Malloy v. Peters et al

Filing 31

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 8/30/2016. Copy served on plff on this date.(YMB)

FILED
2016 Aug-30 PM 03:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ARTHUR BRENNAN MALLOY,
Plaintiff,
v.
KENNETH N. PETERS, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No.: 2:15-cv-01878-AKK-TMP

MEMORANDUM OPINION
The magistrate judge filed a report on August 9, 2016, recommending that
the defendants’ special reports, previously construed as motions for summary
judgment, be granted and that this action be dismissed with prejudice. Doc. 29.
Mr. Malloy filed objections to the report and recommendation on August 22, 2016.
Doc. 30.
Mr. Malloy’s first objection addresses his retaliation claim against defendant
Peters and he asserts that “GRANTING Summary Judgment to the Defendant
(Peters), is arbitrary to the record, facts and law.” Doc. 30 at 1. Mr. Malloy does
not point to any specific findings of facts by the magistrate judge which he
believes to be incorrect, but states only that the “Defendant’s claims, in his
affidavit, is ‘not’ evidence and does ‘not’ disprove the Plaintiff’s claims as stated
in the Complaint.” Id. Previously, in response to defendant Peters’ motion for

summary judgment, Mr. Malloy asserted by affidavit that defendant Peters took his
gold dental bridge on May 23, 2014. Doc. 20 at 4.

In the report and

recommendation, consistent with Rule 56 of the Federal Rules of Civil Procedure,
the magistrate judge accepted every fact as alleged by Mr. Malloy, including those
disputed by defendant Peters. See e.g., doc. 29 at 10 and n. 4.
At no time has Mr. Malloy provided any evidence to support his allegation
that the May 2014 cell search, whereby defendant Peters allegedly took the gold
dental bridge, was in retaliation for Mr. Malloy’s August 2012 lawsuit against
defendant Peters. With respect to Mr. Malloy’s burden to prove motive in his
retaliation claim, the case law is clear that where “the defendant-official has made
a properly supported motion, the plaintiff may not respond simply with general
attacks upon the defendant’s credibility, but rather must identify affirmative
evidence from which a jury could find that the plaintiff has carried his or her
burden of proving the pertinent motive.” Crawford-El v. Britton, 523 U.S. 574, 600
(1998); see also Farrow v. West, 320 F.3d 1235, 1248-49 (11th Cir. 2003) (where
plaintiff offered no evidence to rebut defendant’s evidence, plaintiff failed to
establish a causal relationship between his complaints and the alleged retaliation).
Here, Mr. Malloy has provided no evidence which could support a finding of a
causal relationship between his August 2012 lawsuit and the May 2014 cell search

2

and, in fact, has done no more than attack the defendant’s credibility. See generally
doc. 30. This objection is therefore OVERRULED.
Mr. Malloy further objects to the recommendation of the magistrate judge
that summary judgment should be granted in favor of defendant Corizon Health,
Inc., on the basis that such a recommendation is arbitrary. Doc. 30 at 1. Mr. Malloy
reaches this conclusion by asserting he was deprived of “the use of Discovery
Devices Rules 33, 36 - FRCivP) that would establish his claims by ‘clear and
convincing’ proof.”

Id. However, the interrogatories Mr. Malloy sought to

propound to defendant Corizon were found moot by the magistrate judge because
that very information was ascertainable from the Special Report and supporting
evidence filed by that defendant.1 See docs. 18; 24. Although Mr. Malloy filed an
objection to this ruling, his objection stated no more than his belief that the ruling
was erroneous. Doc. 27.

1

Mr. Malloy sought the names of the dentist(s) and dental assistants who treated him from May
1, 2015, through August 18, 2015. Doc. 17. In defendant Corizon’s Special Report, the defendant
stated “Jeffrey Roth, DDS, is a licensed dentist in the state of Alabama . . . . Dr. Roth is an
employee of Corizon, LLC . . . . Dr. Roth has seen Mr. Malloy on one occasion, that being
August 27, 2015.” Doc. 24 at 2. The dental records attached to the Special Report also reflect
this same information. Doc. 24-1 at 7. Other attached dental records reflect that Mr. Malloy was
seen by Charles M. King, DMD, JD, on July 23, 2014. Id. at 14. The only allegation Mr. Malloy
made in his complaint concerning his dental care was that “[t]he Dentist (John Doe), at
Donaldson Correctional Facility, now refuses to complete the dental work . . . . On August 27,
2015, I was informed by the attending Dentist (John Doe), that ‘he could not provide me with
dental-partial(s) due to company policy’.” Doc. 10 at 5. Because Mr. Malloy was provided with
the names of the dentists who treated him, and had no claims against any dental assistants, Mr.
Malloy’s request for interrogatories to discovery this information was deemed moot.
3

Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation and the objections thereto, the
magistrate judge’s report is hereby ADOPTED and the recommendation is
ACCEPTED. Accordingly, finding no genuine issues of material fact exist and
that the defendants are entitled to judgment in their favor as a matter of law, the
court ORDERS that the defendants’ motions for summary judgment are
GRANTED.
The court further ORDERS that Mr. Malloy’s claims against the Alabama
Department of Corrections are DISMISSED for failure to state a claim upon
which relief can be granted.
To the extent Mr. Malloy attempts to bring state law claims for conversion
or dental malpractice, those claims are due to be DISMISSED WITHOUT
PREJUDICE, in accordance with 28 U.S.C. § 1367(c)(3).
A final judgment will be entered.
DONE the 30th day of August, 2016.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

4