Cook Bey v. Strickland et al (INMATE 2)

Filing 22

ORDER that: (1) The 14 Recommendation is ADOPTED; (2) Plaintiffs 1983 claim against Defendants Commissioner Jefferson Dunn and Warden Michael Strickland are DISMISSED under 28 U.S.C. 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted; and (3) The Clerk of the Court is directed to terminate Defendants Commissioner Jefferson Dunn and Warden Michael Strickland as parties. This action is REFERRED back to the Magistrate Judge for further proceedings.(1) Signed by Chief Judge William Keith Watkins on 12/21/2016. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
KENDRICK COOK-BEY,
AIS #174046,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
MICHAEL STRICKLAND, et al.,
Defendants.

CASE NO. 2:16-CV-520-WKW
[WO]

ORDER
On November 1, 2016, the Magistrate Judge filed a Recommendation in this
case.

(Doc. # 14.)

Plaintiff Kendrick Cook-Bey filed objections to the

recommendation on December 16, 2016. (Doc. # 21.) The recommendation is due
to be ADOPTED with some elaboration.
Plaintiff is a pro se inmate in the custody of the Alabama Department of
Corrections. After he filed a handwritten complaint detailing the allegations he
thought formed the basis of his constitutional claim (Doc. # 1), the court ordered
Plaintiff to file an amended complaint using a court-provided form (Doc. # 7). The
purpose of the amended complaint was for him to name “as defendants only those
individuals he contends are personally responsible for the alleged violations of his

constitutional rights” and to “specifically describe[]” how each defendant
contributed to the violation. (Doc. # 7.)
It appears Mr. Cook-Bey did not understand that the Amended Complaint
would replace, not supplement, his original complaint. At the top of the facts portion
of his Amended Complaint, he notes “insufficient room.” (Doc. # 9, at 3.) But,
rather than attaching a longer facts section to the form complaint, he attempts to
incorporate by reference the facts of his previous complaint, writing “See Affidavit
of Fact (6 pages filed, certificate of service June 21, 2016).” (Doc. # 9, at 3.) His
original complaint was filed as a six-page document, which includes a certificate of
service dated June 21, 2016. (Doc. # 1.) In view of these facts, it appears that
Plaintiff intended for the facts section of his original complaint to be included as part
of his Amended Complaint.
The Recommendation (Doc. # 14) evaluates Plaintiff’s Amended Complaint,
without considering the factual allegations presented in the original complaint.
Because pro se filings must be construed liberally, Bellizia v. Fla. Dep’t of Corrs.,
614 F.3d 1326, 1329 (11th Cir. 2010), the court also will consider the allegations set
forth in Plaintiff’s initial complaint when evaluating his claims. Nevertheless, in
accordance with the Recommendation, Plaintiff’s claims against Commissioner
Dunn and Warden Strickland are due to be dismissed.

2

To establish a claim under 42 U.S.C. § 1983, a plaintiff must show that the
defendant caused him or her to be subjected to “the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.” Supervisory
officials can be liable for the conduct of subordinates under § 1983 “when the
supervisor personally participates in the alleged constitutional violation or when
there is a causal connection between the actions of the supervising official and the
alleged constitutional deprivation.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th
Cir. 2003). This causation requirement precludes claims based merely on a theory
of vicarious liability. Gray v. Bostic, 458 F.3d 1295, 1308 (11th Cir. 2006). But,
this circuit has held that a supervisor’s conduct causes the deprivation when: (1) a
“history of widespread abuse” puts the responsible supervisor on notice of the need
to correct the alleged deprivation, and he or she fails to do so; (2) a supervisor’s
custom or policy results in deliberate indifference to constitutional rights; or (3) facts
support an inference that the supervisor directed subordinates to act unlawfully or
knew that subordinates would act unlawfully and failed to stop them from doing so.
Matthews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007); Cottone, 326 F.3d at
1360.
Defendants Warden Michael Strickland and Commissioner Jefferson Dunn
are being sued because of actions taken in their respective roles as supervisory
officials. Plaintiff’s claim against Warden Strickland is based on the Warden’s

3

“failure to act . . . [a]fter being notified of violations of claimant’s rights.” (Doc. #
1, at 3.)

Similarly, his claim against Commissioner Dunn is based on the

Commissioner’s “deliberately ignoring the several communications (good faith
attempts, notices, letters, etc.) from the claimant and his legal advocate.” (Doc. # 1,
at 3.) These allegations do not establish that there was a history of widespread abuse
or that either defendant was deliberately indifferent to constitutional violations. And
they do not support the inference that either defendant directed subordinates to act
unlawfully or failed to prevent them from doing so.
Accordingly, it is ORDERED that:
(1)

The Recommendation is ADOPTED;

(2)

Plaintiff’s § 1983 claim against Defendants Commissioner Jefferson

Dunn and Warden Michael Strickland are DISMISSED under 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted; and
(3)

The Clerk of the Court is directed to terminate Defendants

Commissioner Jefferson Dunn and Warden Michael Strickland as parties.
This action is REFERRED back to the Magistrate Judge for further
proceedings.
DONE this 21st day of December, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

4