Presley v. Scott et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS; dismissing claims as follows; claims against Alabama DOC are dismissed; claims against dfts in their official capacities for monetary relief; supervisory claims against dfts Bentley and Thomas; claims against dfts for violation of administrative regulations; all claims against dft Ossie Brown; and specific claims as set out in this order; remaining claims are referred back to the Magistrate Judge. Signed by Judge L Scott Coogler on 12/15/2014. (KAM, )

FILED
2014 Dec-15 PM 03:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
GEORGE WALTER PRESLEY,
Plaintiff,
v.
LATONYA SCOTT, et al.,

Defendants.

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) Case No. 4:13-cv-02067-LSC-TMP
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ORDER
The magistrate judge filed a report and recommendation on September 5, 2014,
recommending that the following claims be dismissed as frivolous, for seeking
monetary relief from a defendant who is immune from such relief, or for failing to
state a claim upon which relief may be granted, pursuant to 28 U.S.C. § 1915A(b)(1)
and/or (b)(2):
1. The plaintiff’s claims against the Alabama Department of Corrections;
2. The plaintiff’s claims against the defendants in their official capacities
for monetary relief;
3. The plaintiff’s supervisory claims against Defendants Bentley and

Thomas;
4. The plaintiff’s claims against the defendants for violation of

administrative regulations;
5. All claims against Defendant Ossie Brown;

6. The plaintiff’s First Amendment retaliation claim against Defendant
Scott;
7. The plaintiff’s claims against the defendants pursuant to the Religious
Freedom Restoration Act;
8. The plaintiff’s Fourteenth Amendment equal protection claims against
Defendants Scott, McDowell, Sanders, and Davenport;
9. The plaintiff’s Fourteenth Amendment access to courts claims;
10.

The plaintiff’s Fourteenth Amendment due process claims;

11.

The plaintiff’s Fifth Amendment claims;

12.

The plaintiff’s conspiracy claims;

13.

The plaintiff’s claims against the defendants for violation of the
stipulation in Limbaugh v. Thompson, et al., Case No. 2:93-cv-1404-ID
(M.D. Ala.), Native American Prisoners of Alabama – Turtle Wind Clan v.
State of Alabama, Case No. 2:96-cv-554-WHA (M.D. Ala.), and the
settlement agreement in Presley v. Edwards, Case No. 2:04-cv-729-WKW
(M.D. Ala.);

14.

The plaintiff’s state law fraud claims; and
2

15.

The plaintiff’s claims under federal criminal statutes and for felonious
injury.

(Doc. 10).
The magistrate judge further recommended that the following claims be
referred to the magistrate judge for further proceedings:
1. The plaintiff’s First Amendment free exercise claims against Defendants
Scott, McDowell, Sanders, and Davenport;
2. The plaintiff’s claims pursuant to the Religious Land Use and
Institutionalized Persons Act against Defendants Scott, McDowell, Sanders,
and Davenport;
3. The plaintiff’s claims pursuant to the Alabama Religious Freedom
Amendment against Defendants Scott, McDowell, Sanders, and Davenport;
4. The plaintiff’s state law claims for conversion against Defendants Scott,
McDowell, Sanders, and Davenport with regard to the confiscation and
destruction of his medicine bag only;
5. The plaintiff’s state law claims for wantonness against Defendants Scott,
McDowell, Sanders, and Davenport with regard to the confiscation and
destruction of his medicine bag only; and
6. The plaintiff’s state law claims pursuant to the Open Records Act against
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Defendants Sanders, Scott, and Thomas.
(Id.).
On December 3, 2014, the plaintiff filed objections to the magistrate judge’s
report and recommendation. (Doc. 24). The court will not address those parts of the
plaintiff’s objections that are merely restatements of his claims. Neither will the court
address new facts and claims alleged by the plaintiff that were not pleaded in his
original complaint.
1.

Alabama Department of Corrections (“ADOC”)

The magistrate judge concluded that the plaintiff cannot maintain a § 1983
action against the ADOC because the Eleventh Amendment bars a § 1983 action in
federal court against the state or an agency of the state. (Doc. 10 at 16). The plaintiff
states in his objections that he does not seek monetary relief from the ADOC but only
injunctive and declaratory relief.

