Roberts v. Dews

Filing 36

MEMORANDUM OPINION ADOPTING INITIAL REPORT AND RECOMMENDATION re 33 Report and Recommendations, granting 16 MOTION to Dismiss and Conditional Original Answer and Affirmative Defenses to Plaintiff's First Amended Complaint filed by Harrison County Police Department. Harrison County Police Department (Individual & Official Capacities ) terminated. Signed by Judge Rodney Gilstrap on 3/24/16. (mrm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

DREMEL L. ROBERTS, #140479

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VS.

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MARK DEWS, et al

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CIVIL ACTION NO. 2:14cv933

MEMORANDUM OPINION ADOPTING INITIAL REPORT
AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Dremel L. Roberts, proceeding pro se and in forma pauperis, filed this civil rights
lawsuit under 42 U.S.C. § 1983. This Court ordered that the case be referred to the United States
Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption
of Local Rules for the Assignment of Duties to United States Magistrate Judges.
Plaintiff named the Harrison County Sheriff’s Office (which Plaintiff improperly called the
“Harrison County Police Department”) as one of the defendants in his lawsuit. The Magistrate Judge
issued a Report recommending that this defendant be dismissed because the sheriff’s office has no
separate legal existence apart from the county and thus cannot be sued in its own name. See Darby
v. Pasadena Police Department, 939 F.2d 311, 313 (5th Cir. 1991).
A copy of this Report was sent to Plaintiff and he has filed an objection. Plaintiff states that
because the named defendant Mark Dews was an employee of the Sheriff’s office at the time of the

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events leading to the cause of action, he should be able to name the Sheriff’s Office in his lawsuit
as a defendant. See Plaintiff’s Objection at 2. Plaintiff does not address the reason for the Court’s
findings in the Report. The Harrison County Sheriff’s Office has no separate legal existence, apart
from the county and thus cannot be sued in its own name unless the true political entity has taken
explicit steps to grant the servient agency with jural authority. See Combs v. City of Dallas, 289
F.App’x 684, 2008 U.S. Appx. LEXIS 15866 (5th Cir., July 23, 2008) (city police department could
not be sued as separate and distinct legal entity). Plaintiff has made no showing that Harrison
County has taken steps to invest the Harrison County Sheriff’s Office with jural authority. Because
the Harrison County Sheriff’‘s Office therefore has no separate legal existence, Plaintiff’s claim
against the Department/Sheriff’s Office lacks an arguable basis in fact and law and fails to state a
claim upon which relief may be granted.
The Court has reviewed the pleadings in this cause and the Report of the Magistrate Judge.
Upon such review, the Court has determined that the Report of the Magistrate Judge is correct. See
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918(1989). It is
accordingly
ORDERED that the Initial Report and Recommendation of the Magistrate Judge (docket
entry # 33) is ADOPTED as the opinion of the District Court. It is further +

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ORDERED that the Motion to Dismiss filed by the Harrison County Police
Department/Harrison County Sheriff’s Office (docket entry #16) is GRANTED and that the claim
against the Harrison County Police Department/Harrison County Sheriff’s Office is DISMISSED
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with prejudice as frivolous and for failure to state a claim upon which relief may be granted. See 28
U.S.C. §1915A. The Harrison County Police Department/Harrison County Sheriff’s Office is
DISMISSED as a party to this lawsuit. The dismissal of this claim shall have no effect upon the
remaining claims or defendants in the lawsuit.

SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 24th day of March, 2016.

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RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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