Pittman v. Attorney General, State of Alabama et al (MAG+)

Filing 5

REPORT AND RECOMMENDATIONS that 2 MOTION for Leave to Proceed in forma pauperis filed by James John Pittman be be DENIED and this action be DISMISSED as frivolous within the meaning of 28 U.S.C. 1915(e)(2)(B)(I). Objections to R&R due by 12/19/2006. Signed by Judge Wallace Capel Jr. on 12/6/2006. (cc, )

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Pittman v. Attorney General, State of Alabama et al (MAG+) Doc. 5 Case 3:06-cv-01053-WKW-WC Document 5 Filed 12/06/2006 Page 1 of 3 IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION J A M E S JOHN PITTMAN, P l a i n t if f , v. A T T O R N E Y GENERAL, STATE OF AL A B AM A, et al., Defendants. ) ) ) ) ) ) CIVIL ACTION NO.3:06CV1053-WKW ) [WO] ) ) ) ) R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tiff, JAMES PITTMAN, has filed a pro se complaint alleging civil rights vio la tio n s against the Attorney General of the State of Alabama; City of Auburn Police D e p a rtm e n t; City of Birmingham Police Department; City of Gardendale Police Department; Sh e lb y County Sheriff's Department; Walker County Sheriff's Department; and, sixty-eight C o u n ty District Attorneys. Pending before this court is plaintiff's Motion for Leave to P r o c e ed in forma pauperis. U p o n review of the complaint, the court concludes that plaintiff's motion should be D E N IE D and his complaint should be dismissed for a variety of reasons. F irs t, plaintiff's complaint, which is presented in a general and conclusory fashion fa ils to meet the requirements of Fed. R. Civ. P. 8(a), by including a statement of the acts or o m is s io n s as well as pertinent dates and places for any relevant occurrences of each d e f e n d a n t who is alleged to have violated any federal constitutional or statutory rights, to ge th e r with a concise summary of the manner in which the named defendants accomplished th e alleged violations. Se c o n d ly , under the provisions of 28 U.S.C. 1915(e)(2)(B)(I), an action filed in fo r m a pauperis may be dismissed if it is frivolous or malicious. A claim is frivolous when Dockets.Justia.com Case 3:06-cv-01053-WKW-WC Document 5 Filed 12/06/2006 Page 2 of 3 it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827 (1989). The lawsuit before the court is plainly frivolous because it lacks an a rgu a b le basis in the law. A s best the court can determine the complaint appears to allege a denial of equal p ro te c tio n because the defendants have failed to prosecute individuals alleged to have stolen p la in tiff's computer software and services, when plaintiff would have been prosecuted under the same circumstances. Plaintiff also claims that the defendants have failed to act when certain unnamed in d ivid u a ls in Lee County have failed to pay for services or labor rendered. P lain tiff's claims lack merit because "a private citizen lacks a judicially cognizable in te re st in the prosecution or nonprosecution of another." Linda R.S. v. Richard D., 410 U.S. 6 1 4 , 619, 93 S. Ct. 1146 (1973). F o r the foregoing reasons, it is the RECOMMENDATION of the Magistrate Judge t h a t the Motion for Leave to Proceed in forma pauperis be DENIED and the aboverefere n ce d action be DISMISSED as frivolous within the meaning of 28 U.S.C. 1 9 1 5 ( e )( 2 )( B ) (I) . It is ORDERED that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n within a period of 13 days from the date of mailing or transmittal to them. A n y objections filed must specifically identify the findings in the Magistrate Judge's R e c o m m e n d atio n objected to. Frivolous, conclusive or general objections will not be c o n sid e re d 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. F a ilu re to file written objections to the proposed findings and recommendations in the M a gis tra te Judge's report shall bar the party from a de novo determination by the District 2 Case 3:06-cv-01053-WKW-WC Document 5 Filed 12/06/2006 Page 3 of 3 C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual fin d in gs in the report accepted or adopted by the District Court except upon grounds of plain erro 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 ric h a r d , 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on Se p te m b e r 30, 1981. D O N E THIS 6 th day of December, 2006. / s / Wallace Capel, Jr. W A LLA C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 3

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