Landaverde v. Jefferson Davis Community College

          REPORT AND RECOMMENDATION

          BERT W. MILLING, JR., UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. Amended Complaint. (Doc. 5).^[1]

         Plaintiff 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.).

         According 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 While he was using a planer with an outdated safety guard, he shredded his pinky finger, which eventually had to be completely removed.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.).

         In the 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. § 1915(e)(2)(B).

         Because 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).^[2] 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. Id.

         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. 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.

         When 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).

         III. Analysis.

         A. Defendant Is Not a Person for § 1983 Purposes.

         Defendant, 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.

         B. Defendant Is Entitled to Eleventh Amendment Immunity.

         Furthermore, 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).^[3] 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).^[4] 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 ...