Mitchell v. Pearce et al

Filing 12

MEMORANDUM OPINION AND ORDER: RE: 8 , Magistrate Judge's Report and Recommendation. The court VACATES the magistrate judge's report as to Officer Pearce. The Court ADOPTS the magistrate judge's report as it pertains to Warden Freddie Butler, Capt. Tim Holcomb, and Lt. Donald Skipper. It is therefore ORDERED, ADJUDGED, and DECREED that all of plaintiff's claims in this action other than his claim against Officer Jared Pearce are DISMISSED pursuant to 28 U.S.C. § 1915A(b). It is further ORDERED that the retaliation claim against Officer Pearce is REFERRED to the magistrate judge for further proceedings. Signed by Judge Abdul K Kallon on 02/19/13. (CVA)

FILED
2013 Feb-19 PM 12:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
JERMAINE MITCHELL,
Plaintiff,
vs.
OFFICER JARED PEARCE, et al.,
Defendants.

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6:12-CV-1152-AKK-MHH

MEMORANDUM OPINION AND ORDER
The magistrate judge issued a Report and Recommendation on November 7,
2012, recommending that this action filed pursuant to 42 U.S.C. § 1983 be dismissed
under 28 U.S.C. § 1915A(b). (Doc. 8). The plaintiff filed an objection to the Report
and Recommendation on November 28, 2012. (Doc. 9).1
The plaintiff argues that Officer Pearce retaliated against him for filing a
grievance about Officer Pearce’s act of throwing trash on the floor of the plaintiff's
cell. Specifically, the plaintiff complains that Officer Pearce filed two false
disciplinary charges against him. The plaintiff’s claim against Officer Pearce requires
further review.

1

Plaintiff filed an amendment to his objection on January 28, 2013. (Doc. 11).

Having carefully reviewed and considered de novo all of the materials in the
court file, including the Report and Recommendation and the objection thereto, the
Court VACATES the magistrate judge’s report as to Officer Pearce. The Court
ADOPTS the magistrate judge’s report as it pertains to Warden Freddie Butler, Capt.
Tim Holcomb, and Lt. Donald Skipper.
It is therefore ORDERED, ADJUDGED, and DECREED that all of
plaintiff’s claims in this action other than his claim against Officer Jared Pearce are
DISMISSED pursuant to 28 U.S.C. § 1915A(b). It is further ORDERED that the
retaliation claim against Officer Pearce is REFERRED to the magistrate judge for
further proceedings.2
DONE this 19th day of February, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

In addition to demanding damages for the constitutional violations alleged, the plaintiff
requests injunctive relief. On January 28, 2013, the plaintiff notified the court that he no longer is
housed at the Hamilton A&I Correctional Facility where the incident about which he complains
purportedly occurred. (Doc. 10). Consequently, he no longer has standing to seek injunctive relief,
but he may pursue his claim for damages. See City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct.
1660, 75 L.Ed.2d 675 (1983); Tucker v. Phyfer, 819 F.2d 1030 (11th Cir. 1987).
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