabama Department of Corrections be dismissed prior to service of process in accordance with the provisions o f 28 U.S.C. 1915(e)(2)(B)(i). 2. The Alabama Department of Corrections be dismissed from this cause of action. 3. This case, with respect to the claims against defendants Abbett and Jennings, be referred to the undersigned for appropriate proceedings. Objections to R&R due by 2/27/2006. Signed by Judge Vanzetta P. McPherson on 2/13/2006. (dmn)

Harris v. Abbett et al (INMATE1)

Doc. 4

Case 3:06-cv-00121-MHT-VPM

Document 4

Filed 02/13/2006

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION A N T I O N E ROOSEVELT HARRIS, Plaintiff, v. ) ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 3:06-CV-121-MHT [WO]

JIMMY ABBETT, 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, Antione Roosevelt Harris ["Harris"], a state inmate, a ss e rts that the defendants failed to protect him from attack by a fellow inmate during his c o n fin e m e n t in the Tallapoosa County Jail. Upon review of the complaint, the court concludes that dismissal of the plaintiff's c laim s against the Alabama Department of Corrections prior to service of process is ap p rop riate under 28 U.S.C. § 1915(e)(2)(B)(i).1

D IS C U S S IO N T h e plaintiff names the Alabama Department of Corrections as a defendant in this

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1 . A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in a c c o r d a n c e 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, m a lic io u s , fails to state a claim upon which relief may be granted, or seeks monetary damages from a d e f e n d a n t who is immune from such relief. 28 U. S . C . § 1915(e)(2)(B)(i)-(iii).

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Case 3:06-cv-00121-MHT-VPM

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Filed 02/13/2006

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c a u s e of action. The law is well-settled that state agencies are immune from suit. Papasan v . Allain, 478 U.S. 265 (1986). Thus, the plaintiff's claims against the Alabama Department o f Corrections are frivolous as they are "based on an indisputably meritless legal theory." N eitz k e v. Williams, 490 U.S. 319, 327 (1989).2 Such claims are therefore subject to d is m is s a l pursuant to the directives of 28 U.S.C. § 1915(e)(2)(B)(i).

CONCLUSION A c c o rd in g ly , it is the RECOMMENDATION of the Magistrate Judge that: 1 . The plaintiff's claims against the Alabama Department of Corrections be dismissed p rio r to service of process in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i). 2 . The Alabama Department of Corrections be dismissed from this cause of action. 3 . This case, with respect to the claims against defendants Abbett and Jennings, be r e fe r re d to the undersigned for appropriate proceedings. It is further ORDERED that on or before February 27, 2006 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

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2 . Although Neitzke interpreted 28 U.S.C. § 1915(d), the predecessor to 28 U.S.C. § 1915(e)(2), the analysis c o n t a in e d therein remains applicable to the present statute.

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th a t this 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 tr ic 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 tric 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 d o w n prior to the close of business on September 30, 1981. D o n e this 13 th day of February, 2006.

/s / Vanzetta Penn McPherson U N IT E D STATES MAGISTRATE JUDGE

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