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McDougald v. City of Dothan Police, Dept.

United States District Court, M.D. Alabama, Southern Division

November 2, 2018

RUFUS TERRY McDOUGALD, JR., Plaintiff,
v.
CITY OF DOTHAN POLICE, DEPT., et al., Defendants. RUFUS TERRY McDOUGALD, JR., Plaintiff,
v.
CITY OF DOTHAN POLICE, DEPT., et al., Defendants.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         In the instant complaints, Rufus Terry McDougald, an inmate confined in the Houston County Jail, challenges the constitutionality of his confinement on a criminal charge arising from actions which occurred on July 31, 2016 at a Wal-Mart store located in Dothan, Alabama.[1] McDougald names as defendants the City of Dothan Police Department, along with Officer Franklin Ruiz and Investigator Erik P. Broten, both of whom are members of the Dothan Police Department.

         Upon review of the complaint, the court concludes that this case is due to be dismissed prior to service under the provisions of 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).[2]

         II. DISCUSSION

         A. The Dothan Police Department

         Although McDougald names the Dothan Police Department as a defendant, this department is not a legal entity subject to suit or liability. See Ex parte Dixon, 55 So.3d 1171, 1172 n.1 (Ala. 2010) (“Generally, the departments and subordinate entities of municipalities, counties, and towns that are not separate legal entities or bodies do not have the capacity to sue or be sued in the absence of specific statutory authority.”). Clay-Brown v. City of Decatur, 2013 WL 832315, *2 (N.D. Ala. Feb. 28, 2013 (“Under Alabama law, only a municipality itself has the capacity to sue and be sued, as opposed to agencies, departments or divisions of the municipality.”). Thus, the court finds that the claims presented against the Dothan Police Department are due for dismissal as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) since this defendant is not an entity subject to suit. Howard v. City of Demopolis, 984 F.Supp.2d 1245, 1253 (S.D. Ala. 2013) (noting previous determination “that police departments are not a proper legal entity capable of being sued.”); Manning v. Mason, 2011 WL 1832539, *3 (M.D. Ala. May 13, 2011) (citations omitted) (finding “that a law enforcement department is not a legal entity capable of being sued” and dismissing claims with prejudice); Blunt v. Tomlinson, 2009 WL 921093, *4 (S.D. Ala. Apr. 1, 2009) (“In Alabama, a city's police department is not a suable entity or a proper party under state law or for § 1983 purposes.”); Johnson v. Andalusia Police Dept., 633 F.Supp.2d 1289, 1301 (M.D. Ala. 2009) (finding that Plaintiff's “claims against the Andalusia Police Department must fail because police departments are generally not considered legal entities subject to suit”).

         B. False Arrest

         Insofar as the complaints present a false arrest claim, this claim is subject to dismissal as malicious because it is pending before the court in a previous civil action filed by McDougald in the Middle District of Alabama--that is, McDougald v. Reed, et al., Civil Action No. 1:17-cv-67-MHT-GMB. A claim raised in a complaint permitted to proceed in forma pauperis which merely “repeats pending or previously litigated claims may be considered abusive and dismissed under the authority of section 1915[e)(2)(B)(i)] [as] malicious.” Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (citations omitted) (holding the district court did not abuse its discretion in dismissing an action as duplicative of prior litigation containing the same claims but against different defendants); see Bagby v. Karriker, 555 Fed.Appx. 405, 406 (5th Cir. 2014) (unpublished) (affirming the dismissal of the complaint as malicious because it presented claims duplicative of a prior action arising from the same series of events); Perry v. Culliver, 2012 WL 1994917, at *2 (S.D. Ala.) (dismissing a duplicative action as malicious when the same allegations were made but against different defendants), adopted, 2012 WL 1994914 (S.D. Ala. 2012); see also Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). “A litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).

         In determining whether dismissal is warranted, there is no specific test to follow. Rather, courts are “vested with especially broad discretion.” Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986). Courts generally look to the identity of the parties, the legal and factual claims, and the relief sought to determine if the complaint is repetitive or malicious. See Bailey, 846 F.2d at 1021. The complaint filed in this case relies on the same incident as a complaint previously filed by McDougald with this court. The court has considered the potential challenge to McDougald's arrest and finds this complaint is repetitive with regard to this claim as presented in McDougald v. Reed.

         Here, McDougald files two new causes of action regarding his arrest on July 31, 2016, both of which present identical claims to the earlier cause of action filed with this court. He also files this action against one of the same defendants named in his earlier complaint. Because any challenge to this arrest arises out of the same incident or repeats the same factual allegations asserted by McDougald in an earlier civil case, it is subject to dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) as duplicative and malicious. See Bailey, 846 F.2d at 1021; see generally Curtis v. Citibank, N.A, 226 F.3d 133, 138 (2d Cir. 2000) (“[A]s part of its general power to administer its docket, a district court may stay or dismiss a suit that is duplicative of another federal court suit.”).

         C. Miranda[3] Rights

          To the extent McDougald challenges the timing of the recitation of his Miranda rights, this claim provides no basis for relief as “a claim for a Miranda violation is not cognizable under § 1983.” Dollar v. Coweta Cnty. Sheriff's Office, 446 Fed.Appx. 248, 251-52 (11th Cir. 2011) (citing Jones v. Cannon, 174 F.3d 1271, 1290-91 (11th Cir. 1999)); Wright v. Dodd, 438 Fed.Appx. 805, 807 (11th Cir. 2011) (same). Consequently, any claim alleging a Miranda violation is due to be dismissed in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i).

         D. Young ...


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