Guirlando v. Mitcham ( 2020 )

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION ANTHONY GUIRLANDO PLAINTIFF v. Civil No. 1:20-cv-01007 UNION COUNTY JAIL; CAPTAIN RICHARD MITCHAM; RICKY ROBERTS; CORRECTIONAL OFFICER PENNALTON; NURSE CASEY; NURSE RICE; JOHN DOES 1-6 DEFENDANTS REPORT AND RECOMMENDATION Before the Court is Defendant, Union County Jail’s, Motion to Dismiss. (ECF No. 32). Plaintiff has filed a Response and agrees the Defendant should be dismissed. (ECF No. 37). Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, Chief United States District Judge, referred the instant motion to the undersigned for the purpose of making a Report and Recommendation. Plaintiff filed this action pursuant to 42 U.S.C. § 1983, the Fourteenth Amendment of the United States Constitution, and under the state law of Arkansas against several defendants, including Union County Jail. On July 6, 2020, Defendant, Union County Jail, filed its Motion To Dismiss (ECF No. 32) arguing a county jail is a building and has not been recognized as an entity capable of suing and being sued under state law and, therefore, is not a “person” within the meaning of 42 U.S.C. §1983. Plaintiff responded to this Motion on July 16, 2020 and agrees Defendant Union County Jail should be dismissed from this action. (ECF No. 37). A jail is a building, not a legal entity subject to suit under 42 U.S.C. § 1983. See e.g., Powell v. Cook County Jail, 814 F. Supp. 757 (N.D. Ill. 1993)(jail not subject to suit); Marsden v. Fed. Bureau of Prisons, 856 F. Supp. 832, 836 (S.D.N.Y. 1994)(“jail is not an entity that is amenable to suit”). Therefore, Plaintiff’s claims against Union County Jail should be dismissed without prejudice. For the foregoing reasons, the Court recommends Defendants’ Motions to Dismiss (ECF No. 32) be GRANTED and Plaintiff’s Complaint (ECF No. 1) and Amended Complaint (ECF No. 20) be dismissed against Defendant Union County Jail without prejudice. The parties have fourteen days from receipt of the Report and Recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. DATED this 21st day of July 2020. Barry A. Bryant /s/ HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE