United States District Court, S.D. Alabama, Southern Division
COREY L. DIAMOND, Plaintiff,
v.
MOBILE POLICE DEPARTMENT, Defendant.
REPORT AND RECOMMENDATION
P.
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
This
action is before the Court on Plaintiff's pro se
complaint (Doc. 1) and motion to proceed without prepayment
of fees and costs (Doc. 2). This matter has been referred to
the undersigned for pretrial disposition pursuant to 28
U.S.C. § 636(b)(1)(B) and General Local Rule
72(a)(2)(S). Because Diamond has requested leave to proceed
without prepayment of costs and fees (Doc. 2), this Court has
the obligation to undertake a review of his complaint
pursuant to the provisions of 28 U.S.C. § 1915(e). That
statute instructs courts to dismiss any action when it is
determined that an in forma pauperis applicant's
suit is “frivolous or malicious, ” “fails
to state a claim on which relief may be granted, ” or
“seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
1915(e)(2)(B)(ii). Upon consideration of the pleadings, it is
recommended that this action be DISMISSED WITHOUT PREJUDICE,
prior to service of process, because Plaintiff has failed to
state a claim against the Mobile Police Department, see
id.[1]
BRIEF
BACKGROUND
On
October 28, 2019, the pro se Plaintiff filed a form
complaint for a civil case wherein he seeks damages for
police brutality and harassment due to the illegal deployment
or use of a stun gun against him by a police officer (or
police officers). (See Doc. 1, at 4.)[2] Plaintiff names
as the sole defendant the Mobile Police Department
(id. at 1) and has check-marked the box identifying
the basis for federal court jurisdiction as “Federal
question” (id. at 3). Thereafter, however,
Diamond does not identify the basis for federal-question
jurisdiction (see id.).[3]
DISCUSSION
Upon
liberally construing Plaintiff's complaint, as must be
done, [4] and because Diamond seeks damages for
police brutality and harassment, the undersigned finds that
Plaintiff is attempting to bring a claim against the Mobile
Police Department pursuant to 42 U.S.C. § 1983. The
provision for federal-question jurisdiction set forth in
§ 1331 “is invoked by and large by plaintiffs
pleading a cause of action created by federal law
(e.g., claims under 42 U.S.C. § 1983).”
Grable & Sons Metal Products, Inc. v. Darue
Engineering & Manufacturing, 545 U.S. 308, 312, 125
S.Ct. 2363, 2366 (2005).
Diamond
has only sued the Mobile Police Department. As a general
rule, “police departments are not usually considered
legal entities subject to suit[.]” Dean v.
Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (finding
police department was not a legal entity and, therefore, was
not subject to suit under § 1983). “Under Federal
Rule of Civil Procedure 17(b)(3), capacity to be sued is
determined by the ‘law of the state where the court is
located” for those parties who are not an individual or
corporation.” Bogus v. City of Birmingham,
Alabama, 2018 WL 1746527, *7 (N.D. Ala. Apr. 11, 2018).
As recognized in Bogus, “[u]nder Alabama law,
‘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. . . .
Among subordinate entities generally lacking the capacity to
sue or be sued separately are police departments . . .
.'” Id., quoting Ex parte Dixon,
55 So.3d 1171, 1172 n.1 (Ala. 2010) (other citation omitted).
For its part, this Court has frequently “determined
that police departments are not [] proper legal entit[ies]
capable of being sued[, ]” Howard v. City of
Demopolis, Alabama, 984 F.Supp.2d 1245, 1253 (S.D. Ala.
2013) (citing cases), which is consistent with the stance of
the other federal district courts in Alabama, Bogus,
supra, at *7-8; see also Hirsch v. Mathews,
2017 WL 4639033, *6 (N.D. Ala. May 31, 2017) (“The
plaintiff's claims against Ardmore Police Department must
be dismissed because the Ardmore Police Department is not a
legal entity subject to suit under 42 U.S.C. § 1983 and
therefore is not a proper party defendant in this
action.”), report and recommendation adopted,
2017 WL 4613046 (N.D. Ala. Oct. 16, 2017); Couch v.
Montgomery City Police Dep't, 2013 WL 6096362, *4
(M.D. Ala. Nov. 20, 2013) (“To the extent Plaintiff is
naming the Montgomery Police Department as a defendant, a
city police department ‘is not a legal entity and,
therefore is not subject to suit or liability under section
1983.'”).
In
light of the foregoing, it is clear that the Mobile Police
Department is not a legal entity subject to suit under 42
U.S.C. § 1983, Dean, supra, or otherwise,
see Bogus, supra. Accordingly, the undersigned
recommends that the Court find that Plaintiff has failed to
state a claim upon which relief may be granted as to the
Mobile Police Department, see Couch, supra, and
dismiss this case without prejudice, prior to service, in
accordance with § 1915(e)(2)B)(ii).[5]
CONCLUSION
Based
upon the foregoing, it is RECOMMENDED that
this action be DISMISSED WITHOUT PREJUDICE,
prior to service of process, because the Mobile Police
Department is not a legal entity subject to suit and,
therefore, Diamond has failed to state a claim against the
Defendant, see 28 U.S.C. § 1915(e)(2)(B)(ii).
NOTICE
OF RIGHT TO FILE OBJECTIONS
A copy
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)(1) & (2). 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. In 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
incorporates by reference or refers to the briefing before
the Magistrate Judge is not specific.
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