(Doc. 24 at 1-2).1

However, the Eleventh

Amendment bars not only monetary relief, but also injunctive and declaratory relief
against the state or an agency of the state. Edelman v. Jordan, 415 U.S. 651, 662-71
(1974) (monetary relief); Alabama v. Pugh, 438 U.S. 781, 782 (1978) (injunctive
relief).
To the extent the plaintiff alleges the ADOC can be held liable under state law,
(doc. 24 at 7-8), such claim is also without merit. Section 14, Ala. Const. 1901,
1

Citations are to CM/ECF page numbers.
4

provides “[t]hat the State of Alabama shall never be made a defendant in any court
of law or equity.” This section affords the State and its agencies an “absolute”
immunity from suit in any court. Ex parte Mobile County Dep’t of Human Res., 815
So.2d 527, 530 (Ala. 2001). Therefore, the plaintiff cannot seek monetary or
equitable relief from the ADOC under state law. The plaintiff’s objections to the
dismissal of his claims against the ADOC are OVERRULED and the ADOC is due
to be dismissed.
2.

Eleventh Amendment Immunity

The magistrate judge determined that the plaintiff’s constitutional claims
against the defendants in their official capacities for monetary and injunctive relief
are due to be dismissed under Eleventh Amendment sovereign immunity. (Doc. 10
at 17). Although Eleventh Amendment immunity protects state officials from suits
for monetary damages, actions against a state official for prospective injunctive relief
are outside the protection offered by the Eleventh Amendment. Ex parte Young, 209
U.S. 123 (1908); see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 96
(1984). However, the magistrate judge concluded that the plaintiff had not alleged
any basis for prospective injunctive relief against the defendants in their official
capacities. (Doc. 10 at 17-18).

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The plaintiff argues that his claims against the defendants in their individual
capacities for injunctive and declaratory relief are not barred by the Eleventh
Amendment. (Doc. 24 at 9-11). The plaintiff also argues that the defendants are not
immune from suit under the Eleventh Amendment for state law actions. (Id.).
To the extent the plaintiff alleges constitutional claims against the defendants
in their official capacities for monetary relief, such claims are barred by the Eleventh
Amendment. Kentucky v. Graham, 473 U.S. 159, 169 (1985). Moreover, the plaintiff
has not shown that he is entitled to an injunction against the defendants in their
official capacities to prevent some action by the defendants in the future. Therefore,
the plaintiff’s objections to the dismissal of his constitutional claims against the
defendants in their official capacities for monetary and injunctive relief are
OVERRULED and the claims are due to be dismissed.
3.

Governor Robert Bentley & Commissioner Kim Thomas

The magistrate judge recommended the dismissal of the plaintiff’s supervisory
claims against Defendants Bentley and Thomas because the plaintiff failed to show
the defendants were personally involved in seizing and destroying his religious items
or that they were causally connected to the alleged deprivation. (Doc. 10 at 18-22).
The plaintiff concedes that his claims against Governor Bentley should be dismissed.
(Doc. 24 at 12). However, he argues the court should not dismiss his claims against
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Commissioner Kim Thomas. (Doc. 24 at 12-22). In his objections, the plaintiff realleges many of his claims against Thomas which are merely based on Thomas’s
position as ADOC Commissioner. (Id.).
Defendant Thomas cannot be held liable for the actions or omissions of his
subordinates under § 1983 on the basis of respondeat superior or vicarious liability.
Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986). Instead, the plaintiff must
either show Defendant Thomas was personally involved in the constitutional
violations complained of or there was some causal connection between Thomas and
the alleged deprivation. See Cottone v. Jenne, 326 F.3d 1352, 1360-61 (11th Cir.
2003) (holding that a causal connection is shown by a history of widespread abuse
which puts the supervisor on notice; a supervisor’s custom or policy results in
deliberate indifference to constitutional rights; or when facts support an inference that
the supervisor directed his subordinates to act unlawfully or knew they would act
unlawfully and failed to stop them). The plaintiff has not pleaded any facts which
would establish a causal connection concerning his claims against Defendant
Thomas. As such, the plaintiff’s objections to the dismissal of his supervisory claims
against Defendant Thomas are OVERRULED and the plaintiff’s supervisory claims
against both Defendants Bentley and Thomas are due to be dismissed.

