Pasture v. Tuscaloosa County Jail et al

Filing 14

MEMORANDUM OPINION AND ORDER Having carefully reviewed and considered de novo all the materials in the court file, including the report and recommendation and the plaintiff's objections, the court ADOPTS the magistrate judge's report and AC CEPTS his recommendations. The court DISMISSES WITHOUT PREJUDICE all of the plaintiff's claims in this action except the excessive force claim against Officer O'Bryant pursuant to 28 U.S.C. § 1915A(b)(1). The court ORDERS that the excessive force claim against Officer O'Bryant be REFERRED back to the magistrate judge for further proceedings. Signed by Chief Judge Karon O Bowdre on 3/28/16. (SAC ) *Order placed in first class mail to pro se Plaintiff.

FILED
2016 Mar-28 PM 02:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
KENNEDY PASTURE,
Plaintiff
v.
OFFICER O’BRYANT, et al.,
Defendants

)
)
)
)
)
)
)
)
)

Case No. 7:15-cv-00422-KOB-HGD

MEMORANDUM OPINION AND ORDER
The magistrate judge filed a report on January 8, 2016, recommending that all
claims in this action, except the excessive force claim against Officer O’Bryant, be
dismissed without prejudice, pursuant to 28 U.S.C. § 1915A(b)(1), for failing to state
a claim upon which relief can be granted. (Doc. 10). The magistrate judge further
recommended that the excessive force claim against Officer O’Bryant be referred
back to him for further proceedings. The plaintiff filed objections to the report and
recommendation on February 10, 2016. (Doc. 13).
In his objections, the plaintiff contends that the court should not dismiss
defendants Bailey and Jackson from this action because they failed to protect him
from Officer O’Bryant and failed to properly investigate his grievance against
Page 1 of 3

O’Bryant. (Doc. 13). However, as noted in the report and recommendation, the
plaintiff did not allege that either Bailey or Jackson were present at the scene or in a
position to intervene. On that point, the magistrate judge properly stated the law that
supervisory officials cannot be liable for the unconstitutional actions of their
subordinates solely on the basis of respondeat superior or vicarious liability. See
Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003).
Furthermore, the defendants’ failure to investigate the plaintiff’s grievances
would be insufficient to establish constitutional liability. The Eleventh Circuit has
stated plainly that “a prisoner does not have a constitutionally-protected liberty
interest in an inmate grievance procedure.” Thomas v. Warner, 237 Fed. Appx. 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.”). Likewise,
to the extent that the defendants may have violated administrative regulations
regarding their response to his grievances, that fact alone would not establish a
constitutional violation. United States v. Caceres, 440 U.S. 741, 751-52 (1979);
Magluta v. Samples, 375 F.3d 1269, 1279 n.7 (11th Cir. 2004). Therefore, the court
OVERRULES all of the plaintiff’s objections.
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation and the plaintiff’s objections, the court
Page 2 of 3

ADOPTS the magistrate judge’s report and ACCEPTS his recommendations. The
court DISMISSES WITHOUT PREJUDICE all of the plaintiff's claims in this action
except the excessive force claim against Officer O’Bryant pursuant to 28 U.S.C.
§ 1915A(b)(1). The court ORDERS that the excessive force claim against Officer
O’Bryant be REFERRED back to the magistrate judge for further proceedings.
DONE and ORDERED this 28th day of March, 2016.

_________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

Page 3 of 3