Harkless v. Toney et al

Filing 21

ORDER ADOPTING 11 REPORT AND RECOMMENDATIONS re 1 Complaint filed by Phillip Ray Harkless. It is recommended that this action be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim upon which relief may be granted. Signed by Senior Judge Charles R. Butler, Jr on 5/29/2012. (adk)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PHILLIP RAY HARKLESS
(AIS #266580)

:
:

Plaintiff,
vs.

:

DEBORAH TONEY, et al.,

CIVIL ACTION 11-00570-CB-M

:

Defendants.
ORDER
This matter is before the Court on Plaintiff’s “Statement of
Objection and Request for Leave to Amend the Complaint.”

(Doc. 19.)

Plaintiff objects to the Magistrate Judge’s recommendation (Doc. 11)
that this action be dismissed as frivolous pursuant to 28 U.S.C. §
1915(e)(2)(b).1

Plaintiff’s objection addresses only his

deliberate indifference/denial of medical care claim, one of several
claims subject to dismissal. As the Magistrate Judge pointed out,
the facts asserted by Plaintiff’s deliberate indifference/denial of
medical care claim is negated by Plaintiff’s own allegations.
Plaintiff received medical care, just not the treatment he desired
in the time frame he believed to be appropriate.
objection does not alter this fact.

Plaintiff’s

Plaintiff also seeks leave to

amend his complaint but has failed to file a proposed amended
complaint as specifically directed by the Magistrate Judge.

1

Plaintiff’s objection is based, in part, on the Defendants’ failure to serve him
with a motion to dismiss. That argument is without merit because no motion to
dismiss was filed. Section 1915(e)(2)(B) specifically permits dismissal of a
complaint on frivolity grounds prior to service and without a motion to dismiss.

Moreover, because nothing in Plaintiff’s objection cures the
deficiencies pointed out in the Report and Recommendation, amendment
would be futile.
Therefore, after due and proper consideration of all
portions of this file deemed relevant to the issues raised, and a
de novo determination of those portions of the Report and
Recommendation to which objection is made, the Report and
Recommendation of the Magistrate Judge made under 28 U.S.C. § 636
(b)(1)(B) is ADOPTED as the opinion of this Court.

It is ORDERED

that Plaintiff’s complaint be and is hereby DISMISSED without
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to
state a claim upon which relief may be granted.
The Clerk is DIRECTED to send to the Commissioner of the Alabama
Department of Corrections a copy of the Report and Recommendation
recommending the dismissal of this action, of this Order adopting
the Report and Recommendation, and of the Judgment dismissing this
action.
DONE this 29th day of May, 2012.

s/Charles R. Butler, Jr._____________
SENIOR UNITED STATES DISTRICT JUDGE