Carey v. Director of Central Records et al (INMATE 2)

Filing 10

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
CARLOS CAREY,

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)
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Plaintiff,
v.
ADOC DIRECTOR OF CENTRAL
RECORDS, et al.,
Defendants.

CIVIL ACTION NO.
2:20cv244-MHT
(WO)

OPINION
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
was

stuck

date.

in

prison

beyond

his

sentence

expiration

The United States Magistrate Judge entered a

recommendation that plaintiff’s case be dismissed as
not presenting a viable claim under § 1983.
filing

an

objection

to

the

In lieu of

magistrate

judge’s

recommendation, plaintiff filed a motion to amend the
complaint,

which

the

magistrate

judge

denied.

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.
below,

the

court

For the reasons set forth

concludes

that

the

motion

to

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,
“Plaintiff

states

imprisonment
almost

on

an

seventeen

Plaintiff,

he

he

is

was

sentenced

arson

to

conviction

years

in

entitled

to

prison.
credit

fifteen

but

has

years
served

According
on

a

to

sentence

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
credit

for

time

served.”

Report
2

and

Recommendation

(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,
520

U.S.

641

(1997),

plaintiff’s

suit

could

not

be

brought until the underlying sentence was overturned.
Plaintiff responded by filing a motion to amend the
complaint.

See Motion to Amend (doc. no. 6).

In the

motion, he stated that he sought “to dismiss previous
suit

and

to

amend

[his]

pleading.”

Id.

at

1.

Plaintiff explained that he had attempted to file a
habeas

petition

in

several

courts

in

Alabama

to

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.

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
3

attached.

Id. at 1-2.

contended,

left

him

This series of actions, he

without

a

remedy

in

law.

He

further stated that “access to relief from the courts
state and federal has been shut off and blocked for
plaintiff,”

and

that

protection of laws.”

he

was

Id. at 2.

“being

denied

equal

He asked to amend the

complaint to “only include this amendment and against
defendants

Steve

respectively,

Marshall

Alabama’s

and

Danny

Attorney

Jefferson County District Attorney

Carr,”

General
Id.

who

are,

and

the

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.
no. 7).

See Order (doc.

Plaintiff then moved the court to reconsider

the magistrate judge’s denial of the motion to amend,
4

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).

However,

where amendment would be futile, motions to amend may
be denied.

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
entirely

clear,

in

light

of

plaintiff’s

motion

to

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
5

an

equal

seeks

protection

to

claim

against

name--Alabama’s

the

Attorney

defendants

General

Jefferson County District Attorney.

and

he
the

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
basis.

See Gary v. City of Warner Robins, Ga., 311

F.3d 1334, 1337 (11th Cir. 2002) (“The Equal Protection
Clause

requires

that

the

government

treat

situated persons in a similar manner.”).
not

clear

how

these

individuals

similarly

Indeed, it is

could

be

held

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
likely futile.

To state such a claim, the plaintiff

must show an actual injury from the claimed denial of
access

caused

Blankenship,

by

163

the
F.3d

defendants.
1284,
6

1290

See
(11th

Wilson
Cir.

v.

1998).

Here, as noted above, plaintiff has not indicated how
the individuals he wishes to sue are responsible for
his

difficulty

in

filing

his

habeas

petition.

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.
Carey

#245045

CV-2020-240

v.

Alabama

(Montgomery

Department

County

See Carlos

of

Circuit

Corrections,
Court)

(case

transferred to Escambia County Circuit Court on June
16, 2020).

Accordingly, the motion to amend will be

denied as futile.
In his original motion to amend, plaintiff asked to
dismiss his original claim.
not

yet

request

answered,
to

the

dismiss

Because the defendant has

court

his

will

complaint

without penalty.

7

grant

plaintiff’s

voluntarily

and

An appropriate judgment will be entered.
DONE, this the 16th day of November, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE