Metcalf v. Agee et al

Filing 44

ORDER - adopting 39 Report and Recommendation. Motions for summary judgment of defts Thomas, Agee and Mitchell are granted; motion for summary judgment of deft Owens is granted as to pltf's claims against Owens in his official capacity, but d enied as to claims in his individual capacity. Pltf's claims pursuant to Ala. Code sections 14-3-13, 14-3-16, 14-3-52, and 14-4-11 are dismissed for failure to state a claim. Deft Owens is to file an answer to the remaining claims against him within 20 days. Finding as moot 37 Motion to Compel; finding as moot 40 Motion to to Conduct Additional Discovery and to Appoint Counsel. Signed by Judge Sharon Lovelace Blackburn on 9/30/15. (SMH, )

FILED
2015 Sep-30 AM 08:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
IVAN QUINTEL METCALF,
Plaintiff,
v.
CAPTAIN AGEE, et al.,
Defendants.

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) Case No. 7:14-cv-01196-SLB-JEO
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ORDER

The magistrate judge filed a report and recommendation on July 28, 2015,
recommending that the plaintiff’s claims against defendants Kim Thomas be
dismissed with prejudice, that the plaintiff’s claims against defendants Mike Agee
and Gene Mitchell be dismissed with prejudice, that the plaintiff’s claims against
defendant Tim Owens in his official capacity be dismissed with prejudice, and that
the plaintiff’s claims pursuant to ALA . CODE §§ 14-3-13, 14-3-16, 14-3-52, and 144-11 be dismissed. The magistrate judge further recommended that the defendant’s
motion for summary judgment as to the plaintiff’s claims against defendant Tim
Owens in his individual capacity be denied and referred to the magistrate judge for
further proceedings.

Although all parties were notified of their right to file

objections, the court has received objections only from the plaintiff.1 (Doc. 43).
1

The court also received a notice of supplemental filing from defendants Agee, Mitchell and
Owens (doc. 41), which stated that the failure to provide the court with a copy of video

The plaintiff’s sole contention in his objections concerns the magistrate
judge’s finding that defendant Owens is entitled to judgment in his favor on the
plaintiff’s official capacity claims. According to the plaintiff, because defendant
Owens was on active duty at the time of the alleged assaults, defendant Owens
acted “under color of law.” (Doc. 43). The plaintiff’s objection misconstrues
Eleventh Amendment immunity as it relates to § 1983 claims.
To bring a claim under § 1983, a plaintiff must show that the named
defendant was acting “under color of state law.” Hale v. Tallapoosa County, 50
F.3d 1579, 1582 (11th Cir. 1995) (citing 42 U.S.C. § 1983). “A person acts under
color of state law when he acts with authority possessed by virtue of his
employment with the state.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303
(11th Cir. 2001). That requirement means that a wholly private individual cannot
be sued for the exact same actions alleged here under § 1983. See Focus on the
Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1277 (11th Cir. 2003)
(citation omitted) (“the under-color-of-state-law element of § 1983 excludes from
its reach merely private conduct, no matter how discriminatory or wrongful.”).
This is distinct from the question of individual and official capacity.

recordings of some of the events in question was an oversight, and that the same was being
provided contemporaneously therewith. Consideration of the video footage does not alter the
findings of fact as set forth in the Report and Recommendation of July 28, 2015.
2

Official-capacity suits “generally represent only another way of pleading an
action against an entity of which an officer is an agent.” Monell v. Dep’t of Soc.
Serv. of City of N.Y., 436 U.S. 658, 690 n. 55 (1978). Thus, suits against
government officials in their official capacities should be treated as suits against
the government. Kentucky v. Graham, 473 U.S. 159, 165 (1985). “[S]uits against
an official in his or her official capacity are suits against the entity the individual
represents,” thus a suit against a state employee in his official capacity “is simply
... a claim against the State of Alabama.” Parker v. Williams, 862 F.2d 1471, 1476
n. 4 (11th Cir.1989). Hence, the Eleventh Amendment protects a sheriff’s deputy
or county jail official from suit in his official capacity.2 See Welch v. Laney, 57
F.3d 1004, 1008-1009 (11th Cir. 1995); Carr v. City of Florence, Ala., 916 F.2d
1521, 1525-1526 (11th Cir.1990). In contrast, a suit against a state or county
employee in his individual capacity is not a suit against the State and hence not
barred by the Eleventh Amendment. See Lundgren v. McDaniel, 814 F.2d 600,
603 (11th Cir. 1987); Gamble v. Florida Department of Health & Rehabilitative
Services, 779 F.2d 1509, 1512 (11th Cir. 1986).

2

This bar is only against claims for money damages, suits for injunctive relief are not barred
by the Eleventh Amendment. See e.g., Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
n.10 (1989). However, as the plaintiff is no longer housed in Lawrence County jail, this
exception is inapplicable here.
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Having carefully reviewed and considered de novo all the materials in the
court file, including 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
magistrate judge’s recommendation is ACCEPTED. It is therefore ORDERED
that
1. Defendant Kim Thomas’ motion for summary
judgment (doc. 20) is GRANTED, the court finding no
genuine issues of material fact remain as to this claim and
that this defendant is entitled to judgment in his favor as
a matter of law.
2. Defendants Agee, Owens and Mitchell’s motion
for summary judgment (doc. 21) is GRANTED as to the
plaintiff’s claims against defendants Mike Agee and
Gene Mitchell, the court finding no genuine issues of
material fact remain as to these claims and that these
defendants are entitled to judgment in their favor as a
matter of law.
3. Defendants Agee, Owens and Mitchell’s motion
for summary judgment (doc. 21) is GRANTED as to the
plaintiff’s claims against defendant Tim Owens in his
official capacity, the court finding no genuine issues of
material fact remain as to these claims.
4. Defendants Agee, Owens and Mitchell’s motion
for summary judgment (doc. 21) is DENIED as to the
plaintiff’s claims against defendant Tim Owens in his
individual capacity.
5. Plaintiff’s claims pursuant to ALA . CODE §§
14-3-13, 14-3-16, 14-3-52, and 14-4-11 are DISMISSED

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for failure to state a claim upon which relief may be
granted.

Defendant Owens is ORDERED to file an answer to the remaining claims
against him within twenty (20) days from the entry date of this order.
Also pending before the court are the plaintiff’s motion to compel (doc 37)
and motion for plaintiff’s request for co-counsel and motion for plaintiff’s request
for leave to conduct additional discovery and request for production of additional
discovery (doc. 40).

The motions to compel and for additional discovery have

been rendered MOOT by the defendants’ subsequent production of records and
video footage. The portion of plaintiff’s motion seeking co-counsel in document
40 is also rendered MOOT by plaintiff’s subsequent filing of a motion for
appointment of counsel. The clerk is therefore DIRECTED to term docs. 37 and
40. The plaintiff’s motion for appointment of counsel (doc. 42) remains pending.
DONE this the 30th day of September, 2015.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

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