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4.

Chaplain Ossie Brown

The magistrate judge recommended that all of the plaintiff’s claims against
Chaplain Ossie Brown be dismissed. (Doc. 10 at 29, 41 n.10, 55 & 59). Specifically,
the magistrate judge found that under the plaintiff’s alleged facts, Defendant Brown
was not involved in either the seizure or destruction of the plaintiff’s religious items.
(Id.). Rather, Defendant Brown’s only role in the events was his refusal to intervene
on the plaintiff’s behalf by getting the religious items returned. (Id.).
The plaintiff argues in his objections that Defendant Brown knew there was
inadequate space for the plaintiff’s religious items on the ceremonial grounds and that
the plaintiff had to store the items in his cell. (Doc. 24 at 22-25). He further argues
that Brown had “advanced knowledge” of the plaintiff’s predicament and Brown was
deliberately indifferent to the plaintiff’s rights when he failed to stop prison officials
from confiscating his religious items. (Id. at 24).
The plaintiff’s assertions are insufficient to state a claim for relief against
Defendant Brown. Brown’s failure to intervene does not translate into his being
personally involved in, authorizing, or approving the confiscation and destruction of
the plaintiff’s items. Therefore, the plaintiff’s objections to the dismissal of his
claims against Defendant Brown are hereby OVERRULED and all claims against
Defendant Brown are due to be dismissed.
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5.

Administrative Regulations

The magistrate judge recommended the dismissal of the plaintiff’s claims that
the defendants violated numerous administrative regulations when they seized and
destroyed his religious items because the mere fact that prison officials violate prison
regulations does not, by itself, raise a constitutional issue. Sandin v. Connor, 515
U.S. 472, 481-82 (1995). The plaintiff now alleges in his objections that the
defendants’ violation of prison administrative regulations also violates state law.
(Doc. 24 at 23-29).
The magistrate judge recommended that the plaintiff’s state law claims for
conversion and wantonness proceed against Defendants Scott, McDowell, Sanders,
and Davenport for destruction of the plaintiff’s medicine bag because the defendants’
actions, as alleged by the plaintiff, went beyond the defendants’ authority under
Administrative Regulation 333. (Doc. 10 at 54-59). The plaintiff does not associate
any other state law with the defendants’ alleged violation of prison regulations and
the court will not consider any new state law claims raised in the plaintiff’s
objections. 2
The plaintiff’s objections are OVERRULED to the extent he seeks to allege the
violation of prison regulations based on additional state law claims, different from the
2

The plaintiff has not identified a private cause of action based on the violation of prison
regulations.
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state law claims that were set forth in his original complaint and that are due to be
referred for further proceedings.
6.

Retaliation

The magistrate judge recommended dismissal of the plaintiff’s First
Amendment retaliation claim against Defendant Scott because Scott’s decision to
move the plaintiff from one general-population cell to another worked no materially
adverse effect on the plaintiff. (Doc. 10 at 29-33). The plaintiff now claims in his
objections that the dorm where Scott moved him to is “one of the worst dorms for
racism” and inmates stole some of his toiletries and clothing.3 (Doc. 24 at 37). As
alleged, the theft of the plaintiff’s toiletries and clothing does not amount to a
materially adverse effect on the plaintiff, especially at a maximum security prison
such at St. Clair. Indeed, such theft could have occurred in just about any dorm in the
prison. The plaintiff’s objections to the dismissal of his retaliation claims are
OVERRRULED and the claims are due to be dismissed.
7.

Fraud

The magistrate judge recommended dismissal of the plaintiff’s state law claims
for fraud because he failed to show that Defendant Brown made misrepresentations
upon which the plaintiff relied to his detriment. (Doc. 10 at 63-64). In his objections,

3
The plaintiff does not allege whether the theft was a one-time incident or whether it
happened on several different occasions.
10

the plaintiff merely restates his claims, or attempts to allege new ones, and does not
address how he relied on Defendant Brown’s alleged misrepresentations to his
detriment.4 (Doc. 24 at 39-41). The plaintiff’s objections to the dismissal of his fraud
claims are OVERRULED and the claims are due to be dismissed.
8.

Fourteenth Amendment Claims
a.

Access to Courts

The magistrate judge recommended dismissal of the plaintiff’s Fourteenth
Amendment access to courts claims because the plaintiff failed to show that he was
prejudiced by the defendants’ failure to provide him with case reporters, codes, and
case law outside of his present jurisdiction. (Doc. 10 at 48-50). The plaintiff restates
his claims and attempts to allege facts in his objections that he did not present in his
original complaint. 5 (Doc. 24 at 41-50). The plaintiff does not address how he has
been prejudiced by prison officials’ failure to provide him with certain legal

The plaintiff also attempts to allege a state law claim for intentional infliction of emotional
distress in this part of his objections. (Doc. 24 at 40-41). The court will not consider such claim.
4

Throughout the plaintiff’s objections, he sets forth events which occurred just prior to his
transfer from St. Clair on September 24, 2014, to support his claims, including his access to courts
claims. (Doc. 24 at 43-48). These events were not part of the plaintiff’s original complaint and,
therefore, not addressed in the magistrate judge’s report and recommendation. The magistrate judge
entered an order on October 24, 2014, granting the plaintiff’s motion to amend the complaint to state
claims against Lieutenant Carter under the First Amendment, the RLUIPA, the ARFA, and for
wantonness for denying the plaintiff his religious items upon his transfer on September 24, 2014.
(Doc. 19).
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5

materials. The plaintiff’s objections to dismissal of his Fourteenth Amendment
access to courts claims are OVERRULED and the claims are due to be dismissed.
b.

Due Process

The magistrate judge determined that the plaintiff’s Fourteenth Amendment
due process claims against the defendants for destroying his property are due to be
dismissed because he had meaningful post-deprivation remedies available to him such
as the Board of Adjustment and Alabama tort law. (Doc. 10 at 53-54). The plaintiff
contends that he cannot file a claim with the Board of Adjustment because the Board
requires him to provide documentation such as an incident report, which the
defendants will not provide him. (Doc. 24 at 50-54). Even if the plaintiff cannot
comply with the requirements for filing a claim with the Board, he also has postdeprivation remedies available to him under Alabama tort law sufficient to satisfy due
process.
The magistrate judge recommended dismissal of the plaintiff’s Fourteenth
Amendment procedural due process claims under Sandin v. Conner, 515 U.S. 472,
486-87 (1995). (Doc. 10 at 51-53). The plaintiff does not address in his objections
how the conditions of disciplinary segregation or the loss of privileges created a
major disruption in his environment or unexpectedly exceeded his sentence in a
manner to deprive him of a liberty interest protected by the Due Process Clause.
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(Doc. 24 at 54-58). Therefore, the plaintiff’s objections to the dismissal of this
procedural due process claims are OVERRULED and are due to be dismissed.
c.

Equal Protection

The magistrate judge concluded that the plaintiff’s equal protection claims are
due to be dismissed because the plaintiff did not show that he was similarly situated
to other inmates who were treated differently because of their religious beliefs or that
the defendants discriminated against the plaintiff based on his religion. (Doc. 10 at
44-48). In his objections, the plaintiff contends the defendants confiscated his
religious items because “of the plaintiff standing up for his religious rights.” (Doc.
24 at 60). He states that “other Native America inmates also kept and keep their
religious items in their cells or dorms[;] yet none of these inmate have had their
Native American sacred items taken, and no one has ever been shook down by
Captain Sanders since the June 23, 2013 incident.” (Id.).
The fact that the plaintiff alleges defendants did not confiscate items from other
Native American inmates only undermines his claims that the defendants violated his
right to equal protection because it shows the defendants’ actions were not motivated
by intentional and purposeful discrimination against his religion. Neither has the
plaintiff alleged in his objections that his religious items were materially the same as
Muslim, Christian, or Catholic inmates.
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Based on the foregoing, the plaintiff’s objections to the dismissal of his
Fourteenth Amendment equal protection claims are OVERRULED and the claims are
due to be dismissed.
9.

Conspiracy

The plaintiff objects to the magistrate judge’s recommendation that his
conspiracy claims be dismissed. The plaintiff has not alleged any supporting
operative facts that the defendants “reached an understanding” or had a “meeting of
the minds” to violate his constitutional rights. Addickes v. S.H. Kress & Co., 398 U.S.
144, 152 (1970); First Bank of Childerburg v. Florey, 676 So.2d 324, 327 (Ala. Civ.
App. 1996). Rather, the plaintiff continues to make only conclusory allegations that
a conspiracy existed among the defendants. (Doc. 24 at 63-68). The plaintiff argues
that the defendants are all supervisors and “are constantly in touch with one another,
through staff meetings, both weekly and daily . . . .” (Doc. 24 at 63). The fact that
these defendants work together does not establish that they conspired to violate the
plaintiff’s constitutional rights. The plaintiff’s objections to the dismissal of his
conspiracy claims are therefore OVERRULED and are due to be dismissed.
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation and the objections thereto, the court
is of the opinion that the magistrate judge’s report is due to be and is hereby
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ADOPTED and the magistrate judge’s recommendation is ACCEPTED. It is
therefore ORDERED, ADJUDGED, and DECREED that the following claims are
DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) and/or (b)(2):
1. The plaintiff’s claims against the Alabama Department of Corrections;
2. The plaintiff’s claims against the defendant in their official capacities
for monetary relief;
3. The plaintiff’s supervisory claims against Defendants Bentley and
Thomas;
4. The plaintiff’s claims against the defendants for violation of

administrative regulations;
5. All claims against Defendant Ossie Brown;
6. The plaintiff’s First Amendment retaliation claim against Defendant
Scott;
7. The plaintiff’s claims against the defendants pursuant to the Religious
Freedom Restoration Act;
8. The plaintiff’s Fourteenth Amendment equal protection claims against
Defendants Scott, McDowell, Sanders, and Davenport;
9. The plaintiff’s Fourteenth Amendment access to courts claims;
10.

The plaintiff’s Fourteenth Amendment due process claims;
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11.

The plaintiff’s Fifth Amendment claims;

12.

The plaintiff’s conspiracy claims;

13.

The plaintiff’s claims against the defendants for violation of the
stipulation in Limbaugh v. Thompson, et al., Case No. 2:93-cv-1404-ID
(M.D. Ala.) and Native American Prisoners of Alabama – Turtle Wind Clan
v. State of Alabama, Case No. 2:96-cv-554-WHA (M.D. Ala.) and the
settlement agreement in Presley v. Edwards, Case No. 2:04-cv-729-WKW
(M.D. Ala.);

14.

The plaintiff’s state law fraud claims; and

15.

The plaintiff’s claims under federal criminal statutes and for felonious
injury.

It is further ORDERED that the following claims are REFERRED to the
magistrate judge for further proceedings:
1.

The plaintiff’s First Amendment free exercise claims against Defendants
Scott, McDowell, Sanders, and Davenport;

2.

The plaintiff’s claims pursuant to the Religious Land Use and
Institutionalized Persons Act against Defendants Scott, McDowell,
Sanders, and Davenport;

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3.

The plaintiff’s claims pursuant to the Alabama Religious Freedom
Amendment against Defendants Scott, McDowell, Sanders, and
Davenport;

4.

The plaintiff’s state law claims for conversion against Defendants Scott,
McDowell, Sanders, and Davenport with regard to the confiscation and
destruction of his medicine bag only;

5.

The plaintiff’s state law claims for wantonness against Defendants Scott,
McDowell, Sanders, and Davenport with regard to the confiscation and
destruction of his medicine bag only; and

6.

The plaintiff’s state law claims pursuant to the Open Records Act
against Defendants Sanders, Scott, and Thomas.

The Clerk is DIRECTED to mail a copy of the foregoing to the plaintiff.
Done this 15th day of December 2014.

L. Scott Coogler
United States District Judge
[160704]

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