Johnson v. Opelika Police Department et al (INMATE 2)

Filing 13

RECOMMENDATION OF THE MAGISTRATE JUDGE that: 1. Plaintiff's claims against the Opelika Police Department be DISMISSED with prejudice prior to service of process in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i); 2. The Opeli ka Police Department be DISMISSED as a party to this cause of action; and 3. This case, with respect to the claims against the remaining Defendants, be referred back to the undersigned for appropriate proceedings. Objections to R&R due by 3/19/2010. Signed by Honorable Charles S. Coody on 3/5/2010. (br, )

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION _______________________________ LEONARDO JOHNSON Plaintiff, v. OPELIKA POLICE DEPT., et al., Defendants. _______________________________ RECOMMENDATION OF THE MAGISTRATE JUDGE This is a 42 U.S.C. 1983 action in which Plaintiff alleges that Defendants subject him excessive force during an arrest. Plaintiff names as defendants the Opelika Police Department, Detective Michael Rodgers, Detective Stanley Garrett, and Officer Davis. Upon review of the complaint, the court concludes that Plaintiff's claims against the Opelika Police Department are due to be dismissed prior to service pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B).1 I. DISCUSSION The Opelika Police Department is not a legal entity subject to suit or liability under 1983. Cf. Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). In light of the foregoing, * * * * * 3:10-CV-50-ID (WO) 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 the court concludes that Plaintiff's claims for relief lodged against this Defendant are subject to dismissal as frivolous under 28 U.S.C. 1915(e)(2)(B)(i). Id. II. CONCLUSION Accordingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. Plaintiff's claims against the Opelika Police Department be DISMISSED with prejudice prior to service of process in accordance with the provisions of 28 U.S.C. 1915(e)(2)(B)(i); 2. The Opelika Police Department be DISMISSED as a party to this cause of action; and 3. This case, with respect to the claims against the remaining Defendants, be referred back to the undersigned for appropriate proceedings. It is further ORDERED that on or before March 19, 2010 the parties are DIRECTED to file any objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, conclusive or general objections will not be considered by the District Court. The parties 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 Magistrate Judge's report shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual 2 findings in the report accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), 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. Done this 5th day of March, 2010. /s/Charles S. Coody CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE 3

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