Flournoy v. Duffie et al (INMATE 2)
REPORT AND RECOMMENDATION of the Magistrate Judge that: 1) Plf's claims against Dfts Culver, Jones, and Napa be DISMISSED with prejudice prior to service of process pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(I) and/or (iii); 2) Houston County Commissioner Mark Culver, Lieutenant Jones, and Lieutenant Napa be DISMISSED as dfts to this cause of action; and 3) This case, with respect to Plf's claims against the remaining dfts, be referred back to the undersigned for appropriate proceedings; Objections to R&R due by 3/1/2010. Signed by Honorable Wallace Capel, Jr on 2/16/2010. (wcl, )
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION ____________________________ D O N N E L L FLOURNOY P l a in tif f , v. M A R K CULVER, HOUSTON CO. C O M M ., et al., D e f e n d a n ts . ____________________________ R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is is a 42 U.S.C. § 1983 action in which Plaintiff alleges that his constitutional rig h ts were violated when he was removed from a community work release program. Plaintiff f u rth e r complains that he was subjected to verbal abuse and had personal property c o n f is c a te d and destroyed. Plaintiff seeks injunctive relief and monetary damages and req u ests trial by jury. Named as defendants are Houston County Commissioner Mark Culver, C C O Director Gary Knight, CCO staff members Skipp Duffy and Veronica Alvardo, and L ie u te n a n ts Napa and Jones with D.S.I. Security. Upon review of the complaint, the court concludes that Plaintiff's claims against C o m m is s io n e r Mark Culver and Lts. Napa and Jones should be dismissed prior to service of p roc ess in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B).1
A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the court to dismiss a prisoner's civil action prior to service of process, regardless of the
* * * * * 1:10-CV-104-ID (WO)
I . DISCUSSION A . Commissioner Mark Culver P la in tif f names Houston County Commissioner Mark Culver as a defendant alleging th a t he is responsible for the overall operation of the community work release facility and s h o u ld ensure that inmates placed at the facility are treated fairly and assigned to a job they c a n perform. County commissioners cannot be held liable for actions undertaken during the d a ily operation of a county work release center. See Turquitt v. Jefferson County, Alabama, 1 3 7 F.3d 1285, 1289 (11 th Cir. 1998). Further, county commissioners are entitled to absolute im m u n ity under § 1983 for claims arising from the appropriation of funds for the m a in te n a n c e of a county work release center. Woods v. Garner, 132 F.3d 1417, 1420 (11 th C ir. 1998) ("The budgetary decisions made by defendants for funding the county--including th e jail--are legislative acts protected by legislative immunity."). Thus, Plaintiff's claims a g a in s t Commissioner Mark Culver are subject to summary dismissal upon application of the d irec tiv es of 28 U.S.C. § 1915(e)(2)(B)(I) and (iii). B . Defendant Napa P la in tif f complains that Lt. Napa took Plaintiff's personal property from his locker at t h e community work release center and destroyed it. The court understands Plaintiff to c o m p la in that Defendant Napa's allegedly improper confiscation of his property violated
payment of a filing fee, if it determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
h i s right to due process. Insofar as Plaintiff's complaint about the allegedly improper c o n f is c a tio n of his property is concerned, the court finds that under no set of facts is he e n title d to relief. "If the [property from Plaintiff's locker] was not returned b e c au s e of [Defendant's] negligence, there has been no u n c o n s titu tio n a l deprivation of property. See Daniels v. W illia m s, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (n e g lig e n t loss of property does not rise to the level of a c o n stitu tio n a l violation.) If [Defendant] intentionally refused to re tu rn the [property], plaintiff has not alleged a constitutional v io la tio n . In Hudson v. Palmer the Court ruled that an 'u n a u th o riz e d intentional deprivation of property by a state e m p l o ye e does not constitute a violation of the Due Process C la u s e . . . if a meaningful post-deprivation remedy for the loss i s available.' 104 S.Ct. at 3202, 82 L.Ed.2d at 407. It is e ss e n tial to [the instant] complaint that it allege that [Defendant] a c te d without authorization. If [Defendant] was acting pursuant to authorization, his actions would be within the outer perimeter o f his duties and would not have violated any clearly established c o n stitu tio n a l right and therefore he would be immune from suit. See Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 1 6 9 1 -9 2 , 40 L.Ed.2d 90 (1974); Flinn v. Gordon, 775 F.2d 1 5 5 1 , 1553 (11 th Cir.1985). Only if the complaint is construed a s alleging that [Defendant] was acting in bad faith outside the s c o p e of his duties can it evade the doctrine of official im m u n ity. Rodriguez-Mora v. Baker, 792 F.2d 1524, 1527 (11 th Cir. 1986). See also Holloway v. W a lk e r, 790 F.2d 1170, 1173-74 (5 th Cir. 1986) (finding no breach of federally guaranteed c o n stitu tio n a l rights, even where a high level state employee intentionally engages in tortuous c o n d u c t, as long as the state system as a whole provides due process of law); Myers v. K le v en h a g e n , 97 F.3d 91, 94-95 (5 th Cir. 1996) ("the Parratt [v. Taylor, 451 U.S. 527
(19 8 1 )]/H u d s o n [v. Palmer, 468 U.S. 517 (1984)] doctrine protects the state from liability f o r failing to provide a pre-deprivation process in situations where it cannot anticipate the ra n d o m and unauthorized actions of its officers." The complainant bears the burden of e s ta b lis h in g that the state's post-deprivation remedy is inadequate). The State of Alabama, through its Board of Adjustment, provides a meaningful postd e p riv a tio n remedy for Plaintiff to seek redress for the loss of his property. Ala. Code § 419 -6 0 et seq. (1982). In light of this adequate state remedy, Plaintiff's allegation that D e f e n d a n t Napa violated his due process rights by improperly confiscating his personal p ro p e rty, whether such was the result of negligence or an intentional act, lacks an arguable b a s is in the law and is, therefore, subject to dismissal under the provisions of 28 U.S.C. § 1 9 1 5 (e )( 2 )( B )( I) . C. Lt. Jones P la in tif f alleges that Lt. Jones subjected him to verbal abuse by addressing him using rac ially derogatory names. The law is settled that verbal harassment and abuse and mere th re a te n in g language and gestures of a custodial officer do not amount to a constitutional v io la tio n . McFadden v. Lucas, 713 F.3d 143, 146 (5 th Cir. 1983); Johnson v. Glick, 481 F.2d 1 0 2 8 , 1033 (2 n d Cir. 1973); Evans v. City of Zebulon, GA, 351 F.3d 485, 495-496 (11 th Cir. 2 0 0 3 ) (verbal taunts by other inmates or government officials do not violate constitutional rig h ts ), vacated on other grounds, rehearing en banc 407 F.3d 1272 (11 th Cir. 2005); Bender v . Brumley, 1 F.3d 271, 274 n. 4 (5 th Cir. 1993) (mere allegations of verbal abuse do not
p re se n t actionable Section 1983 claim). Consequently, the remarks Plaintiff attributes to D e f e n d a n t Jones will not support a claim of violation of his constitutional rights. Because th is claim lacks an arguable basis in law, it is due to be dismissed under 28 U.S.C. § 1 9 1 5 (e )( 2 )( B )( I) . See Neitzke v. Williams, 490 U.S. 319 (1989). II. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's claims against Defendants Culver, Jones, and Napa be DISMISSED with p re ju d ic e prior to service of process pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(I) and/or (iii); 2 . Houston County Commissioner Mark Culver, Lieutenant Jones, and Lieutenant N a p a be DISMISSED as defendants to this cause of action; and 3 . This case, with respect to Plaintiff's claims against the remaining defendants, be re f e rr e d back to the undersigned for appropriate proceedings. It is further ORDERED that on or before March 1, 2010 the parties may file objections to this R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the
M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D is tric t Court except upon grounds of plain error or manifest injustice. Nettles v.
W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. D o n e , this 16 th day of February 2010.
/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE
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