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Underwood v. Cullman County Sheriff's Office

United States District Court, Northern District of Alabama, Northeastern Division

November 6, 2014

DAVID T. UNDERWOOD, Plaintiff,
v.
CULLMAN COUNTY SHERIFF'S OFFICE, et al., Defendants

David T. Underwood, Plaintiff, Pro se, Clayton, AL.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

T. MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE.

Plaintiff, David T. Underwood, has filed a pro se complaint pursuant to 42 U.S.C. § 1983 alleging that rights, privileges, or immunities afforded him under the Constitution or laws of the United States have been abridged. Plaintiff is currently incarcerated at Ventress Correctional Facility in Clayton, Alabama. Plaintiff names as defendants the State of Alabama, Cullman County Sheriff's Office, Cullman County Sheriff Mike Rainey, and Ulalile Hadley. Plaintiff seeks monetary and injunctive relief. In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(1), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991).

The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, § 804, 110 Stat. 1321, and 28 U.S.C. § 1915A, requires this court to screen complaints filed by prisoners against officers or employees of governmental entities and to dismiss the complaint or any portion of the complaint that it finds frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. Thus, under § 1915A, the court may sua sponte dismiss a prisoner's complaint prior to service. Nevertheless, in order to protect a pro se prisoner's right of access to the courts, these complaints are read by less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir. 1984); Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976).

FACTUAL ALLEGATIONS

Plaintiff was convicted of promoting prostitution and is now subject to the provisions of the Alabama Sex Offender Registration and Community Notification Act (ASORCNA).[1] Ala. Code § § 15-20A-3(a) -- (b), 15-20A-5(12) (1975). (Compl. at 3.) Plaintiff's picture was publicized in flyers identifying him as a sex offender but there was no information on the flyers and notices concerning the crime plaintiff was convicted of.[2] ( Id.) Plaintiff contends that he was not convicted of rape or child molestation but merely ran an escort service. ( Id.) Plaintiff alleges that Ms. Ulalile Hadley is responsible for placing flyers in the community regarding sex offenders living in the area. (Compl. at 3.)

Plaintiff claims that he was almost murdered when an individual broke into his home and bludgeoned him.[3] ( Id. at 2.) The Cullman County Sheriff's Office made a report of the assault but failed to fully investigate the incident and made no arrest. ( Id. at 3.) Plaintiff claims that the individual responsible for assaulting him is now in jail but law enforcement will not charge him with the crime. ( Id. at 3.)

For relief, plaintiff requests that he not be identified as a " sex offender" because the phrase " sounds like a continuing profession such as a lawyer/plumber/carpenter/manager." (Compl. at 3.) He seeks review of the constitutionality of the ASORCNA and requests monetary relief for the " attempt on [his] life." ( Id.)

DISCUSSION

A. State of Alabama.

Plaintiff names the State of Alabama as a defendant. It is well settled that the Eleventh Amendment to the United States Constitution bars § 1983 claims in federal court against the state or an agency of the state. See Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); see also Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). As the Supreme Court has stated:

[T]here can be no doubt . . . that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268 (1937). Respondents do not contend that Alabama has consented to this suit, and it appears that no consent could be given under Art. I, sec. 14, of the Alabama Constitution, which provides that " the State of Alabama shall never be made a defendant in any court of law or equity."

Alabama v. Pugh, 438 U.S. at 782. Accordingly, plaintiff cannot maintain a ยง 1983 action against the State of Alabama and his claims ...


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