Opinion
Civil Action No. 00-0319-P-C.
July 10, 2000.
REPORT AND RECOMMENDATION
Plaintiff, a federal prisoner 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 appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that Plaintiffs claims against the U.S. Marshals Service ("Marshals Service") be dismissed with prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because Plaintiffs claims against this Defendant are frivolous.
I. Complaint (Doc. 1).
Plaintiff named as Defendants the United States Marshals Service, Sgt. Farmer with the Baldwin County Correctional Facility ("jail"), and six unidentified officers of the SRT Team. Plaintiff claims that he was assaulted by Defendant Sgt. Farmer and six other Caucasian guards on December 21, 1999, was placed in tight shackles, and eventually was placed on administrative suicide watch, where he was harassed by officers trying to provoked another confrontation. Plaintiffs claim against the Marshals Service is for placing him at the jail and exposing him to racially assault.
The Court observes that the United States Marshals Service performs a federal function and Sgt. Farmer performs a state function. A claim against a federal entity for a violation of a constitutional right is brought in a Bivens action. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). However, the law under § 1983 is generally applied to aBivens action. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995) (citing Butz v. Economou, 438 U.S. 478, 500, 98 S.Ct. 2894, 2907, 57 L.Ed.2d 895 (1978)). Thus, the Court is treating the claims against the United States Marshals Service as arising under Bivens and the claims against Sgt. Farmer as arising under § 1983.
II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B) .
Because Plaintiff is proceeding in forma pauperis, the Court has reviewed Plaintiffs 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.
The predecessor to this section was 28 U.S.C. § 1911(d).
III. Discussion.
Plaintiff named the Marshals Service as a Defendant. However, in aBivens action there can be no recovery against the Marshals Service because it is not a suable entity. Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (holding that in order to bring a viable § 1983 action, the defendant sued must be an entity that is subject to being sued). Congress has not authorized in explicit language that the Marshals Service can be sued in its own name, see 28 U.S.C. § 561-569 (statutes governing the United States Marshals Service), nor has Congress implied that the Marshals Service can be sued because it is an offspring of a suable entity. See Blackmar v. Guerre, 342 U.S. 512, 515, 72 S.Ct. 410, 412, 96 L.Ed.2d 534 (1952) ("When Congress authorizes one of its agencies to be sued eo nomine, it does so in explicit language, or impliedly because the agency is the offspring of such suable entity."). Consequently, the Marshals Service is not an entity that may be sued. Accordingly, Plaintiffs claims against the Marshal Service are due to be dismissed as frivolous.
IV. Conclusion.
Based upon the foregoing reasons, it is recommended that the claims against the Marshals Service be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
The attached sheet contains important information regarding objections to the Report and Recommendation.