Pope v. Smith et al
ORDER ADOPTING 45 REPORT AND RECOMMENDATIONS re MOTION for Summary Judgment filed by COI Sizemore and MOTION for Summary Judgment filed by COI Smith. These motions for summary judgment are granted. ADOC's motion for summary judgment is granted and plaintiff's action against these defendants are dismissed with prejudice. Signed by Judge Kristi K. DuBose on 5/1/2014. (copy to plaintiff) (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MICHAEL POPE, JR., AIS #265261,
COI SMITH, et al.,
CIVIL ACTION NO. 13-00345-KD-C
After due and proper consideration of all portions of this file deemed relevant to the
issues raised, and a de novo determination of those portions of the Report and Recommendation
(Doc. 45) to which objection (Doc. 46) is made, the Report and Recommendation (Doc. 45) of
the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated April 1, 2014, is
ADOPTED as the opinion of this Court.
Accordingly, it is ORDERED that the motions for
summary judgment filed by Defendants COI Mack Smith (Docs. 21-22, 27) and COI James
Sizemore (Docs. 24-25, 34) are GRANTED and that Plaintiff’s claims against them in this
action are DISMISSED with prejudice.
The Report and Recommendation, however, did not address Plaintiff’s claims against
Defendant Alabama Department of Corrections (“ADOC”), and a review of the record reveals no
other order or entry dismissing ADOC as a party.
ADOC currently remain pending.
Accordingly, Plaintiff’s claims against
However, ADOC has also moved for summary judgment
(see Docs. 21-22, 27),1 and the undersigned finds that Plaintiff’s claims against it are easily
resolved in favor of ADOC.
Both ADOC and COI Smith filed a joint Answer (Doc. 21) and Special Report (Doc. 22), which were
converted to a motion for summary judgment by order of the Magistrate Judge entered November 7, 2013
(Doc. 27). However, the November 7, 2013 docket entry creating an active motion from the Answer and
Special Report mistakenly omits ADOC as a party to the motion and reads “MOTION for Summary
Judgment (converting doc. 21 & 22) by COI Smith” only.
With some exceptions, “a suit in which the State or one of its agencies or departments is
named as the defendant is proscribed by the Eleventh Amendment.
applies regardless of the nature of the relief sought.”
Halderman, 465 U.S. 89, 100 (1984) (citations omitted).
This jurisdictional bar
Pennhurst State Sch. & Hosp. v.
ADOC is a department of the State of
See Haley v. Barbour Cnty., 885 So. 2d 783, 788 (Ala. 2004).
The courts have recognized two exceptions to eleventh amendment immunity. First,
Congress can abrogate eleventh amendment immunity without the state's consent
when it acts pursuant to the enforcement provisions of section 5 of the fourteenth
amendment. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S. Ct.
3142, 3145, 87 L. Ed. 2d 171 (1985). Second, a state may waive its immunity
expressly through legislative enactment. “[I]n the absence of consent[,] a suit in
which the State or one of its agencies or departments is named as the defendant is
proscribed by the Eleventh Amendment.” Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 908, 79 L. Ed. 2d 67 (1984).
Carr v. City of Florence, Ala., 916 F.2d 1521, 1524-25 (11th Cir. 1990) (footnote omitted).
Neither of these exceptions applies in this case to ADOC.
“Congress has not abrogated
eleventh amendment immunity in section 1983 cases.” Id. at 1525 (citing Quern v. Jordan, 440
U.S. 332, 345 (1979)).
Moreover, “[s]tates … no longer need to rely exclusively on eleventh
amendment immunity to avoid liability … in section 1983 cases. In Will v. Michigan
Department of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989), the Supreme
Court held that states … are not “persons” subject to liability under 42 U.S.C. § 1983.” Id. at n.3
(11th Cir. 1990). In addition, “[t]he state of Alabama has not waived its immunity.
section 14 of the Alabama Constitution of 1901 expressly states that ‘the State of Alabama shall
never be made a defendant in any court of law or equity.’ ”2 Id. at 1523 (internal citations
Section 14, Ala. Const. 1901, provides “[t]hat the State of Alabama shall never be made a
defendant in any court of law or equity.” This section affords the State and its agencies an
“absolute” immunity from suit in any court. Ex parte Mobile County Dep't of Human Res.,
815 So. 2d 527, 530 (Ala. 2001) (stating that Ala. Const. 1901, § 14, confers on the State of
Alabama and its agencies absolute immunity from suit in any court); Ex parte Tuscaloosa
As for Plaintiff’s claims under 18 U.S.C. §§ 241-42, the Magistrate Judge has
already found them frivolous as a matter of law, as they are criminal statutes providing Plaintiff
no private civil cause of action (See Doc. 45 at 19-20, § III.C); regardless, no waiver of Eleventh
Amendment immunity has been shown as to these claims either.
As ADOC is entitled to Eleventh Amendment immunity on all of Plaintiff’s claims, it is
ORDERED that ADOC’s motion for summary judgment (Docs. 21-22, 27) is also GRANTED
and that Plaintiff’s claims against ADOC are DISMISSED with prejudice.
Final judgment in accordance with this Order and Federal Rule of Civil Procedure 58
shall issue by separate document.
DONE and ORDERED this the 1st day of May 2014.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
County, 796 So. 2d 1100, 1103 (Ala. 2000) (“Under Ala. Const. of 1901, § 14, the State of
Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or
agencies of the state....”). Indeed, this Court has described § 14 as an “almost invincible”
“wall” of immunity. Alabama State Docks v. Saxon, 631 So. 2d 943, 946 (Ala. 1994). This
“wall of immunity” is “nearly impregnable,” Patterson v. Gladwin Corp., 835 So. 2d 137, 142
(Ala. 2002), and bars “almost every conceivable type of suit.” Hutchinson v. Board of
Trustees of Univ. of Ala., 288 Ala. 20, 23, 256 So. 2d 281, 283 (1971).
Haley v. Barbour Cnty., 885 So. 2d 783, 788 (Ala. 2004)
“A third exception [to Eleventh Amendment immunity ]is available in limited circumstances.
Prospective injunctive relief may be sought in ‘a suit challenging the constitutionality of a state official's
action.’ Pennhurst, 465 U.S. at 102, 104 S. Ct. at 909 (discussing Ex Parte Young, 209 U.S. 123, 28 S. Ct.
441, 52 L. Ed. 714 (1908)). See also Kentucky v. Graham, 473 U.S. 159, 105 S. Ct. 3099, 87 L.Ed.2d 114
(1985) …” Carr, 916 F.2d at 1525 n.2. As the Magistrate Judge noted in his Report and
Recommendation, while Plaintiff has sought injunctive and declaratory relief in this action, he appears to
base the request for such relief on statutory (specifically, 18 U.S.C. §§ 241-42) rather than constitutional
grounds (see Report & Recommendation, Doc. 45 at 19, § III.B). Regardless, ADOC is not a proper
party against which to apply this exception. See Graham, 473 U.S. at 169 n.18 (1985) (“In an injunctive
or declaratory action grounded on federal law, the State's immunity can be overcome by naming state
officials as defendants.” (citing Pennhurst)).
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