Garrett v. Cochran et al (INMATE 2)

Filing 17

OPINION. Signed by Honorable Judge Myron H. Thompson on 9/14/2016. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
CHRISTOPHER J. GARRETT,

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Plaintiff,
v.
OFFICER CHRISTOPHER
COCHRAN, et al.,
Defendants.

CIVIL ACTION NO.
3:16cv558-MHT
(WO)

OPINION
Pursuant to 42 U.S.C. § 1983, plaintiff, who is
incarcerated in the Randolph County Jail, filed this
lawsuit complaining about being subjected to excessive
force by defendant police officer Christopher Cochran.
This

lawsuit

is

now

before

the

court

on

the

recommendation of the United States Magistrate Judge
that

plaintiff’s

claims

against

defendants

City

of

Roanoke and Roanoke Police Department be dismissed with
prejudice.

There

recommendation.
review

of

the

are

After
record,

an
the

no

objections

independent
court

and

concludes

to

the

de

novo

that

the

magistrate

judge’s

recommendation

with one exception:

should

be

adopted,

the claim against the City should

be dismissed without prejudice and with leave to amend.
A pro se plaintiff “must be given at least one
chance to amend the complaint before the district court
dismisses the action with prejudice.”
928

F.2d

other

1108,

grounds

1112
by

(11th

Wagner

v.

Cir.

Bank v. Pitt,

1991),

Daewoo

overruled

Heavy

Indus.

on
Am.

Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc);
see also Carter v. HSBC Mortgage Servs., Inc., 622 F.
App'x 783, 786 (11th Cir. 2015) (explaining that Bank
is controlling law for pro se plaintiffs).

There are

two caveats to this rule, in which leave to amend is
not required: “(1) where the plaintiff has indicated
that she does not wish to amend her complaint; and (2)
where

a

more

carefully

drafted

complaint

state a claim and is, therefore, futile.”
F. App'x at 786.

2

could

not

Carter, 622

Plaintiff’s

claim

against

the

City

must

be

dismissed without prejudice and with leave to amend,
because

plaintiff

potentially

could

allege

a

viable

claim against the City if he were to allege sufficient
facts

to

show

practice

that

caused

unconstitutional
comparison,

the

City’s

policy,

defendant
treatment

plaintiff’s

claim

custom,

Cochran’s
of

or

alleged

plaintiff.
against

the

In
Roanoke

Police Department cannot be cured.

As a matter of law

the

to

suit,

as

no

added

factual

Department

Magistrate

Judge

is

not

subject

explained,

and

the

allegations could change that legal determination.
An appropriate judgment will be entered.
DONE, this the 14th day of September, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE