Owens v. Alabama Board of Pardons & Paroles et al (INMATE 2)

Filing 37

ORDERED as follows: (1) The Plaintiff's Objections are Overruled. (2) The court adopts the Recommendation of the Magistrate Judge. (3) Defendants' Motions for Summary Judgment are Granted and judgment will be entered in favor of the defendants. (4) This case is Dismissed with prejudice. Signed by Honorable Judge W. Harold Albritton, III on 2/16/2017. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
RAYMOND OWENS, AIS# 214918
Plaintiff,
v.
CYNTHIA DILLARD, et al.,
Defendants.

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Case No. 2:13-CV-768-WHA-SRW
(WO)

ORDER
This case is before the court on the Plaintiff’s Objections (Doc. # 35), filed on January
19, 2017, to the Recommendation of the Magistrate Judge (Doc. # 31) entered on December 14,
2016, which recommended that the motions for summary judgment of the Defendants be
granted. After an independent evaluation and de novo review of the file in this case, the court
finds the Objections to be without merit.
In this § 1983 action, Plaintiff complained that Defendants improperly barred him from
parole and alleged their conduct in scheduling his parole consideration hearings for every five
years when the statute regarding parole set-offs at the time of his conviction set parole
consideration hearings at three year intervals violated his right to be free from cruel and unusual
punishment, infringed his rights to due process and equal protection, and violated the Ex Post
Facto Clause.
Plaintiff challenged the constitutionality of Ala. Code § 15-22-27.3, complaining the
effect of the statute barred him from parole eligibility, even though he previously had been
eligible for parole because he was sentenced prior to enactment of § 15-22-27.3. As explained in
the Recommendation, the undisputed evidence reflects the parole board reinstated Plaintiff to

parole eligibility status, making this claim moot. Plaintiff argues the claim is not moot because
the court denied his request to amend the complaint three years after he filed this action in which
he sought to amend to add a claim that the parole board reinstated his parole, set a parole
consideration date for September 2016, and then denied parole in retaliation for his filing this
civil action. Plaintiff’s argument fails to invalidate the Magistrate Judge’s determination that
Plaintiff’s challenge to application of § 15-22-27.3 is, in fact, moot. Further, while Plaintiff is
correct that the Magistrate Judge denied his request to amend his complaint filed in November
2016, the Magistrate Judge informed him he could file a new complaint if he wished to challenge
the constitutionality of actions which had occurred since filing this action.
Plaintiff states that he objects to the Recommendation regarding the official immunity of
Defendants, but his objection, which includes a reference to the standard for qualified immunity,
is without legal merit. Plaintiff’s objections to the court’s determination regarding his due
process, ex post facto, and cruel and unusual punishment claims are, likewise, without merit for
the reasons explained in the Recommendation.
Therefore, it is hereby Ordered as follows:
(1) The Plaintiff’s Objections are Overruled.
(2) The court adopts the Recommendation of the Magistrate Judge.
(3) Defendants’ Motions for Summary Judgment are Granted and judgment will be
entered in favor of the Defendants.
(4) This case is Dismissed with prejudice.
Done this 16th day of February, 2017.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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