United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS, UNITED STATES MAGISTRATE JUDGE
Patrick Pugh, a pretrial detainee at the Mobile County Metro
Jail, filed a pro se complaint seeking relief under
42 U.S.C. § 1983 and a motion to proceed without the
prepayment of fees. (Docs. 1, 2). This action has been
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
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), this action be
dismissed with prejudice as frivolous.
Plaintiff's Complaint. (Doc. 1).
Patrick Pugh filed his complaint on the Court's §
1983 complaint form and listed the Mobile County Metro Jail
as the sole Defendant in the style of the case. (Doc. 1 at
1). Pugh did not complete section III of the form complaint,
which seeks the name and address of each defendant.
(Id. at 5-6). In the complaint, Pugh asserts that he
has been in jail for eleven months, that he suffers from
mental illness, and that he is being forced to take medicine
that causes bad side effects such as memory loss, blood in
stool, grinding of teeth, numbness in hands and feet, and
stomach cramps. (Id. at 4). For relief, Pugh asks to
be treated like a human instead of like a dog, and he
requests proper medical evaluation and home placement.
(Id. at 7).
Standards of Review Under 28 U.S.C. §
Pugh is seeking to proceed 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 either in law or fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A claim is frivolous
as a matter of law where, inter alia, the defendants
are immune from suit, or when the claim seeks to enforce a
right that clearly does not exist. Id. at 327.
considering a pro se litigant's allegations, a
court gives them a liberal construction, holding them to a
more lenient standard than those drafted by an attorney.
Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998). However, even in the case of pro
se litigants, the court does not have “license to
. . . rewrite an otherwise deficient pleading in order to
sustain an action.” GJR Invs., Inc. v. Cnty. of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)
(citations omitted), overruled on other grounds
by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).
Moreover, a court treats factual allegations as true, but a
court is not required to accept conclusory assertions or
formulaic recitations of a cause of action's elements.
Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009).
Furthermore, 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. 2989), cert. denied,
493 U.S. 863 (1989).
order to have a viable § 1983 action, Plaintiff must
name as a defendant an entity capable of being sued. Dean
v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). The
capacity of a party to be sued is generally determined by the
law of the state in which the district court is held.
Fed.R.Civ.P. 17(b)(3); see Dean, 951 F.2d at 1214.
Under Alabama law, the sheriff “has the legal custody
and charge of the jail in his or her county and all prisoners
committed thereto . . . .” Ala. Code § 14-6-1.
“Generally, a sheriff's department operates a
county jail.” Russell v. Mobile Cnty. Sheriff,
2000 U.S. Dist. LEXIS 18051, at *5, 2000 WL 1848470, at *2
(S.D. Ala. Nov. 20, 2000). However, “[u]nder Alabama
law, a county sheriff's department lacks the capacity to
be sued.” Dean, 951 F.2d at 1215 (citing
White v. Birch, 582 So.2d 1085, 1087 (Ala. 1991)).
Thus, it follows that a subdivision of a sheriff's
department, such as a county jail, likewise lacks the
capacity to be sued. See, e.g., Russell,
2000 U.S. Dist. LEXIS 18051, at *5-6, 2000 WL 1848470, at *2)
(finding that the Mobile County Jail is not a suable entity);
see also Curtis v. Baldwin Cnty. Corr. Ctr., 2009 WL
2596495, at *1 (S.D. Ala. Aug. 20, 2009) (DuBose, J.);
Jones v. Huntsville Police Dept., 2012 U.S. Dist.
LEXIS 58533, at *3, 2012 WL 1569562, at *2 (N.D. Ala. Apr. 2,
2012) (“To the extent the plaintiff seeks to sue the
Madison County Jail, the Jail is not a legal entity subject
to suit under 42 U.S.C. § 1983 and therefore is not a
proper party defendant to this action.”), report
and recommendation adopted, 2012 U.S. Dist. LEXIS 58541,
2012 WL 1569522 (N.D. Ala. Apr. 26, 2012); Murphy v.
Clarke Cnty. Jail, 2010 U.S. Dist. LEXIS 37037, at *5-6,
2010 WL 1487872, at *2 (S.D. Ala. Mar. 31, 2010), report
and recommendation adopted, 2010 U.S. Dist. LEXIS 37038,
2010 WL 1487235 (S.D. Ala. Apr. 13, 2010). The Court thus
finds that the Mobile County Metro Jail is not a suable
entity for the purposes of a § 1983 action. Accordingly,
Pugh's complaint lacks an arguable basis in law and is,
therefore, frivolous. See Neitzke, supra.
upon the foregoing reasons, 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), as
frivolous. In the event that Pugh can state a plausible claim
for a violation of his constitutional rights against a suable
governmental official or entity, he may file an amended
complaint within the time period for filing objections to the
report and recommendation, or he may file a separate action
within two years from the date when the incident occurred.
See Lufkin v. McCallum, 956 F.2d 1104, 1105 n.2,
1108 (11th Cir. 1992) (holding the statute of limitation for
a § 1983 action filed in Alabama is two years),
cert. denied, 506 U.S. 917 (1992).
OF RIGHT TO FILE OBJECTIONS
of this report and recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document,
file specific written objections with the Clerk of this
Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b); S.D. Ala. GenLR 72(c). The parties should note that
under Eleventh Circuit Rule 3-1, “[a] party failing to
object to a magistrate judge's findings or
recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district
court's order based on unobjected-to factual and legal
conclusions if the party was informed of the time period for
objecting and the consequences on appeal for failing to
object. In the absence of a proper objection, however, the
court may review on appeal for plain error if necessary in
the interests of justice.” 11th Cir. R. 3-1.
order to be specific, an objection must identify the specific
finding or recommendation to which objection is made, state
the basis for the objection, and specify the place in the
Magistrate Judge's report and recommendation where the
disputed determination is found. An objection that merely