Opinion
3:04-CV-1408-N.
August 19, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by a state prisoner pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is currently incarcerated at the Middleton Unit of Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Abilene, Texas. Defendant is the Dallas Police Department. The court has not issued process in this case. However, on July 14, 2004, the magistrate judge issued a questionnaire to Plaintiff, who filed his answers on July 28, 2004.
Statement of Case: The complaint alleges a police officer hired by the Dallas Police Department used excessive force in the course of his arrest on September 6, 2003. He seeks monetary compensation and relief from confinement.
In answer to the magistrate judge's questionnaire Plaintiff alleges Police Officer J. Reese was responsible for the illegal search and unlawful beating and spraying at the time of his arrest. (See Answer to Questions 3-4). However, as of the date of filing of this recommendation, Plaintiff has not submitted an amended complaint naming Officer Reese as Defendant in lieu of the Dallas Police Department.
Findings and Conclusions: Although Plaintiff paid the $150.00 filing fee, his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578 (5th Cir. 1998) (the statutory screening provision under § 1915A applies to all prisoners' actions against governmental entities, officers and employees, regardless of whether the prisoner is proceeding in forma pauperis). Section 1915A provides in pertinent part that:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.28 U.S.C. § 1915A(a) and (b) (emphasis added).
Plaintiff names as defendant the Dallas Police Department. (Complaint at 1 and 3). A governmental department cannot engage in litigation "unless the true political entity has taken explicit steps to grant the servient agency with jural authority." Darby v. Pasadena Police Dep't, 939 F.2d 311, 313-14 (5th Cir. 1991). Governmental offices and departments do not have a separate legal existence. See Ruggiero v. Litchfield, 700 F. Supp. 863, 865 (M.D. La. 1988) (local sheriff's office is not legal entity subject to suit).
Therefore, Plaintiff's complaint against the Dallas Police Department should be dismissed with prejudice as frivolous, see 28 U.S.C. §§ 1915A(b)(1), unless within twenty days of the District Court's order adopting this recommendation Plaintiff files an amended complaint naming a defendant who is subject to suit under § 1983.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court enter its order dismissing Plaintiff's complaint against the Dallas Police Department with prejudice as frivolous, see 28 U.S.C. § 1915A(b)(1), unless within twenty days of the District Court's order Plaintiff files an amended complaint naming a defendant who is subject to suit under 42 U.S.C. § 1983.
A copy of this recommendation will be mailed to Plaintiff Warwick Player, #1241936, TDCJ, Middleton Unit, 13055 FM 3522, Abilene, Texas 79601.