Holt v. Givens et al
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 11/13/2017. (KBB)
2017 Nov-13 AM 10:55
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JOE DANIEL HOLT, JR.,
GWENDOLYN GIVENS, et al.,
Case No. 7:17-cv-00678-AKK-JEO
The magistrate judge filed a report on October 17, 2017, recommending this
action 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. 33). The plaintiff was
notified of his right to file objections within fourteen (14) days of the report and
recommendation (id., at 44-45), and on November 3, 2017, the court received the
plaintiff’s objections (doc. 35).
The majority of the plaintiff’s objections are based on disagreement with the
law the court must apply under 28 U.S.C. § 1915A. This court is bound by the
Eleventh Circuit’s rules for reviewing pro se prisoner complaints pursuant to 28
U.S.C. §§ 1915A and 1915(e).1
The Eleventh Circuit requires a plaintiff
The difference between these statutes is that § 1915A applies solely to prisoner actions,
whereas § 1915(e) applies to all cases proceeding in forma pauperis. See 28 U.S.C. §§ 1915(e)
and 1915A. Because the plaintiff paid his filing fees in full, the plaintiff is not proceeding in
forma pauperis here. However, the review mandated by § 1915A still applies because of the
demonstrate conduct taken under color of law, complained of in the civil rights
suit, violated the plaintiff’s rights, privileges, or immunities under the Constitution
or laws of the United States. See e.g., Griffin v. City of Opa-Locka, 261 F.3d 1295,
1303 (11th Cir. 2001). The complaint must demonstrate that the facts as pled state
a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
[u]nder § 1915A, the district court must review a prisoner’s § 1983
complaint “before docketing, if feasible, or, in any event, as soon as
practicable after docketing.” 28 U.S.C. § 1915A(a). The district court
must “identify cognizable claims,” id. § 1915A(b), and dismiss any
portion of the complaint that  is “frivolous, malicious, or fails to
state a claim upon which relief can be granted.” Id. § 1915A(b)(1).
Dollar v. Coweta County Sheriff Office, 446 F. App’x 248, 250 (11th Cir. 2011).
Turning to the plaintiff’s specific objections, he first complains that the
magistrate judge failed to address whether the defendants acted under color of state
law. (Doc. 35 at 1). Each of the named defendants is a prison official and the
magistrate judge clearly recognized that each of the named defendants is a state
actor for purposes of § 1983. Because each defendant’s status as a state actor was
accepted as fact, the magistrate’s failure to discuss this is not error.
plaintiff’s status as a prisoner. Review under either statute is guided by the standards used for
Rule 12(b)(6), Federal Rules of Civil Procedure. Leal v. Georgia Dep’t of Corr., 254 F.3d 1276,
1278-79 (11th Cir. 2001); Jemison v. Mitchell, 380 F. App’x 904, 906 (11th Cir. 2010). Under
Rule 12(b)(6), the court views all allegations in the complaint as true and construes them in the
light most favorable to the plaintiff. McKissick v. Comm’r, GA Dep’t of Corrs., 587 F. App’x
567, 573 (11th Cir. 2014) (citing Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008)). The
magistrate judge correctly applied this standard in his report and recommendation.
The plaintiff also faults the magistrate judge for not addressing whether the
defendants acted willfully, wantonly, in bad faith, and in dereliction of other legal
standards of intent. (Doc. 35 at 1). The court is required by 28 U.S.C. § 1915A to
consider whether the facts, as alleged by the plaintiff, state any cause of action
upon which relief may be granted, taking those facts as true and construing them in
the light most favorable to the plaintiff. See e.g., Timson v. Sampson, 518 F.3d
870, 872 (11th Cir. 2008). If those facts as pled do not state a claim for relief that
is plausible on its face, the court must dismiss the complaint. Iqbal, 556 U.S. at
678. Thus, the magistrate judge took all of the plaintiff’s allegations of fact,
including those regarding the defendants’ actions, as true. Whether the plaintiff
can produce evidence supporting his allegations is not a proper consideration in §
The plaintiff next asserts the magistrate judge failed to discuss that the
defendants caused the plaintiff a variety of damages. (Doc. 35 at 1). The question
of types of damages suffered by the plaintiff is not reached prior to a determination
of whether the complaint, as amended, even states a cause of action upon which
relief can be granted. See Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013)
(holding that courts must follow the Supreme Court’s “‘two-pronged approach’ of
first separating out the complaint’s conclusory legal allegations and then
determining whether the remaining well-pleaded factual allegations, accepted as
true, ‘plausibly give rise to an entitlement to relief.’”). Because the court cannot
find any legal wrongdoing by a person acting under color of state law is alleged in
the final amended complaint, the harm the plaintiff claims to have suffered is not
The plaintiff also complains that the magistrate judge failed to discuss that
the plaintiff had invoked his right to a jury trial under the Seventh Amendment and
Rule 38, Fed. R. Civ. P. (Doc. 35 at 1). The plaintiff is mistaken in his assertion
that because he “invoked his Constitutional Right to a jury trial” the court must
allow this case to proceed to trial. Because this action does not survive 28 U.S.C.
§ 1915A review, the fact the plaintiff wants his claims tried by a jury is of no
consequence. Rule 38 simply does not require a court to hold a jury trial any time
a demand for one is made. Rather, Rule 38 recognizes that a right to jury trial, for
claims surviving various types of judicial review, exists. Because the plaintiff is a
prisoner, the court is required to review his claims, as set forth in § 1915A(b)(1)
(requiring screening of a complaint “as soon as practicable after docketing”). See
e.g., Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1096 n.11 (11th Cir.
2014) (“under 28 U.S.C. § 1915A, the district court may sua sponte dismiss a
prisoner’s complaint or any portion of the complaint for any of those four reasons
[stated in § 1915A] prior to service of process”); Smith v. Hutchins, F. App’x 785,
787-88 (11th Cir. 2011); Thompson v. Hicks, 213 F. App’x 939, 942 (11th Cir.
2007). Where, as here, the plaintiff has failed to state a factually valid legal claim,
dismissal of his claim is warranted.
The next objections concern the procedural background and standard of
review. (Doc. 35 at 2). The plaintiff complains that the magistrate judge stated
the May 4, 2017, motion to amend the complaint sought to add a claim for “seizure
of [the plaintiff’s] cell phone and ten self-addressed stamped manila envelopes”
instead of a “cell phone, cell phone box, ten self-addressed stamped envelopes and
a self-addressed stamped manila envelope.” (Id.). As the plaintiff filed additional
amended complaints on June 8, 2017, July 7, 2017, and August 7, 2017 (docs. 15,
25, and 30), any misstatement concerning the number or size of self-addressed
stamped envelopes referenced in the May 4, 2017, amended complaint had no
impact on recommendations in the magistrate judge’s report.
assertion that his final amended complaint only concerned multiple defendants at
two rather than four institutions (doc. 35 at 2) is contradicted by the content of that
The plaintiff’s August 7, 2017, final amended complaint asserted
claims for a frivolous write up at Childersberg Work Release (doc. 30 at 3-4);
frivolous disciplinary actions and wrongful confiscation of property while at
Hamilton Work Release (id., at 4-7); wrongful disciplinary actions, violations of
his Fourth and Eighth Amendment rights, and denial of privileges at Hamilton A&I
(id., at 7-8; doc. 30-1 at 4); and violation of his right to a classification review and
violations of state procedures in his move to and retention at Bibb Correctional
Facility (doc. 30 at 8; doc. 31 at 1-2). Moreover, the magistrate judge specifically
stated that, given that the plaintiff could sincerely believe his plethora of claims all
arose from a continuous tort, the report and recommendation would consider each
of the claims raised in the plaintiff’s final amended complaint. (Doc. 33 at 4 and
The plaintiff objects to the standard of review required under 28 U.S.C. §
1915A. (Doc. 35 at 2). Specifically, he asserts the court must have evidentiary
material before it can find whether genuine issues of material fact exist. (Id.). The
plaintiff is correct in that evidentiary material is necessary before the court can rule
on a summary judgment motion under Rule 56, and that the standard for summary
judgment is, in part, whether any genuine issues of material fact remain. However,
the report and recommendation did not reach this issue. Unlike the summary
judgment standard, § 1915A review requires the court to consider whether the facts
stated in the plaintiff’s complaint, taken as true and construed in the light most
favorable to the plaintiff, state a cause of action upon which relief may be granted.
See e.g., Hernandez v. Florida Dept. of Corrections, 281 F. App’x 862, 864 n.1
(11th Cir. 2008) (“To the extent that Hernandez challenges the sua sponte
dismissal on a procedural basis, we note that a district court may screen all
complaints filed in forma pauperis and all prisoner suits seeking redress from
governmental entities or government employees …. Because Hernandez was
proceeding in forma pauperis as a prisoner and suing a state prison and prison
officers, we reject his procedural challenge to the sua sponte dismissal prior to
service of process on the defendants and prior to discovery.”).
The plaintiff objects to the magistrate judge taking judicial notice of why the
plaintiff is serving a life sentence. (Doc. 35 at 3). The plaintiff does not assert that
any of the factual statements are incorrect, or were used improperly, but only that it
is irrelevant to his current claims. (Id.). As stated in the very footnote to which the
plaintiff objects, this court may take judicial notice of state court proceedings.
(Doc. 33 at 6 n.5, citing Grider v. Cook, 522 F. App’x 544, 545 n.2 (11th Cir.
2013)). See Tabb v. Brown, 2013 WL 2446288, *1 n.1 (N.D. Ga. June 4, 2013)
(“The Court may take judicial notice of publicly available information about jail
inmates on government websites.”).
In the report and recommendation, the magistrate judge noted the plaintiff’s
claim that when he was transferred to Hamilton Work Release in October 2016 he
was told in orientation that the Job Placement Officers, including Thomas Black,
knew that prisoners were using cell phones at their places of employment and were
not worried about it.
(Doc. 33 at 8).
The plaintiff asserts the report and
recommendation failed to name defendant William Morrison in the same
paragraph, as the final amended complaint did. (Doc. 35 at 3). However, the
plaintiff does not allege that referring to “the Job Placement Officers, including
Thomas Black,” as opposed to “the Job Placement Officers, including Thomas
Black and William Morrison,” has any impact on whether his claims are subject to
dismissal pursuant to § 1915A.
The plaintiff objects to the magistrate judge’s recommendation that each of
the plaintiff’s claims falls within the parameters for sua sponte dismissal under 28
U.S.C. § 1915A, because he believes “each of plaintiff’s claims has arguable merit
in law and fact.” (Doc. 35 at 3). This objection is no more than a random
statement of law. “[C]onclusory allegations, unwarranted deductions of facts or
legal conclusions masquerading as facts will not prevent dismissal.” Smith v.
Owens, 625 F. App’x 924, 926 (11th Cir. 2015) (quoting Oxford Asset Mgmt., Ltd.
v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)).
The plaintiff objects to the magistrate judge’s determination that the
plaintiff’s claims for the return of various possessions are properly brought before
the Board of Adjustment and the state courts of Alabama. (Doc. 35 at 3-4). He
asserts that this court clearly has not taken notice of the plaintiff’s previous claims
with the Board of Adjustment and that because he was denied compensation, he is
entitled to a jury trial here.
However, as set forth in the report and
recommendation, only if the state refuses to provide a sufficient process does the
plaintiff have a viable due process claim under the Fourteenth Amendment. (Doc.
33 at 13-16). The fact that the plaintiff did not get the result he wanted from that
process does not make the process itself legally insufficient. To the extent the
plaintiff objects that the magistrate judge failed to consider that the plaintiff
demanded a jury trial before finding adequate state law remedies were available,
such an argument is a legal non sequitur. As previously stated, just because the
plaintiff demanded a jury trial or relief in his complaint does not equate to a legal
right to those demands.
The plaintiff possibly objects to the finding that the Fourth Amendment does
not protect against seizures of prisoner’s possessions while at work release
employment because the plaintiff believes the seizure of his property was
unconstitutional.2 (Doc. 35 at 4). As previously stated, the plaintiff’s avenue to
recover property lies wholly with the State Board of Adjustment and the state
courts of Alabama.
The plaintiff objects to the magistrate judge’s finding that the plaintiff failed
to state a claim upon which relief can be granted under 42 U.S.C. §§ 1981 and
1985. (Doc. 35 at 4). As set forth in the report and recommendation, no cause of
action under § 1981 against state actors exists. (Doc. 33 at 16). Section 1981 does
not provide any remedies against state actors beyond those set forth in § 1983.
The plaintiff agrees his Fourth Amendment claim for the search of his cell and his employee
box at King Kutter is due to be dismissed. (Doc. 35 at 4). His argument seems to be that while
the search of his employee box was within the constitution, the seizure of items as a result of that
search was unconstitutional because he had a property interest in everything seized. (Id.).
Butts v. County of Volusia, 222 F.3d 891, 892 (11th Cir. 2000). The plaintiff’s
argument otherwise consists of merely quoting the content of that United States
Code section. Section 1985 requires a showing of racial or other discriminatory
animus for a conspiracy claim. Asad v. Bush, 170 F. App’x 668, 673 (11th Cir.
2006) (citing Park v. City of Atlanta, 120 F.3d 1157, 1161 (11th Cir. 1997)). The
plaintiff’s generalized allegation that a conspiracy existed among all the named
defendants is wholly insufficient to actually allege a viable conspiracy claim under
§ 1985. The plaintiff asserts only that “approximately 12 of the defendants [have]
conspired against plaintiff” and therefore “the plaintiff’s claims based on §§ 1981
and 1985 shall not be dismissed.” (Doc. 35 at 5). These allegations do not provide
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007).
Indeed, “threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
A claim has “facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. As stated in
Twombly, the plaintiff must show his claims have enough “heft” to demonstrate he
is entitled to relief. Twombly, 550 U.S. at 557. The plaintiff’s claims here do not.
The plaintiff objects to the finding that his allegations of violations of
administrative regulations, taken as true, do not state constitutional claims. (Doc.
35 at 5). The plaintiff does not argue that violations of state law can create
constitutional violations, but instead he asserts that since he requested a jury trial,
he should have one to determine the merits of his claims. (Id.). This argument has
no basis in law.
The plaintiff next takes issue with the legal standards for whether his
procedural due process rights were violated when he was charged with disciplinary
actions. (Doc. 35 at 5-6). While the plaintiff claims the magistrate judge could not
determine whether evidence supported the findings of the hearing officer in each of
the disciplinary actions (id.), no such determination by this court would even be
proper during § 1915A review.
Rather, the sole issue for this court when
considering constitutional claims based on disciplinary actions is whether the state
action imposed some “atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
Whether the disciplinary actions were merited, deserved, or even patently false is
not a proper consideration for this court. See O’Bryant v. Finch, 637 F.3d 1207,
1215 (11th Cir. 2011). Because the plaintiff did not allege any of his procedural
rights were violated, he did not state a claim upon which relief can be granted.3
Although the plaintiff claims Wolff v. McDonnell, 418 U.S. 539 (1974), requires this court
submit the plaintiff’s due process claims arising from the disciplinary actions to a jury, Wolff
requires no such thing. Rather, Wolff mandates that prisoners receive (1) “advance written notice
of the charges against them”; (2) “an opportunity ... to call witnesses and present documentary
evidence, so long as doing so is consistent with institutional safety and correctional goals”; and
The plaintiff’s attempt to rephrase this objection as an equal protection claim
(doc. 35 at 7) fares no better. Although he believes he should have the opportunity
to identify fictitious parties through discovery to demonstrate other prisoners
received lesser punishments, this has no bearing on whether his final amended
complaint stated a viable claim for equal protection. Moreover, fictitious party
pleading does not exist in federal court. See e.g., Richardson v. Johnson, 598 F.3d
734, 738 (11th Cir. 2010) (citing New v. Sports & Recreation, Inc, 114 F.3d 1092,
1094 n.1 (11th Cir. 1997)) (“fictitious party pleading is not allowed in federal
court”). Rather, for a viable equal protection claim, a plaintiff must allege that he
was treated differently from similarly situated persons and that any such disparate
treatment was based on his membership in a protected class. Wusiya v. City of
Miami Beach, 614 F. App’x 389, 393 (11th Cir. 2015) (citing DeYoung v. Owens,
646 F.3d 1319, 1327–28 (11th Cir. 2011)). The plaintiff’s failure to set forth any
such facts in his final amended complaint requires a dismissal of this claim. The
plaintiff’s assertion that he is due a jury trial on this claim does not require a
The plaintiff objects to the fact he has no constitutional right to a certain
classification because he believes that once he earns a classification he should not
be deprived of it without due process. (Doc. 35 at 6). This simply is not the law.
(3) “a written statement by the factfinder outlining the evidence relied on and the reasons for the
disciplinary action.” Wolff, 418 U.S. at 563–67.
Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Jones v. U.S., 534 F.2d 53, 54 (5th
Cir. 1976 (“courts have uniformly held that prison officials must have broad
discretion, free from judicial intervention, in classifying prisoners”).
plaintiff’s disagreement with the law is not a proper basis for an objection to the
report and recommendation.
Similarly, the plaintiff objects to the fact that he has no property interest in
his work release job and wants the merits of whether he has a property interest in
this job presented to a jury. (Doc. 35 at 6). As previously stated, the fact that the
plaintiff disagrees with the law does not entitle him to a jury trial. No basis for
claiming a property interest in a work release job exists under Alabama law. See
Whitehorn v. Harrelson, 758 F.2d 1416, 1420 (11th Cir. 1985).
The plaintiff asserts the magistrate judge incorrectly concluded that the
plaintiff failed to state a conspiracy claim because his amended complaint alleges
violations of his First, Fourth, Fifth, Eighth, Thirteenth and Fourteenth
Amendment rights. (Doc. 35 at 6). But the mere assertion of a constitutional right
does not in and of itself state a claim upon which relief can be granted. The
plaintiff failed to allege any supporting operative facts demonstrating that the
defendants “reached an understanding” or had a “meeting of the minds” to violate
his constitutional rights. Addickes v. S.H. Kress & Co., 398 U.S. 144, 152, 158
(1970). The plaintiff’s factual allegations, taken as true, fail to state a claim of
constitutional proportion. The plaintiff’s statement that a “reading of plaintiff’s
complaint reveals contacts between the defendants demonstrating that an
understanding was reached  sufficient [to] establish a conspiracy” (doc. 35 at 6),
does not require a finding otherwise.
In response to magistrate judge’s conclusion that the final amended
complaint failed to state a claim upon which relief can be granted for an Eighth
Amendment prison conditions claim, the plaintiff asserts that the Seventh
Amendment preserves his right to a jury trial. (Doc. 35 at 7). As previously
stated, the constitutional recognition that a right to a jury trial exists does not
equate to a legal requirement that meritless claims must be submitted to a jury.
Section 1915A requires a court determine whether the facts alleged in the
complaint, taken as true and viewed in the light most favorable to the defendant,
state a claim upon which relief can be granted. The plaintiff’s reliance on the
Seventh Amendment does not require a finding otherwise.
Likewise, the plaintiff objects to the magistrate judge’s finding that the
plaintiff’s First Amendment claim did not survive § 1915A review because the
plaintiff failed to allege any actual infringement on his practice of religion. (Doc.
35 at 7). However, the plaintiff’s failure to identify any sincerely held religious
belief is fatal to this claim.
Additionally, the plaintiff failed to identify any
interference with his practice of any religion based on having to keep prayer oil in
the chapel rather than his cell. The plaintiff’s allegations did not state a viable
First Amendment claim for interference with the practice of religion. See e.g.,
O’Lone v. Estate of Shabazz, 482 U.S. 342, 348–53 (1987); Davila v. Gladden, 777
F.3d 1198, 1212 (11th Cir. 2015) (citing Turner v. Safley, 482 U.S. 78,84 (1984))
(The First Amendment prohibits prison officials from imposing a substantial
burden on the free exercise of an inmate’s “sincerely held” religious belief unless
their actions or restrictions are “reasonably related to legitimate penological
The plaintiff further asserts that his Thirteenth Amendment claim should be
heard by a jury because he was forced to work for free after being removed from
his work release job. (Doc. 35 at 8). However, as set forth in the report and
recommendation, the plaintiff had no right to a work release job and no court has
ever found that requiring prisoners to perform duties at a prison for free equates to
slavery. (Doc. 33 at 28-31, 42-43).
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 as frivolous and for failing to state a claim
upon which relief can be granted.
A Final Judgment will be entered.
DONE the 13th day of November, 2017.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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