McKinney v. Kilgore et al

Filing 12

ORDER - Having considered the materials in the court file, including the report and recommendation and Mr. McKinneys objections, the Court adopts the magistrate judges report and accepts his recommendation. The Court, pursuant to 28 U.S.C. § 191 5A(b), dismisses without prejudice all claims against all defendants except Mr. McKinneys Fourteenth Amendment equal protection claim against defendants Sheriff Jimmy Kilgore, Chief Deputy Ken Flowers, Jail Administrator Ron Smith, and Assistant Jail Administrator Jason Shea Brown for creating and implementing a discriminatory outdoor exercise policy on the basis of sex and Mr. McKinneys First Amendment claim against defendant Mail Clerk Jo Liner for rejecting his letters. The Court refers these remaining claims to the magistrate judge for additional proceedings. Signed by Judge Madeline Hughes Haikala on 5/2/2018. (KEK)

FILED
2018 May-02 AM 09:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
DIONNE C. MCKINNEY,
Plaintiff,
v.
JIMMY KILGORE, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 1:17-cv-00787-MHH-TMP

ORDER
On June 2, 2017, the magistrate judge notified plaintiff Dionne C. McKinney that
his original complaint was deficient and directed Mr. McKinney to correct the
deficiencies consistent with instructions set out in the order. (Doc. 6). The magistrate
judge’s June 2, 2017 order stated:

Although the plaintiff has provided some allegations to support his claims,
he has not stated clearly how each named defendant violated his
constitutional rights, the date(s) on which the incident(s) occurred, and
where the incident(s) occurred. The plaintiff must clearly set forth the facts
that support his claims against the defendants. The plaintiff is ADVISED
that conclusory and general assertions are not sufficient to state a claim
upon which relief under § 1983 can be granted. See Fullman v. Graddick,
739 F.2d 553, 556-57 (11th Cir. 1984).
The amended complaint must include all of the plaintiff’s claims in this
action; IT SHOULD NOT REFER BACK TO THE ORIGINAL
COMPLAINT. The plaintiff is ADVISED that the Court will consider
only the claims set forth in the amended complaint. After completing the
new complaint form, the plaintiff should mail it to the Clerk of the Court.

(Doc. 6, pp. 1-2). On June 14, 2017, Mr. McKinney filed an amended complaint. (Doc.
9).
On October 20, 2017, the magistrate judge entered a report, pursuant to 28 U.S.C.
§ 1915A(b)(1), in which he recommended that the Court dismiss without prejudice for
failing to state a claim upon which relief may be granted all claims in this action except
Mr. McKinney’s Fourteenth Amendment equal protection claim against defendants
Sheriff Jimmy Kilgore, Chief Deputy Ken Flowers, Jail Administrator Ron Smith, and
Assistant Jail Administrator Jason Shea Brown for creating and implementing a
discriminatory outdoor exercise policy on the basis of sex, and Mr. McKinney’s First
Amendment claim against defendant Mail Clerk Jo Liner for rejecting his letters. (Doc.
10). The magistrate judge recommended that the Court refer back to the magistrate judge
for further proceedings Mr. McKinney’s claims against defendants Kilgore, Flowers,
Brown, Smith, and Liner. (Doc. 10, p. 20). The magistrate judge advised Mr. McKinney
of his right to file specific written objections within14 days and instructed him that:
[o]bjections should specifically identify all findings of fact and
recommendations to which objection is made and the specific basis for
objection. Failure to object to factual findings will bar later review of those
findings, except for plain error. See 28 U.S.C. § 636(b)(1)(C); Thomas v.
Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111 (1986); Dupree v.
Warden, 715 F.3d 1295, 1300 (11th Cir. 2013). Objections also should
specifically identify all claims contained in the complaint that the report
and recommendation fails to address. Objections should not contain new
allegations, present additional evidence, or repeat legal arguments.

(Doc. 10, pp. 20-21). On November 11, 2017, Mr. McKinney filed objections to the
report and recommendation. (Doc. 11).
2

A district court “may accept, reject, or modify, in whole or part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

