United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
W. MILLING, JR., UNITED STATES MAGISTRATE JUDGE
Juan Landaverde, an Alabama prison inmate proceeding pro
se and in forma pauperis, filed a Complaint
under 42 U.S.C. § 1983. His action has been referred to
the undersigned for appropriate action pursuant to United
States District Judge Moorer's order dated November 30,
2018 (Doc. 8), 28 U.S.C. § 636(b)(1)(B), and S.D. Ala.
GenLR 72(a)(2)(R). It is recommended that this action be
dismissed without prejudice, prior to service of process, as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). It
is further recommended that Plaintiff be granted leave to
file an amended complaint pursuant to the directions near the
end of the Report and Recommendation.
Amended Complaint. (Doc. 5).
identifies Jefferson Davis Community College as the sole
Defendant. (Doc. 5 at 5). Plaintiff is suing Defendant for
the loss of his “pinky” finger on September 7,
2017, which occurred at the Fountain Corrections Center
(“Fountain”) trade-school program operated by
Defendant's “employees.” (Id.).
to Plaintiff, when he returned to Fountain, he enrolled in
the cabinet shop class at the trade school. (Id. at
4). Because he had carpentry experience, he was given a
project and was told “what machine did what, but [was]
never given a class on how to properly use the
machines.” (Id.). While he was using a planer
with an outdated safety guard, he shredded his pinky finger,
which eventually had to be completely removed.
(Id.). He asserts that he had no experience using
the planer, was not supervised, and had not received an OSHA
safety class. (Id.).
area of the complaint form provided for stating what he would
like the court to do for him, Plaintiff left the space empty.
(Id. at 7). However, in the original complaint,
Plaintiff requested $2 million and a jury. (Doc. 1 at 6). II.
Standards of Review Under 28 U.S.C. §
Plaintiff is proceeding in forma pauperis, the Court
is reviewing the Amended Complaint (Doc. 5) 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 336 (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, 1965, 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). That is, “[f]actual allegations
must be enough to raise a right to relief above the
speculative level” and must be a “‘plain
statement' possess[ing] enough heft to ‘sho[w] that
the pleader is entitled to relief.'”
Twombly, 550 U.S. at 555, 557, 127 S.Ct. at 1966
(second brackets in original). However, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949.
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 Iqbal, 556 U.S. 662
(2009). Furthermore, a 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, 556 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).
Defendant Is Not a Person for § 1983 Purposes.
as a member of the community college system in Alabama, is an
“arm of the State.” Morris v. Wallace Cmty.
College-Selma, 125 F.Supp.2d 1315, 1335 (S.D. Ala.
2001), aff'd 34 Fed.Appx. 386 (11th Cir
2002). In a § 1983 action, the State of Alabama
and its “arms” (i.e., departments/agencies) are
not considered “persons.” Will v. Michigan
Dep't of State Police, 491 U.S. 58, 70-71, 109 S.Ct.
2304, 2312, 105 L.Ed.2d 45 (1989). However, “[a]
successful section 1983 action requires a showing that the
conduct complained of (1) was committed by a person
acting under color of state law and (2) deprived the
complainant of rights, privileges, or immunities secured by
the Constitution or laws of the United States.”
Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.
1992) (emphasis added). Inasmuch as Defendant is not a
“person” for § 1983 purposes,
Plaintiff's claim against Defendant is frivolous as a
matter of law.
Defendant Is Entitled to Eleventh Amendment
the Eleventh Amendment “prohibits federal courts from
entertaining suits by private parties against States and
their agencies” in the absence of a State's
consent. Alabama v. Pugh, 438 U.S. 781, 781, 98
S.Ct. 3057, 3057, 57 L.Ed.2d 1114 (1978) (ruling the Eleventh
Amendment barred an action against the State). The two
exceptions to a State's immunity are if the State has
waived its immunity or Congress has abrogated the State's
immunity. Virginia Office for Prot. &Advocacy v. Stewart, 563 U.S. 247, 253-54, 131 S.Ct.
1632, 1637-38, 179 L.Ed.2d 675 (2011); Carr v. City of
Florence, Ala., 916 F.2d 1521, 1524 (11th Cir. 1990).
Alabama, however, has not waived its Eleventh Amendment
immunity. Pugh, 438 U.S. at 782, 98 S.Ct. at 3057-58
(finding Article I, § 14, of the Alabama Constitution
prohibits Alabama from giving its consent and therefore
Alabama was entitled to Eleventh Amendment immunity);
Holmes v. Hale, 701 Fed.Appx. 751, 753 (11th Cir.
2017) (holding Alabama has not waived its Eleventh Amendment
immunity) (unpublished). Nor has Congress in § 1983
abrogated a State's Eleventh Amendment immunity.
Carr, 916 F.2d at 1525 (citing Quern v.
Jordan, 440 U.S. 332, 345 (1979)); see Sossamon v.
Texas, 563 U.S. 277, 284, 131 S.Ct. 1651, 1658, 179