West v. Jones

Filing 34

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 5/22/2015. (AVC)

FILED
2015 May-22 PM 02:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
JOSEPH STEPHEN WEST,
Plaintiff,
v.
HONORABLE JUDGE DEBRA
JONES,
Defendant.

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Case No.: 1:14-CV-02298-VEH

MEMORANDUM OPINION
I.

INTRODUCTION
The magistrate judge filed a report and recommendation (Docs. 29, 30) on May

4, 2015, recommending that Defendant’s motion to dismiss (Doc. 7) be granted and
that Plaintiff’s motion for leave to supplement (Doc. 28) be treated as a motion for
leave to amend and be denied. On May 14, 2015, Plaintiff filed objections to the
report and recommendation. (Doc. 30). The case was reassigned to the undersigned
on May 19, 2015. (Doc. 32). Therefore, the matter is now before the undersigned for
decision.
Having carefully considered the materials in the court file, including the report
and recommendation and after conducting a de novo review of the record relating to
Plaintiff’s objections, the court is of the opinion that the magistrate judge’s report is

due to be ADOPTED and his recommendation is due to be ACCEPTED. Plaintiff’s
objections are due to be OVERRULED. Accordingly, and as set out more fully
below, Defendant’s motion is due to be GRANTED, Plaintiff’s motion is due to be
DENIED, and all of Plaintiff’s claims are due to be DISMISSED.
II.

STANDARD OF REVIEW
A district judge “shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). This requires that the district judge “give fresh
consideration to those issues to which specific objection has been made by a party.”
Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citation omitted).
In contrast, those portions of the R & R to which no objection is made need only be
reviewed for clear error. Macort v. Prem, Inc., 208 Fed. App’x. 781, 784 (11th Cir.
2006).1
“Neither the Constitution nor the statute requires a district judge to review, de
novo, findings and recommendations that the parties themselves accept as correct.”

1

Macort dealt only with the standard of review to be applied to a magistrate's factual
findings, but the Supreme Court has held that there is no reason for the district court to apply a
different standard to a magistrate's legal conclusions. Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct.
466, 88 L. Ed. 2d 435 (1985). Thus, district courts in this circuit have routinely applied a clear-error
standard to both. See Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1373–74 (N.D. Ga. 2006)
(collecting cases). This is to be contrasted with the standard of review on appeal, which distinguishes
between the two. See Monroe v. Thigpen, 932 F.2d 1437, 1440 (11th Cir. 1991) (when a magistrate's
findings of fact are adopted by the district court without objection, they are reviewed on appeal under
a plain-error standard, but questions of law remain subject to de novo review).

United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (citation omitted).
It is incumbent upon the parties to timely raise any objections that they may have
regarding a magistrate judge’s findings contained in a report and recommendation,
as the failure to do so subsequently waives or abandons the issue, even if such matter
was presented at the magistrate judge level. See, e.g., U.S. v. Pilati, 627 F.3d 1360 at
1365 (11th Cir. 2010) (“While Pilati raised the issue of not being convicted of a
qualifying offense before the magistrate judge, he did not raise this issue in his appeal
to the district court. Thus, this argument has been waived or abandoned by his failure
to raise it on appeal to the district court.”). However, the district judge has discretion
to consider or to decline to consider arguments that were not raised before the
magistrate judge. Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir. 2006); see also
Williams v. McNeil, 557 F. 3d 1287, 1292 (11th Cir. 2009).
“Parties filing objections must specifically identify those findings objected to.
Frivolous, conclusive or general objections need not be considered by the district
court.” Nettles, 677 F.2d at 410 n. 8. “This rule facilitates the opportunity for district
judges to spend more time on matters actually contested and produces a result
compatible with the purposes of the Magistrates Act.” Id. at 410. Indeed, a contrary
rule “would effectively nullify the magistrate judge's consideration of the matter and
would not help to relieve the workload of the district court.” Id. (quoting United
States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).

III.

PLAINTIFF’S OBJECTIONS
Regarding the concerns raised in his objections more specifically, Plaintiff

contends first that “the recommendations were not recieved [sic] as required.” (Doc.
30 at p. 1). However, Plaintiff’s receipt of the report and recommendation is shown
by his objecting to them. Further, his objections were timely filed. Accordingly, this
objection is OVERRULED.
Next, Plaintiff objects to the authority of the magistrate judge to act without
Plaintiff’s consent. (Id.)
It appears that Plaintiff misunderstands the report and recommendation process.
The magistrate judge is not making any final factual determinations or rulings, but
rather only providing recommendations. Instead, the undersigned has reviewed de
novo those portions of the record that relate to Plaintiff’s objections and separately
and independently determined the correctness of any objected-to findings and
recommendations.
This accepted process is set forth statutorily in 28 U.S.C. § 636, which states
in part that:
(b)(1) Notwithstanding any provision of law to the contrary–
(A) a judge may designate a magistrate judge to hear and
determine any pretrial matter pending before the court,
except a motion for injunctive relief, for judgment on the
pleadings, for summary judgment, to dismiss or quash an
indictment or information made by the defendant, to

suppress evidence in a criminal case, to dismiss or to
permit maintenance of a class action, to dismiss for failure
to state a claim upon which relief can be granted, and to
involuntarily dismiss an action. A judge of the court may
reconsider any pretrial matter under this subparagraph (A)
where it has been shown that the magistrate judge's order
is clearly erroneous or contrary to law.
(B) a judge may also designate a magistrate judge to
conduct hearings, including evidentiary hearings, and to
submit to a judge of the court proposed findings of fact and
recommendations for the disposition, by a judge of the
court, of any motion excepted in subparagraph (A), of
applications for posttrial relief made by individuals
convicted of criminal offenses and of prisoner petitions
challenging conditions of confinement.
(C) the magistrate judge shall file his proposed findings
and recommendations under subparagraph (B) with the
court and a copy shall forthwith be mailed to all parties.
Within fourteen days after being served with a copy, any party may
serve and file written objections to such proposed findings and
recommendations as provided by rules of court. A judge of the court
shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.
The judge may also receive further evidence or recommit the matter to
the magistrate judge with instructions.
28 U.S.C. § 636(b) (footnotes omitted) (emphasis by underlining added).
Accordingly, Plaintiff’s objection to the magistrate judge’s authority is
OVERRULED.
The balance of Plaintiff’s objections are merely argument that has already been

made before the magistrate judge. In any event, Plaintiff has wholly failed to point
to this court any “error” that he complains of in the report and recommendation.
Rather, except as discussed above, Plaintiff’s “objections” consist of conclusory
argument without reference to any specific finding or recommendation, and without
reference to any authority that even arguable contravenes such recommendations.
Thus, the remainder of his objections are due to be, and hereby are, OVERRULED
on that basis.
IV.

THE REPORT AND RECOMMENDATION IS DE NOVO CORRECT
Nonetheless, the court has considered the entire file, including Plaintiff’s

objections, de novo, and determines that the magistrate judge applied the correct legal
standards and reached the correct conclusions. Specifically, the magistrate judge
deemed all “facts” actually alleged by Plaintiff (as opposed to conclusions asserted
by him) to be true.2 He then correctly determined that all claims set out in Plaintiff’s
Complaint3,4 were due to be dismissed. The undersigned will discuss those

2

“As required by the standards applicable to Jones’s motion to dismiss, the factual
allegations of West’s pleading are taken as true, giving him all reasonable inferences. Thus, the facts
set forth in the text are assumed to be true for purposes of the instant motion to dismiss, but they may
not be the actual facts.” (Doc. 29 at p. 3, fn.2).
3

The court agrees with the magistrate judge’s description of Plaintiff’s Complaint. “That pro
se pleading is a rambling 51 pages long, contains no numbered paragraphs as required by FED. R.
CIV. P. 10(b). Attached to that pleading is an “Exhibit” comprised of 48 more pages of
documents.”(Doc. 29 at p. 3, fn. 2).
4

The magistrate judge gleaned every possible claim that arguably appears in that Complaint,.
Indeed, Plaintiff does not, in his objections, argue that any claim was omitted.

determinations in the order in which they appear in the report and recommendation.
A.

Claims Against Judge Jones Based on Conduct of Non-Parties

The magistrate judge wrote:
As a threshold matter, the undersigned notes that while West has
formally identified and served only a single defendant in this action, i.e., Judge
Jones, the Complaint contains a host of allegations related to the conduct of
other individuals and entities that supposedly worked to violate West’s legal
rights. These include allegations against the Calhoun County Drug Task Force,
Calhoun County District Assistant District Attorneys Lynn Hammond and
Jennifer Weems, and former Calhoun County Circuit Judges Malcolm Street
and Joel Laird. However, none of those parties are currently named defendants
in this action. Further, West has not pled facts supporting that any of them
were acting as agents or employees of Judge Jones. Indeed, many of the events
about which West complains occurred before Judge Jones even took the bench
in January 2011. Ultimately, West fails to give any hint how Judge Jones might
conceivably be liable for the alleged conduct of other parties, whether under
§ 1983, the FTCA, or any other law. See generally Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009) (“Because vicarious liability is inapplicable to ... § 1983 suits,
a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”); Meyer v.
Holley, 537 U.S. 280, 285 (2003) (“It is well established that traditional
vicarious liability rules ordinarily make principals or employers vicariously
liable for acts of their agents or employees in the scope of their authority or
employment.”). Thus, to the extent that West seeks to recover against Judge
Jones for the conduct of others, such claims are due to be dismissed under FED.
R. CIV. P. 12(b)(6).
(Doc. 29 at pp.8-9).
After de novo review, this court agrees. It will ADOPT this portion of the
report and will ACCEPT the recommendation that all claims by Plaintiff against
Judge Jones for the conduct of others be dismissed with prejudice for failure to state
a cognizable claim.

B.

Section 1983

The magistrate judge next wrote, regarding Plaintiff’s individual capacity
claims against Judge Jones under 42 U.S.C. §1983, as follows.
1.

Individual Capacity Claims under Section 1983

West claims that Judge Jones is liable in her individual capacity for
violating his rights under various provisions of the federal and state
constitutions, the RLUIPA, and the ICCPR. More specifically, the undersigned
discerns West to be claiming that Judge Jones violated his legal rights by virtue
of the following actions: (1) entering an order in West’s criminal case on
November 26, 2013, that imposed certain conditions and restrictions on his
release on probation; (2) entering another order on January 17, 2014, that
imposed still more restrictions on West’s probation; (3) failing to grant West’s
motion filed in his criminal case seeking return of property seized in
connection with his prosecution; (4) “enforcing” West’s sentence that extends
beyond sentencing guidelines and is disproportionate to sentences in similar
cases; (5) “enforcing” the allegedly unconstitutional provisions of the
ASORCNA; and (6) dismissing West’s putative civil action against his former
attorney that was filed in West’s criminal case.
Judge Jones, however, is entitled to judicial immunity as it relates to all
of West’s claims for money damages. The Eleventh Circuit has explained:
“Judges are entitled to absolute judicial immunity from damages for
those acts taken while they are acting in their judicial capacity unless
they acted in the ‘clear absence of all jurisdiction.’ ” Bolin v. Story, 225
F.3d 1234, 1239 (11th Cir. 2000) (citations omitted)). “This immunity
applies even when the judge’s acts are in error, malicious, or were in
excess of his or her jurisdiction.” Id. Whether a judge’s actions were
made while acting in his judicial capacity depends on whether: (1) the
act complained of constituted a normal judicial function; (2) the events
occurred in the judge’s chambers or in open court; (3) the controversy
involved a case pending before the judge; and (4) the confrontation
arose immediately out of a visit to the judge in his judicial capacity.
Scott v. Hayes, 719 F.2d 1562, 1565 (11th Cir. 1983).

Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005). West urges that Judge
Jones is not protected by immunity because she was allegedly acting without
“jurisdiction” and she violated his civil rights. However, the acts of Judge
Jones of which West complains were rulings she made in her capacity as the
presiding judicial official in West’s criminal case and were not made “in the
clear absence of all jurisdiction.” See Stump v. Sparkman, 435 U.S. 349, 357
nn. 6, 7 (1978) (discussing the difference between a judge’s acts taken “in
excess of his jurisdiction” and those taken “in the clear absence of
jurisdiction”). West’s arguments to the contrary are without merit, and his
claims for money damages against Judge Jones are due to be dismissed. See
Sibley, 437 F.3d at 1071; Bolin, 225 F.3d at 1239; Wahl v. McIver, 773 F.2d
1169, 1172 (11th Cir. 1985); Holt v. Crist, 233 F. App’x 900, 903 (11th Cir.
2007); Barber v. Alabama, 2012 WL 1340090, at *5-6 (N.D. Ala. Apr. 16,
2012).
On the other hand, the Supreme Court recognized in Pulliam v. Allen,
466 U.S. 522 (1984), that judicial immunity does not apply to § 1983 claims
seeking injunctive or declaratory relief against state-court judges. However,
Congress partially abrogated Pulliam by passing the Federal Courts
Improvement Act (“FCIA”), Pub. L. No. 104-317, 110 Stat. 3847 (1996),
which amended § 1983 to provide that “in any action brought against a judicial
officer for an act or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated
or declaratory relief was unavailable.” “After the FCIA, judicial immunity
typically bars claims for prospective injunctive relief against judicial officials
acting in their judicial capacity. Only when a declaratory decree is violated or
declaratory relief is unavailable would plaintiffs have an end-run around
judicial immunity—and neither is true here.” Ray v. Judicial Corrections
Services, Inc., 2014 WL 5090723, at *3 (N.D. Ala. Oct. 9, 2014); see also
Bolin, 225 F.3d at 1242; Esensoy v. McMillan, 2007 WL 257342, at *1 n.5
(11th Cir. Jan. 31, 2007); Taylor v. Smithart, 2011 WL 1188553, at *1 (M.D.
Ala. Jan. 25, 2011). Because West’s § 1983 claims for injunctive relief against
Judge Jones are also based on acts taken in her judicial capacity, those claims
are barred under the FCIA.
But even assuming that the FCIA did not apply, West still could not
prevail on any of his claims for declaratory or injunctive relief against Judge
Jones. West cannot use § 1983 as a device to obtain collateral review of state
court judgments. See Sibley, 437 F.3d at 1070-71; Jones v. Crosby, 137 F.3d

1279, 1280 (11th Cir. 1998). West also cannot obtain declaratory or injunctive
relief under § 1983 if he had an adequate remedy at law, including appellate
review in the state courts with respect to an allegedly improper judicial ruling.
Id. at 1073-74; Bolin, 225 F.3d at 1242-43; also cf. Dupree v. City of Phenix
City, 2011 WL 6778799, at *3-4 (M.D. Ala. Oct. 20, 2011) (plaintiff failed to
state a § 1983 claim based on allegations that government defendants
unlawfully confiscated his property where state law provided adequate
postdeprivation remedies); Fisher v. Bushway, 2007 WL 1106133, at *2-3
(M.D. Ga. Apr. 11, 2007) (same). West had an adequate remedy at law, for he
could have resorted to the Alabama appellate courts in order to obtain review
of the rulings made by Judge Jones. Accordingly, West’s § 1983 claims for
declaratory and injunctive relief against Judge Jones are due to be dismissed
for failure to state a claim.
Further, insofar as West seeks declaratory or injunctive relief in the form
of an order that would result in an immediate or speedier release from
confinement, including release from parole or probation-based restrictions on
his liberty, he can seek such relief only through an application for a writ of
habeas corpus under 28 U.S.C. § 2254, not through § 1983. See Preiser v.
Rodriguez, 411 U.S. 475, 489 (1973); Jones v. Cunningham, 371 U.S. 236,
242-43 (1963); Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006);
Williams v. Wisconsin, 336 F.3d 576, 579-80 (7th Cir. 2003); Shaddix v.
Keeton Corrections, Inc., 2014 WL 3721047, at *2-3 (N.D. Fla. Jul. 28, 2014);
Scheffler v. Camon, 2009 WL 3481899, at *3 n.3 (S.D. Ga. Oct. 28, 2009).
Likewise, the Supreme Court has held that
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A
claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under
§ 1983.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (footnote omitted). All of the

