United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION.
WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE.
a Mobile County Metro Jail inmate proceeding pro se
and in forma pauperis, filed a complaint under 42
U.S.C. § 1983. This action was referred to the
undersigned for appropriate action pursuant to 28 U.S.C.
§ 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). After
careful review, it is recommended that this action be
dismissed with prejudice, prior to service of process,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Complaint (Doc. 1).
filed this § 1983 action against two defendants, the
Mobile County Sheriff's Office and the Mobile Police
Department. (Doc. 1 at 5). His claims against these entities
arose on April 1, 2016, when alleges that he was entrapped by
a person in custody to commit a crime. (Id. at 4).
As a result, “excessive and deadly force” was
used against him, i.e., he was shot over sixteen times while
he was lying on ground, officers put his injured arms in
restraints, and while he was bleeding, they dragged him
across the ground. (Id.). Plaintiff was left
disabled with a serious bodily injury. (Id.). For
relief, plaintiff wants help attaining his
freedom and punitive damages. (Id. at 7).
This is the extent of his allegations in his brief complaint.
Standards of Review Under 28 U.S.C. §
plaintiff is proceeding in forma pauperis, the Court
is reviewing his complaint (Doc. 1) 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, or the claim
seeks to enforce a right that clearly does not exist.
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. Mitchell v. Farcass, 112 F.3d
1483, 1490 (11th Cir. 1997). To avoid dismissal for failure
to state a claim upon which relief can be granted, the
allegations must show plausibility. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167
L.Ed.2d 929 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009).
considering a pro se litigant's allegations, a
court gives them a liberal construction holding them to a
more lenient standard than those of an attorney,
Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998), but it does not have “license . . .
to rewrite an otherwise deficient pleading in order to
sustain an action.” GJR Investments v. County of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998),
overruled on other grounds by Randall v. Scott, 610
F.3d 701, 710 (11th Cir. 2010). Furthermore, the court treats
as true factual allegations, but it does not treat as true
conclusory assertions or a recitation of a cause of
action's elements. Iqbal, 566 U.S. at 681, 129
S.Ct. at 1951. In addition, a pro se litigant
“is subject to the relevant law and rules of court
including the Federal Rules of Civil Procedure.”
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.),
cert. denied, 493 U.S. 863 (1989).
order to state a claim under § 1983, a plaintiff must
show: “(1) . . . the conduct complained of was
committed by a person acting under color of state law; and
(2) . . . this conduct deprived [the plaintiff] 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 (1986). Plaintiff cannot make this
showing because “[s]heriff's departments and police
departments are not usually considered legal entities subject
to suit.” Dean v. Barber, 951 F.2d 1210, 1214
(11th Cir. 1992) (holding that an Alabama's Sheriff's
Department is not a suable entity because it lacks the
capacity to be sued). 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.
“[i]n Alabama, a city's police department is not a
suable entity or a proper party under state law or for §
1983 purposes.” Marks v. Selma City Police
Dep't, CA No. 14-0338-WS-C, 2014 WL 4772658, *1
(S.D. Ala. 2014) (quoting Blunt v. Tomlinson, 2009
WL 921093, *4 (S.D. Ala. Apr. 1, 2009); see Hawkins v.
City of Greenville, 101 F.Supp.2d 1356, 1363 (M.D. Ala.
2000) (finding the Greenville Police Department is not a
proper party or suable entity); Lee v. Wood, 2007 WL
2460756, *7 (S.D. Ala. 2007)(finding the City of Mobile
Police Department is not a suable entity under Alabama law);
Higginbotham v. City of Pleasant Grove, 2013 WL
5519577, *6 (N.D. Ala. 2013) (finding the Pleasant Grove
Police Department is not a suable entity and dismissing it
with prejudice); accord Mann v. Hillsborough Cnty.
Sheriff's Office, 946 F.Supp. 962, 970-71 (M.D. Fla.
1996) (“[T]he police department is the vehicle through
which the city fulfills its policing functions[, and, ]
[t]herefore, the Florida courts have found that the city
police department is not a legal entity and has no legal
existence separate and apart from the city.”); Eddy
v. Miami, 715 F.Supp. 1553, 1556 (S.D. Fla. 1989)
(“Where a police department is an integral part of the
city government as the vehicle through which the city
government fulfills its policing functions, it is not an
entity subject to suit.”).
as the Mobile County Sheriff's Office and the Mobile
Police Department are not suable entities under Alabama law,
the claims against defendants Mobile County Sheriff's
Office and Mobile Police Department are frivolous as a matter
upon the foregoing reasons, it is recommended that this
action be dismissed with prejudice, prior to service of