Garrett v. Cochran et al (INMATE 2)

Filing 17

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

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

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