Barley v. Autauga County Commissioners et al (INMATE 2)

Filing 4

ORDER AND RECOMMENDATION of the US Magistrate Judge ORDERING the clerk to add QCHC employee Vernice as a party defendant to the complaint; REPORT AND RECOMMENDATION that: (1) Plaintiff's 1983 complaint against the Autauga County Commissioner s be DISMISSED with prejudice prior to service of process under 28 U.S.C. 1915(e) (2)(B)(i); (2) Plaintiff's 1983 claims alleging breach of medical confidentiality, slander and defamation, and conspiracy be DISMISSED with prejudice prior to se rvice of process under 28 U.S.C. 1915(e)(2)(B)(i); (3) Plaintiff's complaint against Defendants Averitt and QCHC be DISMISSED without prejudice prior to service of process under 28 U.S.C. 1915(e)(2)(B)(ii); (4) Defendants Autauga County Comm issioners, Averitt, Nixon, and QCHC be DISMISSED as a party defendants to the complaint; (5) Plaintiff's claim as alleged in Ground One of the complaint against Defendants Johnson, Vernice, and Whitten be referred back to the undersigned for further proceedings; Objections to R&R due by 2/28/2014. Signed by Honorable Judge Susan Russ Walker on 2/14/14. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
LEON BARLEY, JR.,
Plaintiff,
v.
AUTAUGA COUNTY
COMMISSIONERS, et al.,
Defendants.

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) CIVIL ACTION NO. 2:14-CV-55-TMH
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[WO]
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ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, an inmate proceeding pro se, is currently confined at the Autauga County
Metro Jail located in Prattville, Alabama. In this 42 U.S.C. § 1983 action, he challenges
various conditions and events which have occurred at the jail since December 2013. Named
as defendants are the Autauga County Commissioners, Sheriff James Johnson, Captain Larry
Nixon, medical provider QCHC, Officer Whitten, and Officer Averitt. Upon consideration
of the pleadings filed in this case, the court concludes that dismissal of certain claims and
defendants prior to service of process is appropriate under 28 U.S.C. § 1915(e)(2)(B).1
I. DISCUSSION
A. Autauga County Commissioners
Plaintiff names the Autauga County Commissioners as defendants. He makes no
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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 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).

specific allegations against these individuals. Further, county commissioners cannot be held
liable for actions undertaken during the daily operation of a county jail. Turquitt v. Jefferson
County, Alabama, 137 F.3d 1285, 1289 (11th Cir. 1998). In light of the foregoing, Plaintiff’s
claims against the commissioners of Autauga County are subject to dismissal under 28
U.S.C. § 1915(e)(2)(B)(i).
B. Breach of Medical Confidentiality
In Ground Two of the complaint, Plaintiff states he has overheard medical personnel
discuss with and disclose to other inmates and jailers the “medical diagnostics and prognosis”
of other prisoners. Plaintiff is entitled to no relief on this claim, as he lacks standing to
assert the constitutional rights of other persons. Saladin v. City of Milledgeville, 812 F.2d
687 (11th Cir. 1987); Allen v. Wright, 468 U.S. 737, 751 (1984).
A plaintiff must assert legally cognizable injury in fact, whether real or threatened,
before federal courts have jurisdiction. Schlesinger v. Reservists Committee to Stop the
War, 418 U.S. 208, 218-19 (1974). Standing involves two aspects. The first is the
minimum "case or controversy" requirement of Article III. This requirement mandates that
Plaintiff himself suffer actual or threatened injury resulting from the action challenged and
that such injury is likely to be redressable in a judicial action. Warth v. Seldin, 422 U.S.
490, 499 (1975). In addition, the Supreme Court has established several requirements
based on prudential considerations. See Saladin, supra. The prudential limitation
applicable in this case is that a litigant may not assert the legal rights or interests of another
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person. Allen v. Wright, 468 U.S. 737, 751 (1984).
In Ground Two, Plaintiff is not "asserting his . . . own legal rights and interests [but]
rather . . . the legal rights and interests of third parties." Saladin, 812 F.2d at 690. Thus,
it is clear that his claim regarding the disclosure by medical and/or jail personnel of other
inmate's medical information alleges "infringement of a legal interest which clearly does
not exist" and is, therefore, subject to dismissal as frivolous pursuant to the provisions of
28 U.S.C. § 1915(e)(2)(B)(i). Neitzke v. Williams, 490 U.S. 319, 327 (1989).
C. Slander and Defamation of Character and Reputation
Plaintiff asserts a claim for slander and defamation in Ground Three of the complaint.
He contends that QCHC employee Vernice informed other inmates and correctional officers
that he had stolen property from her several years ago and claims she also made numerous
accusations against him regarding a known relationship he had with Defendant Nixon.
Plaintiff’s slander and defamation claim fails to state a claim of constitutional
proportion since the Constitution does not forbid defamation, libel or slander. Davis v. City
of Chicago, 53 F.3d 801, 803 (7th Cir. 1995), citing Siegert v. Gilley, 500 U.S. 226 (1991)
(holding that defamation, which encompasses libel and slander, is a tort actionable under the
law of most states, but not a constitutional deprivation), and Paul v. Davis, 424 U.S. 693
(1976) (recognizing that an interest in reputation alone is not a liberty or property interest
protected by the Due Process Clause, thus holding that defamation does not give rise to a
claim under 42 U.S.C. § 1983). Accordingly, this claim is due to be dismissed.

