Allen v. Lowndes County Sheriff's Department et al (INMATE2)

Filing 42

REPORT AND RECOMMENDATION of the Magistrate Judge that: 1) Dfts' 29 MOTION for Summary Judgment be GRANTED; 2) Judgment be ENTERED in favor of Dfts and against Plf; 3) This case be DISMISSED with prejudice; and 4) Costs be TAXED against Plf for which execution may issue; Objections to R&R due by 3/10/2010. Signed by Honorable Wallace Capel, Jr on 2/25/2010. (wcl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _______________________________ R O B E R T LEE ALLEN, # 209 274, P l a in tif f , v. * * * 2:-07-CV-928-MHT (WO)

CAPTAIN LAURA GRESHAM, 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 P la in tif f , an inmate proceeding pro se, filed this 42 U.S.C. § 1983 action against C ap tain Laura Gresham and Sergeant Lorraine Brutton of the Lowndes County Sheriff's D e p a rtm e n t. He complains about events which occurred at the Lowndes County Jail and d u rin g his subsequent transfer to law enforcement officials with the Autauga County S h e rif f 's Office. Plaintiff requests injunctive relief and money damages. In accordance with the orders of the court, Defendants filed an answer, special re p o rt, and supporting evidentiary material in response to the allegations contained in the c o m p la in t. The court then informed Plaintiff that Defendants' special report may, at any tim e , be treated as a motion for summary judgment, and the court explained to Plaintiff the p ro p e r manner in which to respond to a motion for summary judgment. Plaintiff took a d v a n ta g e of the opportunity granted to file responses to the special report filed by

D e f en d a n ts . This case is now pending on Defendants' motion for summary judgment. Upon

c o n sid e ra tio n of such motion, the evidentiary materials filed in support thereof, and P la in tif f 's opposition to the motion, the court concludes that Defendants' motion for s u m m a ry judgment is due to be granted. I . STANDARD OF REVIEW " S u m m a r y judgment is appropriate `if the pleadings, depositions, answers to in te rro g a to rie s, and admissions on file, together with the affidavits, if any, show there is no g e n u i n e issue as to any material fact and that the moving party is entitled to judgment as a m atter of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11 th Cir. 2 0 0 7 ) (per curiam) (citation to former rule omitted); FED. R. CIV. P. 56(c) (Summary ju d g m e n t "should be rendered if the pleadings, the discovery and disclosure materials on file, a n d any affidavits show that there is no genuine issue as to any material fact and that the m o v a n t is entitled to judgment as a matter of law.").1 The party moving for summary ju d g m e n t "always bears the initial responsibility of informing the district court of the basis fo r its motion, and identifying those portions of the [record, including pleadings, discovery m a te ria ls and affidavits], which it believes demonstrate the absence of a genuine issue of m a te ria l fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet th is burden by presenting evidence indicating there is no dispute of material fact or by s h o w in g that the nonmoving party has failed to present evidence in support of some element

Effective December 1, 2007, "[t]he language of Rule 56 [was] amended ... to make the rule[] more easily understood and to make style and terminology consistent throughout the rules. These changes ... are stylistic only." Fed.R.Civ.P. 56 Advisory Committee Notes. Thus, although Rule 56 underwent stylistic changes, its substance rem ains the same and, therefore, all cases citing the prior rule remain equally applicable to the current rule.

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o f its case on which it bears the ultimate burden of proof. Id. at 322-324. Defendants have met thier evidentiary burden and demonstrated the absence of any g e n u in e issue of material fact. Thus, the burden shifts to Plaintiff to establish, with a p p ro p ria te evidence beyond the pleadings, that a genuine issue material to each of his claims f o r relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11 th Cir. 1991); Celotex, 4 7 7 U.S. at 324; Fed.R.Civ.P. 56(e)(2) ("When a motion for summary judgment is properly m a d e and supported, an opposing party may not rely merely on allegations or denials in its o w n pleading; rather, its response must ... set out specific facts showing a genuine issue for tria l." ). A genuine issue of material fact exists when the nonmoving party produces evidence th a t would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F .3 d at 1263. In civil actions filed by inmates, federal courts must distinguish between evidence of disputed facts and disputed matters of p rof essio n al judgment. In respect to the latter, our inferences must accord d e f e r e n c e to the views of prison authorities. Unless a prisoner can point to su f f icie n t evidence regarding such issues of judgment to allow him to prevail o n the merits, he cannot prevail at the summary judgment stage. B e a rd v. Banks, 548 U.S. 521, 530, 126 S.Ct. 2572, 2578, 165 L.Ed.2d 697 (2006) (internal c ita tio n omitted). Consequently, to survive Defendant's properly supported motion for s u m m a ry judgment, Plaintiff is required to produce "sufficient [favorable] evidence" which w o u ld be admissible at trial supporting his claims of constitutional violations. Anderson v. L ib e rty Lobby, Inc., 477 U.S. 242, 249 (1986); Rule 56(e)(1), Federal Rules of Civil

