McCormick v. Dunn et al
MEMORANDUM OPINION. Signed by Judge R David Proctor on 4/16/2018. (KAM)
2018 Apr-16 AM 10:54
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SAMUEL ALLAN MCCORMICK,
COMMISSIONER JEFFERSON S. )
DUNN, et al.,
The Magistrate Judge filed a report on March 21, 2018, recommending this
action against defendants Gordy and Dunn be dismissed without prejudice for failing
to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915A(b).
(Doc. 23). Plaintiff filed objections to the report and recommendation on March 29,
2018, and filed a motion for leave to amend the complaint on April 2, 2018. (Docs.
24 & 25). For the reasons that follow, Plaintiff’s objections are OVERRULED and
his motion for leave to amend the complaint is DENIED.
Initially, Plaintiff contends the Magistrate Judge’s decision to construe
Document 12 as an amended complaint is a “gross error of fact.” (Doc. 24 at 6). He
argues the document is a request for emergency relief that now is “moot’ because
the “need for an injunction has long passed.” (Id. at 6). Even accepting Plaintiff’s
assertion that the request, which is titled, “Notice of Retaliation of defendant Gordy”
(doc. 12) is not an amended complaint, the Magistrate Judge correctly reported that
the motion is moot.
I. Objections (Doc. 24).
Plaintiff objects to the dismissal of his access to the court claim, arguing that
his initial complaint contains “sufficient factual matter”1 to plausibly state an access
to the courts claim. (Doc. 24 at 1). He also takes issue with the Magistrate Judge’s
report that he “must state the nature of his US Supreme Court claims in order to
show actual injury” (id. at 5), arguing that the Supreme Court’s rejection of his
belated application for extension of time to file a petition for rehearing from the
denial of his petition for writ of certiorari sufficiently supplies the “actual irreparable
injury” required for his access to the courts claim (id. at 1). Plaintiff contends the
claims he desired the Supreme Court to review “have absolutely NO bearing in the
claims of denial of his access to court.” (Id. at 5). He further asserts the Supreme
Court only grants 1% of the certiorari petitions presented to it and a denial of a
Plaintiff characterizes his allegations against defendant as follows: (1) “Gordy personally ordered
the PC Unit locked locked down” for 2 weeks; (2) refused to provide him access to the prison’s
law library or legal assistance from the assigned PC and general population law clerks, and; as
such, (3) caused the United States Supreme Court Clerk to reject his application for extension of
time to file a certiorari petition as untimely filed. (Doc. 24 at 1, 4; see also, Docs. 1-1 and 1-2,
McCormick v. Alabama, No. 15-8060, 136 S. Ct. 1666 (Mem) (Apr. 18, 2016)). He further argues
that he alleged defendant Dunn “is the Rule and Policy maker for the entire State system” and has
“exclusive duty to create and enforce all rules” in the system as well as the duty to supervise
defendant Gordy. (Id. at 4).
petition for writ of certiorari is not a ruling on the merits. (Id.). Nonetheless, to
satisfy the court’s “curiosity,” Plaintiff states the underlying “claim was fraud upon
the Court where an attorney was implicated” and “[s]uch [a] claim was colorable for
review and relief.” (Id.). His proposed amended complaint does not mention the
claim. (Doc. 25-1).
Plaintiff’s objections are overruled.
As the Magistrate Judge correctly
reported, “the right [to meaningful access to the courts] is ancillary to the underlying
claim, without which a plaintiff cannot have suffered injury by being shut out of
court.” (Doc. 23 at 9) (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)).
The Magistrate Judge also correctly reported that “[a] plaintiff must describe his
predicate claims well enough to establish that they are ‘nonfrivolous’ and ‘arguable’
to a degree ‘more than hope.” Harbury, 536 U.S. at 416 (some internal quotation
Plaintiff has not presented sufficient facts to establish that his underlying (i.e.,
predicate) claim of “fraud upon the Court where an attorney was implicated” is
nonfrivolous or arguable to a degree more than hope. It is not even clear that the
claim is the type protected by “the fundamental constitutional right of access to the
courts.” Bounds v. Smith, 430 U.S. 817, 828 (1977); Lewis v. Casey, 518 U.S. 343,
346-348 (1996) (“[t]he tools Bounds requires to be provided are those that the
inmates need in order to attack their sentences, directly or indirectly, and in order to
challenge the conditions of their confinement.”). Additionally, as Plaintiff concedes
the United States Supreme Court only hears about 1% of the petitions for writ of
certiorari filed per year. The Court has already rejected his request for certiorari
review. Even if Plaintiff had timely filed his request for extension of time to file an
application for rehearing, there are no facts suggesting he had any hope of success.
Finally, it is apparent that lesser courts had previously rejected the claim, casting
more doubt on whether the claim was nonfrivolous or arguable to a degree more than
The remainder of Plaintiff’s objections relate to his contentions that (1) his
claims against the defendants in their official capacity are not barred by the doctrine
of sovereign immunity, (2) the same facts underlying his access to the courts claims
are also sufficient to state an Eighth Amendment claim against the defendants, and
(3) there are sufficient facts stating claims against defendant Dunn in his supervisory
capacity. (Doc. 24 at 2-4). These objections are without merit.
II. The proposed amended complaint (Doc. 25).
In his proposed amended complaint, Plaintiff claims that the defendants
violated his “Constitutional rights and privileges protected by the US Constitution
Art. IV (Privileges and Immunities Clause), Art. VI (Supremacy Clause), First
Amendment (Access to Court), Fifth Amendment (Due Process), and Fourteenth
Amendment (Due Process and Equal Protection Clause).” (Id. at 3).2 He presents
the same facts concerning his untimely application to the Supreme Court as support
for the claims. (Id. at 4). He also asserts that the defendants failed “to create,
implement, and enforce an EMERGENCY grievance process . . . to exhaust
concerning his denial of access to court and procedural due process during” the
“lockdown.” (Id. at 6-7, 8-9).
The “Supremacy Clause is not the source of any federal rights” and “does not
confer a right of legal action.” Armstrong v. Exceptional Child Center, Inc., 135 S.
Ct. 1378, 1383-84 (2015) (internal citations omitted). As such, Plaintiff’s attempt
to state a claim grounded in the Supremacy Clause is fruitless. It has been held that
“[a]ccess to the courts . . . is grounded in the First Amendment, the Article
IV Privileges and Immunities Clause, the Fifth Amendment, and/or the Fourteenth
Chappell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003)
(citing Harbury, 536 U.S. 403, 415 n.12 (2002). However, Plaintiff has not alleged
facts to show he suffered any actual injury, and as such, he has failed to state an
access to the courts claim upon which relief can be granted.
Plaintiff’s assertion that the lack of an emergency grievance procedure
deprived him of access to the courts or procedural due process is also meritless. The
Plaintiff declares this court has “jurisdiction over all State Law Tort Claims associated with this
Civil Action, but sets forth no discernible state law claims in the proposed amended complaint. Id.
Eleventh Circuit has plainly stated that “a prisoner does not have a constitutionallyprotected liberty interest in an inmate grievance procedure.” Thomas v. Warner, 237
F. App’x 435, 437-38 (11th Cir. 2007); see also Mann v. Adams, 855 F.2d 639, 640
(9th Cir. 1988) (“There is no legitimate claim of entitlement to a grievance
procedure.” Baker v. Rexroad, 159 F. App’x 61, 62 (11th Cir. 2005) (the prisoner’s
right to petition the government for redress is the right of access to the courts, which
is not compromised by the prison’s refusal to entertain his grievance”) (quoting Flick
v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)).
Finally, Plaintiff has alleged no facts to support a Fourteenth Amendment
Equal Protection claim. “To establish an equal protection claim, a prisoner must
demonstrate that (1) he is similarly situated to other prisoners who received more
favorable treatment; and (2) the state engaged in invidious discrimination against
him based on race, religion, national origin, or some other constitutionally protected
basis.” Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318 -1319 (11th Cir. 2006)
(citing Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001); Damiano v. Florida
Parole and Probation Comm’n, 785 F.2d 929, 932-33 (11th Cir.1986)). Plaintiff
does not allege that any other locked-down inmate in the PC Unit was allowed access
to the law library and law librarians when he was denied the opportunity, or that the
defendants engaged in such behavior on the basis of race, religion or national origin.
For the foregoing reasons, Plaintiff’s motion to amend the complaint (Doc.
25) is denied on the grounds of futility. See Hall v. United Ins. Co. of Am., 367 F.3d
1255, 1262–63 (11th Cir. 2004) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)
(“[A] district court may properly deny leave to amend the complaint under Rule
15(a) when such amendment would be futile.”)).
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. Therefore, in accordance with 28 U.S.C. § 1915A(b), this action is
due to be dismissed without prejudice for failure to state a claim upon which relief
can be granted.
A Final Judgment will be entered.
DONE and ORDERED this April 16, 2018.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?