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)

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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). 1 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); -2- 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. -3- /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE -4-

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