Sturdivant v. Chactaw County, Alabama
REPORT AND RECOMMENDATIONS re 6 Amended Complaint filed by Tommy Sturdivant, 1 Complaint filed by Tommy Sturdivant Objections to R&R due by 1/20/2014. Signed by Magistrate Judge Sonja F. Bivins on 1/6/2014. (adk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
TOMMY STURDIVANT, AIS # 148248, *
CHOCTAW COUNTY, ALABAMA, et al.,*
CIVIL ACTION: 12-0681-CB-B
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and
in forma pauperis, filed a Complaint under 42 U.S.C. § 1983.
This action has been referred to the undersigned for appropriate
It is recommended that this action be dismissed
with prejudice, prior to service of process,
pursuant to 28
U.S.C. § 1915(e)(2)(B)(i) and (ii) because Plaintiff’s claims
are either frivolous or fail to state a claim upon which relief
may be granted.
Complaint. (Doc. 1).
complaint which names as Defendants Choctaw County, Alabama, and
its Commissioners “in 2010,” Probate Judge D. Wayne May
Marshal ordered the Choctaw County Jail (“jail”) to shut down by
October 29, 2010 because the jail had bad wiring and lead paint,
which posed a hazard to inmates and their family members. (Id.,
at 4, 5, 9).
Plaintiff further alleges that
when the Choctaw County Jail was built[,] no one never reported
the lead paint being inside the Choctaw County Jail.
commissions.” (Id., at 9).
According to Plaintiff, prior to
ordered Plaintiff and three other inmates to scrape lead paint
off the walls and ceilings of three cells on second floor of the
jail in July, 2010. (Id., at 4, 10).
Plaintiff relates that he has been in and out of the jail
things. (Id., at 5).
He believes that the lead paint has caused
him to suffer brain damage, a mental disorder, and lung disease
mother visited him at the jail over the years, her death in
“2008 or 2009” from cancer “could have been because of lead
paint from the Choctaw County Jail.” (Id., at 4-5).
Additionally, Plaintiff complains about being placed in the
hole for thirty days in 2007, which he alleges violated due
process. (Id., at 8).
He claims that he was placed in the hole
because he broke his hand, and that the fracture of his right
hand, which resulted in a cast being placed on his right arm and
hand, was caused by Defendant Lovett’s negligence in having a
steel table without bolts. (Id.).
According to Plaintiff, he
suffered physically and mentally due to the conditions in the
hole, namely, not being allowed to shower for fifteen days, and
being at the mercy of trustees when he needed drinking water,
medications, and a clean a blanket and sheets. (Id.).
Plaintiff contends that he filed two motions in the circuit
court to have a doctor remove his cast, and his lawyer filed two
motions for medical treatment, with the last motion being filed
on January 17, 2008. (Id.).
According to Plaintiff, the judge
ruled that these matters were in the sheriff’s jurisdiction, not
his jurisdiction. (Id.).
Plaintiff also alleges that because Defendant Lovett would
not take him to the doctor for the pain in his hand, Plaintiff
re-broke his right hand. (Id., at 9).
Per Plaintiff, at the
that time, his hand had been in a cast for fifteen weeks and
three days, which Plaintiff contends was seven weeks, three days
too long. (Id.).
Plaintiff alleges that when he re-broke his
hand, Defendant Lovett ordered that he be placed in the hole.
Plaintiff further alleges that he was put in the hole
for five hours without receiving medical treatment or a hearing,
and that he did not see anyone from the Health Department from
March 9, 2007 to June 2008 and then from May 14, 2010 until
October 29, 2010. (Id.).
County to pay him $850,000 for his mother’s death, 1 $850,000 for
his exposure to lead paint, and $100,000.00 in attorney fees.
declaratory judgment that his rights were violated under the
Constitution and the Eighth and Fourteenth Amendments, the costs
of this action, and “any additional relief this court deems
just[,] proper[,] and equitable.”
(Id. at 9).
He also states
finger is growing over his ring finger and at times, is painful.
The Court notes that there is a “general prohibition on a
litigant's raising another person's legal rights.” Allen v.
Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 3324, 82 L. Ed. 2d
Due to the disposition of this action, the Court
will discuss whether Plaintiff has standing to bring a claim for
his mother’s death.
Subsequent to filing his original complaint, Plaintiff
filed an amended complaint (Doc. 6).
The amended complaint is
not signed, is not sworn under under penalty of perjury, and is
chiefly comprised of requests for subpoenas. (Id., at 1, 3).
Because the Amended Complaint is not signed, it is due to be
Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).
Plaintiff asserts that “Sheriff Lovette knew or should have
known the lead paint dust would get into [his] lungs without
some kind of mask to put over [his] face.
It was a[n] ‘EVIL
In order to remove hazard[ous] material lead paint a
person has to be license[d] and wear a special suit in order to
remove hazard[ous] material[,] lead paint.” (Id., ¶ 14).
Plaintiff also claims that Defendant “Lovette and [the] Choctaw
County Probate Judge caused [him] to have a breathing problem
for the rest of [his] life [and that Defendant] Lovette hurt
[him] physical[ly] and mentally on purpose.” (Id., ¶¶ 14-16).
Plaintiff also attached an excerpt of his case action summary
for the period November 27, 2007 through December 3, 2008. (Id.,
Plaintiff also requested the Court to take notice of the
decision in Nicholson v. Choctaw County, Ala., 78-407-P [498 F.
Supp. 295 (S.D. Ala. 1980)], for the proposition that only
Nicholson did not know about the lead paint at the jail. (Id.,
at 3, ¶ 19).
After reviewing the decision in Nicholson v.
Choctaw County, Ala., supra, the Court finds that no reference
is made to lead paint or to paint among the numerous other
conditions that were litigated concerning the jail at that time.
The Court further notes the sheriff at that time was Donald
Lolley, not Defendant Lovette.
Finally, Plaintiff’s unsworn allegations in the amended
complaint indicating that Defendant Lovette knew of the lead
paint contradict the allegations in the complaint, which were
sworn to under penalty of perjury (Doc. 1 at 9).
therefore finds the unsworn allegations in amended complaint
regarding Defendants’ knowledge to be without a factual basis;
therefore, they are frivolous. Cf. Battle v. Central State
Hosp., 898 F.2d 126, 130 n.3 (11th Cir. 1990) (observing that
“allegations that are contradicted by other allegations in the
complaint may also constitute grounds for dismissal” as
dismissed as “frivolous where it lacks an arguable basis in law
or fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct.
1827, 1831-32, 104 L. Ed. 2d 338 (1989).
A claim is frivolous
as a matter of law where, inter alia, the defendants are immune
from suit, id., at 327, or the claim seeks to enforce a right
that clearly does not exist. Id.
relief may be granted. Mitchell v. Farcass, 112 F.3d 1483, 1490
(11th Cir. 1997).
To avoid dismissal for failure to state a
claim upon which relief can be granted, the allegations must
show plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
557, 127 S. Ct. 1955, 1966, 167 L. Ed. 2d 929 (2007).
content that allows the court to draw the reasonable inference
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173
L. Ed. 2d 868 (2009).
That is, “[f]actual allegations must be
enough to raise a right to relief above the speculative level”
and must be a “‘plain statement’ possess[ing] enough heft to
‘sho[w] that the pleader is entitled to relief.’” Twombly, 550
U.S. at 555 (second brackets in original).
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
Furthermore, when a
limitations, appears on the face of a complaint, dismissal for
failure to state a claim is also warranted. Jones v. Bock, 549
U.S. 199, 215, 127 S. Ct. 910, 920-21, 166 L. Ed. 2d 798 (2007).
When considering a pro se litigant’s allegations, a court
gives them a liberal construction holding them to a more lenient
standard than those of an attorney. Haines v. Kerner, 404 U.S.
519, 520, 92 S. Ct. 594, 595-596, 30 L. Ed. 2d 652 (1972).
court, however, does not have “license . . . to rewrite an
otherwise deficient pleading [by a pro se litigant] in order to
sustain an action.” GJR Investments v. County of Escambia, Fla.,
132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds
by Randall v. Scott, 610 F.3d 791, 710 (11th Cir. 2010) (relying
on Iqbal, 556 U.S. 662).
Furthermore, a court treats as true
factual allegations, but it does not treat as true conclusory
assertions or a recitation of a cause of action’s elements.
Iqbal, 566 U.S. at 681.
In addition, a pro se litigant “is
subject to the relevant law and rules of court including the
Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d
835, 837 (11th Cir. 1989), cert. denied, 493 U.S. 863 (1989).
Applicability of the Statute of Limitations.
Plaintiff’s claims based on his placement in the hole, the
treatment, all of which are identified as having occurred in
2007 or 2008, are barred by the statute of limitations.
actions. Lufkin v. McCallum, 956 F.2d 1104, 1105, 1108 n.2 (11th
Cir. 1992), cert. denied, 506 U.S. 917 (1992); ALA. CODE § 6-238(l).
limitations for personal injury actions, Wallace v. Kato, 549
U.S. 384, 387, 127 S. Ct. 1091, 1094, 166 L. Ed. 2d 973 (2007);
Owens v. Okure, 488 U.S. 235, 239, 109 S. Ct. 573, 576, 102 L.
Ed. 2d 594 (1989), because § 1983 does not contain a statute of
statute of limitations for personal injuries is used for § 1983
actions filed in Alabama. Lufkin, 956 F.2d at 1105, 1108 n.2;
accord McNair v. Allen, 515 F.3d 1168, 1170 (11th Cir. 2008)
limitations period, federal law governs when the cause of action
accrues. Wallace, 549 U.S. at 388.
Under federal law, “[accrual
occurs] when the plaintiff has a complete and present cause of
. . . that is, when the plaintiff can file suit and
quotation marks omitted); see Mullinax v. McElhenney, 817 F.2d
711, 716 (11th Cir. 1987) (a § 1983 action accrues when a person
with a reasonable regard for his rights is aware or has reason
to know that he has been injured).
Therefore, considering the
tenor of Plaintiff’s allegations, he knew of any injury related
to being in the hole, to his broken hand, and to the rulings by
the judge at the time those actions transpired in 2007 and 2008;
therefore, he had complete causes of action on which to file an
action in 2007 and 2008.
Nonetheless, Plaintiff’s complaint was signed on October
24, 2012, which is more than two years from when his claims
Accordingly, Plaintiff’s claims based on his placement
in the hole, the inadequate treatment received for his broken
hand, and the rulings made by an unidentified judge regarding
medical treatment are barred by the statute of limitations.
Under the mailbox rule, absent contrary evidence, a
prisoner’s motion is deemed filed on the date it is delivered to
prison officials for mailing. Washington v. United States, 243
F.3d 1299, 1301 (llth Cir. 2001).
Although the Clerk received
the complaint on October 26, 2012, the filing date is the date
that Plaintiff signed the complaint and tendered it to jail
officials for mailing. (Doc. 1).
dismissed with prejudice as frivolous. Clark v. Georgia Pardons
& Paroles Bd., 915 F.2d 636, 640 n.2 (11th Cir. 1990) (when an
affirmative defense, such as the statute of limitations, would
defeat a claim, the claim may be dismissed as frivolous); Simon
limitations grounds after Bock);4 cf. Bock, 549 U.S. at 215 (when
limitations, appears on the face of a complaint, a complaint is
subject to dismissal for failure to state a claim).
Eighth Amendment Claims
Plaintiff’s remaining claims involve his allegation that
Defendant Lovette ordered him and other inmates to scrape lead
paint off jail walls in July, 2010, 5 and that in 2010 Defendants
May, Lovette, Choctaw County, and Commissioners exposed him to a
health hazard when he was placed in a jail that had lead paint
asserts that “from 1964 when the Choctaw County Jail was built,
precedent, but they may be cited as persuasive authority.” 11TH
CIR. R. 36-2 (2005).
The Court is foregoing a discussion of whether the claim
for scraping the lead paint off of the walls in July, 2010 is
barred by the statute of limitations due to its holding that
Plaintiff failed to allege that Defendants were deliberately
indifferent with respect to his lead paint claims.
no one never reported the lead paint being inside the Choctaw
Not the Sheriff [,] . . .Probate Judge[,] . . .
County Health Department[,] . . .
County Fire Marshal[,] . . .
(Id. at 9).
detainee or a convicted prisoner at the time these claims based
on his living conditions arose.
If he was a pretrial detainee,
see Doc. 1 at 6, the Fourteenth Amendment governs his claims.
On the other hand, if he was a convicted prisoner, his claims
arise under the Eighth Amendment.
Courts, however, employ the
same standards under either the Eighth or Fourteenth Amendment
inmate’s constitutional rights. Goodman v. Kimbrough, 718 F.3d
1325, 1331 n.1 (11th Cir. 2013).
For the purpose of this Report
and Recommendation, the Court will refer to the Eighth Amendment
for simplicity’s sake as many of the reported cases relied upon
refer to the Eighth Amendment and confusion will be avoided.
incarceration be comfortable. Rhodes v. Chapman, 452 U.S. 337,
349, 101 S. Ct. 2392, 2401, 69 L. Ed. 2d 59 (1981).
All that is
reasonably adequate food, clothing, shelter, sanitation, medical
care, and personal safety.” Newman v. Alabama, 559 F.2d 283, 291
(5th Cir.), rev’d in part sub nom. Alabama v. Pugh, 438 U.S.
