Gates v. Lee County et al (INMATE2)

Filing 7

REPORT AND RECOMMENDATIONS that Plaintiff's claims regarding visitation and verbal threats be DISMISSED be with prejudice prior to service of process pursuant to the directives of 28 U.S.C. § 1915(e)(2)(B)(i); that Plaintiff's claims r egarding leftover food be DISMISSED with prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii); that Plaintiff's claims against Lee County, Alabama, be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i); that Plaintiff's cl aims against Defendants Lyale, Hill, Jones, Cooper, Sheriff Jones, and Welcher be DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(i); that Defendants Lee County, Alabama, Mr. Lyale, Mr. Hill, Mr. Jones, Mrs. Cooper,Sheriff Jones, and Welcher be DISMIS SED as parties to the complaint; that this complaint with respect to Plaintiff's allegations of inadequate medical care and excessive force against Defendants McFarland and Cobb be referred back to the magistrate judge for further proceedings; Objections to R&R due by 6/22/2009. Signed by Honorable Terry F. Moorer on 6/8/2009. (cc, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION ____________________________ R E G IN A L D S. GATES P l a in tif f , v. L E E COUNTY, et al., D e f e n d a n ts . ____________________________ * * * * * 3:09-CV-480-WHA (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P l a in t if f , an inmate incarcerated at the Lee County Detention Center, filed this 42 U .S .C . § 1983 complaint, as amended, on May 22, 2009.1 He complains that the conditions o f his confinement at the county jail violate his constitutional rights. Plaintiff names as d e f e n d a n t s Lee County, Alabama, Dr. McFarland, Mr. Cobb, Mr. Lyale, Mr. Hill, Mr. Jones, M rs. Cooper, Sheriff Jay Jones, and Captain Welcher. Upon review of Plaintiff's complaint, th e court finds some of the claims and defendants are due to be dismissed prior to service u n d er 28 U.S.C. § 1915(e)(2)(B).2
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By order entered May 27, 2009 the court directed Plaintiff to file an amended complaint. The order further informed Plaintiff that the amended complaint filed in compliance with tthe May 27 order would supersede the original complaint. (See Doc. No. 3.) 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).
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I . DISCUSSION A . Visitation P lain tiff alleges that Defendants violated his constitutional rights by not allowing him v is ita tio n privileges with his family because they were not on the visitation list. Neither p ris o n e rs nor their would-be visitors have a constitutional right to prison visitation. Kentucky D e p a rtm e n t of Corrections v. Thompson, 490 U.S. 454 (1989). Consequently, the court under 28 U.S.C. §

c o n c lu d e s that this claim is due to be dismissed as frivolous 1 9 1 5 (e )( 2 )( B )( i). See Neitzke v. Williams, 490 U.S. 319 (1989). B . Food

Plaintiff complains that he is served leftover food at the jail. A prison official has a d u ty under the Eight Amendment to "provide humane conditions of confinement; prison o f f ic ia ls must ensure that inmates receive adequate food, clothing, shelter, and medical care, a n d must `take reasonable measures to guarantee the safety of the inmates.' "
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Farmer v.

3 Plaintiff's status as a convicted inmate or pretrial detainee is unclear at this juncture. The Fourteenth Amendment, rather than the Eighth Amendment, provides the appropriate standard for assessing whether conditions of confinement imposed upon a pretrial detainee are violative of the Constitution. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979); Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1425 n.6 (11th Cir. 1997); Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996) ("Claims involving the mistreatment of arrestees or pretrial detainees in custody are governed by the Fourteenth Amendment's Due Process Clause...."). However, for analytical purposes, there is no meaningful difference between the analysis required by the Fourteenth Amendment and that required by the Eighth Amendment. Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir. 1985); Cottrell, 85 F3d at 1490 ("[T]he applicable standard is the same, so decisional law involving prison inmates applies equally to cases involving arrestees or pretrial detainees."). Thus, the undersigned relies on cases interpreting the Eighth Amendment's prohibition against cruel and unusual punishment and not the Fourteenth Amendment's guarantee of due process when addressing Plaintiff's conditions claim because the standard for violations of the Eighth Amendment applies to pretrial detainees through the Due Process Clause of the Fourteenth Amendment. Tittle v. Jefferson County Commission, 10 F.3d 1535, 1539 (11th Cir. 1994) (observing "[w]hether the alleged violation is reviewed under the Eighth or

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B re n n a n , 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1 9 8 4 )). In order to demonstrate an Eighth Amendment violation with respect to conditions o f confinement, a prisoner must satisfy both an objective and a subjective inquiry. Farmer, 5 1 1 U.S. at 834. The objective component requires an inmate to prove that he was denied th e "minimal civilized measure of life's necessities." Id. The challenged prison condition m u st be "extreme" and must pose "an unreasonable risk of serious damage to his future h e a lth ." Chandler v. Crosby, 379 F.3d 1278, 1289-90 (11 th Cir. 2004). The subjective

c o m p o n e n t requires a prisoner to prove that the prison official acted with "deliberate in d if f ere n c e" in disregarding that risk by showing that an official knew the inmate faced a " su b s ta n tia l risk of serious harm" and with such knowledge, disregarded that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 828, 834, 837. In this case, Plaintiff conclusorily alleges that he is subjected to unconstitutional c o n d i tio n s of confinement at the Lee County Detention Center because he is served leftovers, a common food staple in many a household around the world. Plaintiff fails to allege much le ss indicate, however, how the condition about which he complains causes him serious h a rm . Additionally, he has failed to produce evidence which shows that Defendants knew o f an obvious risk of serious harm to him and disregarded that risk, Farmer 511 U.S. at 837, o r that Defendants' actions resulted in the denial of the minimal civilized measure of life's n e c e s s itie s . Rhodes v Chapman, 452 U.S. 337, 347 (1981). Because this allegation fails

Fourteenth Amendment is immaterial.").

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to state a claim upon which relief may be granted, it is due to be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii). C. Threats P la in tif f complains that Officer Cobb threatened to kill him. The law is settled that v e rb a l harassment and abuse and mere threatening language and gestures of a custodial o f f ic e r do not amount to a constitutional violation. McFadden v. Lucas, 713 F.3d 143, 146 (5 th Cir. 1983); Johnson v. Glick, 481 F.2d 1028, 1033 (2 n d Cir. 1973). Consequently, the r e m a r k s Plaintiff attributes to Defendant Cobb will not support a claim of violation of his c o n stitu tio n a l rights. Because this claim lacks an arguable basis in law, it is due to be

d is m is s e d under 28 U.S.C. § 1915(e)(2)(B)(i). See Neitzke, 490 U.S. 319. D. Lee County, Alabama P la in tif f names Lee County as a defendant to this action. To the extent Plaintiff m a in ta in s that Lee County is liable to him under 42 U.S.C. § 1983 for the actions of the S h e rif f of the Lee County Detention Facility in the daily operation of the jail, he is entitled to no relief. "A local government may be held liable under § 1983 only for acts for which it is actually responsible, `acts which the [local government] has officially sanctioned or o rde red .' Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80, 106 S.Ct. 1292, 1298, 89 L .E d .2 d 452 (1986) (citing Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 98 S .C t . 2018, 56 L.Ed.2d 611 (1978))." Turquitt v. Jefferson County, 137 F.3d 1285, 1287 (11 th Cir. 1998). In deciding whether a county and/or its commissioners is liable under §

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1 9 8 3 , "[a] court's task is to `identify those officials or governmental bodies who speak with f in a l policymaking authority for the local government actor concerning the action alleged to h a v e caused the particular constitutional or statutory violation at issue.'" McMillian v. M o n ro e County, 520 U.S. 781, 784-785 (1997) (quoting Jett v. Dallas Independent School D ist., 491 U.S. 701, 737 (1989)). "[A]n Alabama sheriff acts exclusively for the state rather th a n for the county in operating a county jail." Turquitt, 137 F.3d at 1288.4 A s is clear from the foregoing, "Alabama sheriffs are not county policymakers in their d a ily management of county jails." Turquitt, 137 F.3d at 1292. "For § 1983 liability to a tta c h to a county [and/or its commission], the policy at issue must have been made by a p e rs o n who exercises final authority on behalf of the county with respect to that policy. See M c M illia n , 520 U.S. at [784-785], 117 S.Ct. at 1736. Alabama law, however, clearly d e m o n s tra te s that sheriffs possess only state policymaking authority when running the d a y-to -d a y affairs of a jail. See Turquitt, 137 F.3d at 1291-92." Vinson v. Clarke County, 1 0 F. Supp.2d 1282, 1295-1296 (S.D. Ala. 1998). Furthermore, governmental entities, such a s Lee County, cannot be held liable under 42 U.S.C. § 1983 on a theory of respondeat s u p e r io r . See Monell, 436 U.S. at 694. Instead, such entities may be held liable only for the

4 Under all facets of Alabama law, a county sheriff acts as a state officer "when supervising inmates and otherwise operating the county jails." Turquitt, 137 F.3d at 1289; Parker v. Amerson, 519 So.2d 442 (Ala. 1987) ("A sheriff is an executive officer of the State of Alabama" and as such "is not an employee of a county for the purposes of imposing liability on the county."); Ala. Code § 14-6-1 (a sheriff has "the legal custody and charge of the jail in his county and all prisoners committed thereto."); King v. Colbert County, 620 So.2d 623, 625 (Ala. 1993) (Ala. Code § 14-6-1 establishes that "the sheriff's authority over the jail is totally independent of the [county commission].)"

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e x e c u tio n of a governmental policy or custom. Id.; see also Canton v. Harris, 489 U.S. 378, 3 8 5 (1989) ("[A] municipality can be found liable under § 1983 only where the municipality itse lf causes the constitutional violation at issue. Respondeat superior or vicarious liability w ill not attach under § 1983." (emphasis in original)). It is well-settled that an entity can be h e ld monetarily liable only through " `a policy statement, ordinance, regulation, or decision o f f ic ia lly adopted and promulgated by that body's officers,' " or " `for constitutional d e p riv a tio n s visited pursuant to governmental `custom' even though such a custom has not re c eiv e d formal approval through the body's official decisionmaking body.' " City of St. L o u is v. Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell, 436 U.S. at 690-91). In light of the foregoing, the court concludes that Lee County, Alabama, is not liable u n d e r § 1983 for the actions about which Plaintiff complains. The claims against this d e f e n d a n t are, therefore, due to be dismissed pursuant to the provisions of 28 U.S.C. § 1 9 1 5 ( e ) ( 2 ) ( B ) ( i) . E . Defendants Lyale, Hill, Jones, Cooper, Sheriff Jones, and Welcher P la in tif f names Mr. Lyale, Mr. Hill, Mr. Jones, Mrs. Cooper, Sheriff Jay Jones, and C a p t a in Welcher as defendants. Plaintiff fails, however to state any claim whatsoever against th e se individuals. He merely lists these individuals as defendants in his complaint and does n o t allege they were personally involved in the constitutional violations about which he c o m p l a in s .5 See Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir.1974) (per curiam) (court
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In the court's May 27, 2009 order directing Plaintiff to file an amended complaint, he was advised that the amendment to his complaint must set forth short and plain statements showing why he

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p r o p e rly dismissed pro se complaint that was silent as to defendant except for his name a p p e a rin g in caption). Accordingly, Plaintiff's complaint against Defendants Lyale, Hill, J o n e s , Cooper, Sheriff Jones, and Welcher is due to be dismissed under 28 U.S.C. § 1 9 1 5 (e )( 2 )( B )( i) . II. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's claims regarding visitation and verbal threats be DISMISSED be with p re ju d ic e prior to service of process pursuant to the directives of 28 U.S.C. § 1 9 1 5 ( e ) ( 2 ) ( B ) ( i) ; 2 . Plaintiff's claims regarding leftover food be DISMISSED with prejudice under 28 U .S .C . § 1915(e)(2)(B)(ii); 3 . Plaintiff's claims against Lee County, Alabama, be DISMISSED with prejudice p u rsua n t to 28 U.S.C. § 1915(e)(2)(B)(i); 4 . Plaintiff's claims against Defendants Lyale, Hill, Jones, Cooper, Sheriff Jones, and W e lch e r be DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(i); 5. Defendants Lee County, Alabama, Mr. Lyale, Mr. Hill, Mr. Jones, Mrs. Cooper, S h e rif f Jones, and Welcher be DISMISSED as parties to the complaint; and 6. This complaint with respect to Plaintiff's allegations of inadequate medical care a n d excessive force against Defendants McFarland and Cobb be referred back to the

is entitled to relief and be specific enough to put each defendant on notice of how their conduct allegedly violated Plaintiffs' constitutional rights. (See Doc. No. 3.)

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u n d e rs ig n e d for further proceedings. It is further O R D E R E D that the parties are DIRECTED to file any objections to the R e c o m m e n d a tio n on or before June 22, 2009. Any objections filed must specifically identify th e findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d v is e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e , this 8 th day of June 2009.

/s/Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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