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D. Conspiracy
Plaintiff alleges that QCHC employee Vernice conspired with Defendant Nixon and
other jailers to lock him up in segregation which is not a medical observation unit, as was
explained to him. The complaint includes no factual allegations to support Plaintiff’s
conspiracy claim.
In order to establish a § 1983 conspiracy, “a plaintiff must show among other things,
that Defendants ‘reached an understanding to violate [his] rights.’ ” Rowe v. Fort
Lauderdale, 279 F.3d 1271, 1283 (11th Cir. 2002) (citation omitted) (brackets in original).
This requires that Plaintiff provide more than a label or a conclusion. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Here, Plaintiff’s conclusory allegation does not allow
the court to draw the conclusion that a conspiracy claim is plausible. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). See Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984)
(holding that a conspiracy allegation that is vague and conclusory fails to state a claim upon
which relief can be granted and is subject to dismissal). Accordingly, this claim is due to be
dismissed as it is insufficient to support a claim for relief under 42 U.S.C. § 1983. Iqbal, 556
U.S. at 678; Fullman, 739 F.2d at 556-557.
E. QCHC Employee Vernice
Although QCHC employee Vernice is included within the allegations set forth in
Ground One of the complaint, Plaintiff failed to list her as a defendant. Because the court
will direct a response to the allegations made against Defendant Whitten and QCHC

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employee Vernice as set forth in Ground One, the Clerk will be directed to add QCHC
employee Vernice as a party defendant.
F. Defendants Averitt, and QCHC
The court’s preliminary review of the complaint reveals that Plaintiff has not stated
any claim against Defendants Averitt and QCHC. Though Plaintiff names this individual and
entity as Defendants, he fails to make any specific allegations of wrongdoing against them
in the body of his complaint. Accordingly, Defendants Averitt and QCHC are subject to
dismissal on this basis. See Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008) (holding
that a district court properly dismisses defendants where a prisoner, other than naming the
defendant in the caption of the complaint, fails to state any allegations that connect the
defendants with the alleged constitutional violation) (citing Pamel Corp. v. P.R. Highway
Auth. ., 621 F.2d 33, 36 (1st Cir. 1980) (“While we do not require technical niceties in
pleading, we must demand that the complaint state with some minimal particularity how
overt acts of the defendant caused a legal wrong.”).
II. CONCLUSION
The Clerk is ORDERED to add QCHC employee Vernice as a party defendant to the
complaint.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:
1. Plaintiff’s § 1983 complaint against the Autauga County Commissioners be
DISMISSED with prejudice prior to service of process under 28 U.S.C. § 1915(e)(2)(B)(i);

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2. Plaintiff’s § 1983 claims alleging breach of medical confidentiality, slander and
defamation, and conspiracy be DISMISSED with prejudice prior to service of process under
28 U.S.C. § 1915(e)(2)(B)(i);
3. Plaintiff’s complaint against Defendants Averitt and QCHC be DISMISSED
without prejudice prior to service of process under 28 U.S.C. § 1915(e)(2)(B)(ii);
4.

Defendants Autauga County Commissioners, Averitt, Nixon, and QCHC be

DISMISSED as a party defendants to the complaint;
5. Plaintiff’s claim as alleged in Ground One of the complaint against Defendants
Johnson, Vernice, and Whitten be referred back to the undersigned for further proceedings.
It is further
ORDERED that on or before February 28, 2014, Plaintiff may file an objection to
the Recommendation. Any objection filed must specifically identify the findings in the
Magistrate Judge's Recommendation to which Plaintiff objects. Frivolous, conclusive or
general objections will not be considered by the District Court. Plaintiff is advised that this
Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file a written objection to the proposed findings and advisements in the
Magistrate Judge's Recommendation shall bar a party from a de novo determination by the
District Court of issues covered in the Recommendation and shall bar a party from attacking
on appeal factual findings in the Recommendation accepted or adopted by the District Court
except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d

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404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See
also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), 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.
DONE, this 14th day of February, 2014.

/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

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