Carter v. Department of Corrections et al (INMATE2)

Filing 6

REPORT AND RECOMMENDATIONS that:(1) Plaintiff's complaint against the Alabama Department of Corrections be DISMISSED with prejudice prior to service of process; (2) The Alabama Department of Corrections be 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 8/3/2009. Signed by Honorable Wallace Capel, Jr on 7/20/2009. (cb, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION _____________________________ S E A N M. CARTER Plaintiff, v. D E P A R T M E N T OF CORRECTIONS, e t al., D e f e n d a n ts . _____________________________ * * * * * 3:09-CV-606-ID (WO) R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tif f , an inmate incarcerated at the Lee County Detention Center, files this 42 U .S .C . 1983 action alleging that Defendants' failed to protect him from an inmate assault. P la in tif f names as one of the defendants the Alabama Department of Corrections. Upon r e v ie w of the complaint, the court concludes that dismissal of Plaintiff's complaint against th e Alabama Department of Corrections prior to service of process is appropriate under 28 U .S .C . 1915(e)(2)(B).1 I. DISCUSSION P lain tiff 's complaint against the Alabama Department of Corrections ["ADOC"] is d u e to be dismissed. The ADOC is not subject to suit or liability under 1983. The Eleventh 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 Amendment bars suit directly against a state or its agencies, regardless of the nature of relief s o u g h t. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984). In light of the f o re g o in g , the court concludes that Plaintiff's complaint against the ADOC is due to be d is m is s e d pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B)(I) and (iii). See Neitzke v. Williams, 490 U.S. 319, 327 (1989). II. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1. Plaintiff's complaint against the Alabama Department of Corrections be D IS M IS S E D with prejudice prior to service of process pursuant to the directives of 28 U .S .C . 1915(e)(2)(B)(I) - (iii); 2 . The Alabama Department of Corrections be DISMISSED as a party to the c o m p la in t; 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 O R D E R E D that the parties are DIRECTED to file any objections to the R e c o m m e n d a tio n on or before August 3, 2009. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failure to file written objections to the proposed findings and recommendations in the M a g is tra te 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 f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e r r o 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 r ic 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 S e p te m b e r 30, 1981. D o n e this 20 th day of July, 2009. /s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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