When a

party objects to a report and recommendation, the district court must “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id. The Court reviews for plain error
proposed factual findings to which no objection is made, and the Court reviews
propositions of law de novo. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993);
see also United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam), cert.
denied, 464 U.S. 1050 (1984) (“The failure to object to the magistrate’s findings of fact
prohibits an attack on appeal of the factual findings adopted by the district court except
on grounds of plain error or manifest injustice.”) (internal citation omitted); Macort v.
Prem, Inc., 208 Fed. Appx. 781, 784 (11th Cir. 2006).
Mr. McKinney organizes his objections into three paragraphs that contain legal
terms intermingled with various facts. (Doc. 11, pp. 1-6, ¶¶ 1, 6, 10). Each paragraph is
followed by numbered “Statement[s] of Claims,” all of which are comprised of
conclusory legal declarations against various named defendants that, in large part, are not
contained in the amended complaint. (Doc. 11, pp. 3-7).
In paragraph one, Mr. McKinney objects to the dismissal of his Fourth and
Fourteenth Amendment claims for unreasonable search and detention beginning March
21, 2017, against Kilgore, Flowers, Smith, and Brown. (Doc. 11, pp. 1-2). Citing
Dionne McKinney v. Jeb Fannin, et al., Case No. 1:17-cv-00596-VEH-TMP (N.D. Aug.
3, 2017), Mr. McKinney asserts that United States District Judge Virginia Emerson
3

Hopkins “stated that” on March 21, 2017, Agent Ledbetter, Sgt. Michael Smith, and
County Clerk Brian York conspired to violate his Fourth and Fourteenth Amendment
rights with “an unreasonable form complaint-arrest warrant. . . unaccompanied by a
separate affidavit” or a probable cause determination by “a judicial officer.” (Doc. 11,
pp. 1-2). Therefore, Mr. McKinney argues that Kilgore, Flowers, Smith, and Brown
violated his Fourth and Fourteenth Amendment rights because they “knew or should have
known” the warrant violated the Fourth Amendment and was issued “without due
process.” (Doc. 11, pp. 2-3).
Following this paragraph, Mr. McKinney makes several Statements of Claims.
For example, Mr. McKinney states:

3.

Statement of Claim

(Conspiracy) Defendant Talladega County Chief Deputy Sheriff Ken
Flowers acting under color of state law, willfully deprived the plaintiff of
his liberty without Due Process of Law, under the Constitution and Law(s)
of the United States.

(Doc. 11, p. 3).

He makes the same conclusory “statement” against defendants Ron

Smith and Jason Shea Brown. (Doc. 11, pp. 3-4). As for Sheriff Kilgore, Mr. McKinney
writes, “(False Imprisonment)” followed by another conclusory declaration of a due
process violation. (Doc. 11, p. 3).
A review of Judge Hopkins’s memorandum opinion (Doc. 9 in Case No. 1:17cv-00596-VEH-TMP) reveals that Judge Hopkins actually rejected Mr. McKinney’s
Fourth and Fourteenth Amendment claims against the named defendants for failure to
4

state a claim upon which relief can be granted and denied a motion to amend the
complaint to state additional Fourth and Fourteenth Amendment claims on futility
grounds. Thus, Mr. McKinney’s reliance upon that case to support conclusory Fourth
and Fourteenth claims against defendants Kilgore, Flowers, Smith, and Brown is
unpersuasive.
In paragraph six, Mr. McKinney summarily repeats his belief that the Fourteenth
Amendment Due Process Clause entitles him, as a pretrial detainee, to one hour of
outside exercise per day. (Doc. 11, p. 4). He then references an equal protection claim
pertaining to outdoor exercise. (Doc. 11, p. 4). Following this paragraph, Mr. McKinney
sets forth Statements of Claims against defendants Kilgore, Smith, and Brown. (Doc. 11,
pp. 4-5). As to defendant Kilgore, Mr. McKinney writes, “(Deliberate Indifference)”
followed by a conclusory assertion that Kilgore deprived him “of Equal Protection.”
(Doc. 11, p. 4). Beside the names of defendants Smith and Brown, Mr. McKinney writes
“(Abuse of Discretion)” followed by a conclusory assertion that these defendants
deprived him of “liberty without due process of law.” (Doc. 11, p. 5).
The magistrate judge instructed Mr. McKinney not to repeat legal arguments in his
objections. Mr. McKinney not only repeats his due process and equal protection claims
pertaining to outdoor exercise in conclusory fashion, he also references the equal
protection claim that the magistrate judge recommended go forward. Mr. McKinney has
failed to point to errors of fact or law in the magistrate judge’s report and
recommendation as to these claims. Therefore, the Court overrules his objections to the
dismissal of his Fourteenth Amendment due process outdoor exercise claims.
5

