Flournoy v. Duffie et al (INMATE 2)

Filing 4

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, )

Download PDF
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 * * * * * 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). 2 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 3 (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 4 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 5 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 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?