§ 1983 claims against Judge Jones related to the validity of West’s conviction,
sentence, or probation conditions are thus barred by Preiser or Heck as well.
See Vickers v. Donahue, 137 F. App’x 285, 289-90 (11th Cir. 2005); Smith v.
Burnside, 2007 WL 2209242, at *2 (M.D. Fla. Jul. 30, 2007).
(Doc. 29 at pp. 12-13).
The magistrate judge also correctly noted that “the Eleventh Circuit has also
recently rejected the same arguments that West makes in his constitutional challenge
to ASORCNA. See Windwalker v. Governor of Alabama, 579 F. App’x 769 (11th Cir.
2014), aff’g 925 F. Supp. 1265 (N.D. Ala. 2013).” (Doc. 29 at p. 12, fn.7).
Finally, as to these individual capacity claims under Section 1983, the
magistrate judge advised Plaintiff
To the extent that West’s pleading might be construed as a petition seeking
habeas relief under § 2254, it is due to be dismissed without prejudice. Because
West remains subject to probation conditions that impose substantial restraints
on his liberty, he remains in custody for purposes of habeas jurisdiction. See
Maleng v. Cook, 490 U.S. 488, 490-91 (1989); Jones, 371 U.S. at 242- 43.
However, West’s probation officer or a similar immediate custodian, not Judge
Jones, would be the proper respondent in a habeas proceeding. See Rumsfeld
v. Padilla, 542 U.S. 426, 434 (2004); Matthews v. Meese, 644 F. Supp. 380,
381 (D.D.C. 1986); 1976 Advisory Committee Notes to Rule 2(b), RULES
GOVERNING § 2254 CASES. If he so chooses, West may file a separate
habeas proceeding, although it appears that he has not exhausted available state
remedies as to any claim. See 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S.
509 (1982). To the extent that is so and the time in which to do so has expired,
unexhausted habeas claims would be procedurally defaulted and could not be
heard in this court absent a showing (1) of both “cause” for the default and
resulting “prejudice” or (2) that West is “actually innocent.” See Gore v.
Crews, 720 F.3d 811, 816 (11th Cir. 2013). It further appears that at least some
of West’s potential habeas claims would also be barred by the applicable
one-year statute of limitations, absent a showing of actual innocence. See 28
U.S.C. § 2244(d); McQuiggin v. Perkins, 569 U.S. ___, 133 S. Ct. 1924 (2013).

(Doc. 29 at p. 13, fn.8).
After de novo review, this court agrees. It will ADOPT this portion of the
report and will ACCEPT the recommendation that all claims brought by Plaintiff
under 42 U.S.C. §1983 against Judge Jones in her individual capacity be dismissed
with prejudice.5
2.

Official Capacity Claims under Section 1983

Regarding Plaintiff’s official capacity claims under Section 1983, the
magistrate judge wrote:
West has also sued Judge Jones in her official capacity. However, “a suit
against a state official in his or her official capacity is not a suit against the
official but rather is a suit against the official’s office,” and, “[a]s such, it is no
different from a suit against the State itself.” Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 71 (1989). Thus, West’s suit against Judge Jones in her
official capacity is effectively against her employer, the State of Alabama. See
Simmons v. Conger, 86 F.3d 1080, 1085 (11th Cir. 1996). Because such a suit
is barred by the State’s sovereign immunity, West’s official-capacity claims
against Judge Jones are due to be dismissed.
(Doc. 29 at pp. 13-14).
After de novo review, this court agrees. It will ADOPT this portion of the
5

The court notes that, in his objections, Plaintiff asks, “[i]f, as the Defendants [sic] claim,
the federal courts do not have jurisdiction to compel state officials to abide by the Constitution, then
I must ask, who does?” This question was answered in the report and recommendation. First,
Plaintiff had an adequate state remedy: he could have appealed Judge Jones’s rulings. See Doc. 29
at pp. 11-12. Further, to the extent that he “seeks ... release from parole or probation-based
restrictions on his liberty, he can seek such relief [but] only through an application for a writ of
habeas corpus under 28 U.S.C. § 2254, not through § 1983.” Doc. 29 at p. 12. However, if he does
make such an application, the magistrate judge advised him that such an application would be
properly brought against Plaintiff’s “probation officer or a similar immediate custodian, not Judge
Jones....” Doc. 29 at p. 13, fn. 8.

report and will ACCEPT the recommendation that all claims by Plaintiff brought
under Section 1983 against Judge Jones in her official capacity be dismissed with
prejudice as barred by sovereign immunity.
C.

Claims under the Federal Tort Claims Act

Plaintiff also invoked the Federal Tort Claims Act. Regarding this claim, the
magistrate judge wrote:
West claims that Judge Jones is also liable under the FTCA. However,
the FTCA authorizes suits only against the United States, not individuals or
government agencies. See Trupei v. United States, 304 F. App’x 776, 782 (11th
Cir. 2008). And even then, the FTCA does not impose liability based on the
conduct of State officials except insofar as they might be deemed to be acting
as employees of the federal government. See Logue v. United States, 412 U.S.
521 (1973); Martinez v. Hall, 2011 WL 6182026, at *4 (M.D. Fla. Dec. 13,
2011). On top of that, judicial immunity applies to FTCA claims as well. See
Washington Mut. Bank v. Bush, 220 F. App’x 974, 975-76 (11th Cir. 2007).
Because West’s claims all arise out of garden-variety state-court criminal
proceedings, the FTCA has no conceivable application. West’s FTCA claims
are frivolous and due to be dismissed.
(Doc. 29 at p. 14)(emphasis in original).
After de novo review, this court agrees. It will ADOPT this portion of the
report and will ACCEPT the recommendation that all claims by Plaintiff against
Judge Jones under the Federal Tort Claims Act be dismissed with prejudice for failure
to state a cognizable claim.
D.

Motion for Leave To Supplement Record and Clarify Defendants

Plaintiff’s entire objection to the magistrate judge’s recommendation that his

Motion for Leave To Supplement Record and Clarify Defendants (Doc. 28) is
contained in the following two sentences: “The ruling ‘construing’ a document which
was clearly marked ‘Supplement’ is unauthorized. F.R.Civ.P. Rule 15(d) allows a
supplement.” (Doc. 30 at pp. 1-2).
Rule 15(d) states as follows:
(d)

Supplemental Pleadings. On motion and reasonable notice, the court
may, on just terms, permit a party to serve a supplemental pleading
setting out any transaction, occurrence, or event that happened after the
date of the pleading to be supplemented. The court may permit
supplementation even though the original pleading is defective in stating
a claim or defense. The court may order that the opposing party plead to
the supplemental pleading within a specified time.

FED.R.CIV.P. 15(d)(emphasis supplied).
There is nothing in Plaintiff’s “Supplement” that is alleged to have happened after the
date of the Complaint. Therefore, Plaintiff’s objection is due to be OVERRULED.
The court now turns to the substance of the magistrate judge’s recommendation
regarding this “Supplement.” On this issue, the magistrate judge wrote:
West has moved for leave “to supplement [the] record and clarify
defendants.” (Doc. 28). That pro se motion will be liberally construed as
seeking leave to amend the Complaint. Amendments to pleadings are governed
by FED. R. CIV. P. 15. Because West’s motion comes more than 21 days after
Judge Jones served her motion to dismiss under FED. R. CIV. P. 12(b), West
may only amend his pleading with the opposing party’s consent or leave of
court. FED. R. CIV. P. 15(a)(1), (2). West does not allege that he has obtained
the former, and the latter is due to be denied, as explained below.
Under Rule 15(a)(2), courts should freely give leave to amend the
pleadings “when justice so requires.” However, a district court may deny leave

where the plaintiff’s motion fails to attach a copy of the proposed amendment
or sufficiently set forth the substance of the proposed amendment. See
Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir.2009); Long v. Satz, 181 F.3d
1275, 1279 (11th Cir. 1999). A proposed amendment may also be denied for
futility when the complaint as amended would still be properly dismissed,
including because the claims would be barred by the applicable statute of
limitations. See Coventry First, LLC v. McCarty, 605 F.3d 865, 870 (11th Cir.
2010); Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993).
Although West’s instant motion purportedly seeks to “supplement the
record,” it does not supply or point to any new evidence nor present any new
material factual allegations. Rather, the seven-page motion is devoted mostly
to expounding West’s legal theory that Judge Jones and other Alabama
officials violated their oath to be bound by the United States Constitution, see
U.S. Const., art. VI, cl. 3, such that all of their official acts, including all acts
related to West’s prosecution, conviction, sentence, and probation, are “null
and void ab-intio (sic).” (See Doc. 28 at 3). That proposition is pure nonsense,
of course. See Crawford v. United States, 2008 WL 2149858, at *4 (M.D. Ga.
May 21, 2008); Marr v. Jones, 2010 WL 199170, at *5 (W.D. Mich. Mar. 4,
2010); Guidetti v. Haley, 2011 WL 1884153, at *2-4 (D.S.C. May 9, 2011);
Mechler v. Hodges, 2005 WL 1406102, at *7 (S.D. Ohio Jun. 15, 2005); Lewis
v. Green, 629 F. Supp. 546, 554 n. 14 (D.D.C. 1986). West also states in his
motion that he would also demand the dismissal of all charges against him.
(Doc. 28 at 5). But again, even if his substantive claims were valid, such relief
is available only in a habeas corpus action, not under § 1983. See Preiser,
supra.
Likewise, while West’s motion suggests that it would “clarify [the]
defendants” he intends to sue, it ironically does not specify the name of any
new putative defendants.6 Instead, West states vaguely that he desires to sue,
6

