Wimberly v. Auburn Police et al (INMATE 2)

Filing 4

RECOMMENDATION OF THE MAGISTRATE JUDGE that: 1. The § 1983 claims presented against the named defendants be DISMISSED with prejudice in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B)(i); 2. Plaintiff's challenge to the con stitutionality of the conviction and sentence imposed upon him by the Municipal Court of Auburn be DISMISSED without prejudice pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(ii) as such claims are not properly before the court at this time; and 3. This case be DISMISSED prior to service of process in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). Objections to R&R due by 3/3/2010. Signed by Honorable Terry F. Moorer on 2/17/2010. (br, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION ______________________________ DARRELL WIMBERLY
P l a i n t if f , v. A U BU R N POLICE, et al. , D e f e n d a n ts . * * * * * 3:10-CV-99-TMH (W O )

______________________________ RECOMMENDATION OF THE MAGISTRATE JUDGE In this 42 U.S.C. § 1983 action, Darrell Wimberly, an inmate incarcerated in the Lee County Detention Center in Opelika, Alabama, challenges actions associated with his criminal proceedings before the Auburn Municipal Court. Plaintiff complains that he did not receive a fair trial and, thus, requests a fair trial and that justice be done. Named as defendants are the Auburn Police and the Auburn Municipal Court.1 Upon review of the complaint, the court concludes that dismissal of this case prior to service of process is appropriate under 28 U.S.C. § 1915(e)(2)(B).2

The court considers Plaintiff's complaint against Defendant "Auburn Police" to be brought against the Auburn Police Department.
2 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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DISCUSSION A. The Auburn Municipal Court Plaintiff names the Auburn Municipal Court as a defendant. The law is established that courts are not persons within the meaning of 42 U.S.C. § 1983. See Moity v. Louisiana State Bar Association, 414 F. Supp. 180, 182 (E.D. La. 1976), aff'd, 537 F.2d 1141 (5th Cir. 1976). Dismissal of Plaintiff's complaint against the Auburn Municipal Court is, therefore, appropriate under 28 U.S.C. § 1915(e)(2)(B)(i). See Neitzke v. Williams, 490 U.S. 319 (1989).
B . The Auburn Police Department T h e Auburn Police Department is not a legal entity subject to suit or liability under § 1983. Cf. Dean v. Barber, 951 F.2d 1210, 1214 (11 th Cir. 1992). In light of the foregoing, th e 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). C. The Challenge to the Conviction T o the extent Plaintiff seeks to challenge the validity of the criminal conviction im p o s e d upon him by the Auburn Municipal Court, such claim may not proceed in a § 1983 a c tio n . This claim goes to the fundamental legality of Plaintiff's confinement, and, c o n s e q u e n tly, provides no basis for relief at this time. Edwards v. Balisok, 520 U.S. 641, 6 4 6 (1997); Heck v. Humphrey, 512 U.S. 477 (1994); Preiser v. Rodriguez, 411 U.S. 475,

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5 0 0 (1973). In Heck, the Supreme Court held that a claim for damages challenging the legality of a prisoner's conviction or confinement is not cognizable in a 42 U.S.C. § 1983 action "unless a n d until the [order requiring such confinement] is reversed, expunged, invalidated, or im p u g n e d by the grant of a writ of habeas corpus" and complaints containing such claims m u s t therefore be dismissed. 512 U.S. at 483-489. The Court emphasized that "habeas c o rp u s is the exclusive remedy for a [confined individual] who challenges the fact or duration o f his confinement and seeks immediate or speedier release, even though such a claim may co m e within the literal terms of § 1983" and, based on the foregoing, concluded that Heck's c o m p la in t was due to be dismissed as no cause of action existed under section 1983. Id. at 4 8 1 . In so doing, the Court rejected the lower court's reasoning that a section 1983 action s h o u ld be construed as a habeas corpus action. In Balisok, the Court further concluded that an inmate's "claim[s] for declaratory [and in ju n c tiv e ] relief and money damages, . . . that necessarily imply the invalidity of the p u n ish m e n t imposed, is not cognizable under § 1983 . . ." unless the inmate can demonstrate th a t the challenged action has previously been invalidated. 520 U.S. at 648. Moreover, the C o u r t determined that this is true not only when a prisoner challenges the judgment as a s u b s ta n tiv e matter but also when "the nature of the challenge to the procedures could be such a s necessarily to imply the invalidity of the judgment." Id. at 645. The Court reiterated the p o s itio n taken in Heck that the "sole remedy in federal court" for a prisoner challenging the 3

c o n s titu tio n a lity of his confinement is a petition for writ of habeas corpus. Id. Additionally, th e Court "reemphasize[d] . . . that a claim either is cognizable under § 1983 and should im m e d ia te ly go forward, or is not cognizable and should be dismissed." Id. at 649. Plaintiff's claims represent a challenge to the constitutionality of his criminal c o n v ictio n . A judgment in favor of Plaintiff in this cause of action would necessarily imply th e invalidity of this conviction. It is clear from the complaint that the conviction about w h ic h Plaintiff complains has not been invalidated in an appropriate proceeding. C o n s e q u e n tly, the instant collateral attack on the conviction is prohibited as habeas corpus is the exclusive remedy for a state prisoner who challenges the validity of the fact or duration o f his confinement. Balisok, 520 U.S. at 645; Heck, 512 U.S. at 481; Preiser, 411 U.S. at 4 8 8 -4 9 0 . Such attack is, therefore, subject to summary dismissal by this court in accordance w ith the provisions of 28 U.S.C. § 1915(e)(2)(B)(ii). II. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . The § 1983 claims presented against the named defendants be DISMISSED with p rejud ice in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B)(i); 2 . Plaintiff's challenge to the constitutionality of the conviction and sentence imposed u p o n him by the Municipal Court of Auburn be DISMISSED without prejudice pursuant to th e provisions of 28 U.S.C. § 1915(e)(2)(B)(ii) as such claims are not properly before the c o u rt at this time; and 4

3 . This case be DISMISSED prior to service of process in accordance with the d irec tiv es of 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). It is further ORDERED that on or before March 3, 2010 the parties may file objections to this R e c o m m e n d a tio n . Any objections filed must clearly identify the findings in the Magistrate J u d g e 's Recommendation to which a party objects. Frivolous, conclusive or general o b jec tio n s will not be considered by the District Court. The parties are advised that this R e c o m m e n d a tio n is not a final order of the court and, therefore, it is not appealable. F a ilu re 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 decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

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Done, this 17th day of February 2010.

/s /T e r r y F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

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