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, )

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