Smedley v. City of Ozark (MAG+)

Filing 8

ORDER that Plaintiff's 6 and 7 objections are OVERRULED; that 5 Report and Recommendations is ADOPTED; that Plaintiff's 4 Motion for Summary Judgment is DENIED; that Plaintiff's § 1983 procedural due process claim is DI SMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B), for failure to state an actionable procedural due process claim; that Plaintiff's claim pursuant to 28 U.S.C. § 2254 is DISMISSED without prejudice for failure to exhaust state remedies; that a separate final judgment will be entered. Signed by Chief Judge William Keith Watkins on 5/15/2012. (cc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
DARRELL SMEDLEY,
Plaintiff,
v.
CITY OF OZARK,
Defendant.

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CASE NO. 1:12-CV-116-WKW

ORDER
On March 9, 2012, the Magistrate Judge filed a Report and Recommendation
(Doc. # 5) regarding Plaintiff’s Motion for Summary Judgment (Doc. # 4). Plaintiff
filed timely objections. (Docs. # 6 & 7.) The court reviews de novo the portion of the
Recommendation to which the objections apply. 28 U.S.C. § 636(b)(1). For the
reasons that follow, the objections are due to be overruled and the Recommendation
adopted.
It appears that Plaintiff objects to the Magistrate Judge’s findings that Plaintiff
failed to allege a procedural due process claim, (Doc. # 6, at 5), and that Plaintiff
failed to exhaust his state remedies so as to assert a claim pursuant to 28 U.S.C.
§ 2254. (Doc. # 6, at 7.) In his objections, Plaintiff still fails to establish that the state
of Alabama has not provided an adequate post-deprivation remedy, and thus, he does
not properly allege a procedural due process claim.

Furthermore, Plaintiff’s

objections do not show that Plaintiff has exhausted his state remedies. Plaintiff does
provide evidence that he has filed state court actions against Defendant; however, this
evidence does not provide the nature or the disposition of those cases. (See, e.g.,
Attach. 1 to Doc. # 6; Attach. 1 to Doc. # 7.)
Accordingly, it is ORDERED that:
1.

Plaintiff’s objections (Docs. # 6 & 7) are OVERRULED;

2.

the Recommendation of the Magistrate Judge (Doc. # 5) is ADOPTED;

3.

Plaintiff’s Motion for Summary Judgment (Doc. # 4) is DENIED;

4.

Plaintiff’s § 1983 procedural due process claim is DISMISSED with
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B), for failure to state an
actionable procedural due process claim; and

5.

Plaintiff’s claim pursuant to 28 U.S.C. § 2254 is DISMISSED without
prejudice for failure to exhaust state remedies.

A separate final judgment will be entered.
DONE this 15th day of May, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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