Filed: Dec. 21, 2016
Latest Update: Dec. 21, 2016
Summary: ORDER W. KEITH WATKINS , Chief District Judge . On November 1, 2016, the Magistrate Judge filed a Recommendation in this case. (Doc. # 14.) Plaintiff Kendrick Cook-Bey filed objections to the recommendation on December 16, 2016. (Doc. # 21.) The recommendation is due to be ADOPTED with some elaboration. Plaintiff is a pro se inmate in the custody of the Alabama Department of Corrections. After he filed a handwritten complaint detailing the allegations he thought formed the basis of his
Summary: ORDER W. KEITH WATKINS , Chief District Judge . On November 1, 2016, the Magistrate Judge filed a Recommendation in this case. (Doc. # 14.) Plaintiff Kendrick Cook-Bey filed objections to the recommendation on December 16, 2016. (Doc. # 21.) The recommendation is due to be ADOPTED with some elaboration. Plaintiff is a pro se inmate in the custody of the Alabama Department of Corrections. After he filed a handwritten complaint detailing the allegations he thought formed the basis of his c..
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ORDER
W. KEITH WATKINS, Chief District Judge.
On November 1, 2016, the Magistrate Judge filed a Recommendation in this case. (Doc. # 14.) Plaintiff Kendrick Cook-Bey filed objections to the recommendation on December 16, 2016. (Doc. # 21.) The recommendation is due to be ADOPTED with some elaboration.
Plaintiff is a pro se inmate in the custody of the Alabama Department of Corrections. After he filed a handwritten complaint detailing the allegations he thought formed the basis of his constitutional claim (Doc. # 1), the court ordered Plaintiff to file an amended complaint using a court-provided form (Doc. # 7). The purpose of the amended complaint was for him to name "as defendants only those individuals he contends are personally responsible for the alleged violations of his constitutional rights" and to "specifically describe[]" how each defendant contributed to the violation. (Doc. # 7.)
It appears Mr. Cook-Bey did not understand that the Amended Complaint would replace, not supplement, his original complaint. At the top of the facts portion of his Amended Complaint, he notes "insufficient room." (Doc. # 9, at 3.) But, rather than attaching a longer facts section to the form complaint, he attempts to incorporate by reference the facts of his previous complaint, writing "See Affidavit of Fact (6 pages filed, certificate of service June 21, 2016)." (Doc. # 9, at 3.) His original complaint was filed as a six-page document, which includes a certificate of service dated June 21, 2016. (Doc. # 1.) In view of these facts, it appears that Plaintiff intended for the facts section of his original complaint to be included as part of his Amended Complaint.
The Recommendation (Doc. # 14) evaluates Plaintiff's Amended Complaint, without considering the factual allegations presented in the original complaint. Because pro se filings must be construed liberally, Bellizia v. Fla. Dep't of Corrs., 614 F.3d 1326, 1329 (11th Cir. 2010), the court also will consider the allegations set forth in Plaintiff's initial complaint when evaluating his claims. Nevertheless, in accordance with the Recommendation, Plaintiff's claims against Commissioner Dunn and Warden Strickland are due to be dismissed.
To establish a claim under 42 U.S.C. § 1983, a plaintiff must show that the defendant caused him or her to be subjected to "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." Supervisory officials can be liable for the conduct of subordinates under § 1983 "when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between the actions of the supervising official and the alleged constitutional deprivation." Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). This causation requirement precludes claims based merely on a theory of vicarious liability. Gray v. Bostic, 458 F.3d 1295, 1308 (11th Cir. 2006). But, this circuit has held that a supervisor's conduct causes the deprivation when: (1) a "history of widespread abuse" puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he or she fails to do so; (2) a supervisor's custom or policy results in deliberate indifference to constitutional rights; or (3) facts support an inference that the supervisor directed subordinates to act unlawfully or knew that subordinates would act unlawfully and failed to stop them from doing so. Matthews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007); Cottone, 326 F.3d at 1360.
Defendants Warden Michael Strickland and Commissioner Jefferson Dunn are being sued because of actions taken in their respective roles as supervisory officials. Plaintiff's claim against Warden Strickland is based on the Warden's "failure to act . . . [a]fter being notified of violations of claimant's rights." (Doc. # 1, at 3.) Similarly, his claim against Commissioner Dunn is based on the Commissioner's "deliberately ignoring the several communications (good faith attempts, notices, letters, etc.) from the claimant and his legal advocate." (Doc. # 1, at 3.) These allegations do not establish that there was a history of widespread abuse or that either defendant was deliberately indifferent to constitutional violations. And they do not support the inference that either defendant directed subordinates to act unlawfully or failed to prevent them from doing so.
Accordingly, it is ORDERED that:
(1) The Recommendation is ADOPTED;
(2) Plaintiff's § 1983 claim against Defendants Commissioner Jefferson Dunn and Warden Michael Strickland are DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted; and
(3) The Clerk of the Court is directed to terminate Defendants Commissioner Jefferson Dunn and Warden Michael Strickland as parties.
This action is REFERRED back to the Magistrate Judge for further proceedings.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