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P r o c e d u r e . "If the evidence [on which the nonmoving party relies] is merely colorable ... or is not significantly probative ... summary judgment may be granted." Id. at 249-250. "A m ere `scintilla' of evidence supporting the opposing party's position will not suffice; there m u s t be enough of a showing that the [trier of fact] could reasonably find for that party. A n d e r s o n v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)." W a lk e r v. Darby, 911 F.2d 1573, 1576-1577 (11 th Cir. 1990). Conclusory allegations based o n subjective beliefs are likewise insufficient to create a genuine issue of material fact and, th e re f o re , do not suffice to oppose a motion for summary judgment. Waddell v. Valley Forge D e n ta l Associates, Inc., 276 F.3d 1275, 1279 (11 th Cir. 2001); Holifield v. Reno, 115 F.3d 1 5 5 5 , 1564 n.6 (11 t h Cir. 1997) (a plaintiff's "conclusory assertions ..., in the absence of [ a d m iss ib le] supporting evidence, are insufficient to withstand summary judgment."); Harris v . Ostrout, 65 F.3d 912, 916 (11 th Cir. 1995) (grant of summary judgment appropriate where in m a te produces nothing beyond "his own conclusory allegations" challenging actions of the d e f e n d a n ts); Fullman v. Graddick, 739 F.2d 553, 557 (11 th Cir. 1984) ("mere verification of p arty's own conclusory allegations is not sufficient to oppose summary judgment...."). H e n c e, when a plaintiff fails to set forth specific facts supported by requisite evidence s u f f ic ie n t to establish the existence of an element essential to his case and on which the p lain tiff will bear the burden of proof at trial, summary judgment is due to be granted in f a v o r of the moving party. Celotex, 477 U.S. at 322 ("[F]ailure of proof concerning an e ss e n tial element of the nonmoving party's case necessarily renders all other facts

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im m a ter ial." ); Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11 th Cir. 1987) (if on any part of the prima facie case the plaintiff presents insufficient evidence to require su b m issio n of the case to the trier of fact, granting of summary judgment is appropriate). F o r summary judgment purposes, only disputes involving material facts are relevant. U n ited States v. One Piece of Real Property Located at 5800 SW 74 th Avenue, Miami, F lo r id a , 363 F.3d 1099, 1101 (11 th Cir. 2004). What is material is determined by the s u b s ta n tiv e law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Secretary of the D e p a rtm e n t of Children and Family Services, 358 F.3d 804, 809 (11 th Cir. 2004) ("Only f a ctu a l disputes that are material under the substantive law governing the case will preclude e n try of summary judgment."). "The mere existence of some factual dispute will not defeat s u m m a ry judgment unless that factual dispute is material to an issue affecting the outcome o f the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11 th Cir. 2003) (citatio n omitted). To demonstrate a genuine issue of material fact, the party opposing s u m m a ry judgment "must do more than simply show that there is some metaphysical doubt a s to the material facts.... Where the record taken as a whole could not lead a rational trier o f fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita E le c . Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the e v id e n c e before the court which is admissible on its face or which can be reduced to a d m iss ib le form indicates that there is no genuine issue of material fact and that the party m o v in g for summary judgment is entitled to it as a matter of law, summary judgment is

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p ro p e r. Celotex, 477 U.S. at 323-324 (summary judgment appropriate where pleadings, e v id e n tia ry materials and affidavits before the court show there is no genuine issue as to a re q u isite material fact); Waddell, 276 F.3d at 1279 (to establish a genuine issue of material f a c t, the nonmoving party must produce evidence such that a reasonable trier of fact could return a verdict in his favor). A lth o u g h factual inferences must be viewed in a light most favorable to the n o n m o v in g party, and pro se complaints are entitled to liberal interpretation by the courts, a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine is s u e of material fact. Beard, 548 U.S. at 525, 126 S.Ct. at 2576; Brown v. Crawford, 906 F .2 d 667, 670 (11 th Cir. 1990). Thus, Plaintiff's pro se status alone does not mandate this c o u r t ' s disregard of elementary principles of production and proof in a civil case. In this c a se , Plaintiff fails to demonstrate a requisite genuine issue of material fact in order to p re c lu d e summary judgment. Matsushita, supra. II. DISCUSSION O n February 7, 2007 the Autauga County Sheriff's Office issued a teletype to the L o w n d e s County Jail requesting that a detainer be placed on Plaintiff because Autauga C o u n ty held warrants on him. Autauga County wished to obtain custody of Plaintiff upon h is release from the Lowndes County Jail. The same day, the Lowndes County Sheriff a u th o riz e d Plaintiff's release from the Lowndes County Jail . Plaintiff was allowed to sign a signature bond which would release him to the custody of the Autuaga County Sheriff's

