Carey v. Director of Central Records et al (INMATE 2)
OPINION. Signed by Honorable Judge Myron H. Thompson on 11/16/2020. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
ADOC DIRECTOR OF CENTRAL
RECORDS, et al.,
CIVIL ACTION NO.
Pursuant to 42 U.S.C. § 1983, plaintiff, a state
prisoner, filed this lawsuit claiming that he had been
denied proper credit for time served and as a result
The United States Magistrate Judge entered a
recommendation that plaintiff’s case be dismissed as
not presenting a viable claim under § 1983.
In lieu of
recommendation, plaintiff filed a motion to amend the
Plaintiff then filed a motion to reconsider the denial
of the motion to amend.
The recommendation and the
motion to reconsider the denial of the motion to amend
are now before the court.
For the reasons set forth
reconsider the denial of the motion to amend should be
denied with one exception.
The court will accede to
plaintiff’s request in his motion to amend to dismiss
his original complaint.
As a result, the court will
withdraw the recommendation instead of adopting it.
As the magistrate judge explains: In his complaint,
directed to run concurrently with his arson conviction.
Officials with the Alabama Department of Corrections,
however, have failed to review this issue and ignored
state court rulings granting Plaintiff’s motions for
(doc. no. 5) at 3.
The magistrate judge recommended
that the complaint be dismissed because, under Heck v.
Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok,
brought until the underlying sentence was overturned.
Plaintiff responded by filing a motion to amend the
See Motion to Amend (doc. no. 6).
motion, he stated that he sought “to dismiss previous
Plaintiff explained that he had attempted to file a
challenge the denial of credit for time served, and
that each court had mailed the petition back to him
with a note to file the petition in the sentencing
county, which is Jefferson County.
in turn, “stated that the habeas should [have] been
filed in the county that [he is] ... in prison in”
despite the fact that he mailed his habeas petition to
Jefferson County with the notes from the other court
Id. at 1-2.
This series of actions, he
further stated that “access to relief from the courts
state and federal has been shut off and blocked for
protection of laws.”
Id. at 2.
He asked to amend the
complaint to “only include this amendment and against
Jefferson County District Attorney
As relief, he
requested “the right to have a habeas corpus heard and
reviewed by a state court in Alabama so that remedies
can be exhausted by plaintiff and the federal habeas
process is open to plaintiff.”
Id. at 2.
The magistrate judge viewed plaintiff’s motion as
an effort to convert his complaint into a habeas corpus
petition, and accordingly denied it.
See Order (doc.
Plaintiff then moved the court to reconsider
the magistrate judge’s denial of the motion to amend,
arguing that he had not sought to convert his complaint
into a habeas petition, and asking that the court allow
the originally requested amendment.
Courts should “freely” grant motions to amend “when
justice so requires.”
Fed. R. Civ. P. 15(a).
where amendment would be futile, motions to amend may
See Fla. Evergreen Foliage v. E.I. DuPont
De Nemours & Co., 470 F.3d 1036, 1041 (11th Cir.2006).
An amendment would be futile “when the complaint as
amended is still subject to dismissal.” Hall v. United
Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir.2004).
While plaintiff’s original motion to amend was not
reconsider, the court views it as seeking to bring two
claims: a Sixth Amendment claim for denial of access to
courts and a claim for violation of equal protection.
The court concludes that allowing amendment to raise
either claim would likely be futile.
First, plaintiff has not alleged facts supporting
Jefferson County District Attorney.
Plaintiff has not
put forth any facts suggesting that these individuals
treated him differently than other similarly situated
people, on the basis of his race, gender, religion, or
other suspect classification, or without any rational
See Gary v. City of Warner Robins, Ga., 311
F.3d 1334, 1337 (11th Cir. 2002) (“The Equal Protection
situated persons in a similar manner.”).
Indeed, it is
responsible for the actions of the clerks of court in
failing to file his habeas petition.
Plaintiff’s proposed access-to-courts claim is also
To state such a claim, the plaintiff
must show an actual injury from the claimed denial of
Here, as noted above, plaintiff has not indicated how
the individuals he wishes to sue are responsible for
Moreover, the plaintiff is unlikely to be able to show
actual injury, because, as review of the state court’s
filing system shows, he finally succeeded in filing his
habeas petition in Alabama state court.
transferred to Escambia County Circuit Court on June
Accordingly, the motion to amend will be
denied as futile.
In his original motion to amend, plaintiff asked to
dismiss his original claim.
Because the defendant has
An appropriate judgment will be entered.
DONE, this the 16th day of November, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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