Jones v. Jones (MAG+)

Filing 4

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Donald W. Jones, that this case be DISMISSED without prejudice pursuant to 28 U.S.C. 1915(e)(2)(B)(i) and (ii). Objections to R&R due by 2/18/2007. Signed by Judge Charles S. Coody on 2/5/2007. (dmn)

Jones v. Jones (MAG+)

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Case 3:07-cv-00081-WKW-CSC

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Filed 02/05/2007

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A ST E R N DIVISION D O N A LD W. JONES, P l a i n t if f , v. SH E R IF F JAY JONES, D e fe n d a n t. ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 3:07cv81-WKW (WO)

O R D E R and RECOMMENDATION OF THE MAGISTRATE JUDGE U p o n consideration of the plaintiff's motion for leave to proceed in forma pauperis, it is O R D E R E D that the motion be and is hereby GRANTED. P la in tiff Donald Jones filed this action against defendant Sheriff Jay Jones alleging th a t Sheriff Jones harassed him. Jones requests that this court stop the harassment and order that state criminal charges against him be dropped. Upon review of the complaint, the court c o n c lu d e s that dismissal of this case is proper under under 28 U.S.C. § 1915(e)(2)(B)(i), (ii) a n d (iii).1 Rather than interpret what the plaintiff says in his complaint, the court will quote fro m it. P r io r to leaving my residence at 295 Lee Road 283 Salem Alabama 36874 I re p o rte d Ms. Colsen Guy the above corruption in the Sheriff's Dept "Sw e e th e a rt" road paving deals for local hwy real estate people etcetera. An in c id e n t occured at Sears Roebuck in Alabama since Sears would not honor

These sections allow dismissal of a case at any time, regardless of the payment of any filing fee, if the court determines that the action is frivolous, fails to state a claim on which relief may be granted or seeks monetary relief a ga inst a defendant who is immune from this relief.

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a warranty on a stereo. I was taken to a Lee County jail holding cell, harassed a n d abused mentally & physically my wife was forced by a Ms. Sistrunk to go b a c k home 5 times to get proof of ownership of real estate in order to be able to post bond. My watch was broken purposefully and I was not allowed to w a s h the fingerprint ink from my hands and when I got home and took a sh o w er having forgotten the fingerprinting the ink damaged my eyes. I left A la b a m a on 8-3-05 because my relatives stole my SS disability check and was b e in g harassed by Lee County deputies in particularly a Sgt. Jusa who initially refu sed to let me swear out a warrant against one Marcos Stott whom I'm c o n vin c e d Daniel Salazar hired to complete this theft. Because I had no ID I c o u ld n 't get any meds and ended up in the mental ward of a hospital in P a n a m a City, Fla. . . . When I left home I went by Judeg Lane's offices on a b o u t September 14, 05 - and left the Judge a note stating that I thought so m e th in g tragic was going to happen and when I returned to Lee County A lab a m a on 9-2-6 apparently it had and Jay Jones had a more intense vendetta a ga in s t. . . . I called the Lee County Sheriff's Office numerous times and was to ld there were no warrants out for me but on about 6 cars pursued me w /f la s h in g lights and I became disoriented and the "pulled me over" because I was driving erratically and put me in jail for FTA . . . I have been very ill, m e n ta lly & physically because of all of this . . . Please help me to prevent, Lee C o u n ty , Russell County, and Chambers County law enforcement from h a r a s sin g and intimidating me and drop the charges relative to Sears. P u rsu a n t to 28 U.S.C. § 1915(e)(2)(B)(i), the court may dismiss a pro se case if it d e ter m in e s that the case is frivolous or malicious. A factual frivolousness finding is

a p p ro p ria te when the facts alleged rise to the level of the irrational or the wholly incredible. D e n to n v. Hernandez, 504U.S. 25 (1992). This case is a paradigm of such a case, and it sh o u ld be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). T h is case is also subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii). Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the court may dismiss a pro se complaint if it fails to state a claim on which relief may be granted. The plaintiff seeks relief only against th e Sheriff who is immune from suit. "A sheriff is an executive officer of the State of

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A lab a m a , who is immune from suit under Article I, § 14, Alabama Constitution of 1901, in the execution of the duties of his office." 2 Parker v. Amerson, 519 So. 442, 442-43 (Ala. 1 9 8 7 ). See also Drain v. Odom, 631 So. 2d 971, 972 (Ala. 1994). "[U]nder Alabama law, a claim against an Alabama sheriff in his individual capacity is barred by the doctrine of s o ve re ign immunity." McMillian v. Johnson, 101 F.3d 1363, 1365 (11 th Cir. 1996). T o the extent that the plaintiff seeks to have the criminal charges pending against him d is m is s e d , this court must abstain from considering the merits of the plaintiff's claim. The p lain tiff's claims concern criminal charges which are currently pending before the state c o u rts . They are, therefore, not currently appropriate for consideration by this court. In Yo u n g e r v. Harris, 401 U.S. 37, 43-44 (1971), the Supreme Court held that a federal court m u s t refrain from interfering with pending state criminal proceedings "when the moving p a rty has an adequate remedy at law and will not suffer irreparable injury if denied injunctive re lie f." The Younger abstention doctrine is premised upon a fundamental "public policy a ga in s t federal interference with state criminal prosecutions." Id. at 43. In this case, the

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There are five exceptions to this general rule, applicable in actions brought (1) to compel [the Sheriff] to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of the law, or (5) to seek construction of a statute under the Declaratory Judgment Act if he is a necessary party for the construction of the statute.

Drain v. Odom, 631 So. 2d 971, 972 (Ala. 1994); Parker v. Amerson, 519 So. 2d 442, 443 (Ala. 1987). None of these exceptions apply in this case.

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p la in tiff has an adequate remedy at law because he may pursue all of his federal co n stitutio n al issues through the state court system. See generally Doby v. Strength, 758 F . 2 d 1405 (11 th Cir. 1985). The plaintiff can present the factual and legal bases for the alleged constitutional violations in the on-going state court criminal proceedings. Moreover, h e has not alleged the existence of any special circumstances which create a threat of irre p a ra b le harm. The mere fact that plaintiff must endure criminal prosecution in state co u rt fails to demonstrate irreparable harm. Younger, 401 U.S. at 45. This court must, th e re fo re , abstain from considering the merits of plaintiff's claims related to the pending c r im i n a l charges. A c c o r d in gly , it is the RECOMMENDATION of the Magistrate Judge that this case b e DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). O R D E R E D that the parties shall file any objections to the said Recommendation on o r before February 18, 2007. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation objected to. Frivolous, conclusive or general o b jec tio n s will not be considered by the District Court. The parties are advised that this R e c o m m e n d atio n 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 tr a t e Judge's report shall bar the party from a de novo determination by the District 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 4

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v . Reynolds Securities, Inc., 667 F.2d 33 (11 t h 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 5 th day of February, 2007.

/s/Charles S. Coody CHARLES S. COODY C H IE F UNITED STATES MAGISTRATE JUDGE

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