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O f f ic e . When Plaintiff arrived at the booking area of the Lowndes County Jail in preparation f o r his transfer, Sgt Brutton handed him a consolidated appearance bond which had already b e e n signed by Sheriff Willie Vaughner and Captain Gresham. Plaintiff signed the

c o n so lid a te d appearance bond which incorrectly denoted that Plaintiff bonded out on a c h a r g e of receiving stolen property in the first degree rather than theft of property in the first d e g re e which was the actual offense for which the Lowndes County Sheriff's Department h a d him in custody . Thereafter, an unknown Lowndes County Deputy Sheriff transported P la in tif f to the custody of officials with the Autauga County Sheriff's Office. (See Doc. No. 1 ; Doc. No. 29, Exhs. A, F, G, H, I.) Plaintiff files this action seeking damages and injunctive relief as a result of his c o n so lid a te d appearance bond listing the incorrect charge on which he was held by Lowndes C o u n ty law enforcement officials. Plaintiff maintains that Defendants released him to the c u s to d y of another law enforcement agency via false statements, forged signatures, and false c h a rg e s. Plaintiff further complains that Defendants' conduct caused and/or contributed to h is illegal arrest in Montgomery County, Alabama, following his release from the Lowndes C o u n ty Jail. A. Injunctive Relief P la in t if f is no longer incarcerated at the Lowndes County Jail. The transfer or release o f a prisoner renders moot any claims for injunctive or declaratory relief. See County of Los A n g e les v. Davis, 440 U.S. 625, 631 (1979); see also Cotterall v. Paul, 755 F.2d 777, 780

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(1 1 th Cir. 1985) (past exposure to even illegal conduct does not in and of itself show a p e n d in g case or controversy regarding injunctive relief if unaccompanied by any continuing p re se n t injury or real and immediate threat of repeated injury). As it is clear from the p le a d in g s and records before the court that Plaintiff is no longer incarcerated at the Lowndes C o u n ty Jail, any request for declaratory and/or injunctive relief has been rendered moot. B. The Fraudulent Document Claim The law is well settled that the Constitution is not implicated by negligent acts of an o f f ic ia l causing unintended loss of life, liberty or property. Daniels v. Williams, 474 U.S. 3 2 7 (1986). In this case, Plaintiff's allegation that his constitutional rights were violated w h e n Defendants had him sign a consolidated appearance bond which incorrectly denoted th e charge on which he had been held at the Lowndes County Jail, at best, shows only a lack o f due care which is not actionable under 42 U.S.C. § 1983. The protections of the C o n s tit u t io n "are just not triggered by lack of due care by [jail] officials." Davidson v. C a n n o n , 474 U.S. 344, 348 (1986); Daniels v. Williams, 474 U.S. 327, 333 (1986); see also W h i tle y v. Albers, 475 U.S. at 319 (holding that a violation of the Eighth Amendment must inv o lve "more than an ordinary lack of due care for the prisoner's . . . .safety"). B a se d on the foregoing, the court concludes that Plaintiff's contention that Defendants v io la te d his constitutional rights through issuance of a consolidated appearance bond which c o n ta in e d a clerical notation error does not rise to the level of a constitutional violation. D e f e n d a n ts are, therefore, entitled to summary judgment on this claim.

