Kidd v. Alabama Department of Corrections et al

Filing 10

MEMORANDUM OF OPINION-re: R&R 7 . The report is ADOPTED and the recommendation is ACCEPTED. Signed by Judge Robert B Propst on 7/8/2013. (AVC)

FILED
2013 Jul-08 AM 08:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
BARRY GENE KIDD,
Plaintiff ,
v.
ALABAMA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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5:13-CV-0839-RBP-JHE

MEMORANDUM OF OPINION
The magistrate judge filed a report and recommendation on May 22, 2013, recommending
that this action filed pursuant to 42 U.S.C. § 1983 be dismissed under 28 U.S.C. § 1915A(b). On
June 7, 2013, the plaintiff filed a Motion for Leave to File an Amended Complaint (Doc.9) and
attached an Amended Complaint to the motion.
In the amended complaint the plaintiff addresses the report and recommendation of the
magistrate judge and restates the arguments of his complaint.

The plaintiff seeks to add

Commissioner Kim Thomas, Former Director of Classification Carolyn Golson and the current
Director of Classification Casandra Conway as defendants. The plaintiff argues also, as he did in
his original complaint, that he is being denied due process by the new “R” classification and that the
new classification scheme is prohibited by the Ex Post Facto Clause of the Constitution. The
Supreme Court has said that for a law to be ex post facto it must be more onerous than the prior law.
Dobbert v. Florida, 432 U.S. 282 (1977). The plaintiff maintains that the “R” classification has in
fact, increased his punishment because he is no longer eligible for work release, honor camps, lower
level institutional placement. The Eleventh Circuit has stated clearly that an Alabama inmate has

no due process right directly under the United States Constitution to participate in the work release
program. Francis v. Fox, 758 F.2d 1416 (11th Cir. 1985). Likewise, the plaintiff does not have a
constitutional right to an assignment to an honor camp or a lower level institution. The plaintiff has
not submitted any facts to support a finding that the sentence he was given when he was found guilty
of murder in 2000 has been increased by the addition of an “R” to his classification.
The plaintiff also argues that he has been denied equal protection, but again does not provide
any facts to support his claim. The plaintiff reports that he has been a model prisoner, but speculates
that the Parole Board will view him negatively because of his “R” designation. If the plaintiff’s
speculations become a reality that will be the time for him to file a lawsuit.
Having carefully reviewed and considered de novo all the materials in the court file, including
the report and recommendation and the “Amended Complaint” which the court has treated as
objections to the report and recommendation, the Court is of the opinion that the magistrate judge's
report is due to be and is hereby ADOPTED and the recommendation is ACCEPTED. Accordingly,
the Motion to Amend (Doc. 9) is DENIED and the complaint is dismissed pursuant to 28 U.S.C. §
1915A(b). A Final Judgment will be entered.
DATED this 8th day of July, 2013.

ROBERT B. PROPST
SENIOR UNITED STATES DISTRICT JUDGE

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