Carter v. Jones et al (INMATE 2)

Filing 5

REPORT AND RECOMMENDATION re 1 Inmate 1983 Complaint filed by Sean M. Carter that: 1. Plaintiff's complaint against Defendant Fuller be DISMISSED with prejudice and prior to service of process pursuant to the provisions of 28 U.S.C. 1915(e)(2) (B)(i); 2. Defendant Fuller is DISMISSED as a party to the complaint; and 3. This case with respect to the remaining defendants be referred back to the undersigned for further proceedings. Objections to R&R due by 7/7/2009. Signed by Honorable Wallace Capel, Jr. on 6/23/2009. (dmn)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION ____________________________ S E A N M. CARTER P l a in tif f , v. S H E R IF F JAY JONES, et al., D e f e n d a n ts . ____________________________ * * * * * 3:09-CV-571-TMH (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in t if f , an inmate incarcerated at the Lee County Detention Center in Opelika, A la b a m a , files this 42 U.S.C. § 1983 complaining that he is being denied adequate medical c a re and being subjected to unconstitutional conditions of confinement. Named as

d e fe n d a n ts are Sheriff Jay Jones, Doctor McFarland, Nurses Stewart and Coggins, and M a y o r Gary Fuller. Upon review of the complaint, the court concludes that dismissal of P la in tiff's complaint against Mayor Fuller prior to service of process is appropriate under 28 U .S .C . § 1915(e)(2)(B)(i).1 I . DISCUSSION P lain tiff names Mayor Fuller as a defendant to this cause of action. No specific

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 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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a lle g a tio n s , however, are made against this individual. Consequently, there is no basis on w h ic h the complaint may proceed against him. See Potter v. Clark, 497 F.2d 1206, 1207 (7th C ir.1 9 7 4 ) (per curiam) (court properly dismissed pro se complaint that was silent as to d e f en d a n t except for his name appearing in caption). Further, the complaint may not proceed a g a in s t Defendant Fuller based on his supervisory position. The law is settled that a defendant cannot be held liable in an action brought pursuant to 42 U.S.C. § 1983 under the theory of respondeat superior or on the basis of vicarious lia b ility. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 692 (1978); Belcher v. City of Foley, 3 0 F.3d 1390, 1396 (11 th Cir. 1994) (42 U.S.C. § 1983 does not allow a plaintiff to hold s u p e rv is o ry officials liable for the actions of their subordinates under either a theory of re sp o n d e a t superior or vicarious liability); see also Cottone v. Jenne, 326 F.3d 1352, 1360 (1 1 th Cir. 2003) (holding that a supervisory official is liable only if he "personally p a rtic ip a t e [ d ] in the alleged unconstitutional conduct or [if] there is a causal connection b e tw e e n [his] actions ... and the alleged constitutional deprivation."). Plaintiff's complaint a g a in s t Defendant Fuller on the basis of respondeat superior is, therefore, subject to d ism issal under 28 U.S.C. § 1915(e)(2)(B)(i). I I . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's complaint against Defendant Fuller be DISMISSED with prejudice and p rio r to service of process pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i);

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2 . Defendant Fuller is DISMISSED as a party to the complaint; and 3 . This case with respect to the remaining defendants be referred back to the u n d e rs ig n e d for further proceedings. It is further ORDERED that on or before July 7, 2009 the parties may file objections to this 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 a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a i lu r e 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 tric 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 (5 th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th Cir. 1981) (en b a n c ), 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. D o n e , this 23 rd day of June 2009.

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/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE

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