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C . The Illegal Arrest Claim T h e court also understands Plaintiff to complain that his rights secured by the Fourth A m e n d m e n t were violated when he was released by Lowndes County law enforcement o f f icia ls to the custody of Autauga County law enforcement officials at a placed located in M o n tg o m e ry County, Alabama. That is, Plaintiff maintains that he was subjected him to an ille g a l arrest because his arrest took place in a county outside the jurisdiction of the law e n f o rc e m e n t officials involved with his arrest. According to Plaintiff, law enforcement o f f icia ls may not obtain an arrest warrant in one county and then execute it another county w ith o u t obtaining the endorsement of a judge or Magistrate of the county where the arrest a c tu a lly took place. (See Doc. Nos. 1, 34.) To the extent Plaintiff seeks to hold Defendants Gresham and Brutton liable on this c laim by alleging that they were connected to his alleged illegal arrest based on their in v o lv e m e n t, however attenuated, with the alleged "fraudulent" consolidated appearance b o n d which supported his release and transport from their jurisdiction, he is entitled to no re lie f . As explained, the error contained in Plaintiff's consolidated appearance bond which in c o rre c tly denoted the charge on which Lowndes County officials were holding him was s im p ly an inadvertent clerical error and any fault on Defendants' part in failing to notice a n d /o r correct the error amounts to no more than negligence. Neither Defendants Gresham nor Brutton had any further involvement with Plaintiff o n ce he was released to the custody of a Lowndes County Deputy Sheriff for transfer.

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P lain tiff , therefore has not shown that either Defendant was sufficiently involved in his a lle g e d illegal arrest to to subject them to personal liability. There is no evidence that they p a rtic ip a te d directly in his transfer from the Lowndes County Jail and/or his subsequent a rre st by Autauga County Sheriff officials or that they had any direct responsibility for or c o n tro l over the matter about which he complains with respect to said transfer and arrest. Any co n tention that Defendants Gresham and/or Brutton may be considered supervisory o f f ic ia ls is an insufficient basis for the imposition of personal liability. A 42 U.S.C. § 1983 d o e s not allow a plaintiff to hold supervisory officials liable for the actions of their s u b o rd in a te s under either a theory of respondeat superior or vicarious liability. Marsh v. B u tler County, 268 F.3d 1014, 1035 (11 th Cir. 2001); Miller v. King, 384 F.3d 1248, 1261 (1 1 th Cir. 2004) ("[S]upervisory officials are not liable under § 1983 for the unconstitutional a c ts of their subordinates on the basis of respondeat superior or vicarious liability."); G o n z a le z v. Reno, 325 F.3d 1228, 1234 (11 th Cir.2003) (same); Hartley v. Parnell, 193 F.3d 1 2 6 3 , 1269 (11 th Cir. 1999), citing Belcher v. City of Foley, 30 F.3d 1390, 1396 (11 th Cir. 1 9 9 4 ); Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Florida, 402 F.3d 1092, 1 1 1 5 -1 1 1 6 (11 th Cir. 2005) (In establishing liability under § 1983, a prisoner cannot rely on theo ries of vicarious liability or respondeat superior.). Thus, Defendants are only liable if th e y "personally participate[d] in the alleged unconstitutional conduct or [if] there is a causal c o n n e ctio n between [their] actions ... and the alleged constitutional deprivation." Cottone v . Jenne, 326 F.3d 1352, 1360 (11 th Cir. 2003) (citation omitted). "`The causal connection

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c a n be established when a history of widespread abuse puts the responsible supervisor on n o tice of the need to correct the alleged deprivation, and he fails to do so.' [Hartley, supra.] (q u o tin g Brown v. Crawford, 906 F.2d 667, 671 (11 th Cir. 1990)." Gray, 458 F.3d at 1308. T o sufficiently notify the supervisor, the deprivations must not only be widespread, they also " m u s t be obvious, flagrant, rampant and of continued duration, rather than isolated o c c u rre n c es ." Brown, 906 F.2d at 671. There is no dispute that Defendants did not personally participate in the actions about w h ic h Plaintiff complains with respect to his arrest and transfer to Autauga County law e n f o rc e m e n t officials. (Doc. No. 29, Exhs. G, H.) Further, Plaintiff has presented no

p ro b a tiv e evidence of obvious, flagrant or rampant abuse of continuing duration in the face o f which Defendants failed to take corrective action. The court, therefore, concludes that th e motion for summary judgment as to Plaintiff's claims against Defendants for illegal arrest a n d /o r on the basis of respondeat superior is due to be granted. I I I . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1. Defendants' motion for summary judgment (Doc. No. 29) be GRANTED; 2 . Judgment be ENTERED in favor of Defendants and against Plaintiff; 3 . This case be DISMISSED with prejudice; and 4 . Costs be TAXED against Plaintiff for which execution may issue. It is further

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O R D E R E D that the parties shall file any objections to the said Recommendation on o r before March 10, 2010. 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 i s t r i c 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 (5 th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th Cir. 1981) (en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. D o n e this 25 th day of February 2010.

/s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. UNITED STATES MAGISTRATE JUDGE

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