In his objections to the report and recommendation, the Plaintiff lists, for the first time,
these new putative defendants: “Former Judge Joel Laird, Former Judge Malcolm Street, Jr., District
Attorney Brian McVeigh, Asst. District Jennifer Weems, Asst. District Attorney Lynn Hammond,
Officer Chuck Battles, Officer Steve Roberson, [and] Sheriff Larry Amerson.” (Doc. 30 at p.10).
However, objections to a report and recommendation are not a proper place to add defendants. The
magistrate judge assumed that the “new putative defendants” that Plaintiff wished to add were
former Judge Joel Laird, former Judge Malcolm Street, Jr., Asst. District Jennifer Weems, and Asst.
District Attorney Lynn Hammond, and fully addressed Plaintiff’s claims as potentially applicable
to those defendants. The Plaintiff has not even stated, much less shown, any error in the magistrate

in both their individual and official capacity, “each judicial officer of the
Circuit Court of Calhoun County, Alabama, who was involved in [his] cases
prior to March 5, 2015.” (Doc. 28 at 5-6). At a minimum that description is
presumably is meant to encompass former Calhoun County Circuit Judges
Malcolm Street and Joel Laird, each of whom is referenced in the Complaint
as having issued certain judicial orders in the criminal proceedings involving
West. However, the Complaint’s allegations against Street and Laird relate
solely to their judicial rulings and actions in the criminal proceedings, so any
claims against them would be doomed for the same reasons that West’s claims
against Judge Jones are invalid. Therefore, leave to amendment that would
formally name Street or Laird as a defendant is due to be denied as futile.
In light of certain allegations in the Complaint, however, West’s pro se
motion will be liberally construed as seeking leave also to name as defendants
both Lynn Hammond and Jennifer Weems, Calhoun County Assistant District
Attorneys mentioned in the pleading as it relates to their participation in West’s
prosecution, probation revocation proceedings, and the State’s retention of
seized property. (See Compl. at 5, 7-9, 15-16, 46). Specifically, West suggests
in the Complaint that Hammond might be liable based on the following:
(1)

she “issued or witnessed an affidavit which contained a false
statement,” resulting in West being arrested on a solicitation
charge in September 2008 without probable cause (see Compl. at
4, 14-15, 46); and

(2)

she withheld an allegedly exculpatory recording from the defense
in a bond revocation hearing, also in September 2008. (Id.)

West appears similarly to claim that Weems violated his rights in connection
with the following:

judge’s analysis as to those defendants. Further, he has stated no reason why he could not have
named these new putative defendants earlier. In its discretion, the court declines to consider any
claims Plaintiff might now wish to add against the putative defendants listed by him in his objections
and not addressed by the magistrate judge’s report and recommendation. See Williams v. McNeil, 557
F.3d at 1291 (concluding that a district court has broad discretion in reviewing a magistrate judge's
report and recommendation, and, therefore, does not abuse its discretion in declining to consider
arguments that was not presented to the magistrate judge.).

(1)

in February 2010, she made a “false statement” in a motion to
have West’s bond revoked after he was convicted of a
misdemeanor offense (Compl. at 5);

(2)

in December 2010, she made “many false statements” at West’s
guilty-plea hearing (id. at 23);

(3)

in December 2013, Weems made “several false statements”
within a filed response in opposition to West’s motion for the
return of seized property (id. at 8-9);

(4)

in January 2014, she made a “false statement” in a motion to have
West’s probation revoked or its conditions modified (id. at 7); and

(5)

in support of that same motion in January 2014, Weems, by
unspecified means, “coerced” Don Ray of the Calhoun County
Sheriff’s Office to testify falsely against West at the hearing (id.
at 7-8).

However, insofar as West would raise § 1983 claims against Hammond
or Weems that demand relief in the form of an order requiring an immediate
or speedier release from onfinement or probation conditions, those claims
would be barred by Preiser because such a remedy is available only in habeas
corpus. Section 1983 claims against Assistant District Attorneys Weems and
Hammond in their official capacity would also be subject to dismissal as a suit
against the State of Alabama itself. See Garrett v. Talladega Cnty. Drug &
Violent Crime Task Force, 983 F. Supp. 2d 1369, 1376 (N.D. Ala. 2013);
Harris v. Falls, 920 F. Supp. 2d 1247, 255-56 (N.D. Ala. 2013). And again, the
FTCA has no possible application to this case.
Any ostensible § 1983 claims for damages against Weems or Hammond
in their individual capacity based on the allegations of the Complaint would
fare no better. Just as state court judges are entitled to absolute immunity from
damages claims for their judicial acts, state district attorneys and prosecutors
are likewise entitled to absolute immunity in executing their prosecutorial
functions:
Absolute immunity accordingly applies to the prosecutor’s
actions “in initiating a prosecution and in presenting the State’s case.”

