Ferguson et al v. Thomas et al

Filing 57

MEMORANDUM OPINION. Signed by Judge R David Proctor on 7/14/2016. (AVC)

FILED
2016 Jul-14 AM 11:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
CECIL M. FERGUSON; WILLIAM
HORSMAN, III,
Plaintiffs,
v.
KIM TOBIAS THOMAS, et al.,
Defendants.

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Case No. 5:14-cv-02396-RDP-JHE

MEMORANDUM OPINION
The Magistrate Judge filed a Report and Recommendation on June 20, 2016,
recommending that Defendants’ Special Report, construed as a motion for summary judgment,
be granted, and that this action be dismissed with prejudice. (Doc. 55). Plaintiffs timely filed
objections to the Report and Recommendation.

(Doc. 56).

Having considered Plaintiffs’

objections, the court finds as follows:
Plaintiffs’ first object that the Report and Recommendation is “neither accurate or
factual, and is insufficient as a matter of law.” (Doc. 56 at 2). Plaintiffs continue, stating that the
Magistrate Judge has “usurped the function of the fact-finder in resolving conflicting affidavits.”
(Id.). Plaintiffs provide no specific factual or legal basis for these assertions, and they do not
identify any specific factual errors or legal insufficiencies in the Report. Plaintiffs fail to identify
the affidavits to which they refer. Given the lack of specific objections to the Magistrate Judge’s
factual findings or recommendations, the court cannot decipher the grounds upon which
Plaintiffs contend the Magistrate Judge erred.
Plaintiffs next complain that their attempts to conduct limited discovery were denied
“several times.” (Doc. 56 at 2-3). The court made no such rulings. Plaintiffs propounded six

sets of interrogatories, requests for admission, and requests for production. (Docs. 38, 40-43, 46
and 47). Plaintiffs filed no motion to compel responses, and the court has no knowledge as to
whether Plaintiffs ever received responses to their discovery requests. Plaintiffs never requested
any additional discovery, nor filed any pleading which could be construed as a claim that the
disclosures from Defendants’ special report were insufficient.1 The court did not deny Plaintiffs
the opportunity to engage in limited discovery as they claim. Plaintiffs also object because the
“PLRA and magistrate judge have placed a burden on the plaintiffs which is virtually
insurmountable.” (Doc. 56 at 3). Again, Plaintiffs provide no specific factual basis for their
objection. However, the court must enforce the PLRA as written, regardless of Plaintiffs’ belief
that it creates too great of a burden.
Plaintiffs’ third objection is that they were denied access to “all relevant data.” (Doc. 56
at 3). Again, Plaintiffs have failed to identify any specific documents or other evidence which
they sought but could not obtain. Plaintiffs complain that they lacked typewriter ribbons, had
only a broken typewriter, and lacked adequate law library resources. (Id.). Plaintiffs further
assert (somewhat creatively) that they “feel like they are members of the Fred Flintstone law
firm.”2 (Id.). Because they are proceeding pro se, Plaintiffs have been allowed to file all

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Plaintiffs filed a motion for summary judgment consisting of twenty-seven pages of argument and exhibits,
plus two catalogues filed conventionally (Doc. 34), a ten page supplement to that motion (Doc. 44); 158 pages of
argument and exhibits in response to Defendants’ motion for summary judgment (Doc. 50); a fourteen page
evidentiary supplement to that response (Doc. 51); thirteen additional pages styled as “supplemental objections”
(Doc. 52); and an additional exhibit in support of their previous filings (Doc. 53). Nowhere in any of these
pleadings do Plaintiffs assert they needed additional information, which was in Defendants’ possession and/or
obtainable through discovery, to respond to Defendants’ motion for summary judgment.
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Plaintiffs have not brought any constitutional claim for interference with access to the courts. Although in
Bounds v. Smith, 430 U.S. 817, 828 (1977), the Supreme Court held that “the fundamental constitutional right of
access to the courts requires prison authorities to . . . provid[e] prisoners with adequate law libraries or adequate
assistance from persons trained in the law,” Bounds did not create an abstract, free-standing right to a law library or
legal assistance. Lewis v. Casey, 518 U.S. 343, 349 (1996). “[A]n inmate cannot establish relevant actual injury
simply by establishing that his prison’s law library or legal assistance program is subpar in some theoretical sense.”
Lewis, 518 U.S. at 351. “[T]he Constitution does not require that prisoners . . . be able to conduct generalized

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pleadings handwritten. They have suffered no prejudice from lack of access to typewriters.
Additionally, to the extent Plaintiffs believe further legal citations would have assisted their
claims, the court notes that the Magistrate Judge construed Plaintiff’s complaint liberally,
considered Plaintiffs’ factual allegations in the light most favorable to them, and then applied the
proper legal precedents of the Eleventh Circuit. Further case citations would have no impact on
the merits of Plaintiffs’ claims.
Plaintiffs also object to the Magistrate’s Judge’s observation in footnote 8, page 6 of the
Report and Recommendation that much of Plaintiffs’ documentary submissions are hearsay.
(Doc. 56 at 4). Although Plaintiffs assert that the Magistrate Judge failed to specify to which
documents this observation referred to, that assertion is belied by footnote 8 of the Report and
Recommendation itself. There the Magistrate Judge listed fourteen categories of submissions
and cited to the thirty-five specific records of Plaintiffs’ submissions. Plaintiffs rely on Church
of Scientology v. City of Clearwater, 2 F.3d 1514, 1530 (11th Cir. 1993) for the proposition that
the myriad newspaper articles they submitted can be used as evidence in opposition to summary
judgment. (Doc. 56 at 4). However, as the Eleventh Circuit has since clarified, Church of
Scientology held no such thing. Rather, the Court of Appeals has explained that:
Neither Church of Scientology nor Offshore Aviation [v. Transcon Lines, Inc., 831
F.2d 1013 (11th Cir. 1987)] holds that inadmissible hearsay may be used to defeat
summary judgment when the hearsay will not be available in admissible form at
trial. In Church of Scientology, we held that the district court should have
considered newspaper articles offered as evidence that Clearwater’s city
commission conducted its legislative process with the intention of singling out the
Church of Scientology for burdensome regulation. 2 F.3d at 1530-31. There was
no argument that the events recounted in articles could not be proven with
admissible evidence at trial, and we expressed no opinion as to whether the
articles themselves would be admissible at trial. Id. at 1530-31 & n. 11. Indeed,
there was every indication that witnesses would be able to testify at trial from
their personal knowledge of the events recounted in the articles.
research, but only that they be able to present their grievances to the courts—a more limited capability that can be
produced by a much more limited degree of legal assistance.” Id., at 360.

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McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996), aff’d sub nom. McMillian v. Monroe
Cty., Ala., 520 U.S. 781 (1997). The circuit court continued by explaining that “otherwise
admissible” evidence may be submitted in inadmissible form at the summary judgment stage. Id.
As the Magistrate Judge noted, Plaintiffs’ materials included Plaintiffs’ opinions as to the
legality of various prison conditions, statements from other prisoners, printed articles from
unidentified sources, complaints about general conditions and perceived fire hazards (including
lack of cleaning supplies, kitchen plumbing, sewage problems, building code violations, health
code violations and lack of mirrors in bathroom), and other irrelevant items. To the extent
Plaintiffs object to the Magistrate Judge’s failure to consider materials unrelated to Plaintiffs’
claims or materials which could not be made admissible for trial, Plaintiff’s objection is without
merit. The newspaper articles and other evidence submitted by Plaintiffs failed to create any
genuine issue of material fact on any of Plaintiff’s claims.
Plaintiffs’ next objection is that the Magistrate Judge only considered constitutional
violations and not their state law claims or their claimed violations of Alabama administrative
regulations by the Alabama Department of Corrections. (Doc. 56 at 5).

This objection also

lacks merit. Plaintiffs have not identified any specific law or regulation raised in their pleadings
which the Report and Recommendation did not address. To sustain an action under Section
1983, a plaintiff must show a specific constitutional or federal guarantee safeguarding the
interests that have been violated. Paul v. David, 424 U.S. 693, 696–97 (1976). To the extent
Plaintiffs intended to bring claims for violations of state law or Alabama administrative
regulations, the mere violation of departmental regulations and/or standard operating procedures
does not assert a violation of an inmate’s constitutional rights. Sandin v. Connor, 515 U.S. 472,
481-82 (1995) (prison regulations are not intended to confer rights or benefits on inmates but are
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merely designed to guide correctional officials in the administration of prisons). And, to the
extent Plaintiffs intended their claims of violations of state regulations -- including state fire
regulations -- to stand independently of evidence of constitutional violations, this court lacks
jurisdiction to consider in the first instance whether a state agency is properly adhering to state
regulations. Moreover, the court will not consider new claims raised for the first time in
Plaintiffs’ objections to the Report and Recommendation. To the extent Plaintiffs direct this
objection to a claim under the Alabama Clean Indoor Air Act, the same has already been
addressed, both in prior rulings and again in the Report and Recommendation. As previously
found, the Alabama Clean Indoor Air Act does not provide Plaintiffs a private right of action.
(Docs. 49 & 55 at 5).
Plaintiffs also assert they cannot obtain copies of their medical records without
discovery.3 (Doc. 56 at 6). As previously stated, Plaintiffs filed discovery requests (although
none addressed their medical records) and never informed the court that Defendants failed to
respond to any of those requests. Plaintiffs further fail to identify anything in their medical
records which could provide support for any of their claims properly before this court. Rather,
they merely assert that the Magistrate Judge misapplied the Rule 56 standard because the CDC
and American Cancer Society have stated that “there is no safe level of exposure to second hand
smoke.” (Id.). As noted in the Report and Recommendation, this is a fact of which the court
may take judicial notice.

(Doc. 55 at 11 n.10).

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However, to show a violation of their

Plaintiffs state “[p]ursuant to Rule 56(f) F.R.Civ.P. --- the court can ‘issue any other just order.’” (Doc. 56
at 6). Under the previous version of Rule 56(f), a party could submit an affidavit stating, in essence, that he or she
needed additional time for discovery in order to properly oppose a motion for summary judgment. See e.g., Barfield
v. Brierton, 883 F.2d 923, 931 (11th Cir. 1989). Similar language now appears in Rule 56(d). In any event,
Plaintiffs have not provided an affidavit specifying any reasons they cannot present facts essential to justify their
opposition. See e.g., Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002) (“Despite construction leniency
afforded pro se litigants, we nevertheless have required them to confirm to procedural rules.”); Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989) (“[O]nce a pro se litigant is in court, he is subject to the relevant law and rules of
court, including the Federal Rules of Civil Procedure.”). And even were this court to dispense with the affidavit
requirement, they have not made a showing that any additional discovery could aid them in this case.

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constitutional rights sufficient to survive summary judgment, Plaintiffs are required to produce
evidence demonstrating a personalized injury from the alleged exposure. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992); Schlesinger v. Reservists Committee to Stop the War, 418
U.S. 208, 218-219 (1974) (stating that the party seeking review “must himself have suffered an
injury,” and that an “[a]bstract injury is not enough.”). Because Plaintiffs’ have not submitted
any such evidence, summary judgment must be granted in Defendants’ favor. To be clear, this
conclusion does not rest on a determination of whether second hand smoke is dangerous to
Plaintiffs’ health in general.
Finally, Plaintiffs assure the court they will be ready for trial because more than twenty
years ago Plaintiff Horsman tried a case in front of the Hon. James Hancock, and Judge Hancock
stated that Horsman did a good job. (Doc. 56 at 7). As this is not an objection to the Report and
Recommendation, it requires no consideration from the court. Moreover, a pro se plaintiff’s
ability to present his or her claims eloquently should the case proceed to trial has no bearing on a
ruling on a summary judgment motion.
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, the court
ORDERS that Defendants’ motion for summary judgment (Doc. 28) is GRANTED, the court
finding no genuine issues of material fact exist. Plaintiffs’ motion for summary judgment (Doc.
34) and Plaintiffs’ motion to join necessary parties (Doc. 48) are DENIED for the reasons set
forth in the Report and Recommendation.
A Final Judgment will be entered.

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DONE and ORDERED this July 14, 2016.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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