Opinion
Civil Action No. 00-0319-P-C
October 4, 2000
JUDGMENT
According to the Order entered this date and pursuant to Fed.R.Civ.P. 54(b), it is ORDERED, ADJUDGED, and DECREED that plaintiff Kenneth A. Lawrence's claims against the U.S. Marshals Service be DISMISSED with prejudice, prior to service of process, as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). No costs are to be taxed.
ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE.
Pending before this court is pro se plaintiff Kenneth A. Lawrence's Statement of Objection (doc. 13) to Magistrate Judge's Recommendation made under 28 U.S.C. § 636(b)(1)(B) and dated July 10, 2000 (doc. 9). The Magistrate Judge recommends that plaintiffs claims against one of the named defendant in this action, the U.S. Marshals Service, be dismissed with prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous. After due and proper consideration of all portions of the file deemed relevant to the issues raised, and a Z determination of those portions of the Recommendation of the Magistrate Judge to which objection is made, the Report and Recommendation of the Magistrate Judge is due to be adopted as the opinion of this court.
The Magistrate Judge's recommendation is based on the fact that the U.S. Marshals Service is not a suable entity. Plaintiff objects; he states that he named the wrong "entity" and meant to name the U.S. Department of Justice "by virtue of its being the parent and controlling entity of the Marshals Service . . ." (doc. 13). Plaintiff requests that the U.S. Department of Justice be substituted as the named defendant.Id.
Ordinarily plaintiff should be allowed to amend his complaint to substitute the U.S. Department of Justice as a defendant, "except if such an amendment would be futile." Foman v. Davis, 371 U.S. 178, 182 (1962);Garcia v. United States, 666 F.2d 960, 966 (5th Cir.), cert. denied, 459 U.S. 832 (1992); Laspopoulos v. FBI, 884 F. Supp. 214, 215 (E.D.La. 1995). Herein, such futility exists.
The United States, of which the U.S. Department of Justice is an agency, cannot be sued unless it has waived its sovereign immunity to suit. Garcia at 966. "An immunity waiver, if it exists at all, must be found in the statute giving rise to the cause of action." Id.
Plaintiff alleges a constitutional violation. Such a complaint is barred by sovereign immunity "because the Constitution does not waive the United States' sovereign immunity in a suit for damages." Id; Manstream v. United States Dept. of Agriculture, 649 F. Supp. 874, 883 (M.D.Ala. 1986) (The United States is immune to suit for damages based on the Constitution under a Bivens' theory.). Plaintiff has presented no statutory authority indicating otherwise. Plaintiffs objection is overruled.
Referring to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Accordingly, it is ORDERED that the Recommendation of the Magistrate Judge be and is hereby ADOPTED as the opinion of this court and that plaintiffs claims against the U.S. Marshals Service be hereby DISMISSED with prejudice, prior to service of process, as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). This action shall proceed against the remaining named defendants.