KATHERINE P. NELSON, Magistrate Judge.
Plaintiff Rickie Lee Cloy ("Cloy"), proceeding pro se and in forma pauperis (see Doc. 6), has brought this action asserting claims under 42 U.S.C. § 1983.
Cloy's second amended complaint, dated June 11, 2013 (Doc. 21), as supplemented (Doc. 25), is the operative pleading in this action (see Doc. 18; Doc. 28 at 1; Doc. 32 at 1; Doc. 38 at 1)
Sheriff Mack was provided notice of this lawsuit (see Doc. 34) and has filed a Special Report (Doc. 40) and Answer (Doc. 41), which have been converted to a Motion for Summary Judgment under Federal Rule of Civil Procedure 56 by order of the undersigned (Doc. 46). Cloy filed a response (Doc. 44) to the Special Report.
Three attempts were made to send notice of this lawsuit to Seymore and Boutwell. (See Docs. 28, 29, 31, 32, 33, 35, 38, 39, 45). All three attempts to provide notice to Seymore have been unsuccessful, with the Baldwin County District Attorney's Office informing the Court that he is no longer employed there (see Doc. 45). Though the third notice sent to Boutwell (Doc. 39) has not been returned as undeliverable, as the previous two (Docs. 31, 35) were, Boutwell "has not acknowledged receipt of Cloy's complaint or waived service of summons." (Doc. 46 at 2 n.1).
In analyzing the propriety of a motion for summary judgment, the Court begins with these basic principles. The Federal Rules of Civil Procedure grant this Court authority under Rule 56 to render "judgment as a matter of law" to a party who moves for summary judgment. Federal Rule of Civil Procedure 56(a) provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court held that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . ." However, all of the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L. Ed. 2d 142 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004).
Federal Rule of Civil Procedure 56(e) further provides:
The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the `pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence showing there is no dispute of material fact or by pointing out to the district court that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-25.
Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to show the existence of a genuine issue of material fact. See Stabler v. Fla. Van Lines, Inc., Civil Action No. 11-0103-WS-N, 2012 WL 32660, at *5 (S.D. Ala. Jan.6, 2012) (citing Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991)). Summary judgment is proper when "a party fails to make a showing sufficient to establish the existence of an essential element of that party's case." McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004) (citations and internal quotation marks omitted). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. . . . If the evidence is merely colorable, . . . or is not significantly probative, . . . summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L. Ed. 2d 202 (1986) (internal citations omitted). "After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." AGSouth Genetics, LLC v. Cunningham, No. CA 09-745-C, 2011 WL 1833016, at *2 (S.D. Ala. May 13, 2011). "`An issue of fact is "material" if, under the applicable substantive law, it might affect the outcome of the case. An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.'" Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014) (quoting Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004) (citations omitted)).
"A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. . ." E.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation and quotations omitted). Nevertheless, "a court may not `serve as de facto counsel for a party' or `rewrite an otherwise deficient pleading in order to sustain an action.'" Muhammad v. Bethel, 430 F. App'x 750, 752 (11th Cir. 2011) (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds, see Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010)). Additionally, "[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment. Rather, the onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned." Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc) (internal citation omitted). Accord, e.g., Gennusa v. Canova, 748 F.3d 1103, 1116 (11th Cir. 2014).
On May 13, 2011, in the criminal action State of Alabama v. Cloy Ricky Lee, Case # CC 2007 000958.00, Baldwin County Circuit Judge James Reid issued a writ for Cloy's arrest, or bench warrant, for the purpose of conducting probation revocation proceedings. (Doc. 40-1 at 2). On February 17, 2012, Boutwell, on behalf of the Baldwin County Circuit Court Clerk, issued writs of arrest for Cloy upon the return of an indictment against Cloy by the Grand Jury of Baldwin County charging Burglary 1st Degree (Case # GJ 2012 020360.00) and Robbery 1st (Case # GJ 2012 020361.00) with bond set at $50,000.00. (Doc. 40-2 at 4-5). Cloy was arrested by the Gulf Coast Regional Fugitive Task Force on May 2, 2012, pursuant to the two February 17, 2012 warrants and the probation violation (id. at 6; Doc. 40-3 at 3, ¶ 4) and was booked into the Baldwin County Corrections Center the next day (Doc. 40-2 at 7; Doc. 40-3 at 3, ¶ 5). After Cloy's booking, Judge Reid's bench warrant was executed by a member of Sheriff Mack's staff that same day. (Doc. 40-1 at 3; Doc. 40-3 at 3, ¶ 7). Confirmation was also received that day that Cloy had active arrest warrants issued by the police departments of Gulf Shores and Foley, Alabama. (Doc. 40-2 at 8-9).
