United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EFPS UNITED STATES MAGISTRATE JUDGE
a pretrial detainee at Charles B. Webster Detention Center in
Augusta, Georgia, brought the above-captioned case pursuant
to 42 U.S.C. § 1983. Because he is proceeding in forma
pauperis (“IFP”), Plaintiff's complaint must
be screened to protect potential defendants. Phillips v.
Mashburn, 746 F.2d 782, 785 (11th Cir. 1984);
Al-Amin v. Donald, 165 Fed.Appx. 733, 736 (11th Cir.
2006) (per curiam).
SCREENING OF THE COMPLAINT
names Richmond County Sheriff Office (“RCSO”) as
the only Defendant. (Doc. no. 1, p. 2.) Taking all of
Plaintiff's factual allegations as true, as the Court
must for purposes of the present screening, the facts are as
April 2018, Plaintiff fired the attorney he retained for his
underlying criminal charges, and in June or July 2018, the
state criminal court appointed Dan Franck to represent
Plaintiff. (Id. at 5.) Plaintiff alleges there has
been no communication, visitation, or answer from his
attorney Dan Franck since he began representing Plaintiff.
(Id.) Plaintiff filed complaints with the State Bar
of Georgia. (Id. at 7-8.)
Legal Standard for Screening
complaint or any portion thereof may be dismissed if it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, or if it seeks monetary relief from a
defendant who is immune to such relief. See 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b). A claim is frivolous
if it “lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 327
(1989). “Failure to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard as
dismissal for failure to state a claim under Fed.R.Civ.P.
12(b)(6).” Wilkerson v. H & S, Inc., 366
Fed.Appx. 49, 51 (11th Cir. 2010) (citing Mitchell v.
Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)).
avoid dismissal for failure to state a claim upon which
relief can be granted, the allegations in the complaint must
“state a claim for relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (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 (2009). That is,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. While Rule 8(a) of the
Federal Rules of Civil Procedure does not require detailed
factual allegations, “it demands more than an
unadorned, the defendant unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A
complaint is insufficient if it “offers ‘labels
and conclusions' or ‘a formulaic recitation of the
elements of a cause of action, '” or if it
“tenders ‘naked assertions' devoid of
‘further factual enhancement.'” Id.
(quoting Twombly, 550 U.S. at 555, 557). In short,
the complaint must provide a “‘plain
statement' possess[ing] enough heft to ‘sho[w] that
the pleader is entitled to relief.'”
Twombly, 550 U.S. at 557 (quoting Fed.R.Civ.P.
the court affords a liberal construction to a pro se
litigant's pleadings, holding them to a more lenient
standard than those drafted by an attorney. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Erickson v.
Pardus, 551 U.S. 89, 94 (2007). However, this liberal
construction does not mean that the court has a duty to
re-write the complaint. Snow v. DirecTV, Inc., 450
F.3d 1314, 1320 (11th Cir. 2006).
Plaintiff Fails to State a Claim Against RCSO
Eleventh Circuit has held that a district court properly
dismisses a defendant where a plaintiff fails to state any
allegations that associate the defendant with the purported
constitutional violation. Douglas v. Yates, 535 F.3d
1316, 1321-22 (11th Cir. 2008) (“While we do not
require technical niceties in pleading, we must demand that
the complaint state with some minimal particularity how overt
acts of the defendant caused a legal wrong.”).
Plaintiff's allegations are entirely concerning his
appointed attorney Dan Franck. (Doc. no. 1.) Plaintiff
alleges no facts connecting RCSO to Dan Franck. Therefore,
Plaintiff fails to state a claim against RCSO.
RCSO is not a proper party because sheriff's department
are not legal entities capable of being sued. See
Herrington v. Effingham Cty. Sheriff's Office, CV
411-099, 2011 WL 2550464, at *1 (S.D. Ga. April 21, 2011)
(citing Dean v. Barber,951 F.2d 1210, 1214 (11th
Cir.1992)) (“However, [Plaintiff] cannot sue the
sheriff's department because it is not capable of being
sued.”); Smith v. Dekalb Cty. Sheriffs Office,
Civil Action No. 1:09-CV-2820-TWT, 2010 WL 308984, at *2
(N.D.Ga. Jan. 22, 2010) (same). Further, appropriate parties
for suit under § 1983 include “persons” who
participated in the alleged violation. See 42 U.S.C. §
1983 (subjecting only “persons” to liability);
Ga. Insurers Insolvency Pool v. Elbert Cty., 368
S.E.2d 500, 502 (Ga. 1988) ...