Opinion
Civil Action 00-1083-RV-M
March 14, 2001
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and informa 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 Defendant Carlos Clarke be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii) for Plaintiffs failure to state a claim upon which relief can be granted.
The complaint that is before Court is a superseding amended complaint (Doc. 4). Plaintiff was ordered to file his original handwritten complaint on the Court's complaint form for a § 1983 action as required by Local Rule 83.9(d)(1) (Doc. 3). Plaintiff was advised that his amended complaint would supersede his original complaint and, therefore, he should not rely on his original complaint (Doc. 3).
Plaintiff named as Defendants Sheriff Jimmy Johnson and inmate Carlos Clarke. Plaintiff alleges that on September 8, 2000, he, a state inmate, was in the same cell block at the Baldwin County Jail as Defendant Clarke, a federal inmate. Plaintiff asserts that he was bitten by Defendant Clarke and that he was later informed that Defendant Clarke was infected with the A.I.D.S. virus. Plaintiff further avers that he "was wrongfully placed on disciplinary[.]" For relief, Plaintiff requests that policies involving federal and state inmates be changed and that he receive compensation for a violation of his civil rights and for his injuries.
In Plaintiffs original complaint, Plaintiff states that officials knew that Defendant Clarke was infected with the A.I.D.S. virus (Doc. 1). Plaintiff did not include this information in his superseding amended complaint.
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. 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).
III. Discussion.
In this § 1983 action, Plaintiff is suing Defendant Clarke for biting him. The Court is treating Plaintiffs claim against Defendant Clarke as a § 1983 claim because Plaintiff has not otherwise denominated his claim.
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must establish: "(1) . . . the conduct complained of was committed by a person acting under color of state law; and (2) . . . this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986). Plaintiffs allegations, however, do not indicate that Defendant Clarke acts or acted under of color of state law. Because Defendant Clarke did not act under color of state law, Plaintiff has failed to state a § 1983 claim against him upon which relief can be granted.
IV. Conclusion.
Based upon the foregoing reason, it is recommended that Defendant Clarke be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii) for Plaintiffs failure to state a claim upon relief can be granted.
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 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 action 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.