Imbler [v. Pachtman, 424 U.S. 409, 431 (1976)]. Prosecutors are
immune for appearances in judicial proceedings, including prosecutorial
conduct before grand juries, statements made during trial, examination
of witnesses, and presentation of evidence in support of a search warrant
during a probable cause hearing. Burns v. Reed, 500 U.S. 478, 490-92
(1991); Kalina v. Fletcher, 522 U.S. 118, 126 (1997); see also Van de
Kamp [v. Goldstein, 555 U.S. 335, 129 S. Ct. 855, 861 (2009)]. “A
prosecutor enjoys absolute immunity from allegations stemming from
the prosecutor’s function as advocate.” Jones [v. Cannon, 174 F.3d
1271, 1281 (11th Cir. 1999)]. Such absolute immunity also “extends to
a prosecutor’s acts undertaken ... in preparing for the initiation of
judicial proceedings or for trial, and which occur in the course of his
role as an advocate for the State.” Id. (quotation marks omitted); accord
Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1279-80 (11th Cir.
2002) (holding prosecutor who proffered perjured testimony and
fabricated exhibits at trial is entitled to absolute immunity, but a
prosecutor who participated in the search of a suspect’s apartment is
entitled to only qualified immunity). Rehberg v. Paulk, 611 F.3d 828,
837-38 (11th Cir. 2010). This immunity extends to pretrial advocacy in
connection with the initiation of a prosecution, including bond
applications and revocations. See Burns v. Reed, 500 U.S. 478, 487
(1991); Castaneira v. Owens, 2012 WL 3028338, at *5 (N.D. Ga. May
31, 2012); Spano v. Satz, 2011 WL 1303147, at *6 (S.D. Fla. Mar. 31,
2011). It likewise applies to advocacy on behalf of the State in the
continuation of the sentencing process, including as it relates to the
granting or revocation of parole or probation. See Hart v. Hodges, 587
F.3d 1288, 1296-97 (11th Cir. 2009); Allen v. Thompson, 815 F.2d 1433,
1434 (11th Cir.1987); Flournoy v. Ingram, 2011 WL 1485272, at *2
(M.D. Ala. Mar. 31, 2011). Further, Heck precludes claims for damages
under § 1983 to the extent that a judgment in favor of the plaintiff would
necessarily impugn the validity of an extant conviction or sentence,
including as it relates to parole or probation conditions. See Heck, supra;
Vickers, 137 F. App’x at 289-90; Smith, 2007 WL 2209242, at *2. Also,
§ 1983 claims in Alabama are subject to a two-year statute of
limitations. Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011).
Even assuming arguendo that claims against new parties could
relate back under FED. R. CIV. P. 15(c), West did not file this action until
November 2014, while his claims against Hammond arise out of her

alleged actions taken as an Assistant District Attorney in September
2008, in connection with obtaining a warrant for West’s arrest and the
revocation of his bond. The undersigned therefore concludes that any
such claims would be subject to dismissal based upon one or more of the
following: (1) absolute prosecutorial immunity, (2) the statute of
limitations, (3) West’s failure to set forth enough specific factual matter
to state a “plausible” claim for relief for purposes of FED. R. CIV. P.
12(b)(6) and Iqbal, and (4) the Heck bar. Accordingly, leave to amend
is due to be denied as it relates to claims against Hammond.
Likewise, § 1983 claims for damages against Weems based “false
statements” she allegedly made in motions and court hearings in the
course of advocating the State’s position with respect to the revocation
of West’s pretrial bond in February 2010, his guilty plea in December
2010, or the revocation or modification of his probation conditions in
January 2014 would be barred by prosecutorial immunity, Heck, or both.
See Conner v. Pickett, 552 F.2d 585 (5th Cir. 1977) (prosecutor enjoyed
absolute immunity as it related to his involvement in accepting a guilty
plea); Salas v. Pierce, 297 F. App’x 874, 876 (11th Cir. 2008) (holding
that Heck barred claims alleging district attorney conspired with the
plaintiff’s counsel to coerce a guilty plea); Cline v. City of North Miami,
2010 WL 3943541, at *3 (S.D. Fla. Apr. 27, 2010) (ruling that
plaintiff’s allegations that prosecutors engaged in wrongdoing in “filing
a motion to revoke bond” was “insufficient to remove their cloak of
absolute immunity”); Jackson v. Edwards, 2013 WL 6858882, at *2-3
(M.D. Ga. Dec. 30, 2013) (plaintiff’s claims against prosecuting attorney
at probation revocation hearing were precluded by absolute immunity
and Heck); Williams v. Holsey, 2010 WL 4261354, at *2-3 (M.D. Ga.
July 7, 2010) (same); Lockett v. Wright, 2013 WL 497592, at *3 (S.D.
Ga. Jan. 15, 2013).
West also asserts that Weems “coerced” a representative of the
Calhoun County Sheriff’s Department to testify falsely at his probation
revocation hearing in January 2014. However, West’s allegation that
Weems “coerced” the witness is conclusory and would not be entitled
to a presumption of truth on a motion to dismiss. See Pugh v. Horace,
2014 WL 912000, at *3 (S.D. Ala. Feb. 10, 2014); Candelario v. City of
New York, 2013 WL 1339102, at *5 (S.D.N.Y. Apr. 3, 2013). In any
event, this claim too would be barred by immunity, Heck, or both. See

Holmes v. Crosby, 418 F.3d 1256, 1259 (11th Cir. 2005) (parole officers
enjoy immunity for testimony given during parole revocation hearings
when they act within the scope of their duties); Rehberg, 611 F.3d at
841-42 (where witness enjoyed absolute immunity for allegedly false
testimony before grand jury, prosecutor was likewise entitled to absolute
immunity on a claim alleging a conspiracy to make up and present the
testimony); Williams, 2010 WL 4261354, at *2-3 & n.1 (claims that
prosecutor falsified evidence, withheld evidence, and knowingly
presented perjured testimony at parole revocation hearing dismissed
based on Heck and prosecutorial immunity).
That leaves only West’s would-be § 1983 claim against Weems
based on an allegation that, in December 2013, she made “false
statements” in a legal memorandum filed on behalf of the State in
opposition to West’s motion in his criminal case seeking the return of
seized property. (See Compl. at 8-9, 48; Doc. 1-1 at 38-42; id. at 43-44).
In a related vein, West alleges that “because of these false statements,
by Weems, the state has refused to return the property which was seized
....” (Compl. at 9). However, to the extent that West might attempt to
hold Weems liable for damages merely for statements she made in a
legal paper filed in court on the State’s behalf, West would fail to state
a cognizable § 1983 claim. Although the criminal prosecution proper
against West had concluded by December 2013, the opposition that
Weems filed in response to West’s motion was premised on the
argument that the subject seized property was being lawfully retained by
the State in the event that it might be needed for a potential trial, insofar
as West had continued to assert that his conviction and sentence were
infirm. Weems’s opposition filing was thus clearly made in her role as
an advocate for the State in judicial proceedings and was thus protected
by absolute immunity. See Hart, 587 F.3d at 1296 (recognizing that
absolute immunity may extend to certain post-sentencing conduct of a
prosecutor); Jones, 174 F.3d at 1281 (“A prosecutor enjoys absolute
immunity from allegations stemming from the prosecutor’s function as
advocate.”); Spurlock v. Thompson, 330 F.3d 791, 799 (6th Cir. 2003)
(“Absolute immunity applies to the adversarial acts of prosecutors
during post-conviction proceedings, including direct appeals, habeas
corpus proceedings, and parole proceedings, where the prosecutor is
personally involved in the subsequent proceedings and continues his
role as an advocate.”).