781, 98 S. Ct. 3057, 57 L. Ed. 2d 1114 (1978); see Helling v.
McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475, 2480, 125 L. Ed. 2d
22 (1993); Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir.
1985), cert. denied, 475 U.S. 1096 (1986).
The Eighth Amendment
is violated only when prison conditions “involve the wanton and
unnecessary infliction of pain.” Rhodes, 452 U.S. at 346.
Brennan, 511 U.S. 825, 836, 114 S. Ct. 1970, 1983, 128 L. Ed. 2d
The objective component requires the Court to look
to “contemporary standards of decency” to determine whether the
challenged condition resulted in a deprivation of “the minimal
civilized measure of life’s necessities.” Rhodes, 452 U.S. at
Moreover, the challenged condition must be “extreme . . .
criminal offenders pay for their offenses against society[.]’”
Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995, 1000, 117 L.
punishment when no specific deprivation of a single human need
exists.” Wilson v. Seiter, 501 U.S. 294, 305, 111 S. Ct. 2321,
2327, 115 L. Ed. 2d 271 (1991); see Jordan v. Doe, 38 F.3d 1559,
1565 (11th Cir. 1994) (same).
The subjective component requires that prison officials be
harm. Farmer, 511 U.S. at 828-29.
“[A] prison official cannot
be found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Id., at 837.
because the “[t]he Eighth Amendment does not outlaw cruel and
‘punishments.’” Id., at 838.
“In addition, prison officials who
actually knew of a substantial risk to inmate health or safety
may be found free from liability if they responded reasonably to
the risk, even if the harm ultimately was not averted.” Id., at
significant risk that he should have perceived[,] but did not,
condemned as the infliction of punishment.” Id., at 838.
In addition to satisfying both the objective and subjective
constitutional violation caused his injuries.” Marsh v. Butler
Cnty., Ala., 268 F.3d 1014, 1028 (11th Cir. 2001); see Hale v.
Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995) (observing
substantial risk of serious harm; (2) the defendants' deliberate
indifference to that risk; and (3) causation”).
Wainwright, 802 F.2d 397, 401 (11th Cir. 1986).
violation due to its acts or omissions.” Id. at 1027.
liability is limited to only matters for which it is actually
erecting and maintaining a jail. Id., at n.7 (citing ALA. CODE §§
responsible for operating the jail. Id.
Thus, an Alabama county
can only be found to have violated the Eighth Amendment “if its
failure to maintain the Jail constituted deliberate indifference
to a substantial risk of serious harm to the prisoners.” Id., at
And, the plaintiff bears the burden of
showing that a
responsibilities to a county jail), cert. denied, 525 U.S. 874
Defendants knew that the jail’s paint contained lead, only that
he was directed to scrap paint. Plaintiff, however, is required
to show that each Defendant “kn[ew] of and disregard[ed] an
excessive risk to inmate health or safety” in order to show a
deliberate indifference for an Eighth Amendment claim. Farmer,
511 U.S. at 837.
If a Defendant did not know that there was
lead in the paint, then the Defendant cannot be found to be
argue that a Defendant should have known, a Defendant’s failure
to perceive “a significant risk . . . but did not, while no
cause for commendation” is not deliberate indifference. Id., at
In order to state an Eighth Amendment claim, each element
must be satisfied. Hale, 50 F.3d at 1582 (an Eighth Amendment
claim requires: “(1) a substantial risk of serious harm; (2) the
Plaintiff, however, did not allege and did not
show with supporting facts that each Defendant was deliberately
Because Plaintiff did not allege this subjective
Eighth Amendment claims are due to be dismissed with prejudice,
in light of the tenor of his allegations.
Based upon the foregoing reasons, it is recommended that
this action be dismissed with prejudice, prior to service of
because Plaintiff’s claims are either frivolous or fail to state
a claim upon which relief may be granted.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on
objects to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document, file
specific written objections with the Clerk of this Court. See 28
U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4.
The parties should note that under Eleventh Circuit precedent,
“the failure to object limits the scope of  appellate review
findings.” Dupree v. Warden, Attorney General, State of Alabama,
715 F.3d 1295, 1300 (11th Cir. 2011).
In order to be specific,
recommendation to which objection is made, state the basis for
the objection, and specify the place in the Magistrate Judge’s
report and recommendation where the disputed determination is
An objection that merely incorporates by reference or
DONE this 6th day of January, 2014.
/s/SONJA F. BIVINS
UNITED STATES MAGISTRATE 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?