Finally, in paragraph ten, Mr. McKinney generally repeats in similar conclusory
fashion his First Amendment claims against defendant Jo Liner for rejecting his mail.
(Doc. 11, p. 5). Mr. McKinney asserts that Liner violated his First Amendment rights
when she censored, interfered with, and confiscated his mail and that defendants Kilgore,
Flowers, Smith, and Brown “condoned” the conduct. (Doc. 11, p. 5). Mr. McKinney
sets forth no facts to support his conclusory assertion that Kilgore, Flowers, Smith, or
Brown condoned Liner’s actions.
Next, Mr. McKinney reasserts (again in conclusory fashion) his Fourteenth
Amendment claims against defendants Liner, Brown, Flowers, Smith, and Kilgore for
failing to send his legal correspondence postage pre-paid by certified mail, and Mr.
McKinney attempts to assert new First and Fourth Amendment claims based upon the
same factual allegations. (Doc. 11, pp. 5-6). As to the Fourteenth Amendment claim,
Mr. McKinney appears to argue that the failure to send his legal mail in the manner he
desired constitutes punishment and as a “pre-trial detainee,” he had a right “not to be
punished prior to a lawful conviction.” (Doc. 11, p. 6). Mr. McKinney did not raise this
allegation in his amended complaint, and he alleges no facts suggesting punishment had
any bearing on the defendants’ purported failure to send his legal correspondence postage
pre-paid by certified mail.
Mr. McKinney’s attempt to state First and Fourth Amendment claims against the
defendants for the type of postage used to send his legal correspondence is futile.
“Where a particular Amendment ‘provides an explicit textual source of constitutional
protection’ against a particular sort of government behavior, ‘that Amendment . . .’ must
6

be the guide for analyzing the[] claims.’” Albright v. Oliver, 510 U.S. 266, 813 (1994)
(quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). The specific source needed to
address these allegations lies in the Fourteenth Amendment.
In the Statements of Claims following paragraph 10, Mr. McKinney writes
(“Abuse of Process”), accusing defendant Kilgore of depriving him “of his liberty
without due process.”

(Doc. 11, p. 6).

In several Statements of Claims against

defendant Liner, Mr. McKinney writes, “(Deliberate Intention),” “(conspiracy),”
“(negligence)” and “(state law outrage)”, but after each of these phrases, Mr. McKinney
asserts that Liner deprived him “of his liberty without due process.” (Doc. 11, pp. 6-7).
Mr. McKinney’s Fourteenth Amendment claim that he was punished as a pretrial
detainee by the failure to apply the postage he desired to his legal mail fails to state a
claim upon which relief can be granted.

The added and wholly conclusory

characterization of such a claim as abuse of process, deliberate intention, or conspiracy is
equally unavailing.
To the extent that Mr. McKinney is attempting to set forth state law negligence
and outrage claims against defendant Liner for failing to utilize the postage method he
desired to mail his legal correspondence, the Court DECLINES to exercise supplemental
jurisdiction over these claims. 1

1

Even if the Court were to exercise supplemental jurisdiction over Mr. McKinney’s purported
state law outrage claim, the Court would dismiss the claim for failure to state a claim upon which
relief can be granted. Under Alabama law, to state a claim for outrage, a plaintiff must allege
facts showing that (1) the defendant “either intended to inflict emotional distress, or knew or
should have known that emotional distress was likely to result from her conduct;” (2) the
conduct in question “was extreme and outrageous;” and (3) the “conduct caused emotional
7

Having considered the materials in the court file, including the report and
recommendation and Mr. McKinney’s objections, the Court adopts the magistrate judge’s
report and accepts his recommendation.
The Court, pursuant to 28 U.S.C. § 1915A(b), dismisses without prejudice all
claims against all defendants except Mr. McKinney’s Fourteenth Amendment equal
protection claim against defendants Sheriff Jimmy Kilgore, Chief Deputy Ken Flowers,
Jail Administrator Ron Smith, and Assistant Jail Administrator Jason Shea Brown for
creating and implementing a discriminatory outdoor exercise policy on the basis of sex
and Mr. McKinney’s First Amendment claim against defendant Mail Clerk Jo Liner for
rejecting his letters. The Court refers these remaining claims to the magistrate judge for
additional proceedings.
DONE and ORDERED this May 2, 2018.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

distress so severe that no reasonable person could be expected to endure it.” Stabler v. City of
Mobile, 844 So. 2d 555, 560 (Ala. 2002). “By extreme we refer to conduct so outrageous in
character and so extreme in degree as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized society.” American Road Serv. Co. v.
Inmon, 394 So. 2d 361, 365 (Ala. 1980). Thus, “outrage is a very limited cause of action that is
available only in the most egregious circumstances.” Thomas v. BSE Indus. Contractors, Inc.,
624 So. 2d 1041, 1044 (Ala. 1993). In Alabama, the tort of outrage has been limited to three
circumstances: “wrongful conduct in the family-burial context,” “barbaric methods employed to
coerce an insurance settlement,” and “egregious sexual harassment.” Potts v. Hayes, 771 So. 2d
462, 465 (Ala. 2000).
8