Notably, West has not pled that Weems was herself either
responsible for the initial seizure or in possession or control of the
subject property thereafter and refused to return it. But even if West
amended to include such allegations, he could not prevail on an
associated § 1983 claim against Weems. Any claim alleging that the
initial seizure, which appears to have been in September 2008 but in no
event later than West’s guilty plea in December 2010, was
unconstitutional would be barred by the two-year statute of limitations.
See Holt v. Valls, 395 F. App’x 604, 605-06 (11th Cir. 2010); Reynolds
v. Murray, 170 F. App’x 49, 51 (11th Cir. 2006). It is true, however, that
“a complaint of continued retention of legally seized property raises an
issue of procedural due process under the Fourteenth Amendment.”
Case v. Eslinger, 555 F.3d 1317, 1330-31 (11th Cir. 2009). Further,
once a criminal prosecution has concluded and all appeals exhausted,
retention of seized property by the prosecutor may at a certain point be
protected only by qualified immunity rather than absolute immunity. See
Morris v. Jackson, 353 F. Supp. 2d 1199, 1201-02 (M.D. Ala. 2005),
aff’d, 167 F. App’x 750 (11th Cir. 2006). Despite that,
“no procedural due process violation has occurred if a meaningful
postdeprivation remedy for the loss is available.” Lindsey [v.
Storey, 936 F.2d 554, 561 (11th Cir. 1991)] (internal quotation
marks omitted); see Hudson v. Palmer, 468 U.S. 517 (1984);
Parratt v. Taylor, 451 U.S. 527 (1981). “ Hudson made clear that
as long as some adequate postdeprivation remedy is available, no
due process violation has occurred.” Lindsey, 936 F.2d at 561. Id.
at 1331; see also City of West Covina v. Perkins, 525 U.S. 234
(1999) (due process does not require that the State provide notice
of available state-law remedies for the return of seized property).
Here, Alabama state law provides adequate remedies so as to
preclude a viable procedural due process claim in this context
under § 1983. See Hagood v. Morgan County, Ala., 2014 WL
7337413, at *5 (N.D. Ala. Dec. 23, 2014) (recognizing that ALA.
CODE § 41-9-60 provides for the State Board of Adjustment to
consider claims against the state or its agents, and that, if such
claim is denied, a claimant is authorized to file a state court
action); Houston v. Alabama, 2013 WL 4777198, at *4 (N.D. Ala.
Sept. 5, 2013) (same); Jaggars v. City of Sheffield, Ala., 2014 WL
2123210, at *5 n.9 (N.D. Ala. May 21, 2014) (“Alabama law

recognizes in rem actions by claimants for the return of property
seized by municipal law enforcement agencies.”); see also
Dupree v. City of Phenix City, 2011 WL 6778799, at *3-4 (M.D.
Ala. Oct. 20, 2011); Lindsay v. Brogden, 2008 WL 4542755, *6
(S.D. Ala. Oct. 10, 2008); Dawson v. City of Montgomery, 2008
WL 659800, at *8 (M.D. Ala. Mar. 6, 2008). Accordingly, West’s
putative claims against Weems would be subject to dismissal as
well, so any amendment on that score would also be futile.
(Doc. 29 at pp. 14-24) (footnote omitted).
After de novo review, this court agrees. It will ADOPT this portion of the
report and will ACCEPT the recommendation that all Plaintiff’s motion to
supplement the record be treated as a motion for leave to amend and be denied as
futile.
V.

DEMAND FOR HEARING
In his objections, “Plaintiff demands a hearing on this case.” (Doc. 30 at p. 9).

The court treats this demand as a motion for a hearing. That motion is due to be, and
will be, DENIED.
VI.

CONCLUSION
For the reasons set out above, Plaintiff’s objections are due to be

OVERRULED. The magistrate judge’s report and recommendation is de novo
correct and will be ACCEPTED by the undersigned. Defendant’s Motion To Dismiss
is due to be GRANTED. Plaintiff’s Motion To Supplement is due to be DENIED.
Plaintiff’s demand for a hearing is due to be DENIED. All of Plaintiff’s claims are

due to be DISMISSED WITH PREJUDICE. A separate order will be entered.
DONE this the 22nd day of May, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge