1

 Subsequent to filing this action, Plaintiff provided “free

world” addresses. (Docs. 11, 17). 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WENDY WILLIAMS, :

Plaintiff, :

vs. : CIVIL ACTION 09-00215-KD-B

MOBILE POLICE DEPARTMENT, :

Defendant. :

REPORT AND RECOMMENDATION

Plaintiff Wendy Williams, who is proceeding pro se and in

forma pauperis, filed the instant § 1983 action while incarcerated

at Mobile County Metro jail.1

 (Docs. 1, 21). Plaintiff’s action

was referred to the undersigned for appropriate action pursuant to

28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). After careful

review, it is recommended that , prior to service of process, this

action be dismissed without prejudice as frivolous pursuant to 28

U.S.C. § 1915(e)(2)(B)(I). 

I. Amended Complaint. (Doc. 21).

Plaintiff was previously directed to file an amended complaint

on this Court’s form for actions alleging violations of 42 U.S.C.

§ 1983. (Docs. 19, 20). Plaintiff was advised that her amended

complaint would supersede her previously-filed Complaints. (Doc.

Case 1:09-cv-00215-KD-B Document 22 Filed 05/20/10 Page 1 of 8
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The frivolity and the failure-to-state-a-claim analysis

contained in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827

(1989), was unaltered when Congress enacted 28 U.S.C. §

1915(b)(2)(B) in 1996. Bilal v. Driver, 251 F.3d 1346, 1349

(11th Cir.), cert. denied, 534 U.S. 1044 (2001). However,

dismissal is now mandatory under § 1915(e)(2)(B). Id. at 1348-49.

2

19). In response to the Court’s Orders, Plaintiff filed the instant

Amended Complaint. (Doc. 21). In the Amended Complaint, Plaintiff

names the Mobile Police Department as the sole Defendant. (Doc.

21). Plaintiff’s allegations against the Mobile Police Department

are vague, conclusory, and varied. Plaintiff complains of an

illegal search and seizure, “health issues,” being “cheated on,”

being “lied to and lied on,” (Doc. 21 at 4), losing income, being

beaten, suffering a miscarriage, “deformation [sic] of character,”

property being stolen, and being falsely imprisoned. (Id. at 8).

Plaintiff seeks $2 million in damages (id.) and an apology. (Id.

at 7).

II. Analysis. 

A. Standard 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. 21) under 28 U.S.C. §

1915(e)(2)(B).2 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 338 (1989). A claim is frivolous as a matter of law

where, inter alia, the defendants are immune from suit, id. at 327,

Case 1:09-cv-00215-KD-B Document 22 Filed 05/20/10 Page 2 of 8
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109 S.Ct. at 1833, or the claim seeks to enforce a right that

clearly does not exist. Id.

In addition, 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). In order to state a claim upon which relief can be

granted, there must be “sufficient factual matter, accepted as

true, ‘to state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949, 173

L.Ed.2d 868 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570, 127 S.Ct. 1955, 1974 (2007)). “[W]hen the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged[,]” a claim is facially plausible. Id. 

The Court holds pro se complaints “to less stringent standards

than formal pleadings drafted by lawyers.” Haines v. Kerner, 404

U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). However,

a plaintiff’s pro se status does not excuse compliance with the

Federal Rules of Civil Procedure or the Local Rules of this

District Court. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.

1989) (a pro se litigant “is subject to the relevant law and rules

of court including the Federal Rules of Civil Procedure); Local

Rule 83.9(b) (“All litigants proceeding pro se shall be bound by

and comply with all local rules of this Court[.]”). Nor is this

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“Unpublished opinions are not considered binding precedent,

but they may be cited as persuasive authority.” 11TH CIR. R. 36-2

(2005).

4

Court allowed to serve as de facto counsel for a pro se litigant or

to rewrite otherwise deficient pleadings in order to sustain an

action. GJR Investments, Inc. v. County of Escambia, Fla., 132

F.3d 1359, 1369 (11th Cir. 1998). 

B. Discussion.

In order to state a viable § 1983 claim, the defendant being

sued must be an entity that is subject to being sued. Dean v.

Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). The capacity of a

party to be sued is “determined by the law of the state in which

the district court is held. . . .” Fed.R.Civ.P. 17(b); see Dean,

951 F.2d at 1214. “Sheriff’s departments and police departments

are not usually considered legal entities subject to suit.” Id.

(dismissing an Alabama’s sheriff’s department). A city’s police

department in Alabama is not a suable entity or a proper party

under state law or for § 1983 purposes. Hawkins v. City of

Greenville, 101 F. Supp.2d 1356, 1363 (M.D. Ala. 2000); accord

Robinson v. Hogansville Police Dep’t, 159 Fed.Appx. 137, at **1

(11th Cir. Dec. 15, 2005) (affirming the dismissal of the complaint

against a Georgia city police department and the granting of a

motion to set aside the default) (unpublished);3

 Mann v.

Hillsborough County Sheriff’s Office, 946 F. Supp. 962, 970-71

Case 1:09-cv-00215-KD-B Document 22 Filed 05/20/10 Page 4 of 8
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(M.D. Fla. 1996) (“[T]he city police department is not a legal

entity and has no legal existence separate and part from the city”;

[it] “is the vehicle through which the city fulfills its policing

functions.”); Eddy v. Miami, 715 F. Supp. 1553, 1556 (S.D. Fla.

1989) (“Where a police department is an integral part of the city

government as the vehicle through which the city government

fulfills its policing functions, it is not an entity subject to

suit.”); Reese v. Chicago Police Dep’t, 602 F. Supp. 441, 443 (N.D.

Ill. 1984) (finding a police department does not have a legal

existence separate from the city and, therefore, is not a suable

entity). Inasmuch as the Mobile Police Department is not a suable

entity under Alabama law, the claims against Defendant Mobile

Police Department are frivolous. As an aside, the Court observes

that Plaintiff’s descriptive allegations lack specific facts

reflecting a claim that is plausible on its face. Accordingly, the

Court concludes that dismissal of this action as frivolous is

warranted. 

III. Conclusion.

Based upon the foregoing reasons, it is recommended, prior to

service of process, that this action be dismissed without prejudice

as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(I).

Case 1:09-cv-00215-KD-B Document 22 Filed 05/20/10 Page 5 of 8
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The attached sheet contains important information regarding

objections to the Report and Recommendation. 

DONE this 20th day of May, 2010.

 /s/SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE 

 

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The Court’s Local rules are being amended to reflect the new

computations of time as set out in the amendments to the Federal

Rules of Practice and Procedure, effective December 1, 2009.

7

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation, or

anything in it, must, within fourteen days of the date of service

of this document, file specific written objections with the Clerk

of this Court. Failure to do so will bar a de novo determination

by the district judge of anything in the recommendation and will

bar an attack, on appeal, of the factual findings of the

Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith,

855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677

F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for

challenging the findings and recommendations of the Magistrate

Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997),

which provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten days4 after being served with

a copy of the recommendation, unless a different time

is established by order. The statement of objection

shall specify those portions of the recommendation to

which objection is made and the basis for the

objection. The objecting party shall submit to the

district judge, at the time of filing the objection, a

brief setting forth the party’s arguments that the

magistrate judge’s recommendation should be reviewed de

novo and a different disposition made. It is

insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection. 

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge's order or judgment can

be appealed.

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2. Transcript (applicable Where Proceedings Tape Recorded). 

Pursuant to 28 U.S.C. § 1915 and FED.R.CIV.P. 72(b), the

Magistrate Judge finds that the tapes and original records in

this case are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

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