Taylor v. Jackson, No. 1:2009cv01894 - Document 3 (N.D. Ga. 2009)

Court Description: ORDER and OPINION DISMISSING CASE pursuant to 28 USC 1915A for failure to state a claim and granting In Forma Pauperis for the purpose of dismissal only. Signed by Judge Charles A. Pannell, Jr on 07/30/2009. (rvb)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DANIEL W. TAYLOR, INMATE NO. 0816052, Plaintiff, v. SHERIFF TED JACKSON, Defendant. : : : : : : : : PRISONER CIVIL RIGHTS 42 U.S.C. § 1983 CIVIL ACTION NO. 1:09-CV-1894-CAP ORDER AND OPINION Plaintiff has submitted the instant pro se civil rights complaint. The matter is presently before this Court for a 28 U.S.C. § 1915A frivolity determination. I. The Standard of Review Pursuant to 28 U.S.C. § 1915A(a), a federal court is required to screen as soon as practicable a prisoner complaint which seeks redress from a governmental entity or officer or employee of a governmental entity. Section 1915A(b) requires a federal court to dismiss a prisoner complaint that is either: (1) frivolous, malicious, or fails to state a claim upon which relief may be granted ; or (2) seeks monetary relief from a defendant who is immune from such relief. In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must satisfy two elements. First, a plaintiff must allege that an act or omission deprived AO 72A (Rev.8/82) him of some right, privilege, or immunity secured by the Constitution or laws of the United States. Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir. 1995). Second, a plaintiff must allege that the act or omission was committed by a person acting under color of state law. Id. If a litigant cannot satisfy these requirements, or fails to provide factual allegations in support of the claim, then the complaint is subject to dismissal, pursuant to 28 U.S.C. § 1915A. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (more than merely conceivable, the complaint must be dismissed when a plaintiff fails to plead enough facts to state a claim to relief that is plausible on its face ); Papasan v. Allain, 478 U.S. 265, 286 (1986) (the court accepts as true the plaintiff s factual contentions, not his or her legal conclusions that are couched as factual allegations). II. Discussion Plaintiff states that on May 9, 2008, Sergeant Wesley Carmack unlawfully entered Plaintiff s home, beat him with a weapon, and shot him.1 (Doc. 1 at ¶¶ IVV.) Plaintiff alleges that he has made several unsuccessful attempts to have 1 Plaintiff currently has a civil rights action pending against Carmack. Taylor v. Carmack, Civil Action No. 1:08-CV-3262-CAP. 2 AO 72A (Rev.8/82) Carmack arrested. (Id. at ¶ IV.) Plaintiff asks this Court to order Defendant Ted Jackson, the Fulton County Sherif, to arrest Carmack. (Id. at ¶ V.) The act of arresting an individual is a discretionary one, and Defendant Jackson s alleged failure to arrest Carmack does not state a claim under federal law. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 761-66 (2005); Lewis v. City of St. Petersburg, 260 F.3d 1260, 1266 (11th Cir. 2001). Consequently, Plaintiff s civil rights action must be dismissed as frivolous. III. Conclusion IT IS ORDERED that this civil rights action [Doc. 1] is DISMISSED, pursuant to 28 U.S.C. § 1915A. For the purpose of dismissal only, Plaintiff s request for leave to file this action in forma pauperis [Doc. 2] is GRANTED. IT IS SO ORDERED, this 30th day of July, 2009. /s/ Charles A. Pannell, Jr. CHARLES A. PANNELL, JR. UNITED STATES DISTRICT JUDGE 3 AO 72A (Rev.8/82)