Opinion
CIVIL ACTION 99-1052-AH-S.
October 19, 2000.
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 72.2(c)(4), and the standing order of general reference. 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.
I. Complaint. (Doc. 7)
Plaintiff named as the sole Defendant the Mobile County Metro Jail ("jail"). Plaintiff alleges that when he was returned to the jail on April 16, 1999, for a trial on pending charges, his request to be placed in protective custody was denied. Plaintiff claims that on April 22, 1999, while in general population, he was attacked at dinner time by inmates in his block. Plaintiff asserts that he was hit with trays, was kicked, and was punched. Plaintiff contends that when he was eventually released, he was taken to the nurse who gave him an ice pack and some pain pills and told him that she would make an appointment for him to see a doctor the next day so x-rays could be taken. Plaintiff maintains that he never saw the doctor. Plaintiff claims that the next day when the disciplinary officer made his rounds, the officer told Plaintiff, in response to Plaintiff's inquiry, that Plaintiff would have to write the warden to find out if Plaintiff could press charges. Plaintiff alleges that before he heard from the warden, he was returned to prison where he continues to have problems. For relief, Plaintiff seeks, inter alia, damages for his pain and suffering and for the problems with his back, right arm, and right knee, and to be reimbursed for his co-payments when he sees a doctor for these problems.
II. Discussion.
A. Standard of Review Under 28 U.S.C. § 1915(e)(2)(B) .
Because Plaintiff is proceeding in forma pauperis, the Court has reviewed Plaintiff's complaint under 28 U.S.C. § 1915 (e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit,id. at 327, 109 S.Ct. at 1833, the claim seeks to enforce a right which clearly does not exist, Id., or there is an affirmative defense that would defeat the claim, such as the statute of limitations, Clark v. Georgia Pardons Paroles Bd., 915 F.2d 636, 640 n. 2 (11th Cir. 1990). Judges are accorded "not only the authority to dismiss [as frivolous] a claim based on indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. Moreover, a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).
The predecessor to this section was 28 U.S.C. § 1915 (d).
B. Defendant Mobile County Metro Jail.
In order to bring a viable § 1983 action, Plaintiff must name as a defendant an entity that is subject to being sued. Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). The capacity of a party to be sued is "determined by the law of the state in which the district court is held. . . ." Fed.R.Civ.P. 17(b); see Dean, 951 F.2d at 1214.
Under Alabama law, the sheriff, or a jailer who is appointed by the sheriff, "has the legal custody and charge of the jail in his county and all prisoners committed thereto. . . ." Ala. Code § 14-6-1 (1995). Generally, a sheriff's department operates a county jail. However, an Alabama sheriff's department is not a legal entity that is subject to being sued. Dean, 951 F.2d at 1214; King v. Colbert, 620 So.2d 623, 626 (Ala. 1993); White v. Birchfield, 582 So.2d 1085, 1087 (Ala. 1991). Then, it follows that a subdivision of a sheriff's department, such as the jail, likewise is not a legal entity that is subject to being sued. See Marsden v. Federal Bureau of Prisons, 856 F. Supp. 832, 836 (S.D.N.Y. 1994) (holding that a jail is not an entity subject to being sued); see also House v. Cook County Dept. of Corrections, No. 98 C 788, 1998 WL 89095, at *2 (N.D. Ill. Feb. 13, 1998); May v. North County Detention Facility, No. C 93-1180 BAC, 1993 WL 300290, at *2 (N.D. Cal. July 21, 1993). Accordingly, the Court determines that Defendant Mobile County Metro Jail is not a suable entity. Therefore, no relief can be granted Plaintiff in this action.
III. Conclusion.
Because the sole Defendant to this action is not a suable entity, 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.
The attached sheet contains important information regarding objections to the Report and Recommendation.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation, or anything in, it must, within ten days of the date of service of this document, file specific written objections with the Clerk of this Court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable Where Proceedings Tape Recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.