Judge Reid's executed bench warrant was filed with Baldwin County Circuit Court Clerk on May 7, 2012. (Doc. 40-1 at 3). On May 9, 2012, Judge Reid set Cloy's case for a probation revocation hearing on May 24, 2014. (Doc. 40-1 at 4). On May 17, 2012, Judge Reid set Cloy's bond at $20,000, "to be approved by the Sheriff." (Doc. 40-2 at 10). On May 31, 2012, Judge Reid entered an order (dated May 24, 2012) in Cloy's criminal case stating as follows:
(Doc. 40-1 at 5).
That order also taxed costs of the proceedings against Cloy and ordered him to reimburse the State of Alabama $400.00 for his appointed counsel. (Id.).
Cloy filed pro se a notice of appeal of his probation revocation (id. at 6), was appointed counsel on appeal, and was denied an appeal bond (id. at 7). However, Cloy later filed pro se a motion to voluntarily dismiss his appeal, stating he "believe[d] it would be in [his] best intress [sic] to E.O.S. [his] sentence." (Id. at 17). Pursuant to Cloy's motion (received by the court on June 20, 2012), the Alabama Court of Criminal Appeals dismissed his appeal and entered its Certificate of Judgment on July 9, 2012. (Id. at 19-20).
On July 5, 2012, Cloy was released from the Baldwin County Corrections Center into the custody of the Alabama Department of Corrections. (Doc. 40-2 at 11-13; Doc. 40-3 at 3, ¶ 5). In November 1, 2012, Cloy filed pro se two letter motions with the Baldwin County Circuit Court to be allowed to participate in the "Community Corrections Program — Back in Diversion." (Doc. 40-1 at 21-25). The circuit court denied both motions on December 12, 2012. (Id. at 26-27).
In his operative complaint (Doc. 21),
(Id. at 6).
In his operative complaint, Cloy asserts claims for false arrest and false imprisonment under 42 U.S.C. § 1983.
Cloy's response (Doc. 44) to Sheriff Mack's Special Report provides some clarification regarding his claims. As in his operative complaint, see supra, Cloy admits "that he had indeed violated the terms of his probation." (Id.
Upon consideration, the undersigned finds that Cloy is not challenging the propriety of his arrest and confinement on the basis of his probation violation. Rather, his claims in this action are based on the propriety of the Burglary 1st and Robbery 1st charges, and the resulting February 17, 2012 arrest warrants issued by the Baldwin County Circuit Clerk's Office based on those charges. (See, e.g., Doc. 21 at 4 ("On or about May 1st 2012 petitioner was falsely arrested and charged with the offense charge of Robbery 1st and Burglary 1st. . ."). Cloy claims that there was no witness or other evidence to support these charges. Instead, he claims the "state falsified documents to get an arrest. . ." (Id. at 5).
Cloy contends that, had the state simply held him on "a probation violation and proceeded to process that case[,]" he "very well may have been able to make a probation bond or a 90 day sanction. . ." (Id. at 5-6). However, because the prosecutor allegedly issued trumped-up and false felony charges against Cloy, in addition to his probation violation, Cloy claims this caused him to be placed under an "outrageous" "$200,000.00 bond" and to be held in "a level (4) high level security facility"/"strick [sic] holding facility for absolutely no-reason. . ." (Id. at 5). Moreover, the additional, false felony charges allegedly resulted in Judge Reid and Cloy's probation officer "refus[ing] to sanction [Cloy] to a lesser violation penelity [sic]." (Id. at 6).
In sum, the undersigned finds Cloy's claims are based on the following circumstances:
Though Cloy's complaint cites the Fifth and Fourteenth Amendments in asserting claims for false arrest and imprisonment, the Eleventh Circuit has held that where, as here, a plaintiff is arrested pursuant to a warrant, the plaintiff's § 1983 claim is one for malicious prosecution rather than false arrest or false imprisonment. See Whiting v. Traylor, 85 F.3d 581, 585 (11th Cir. 1996) ("Here, Whiting says that Defendants applied for and obtained an arrest warrant and— based on the warrant—caused him to be unreasonably `seized' in 1988. He says also he was unlawfully arrested in February 1989. Obtaining an arrest warrant is one of the initial steps of a criminal prosecution. Under these circumstances (that is, where seizures are pursuant to legal process), we agree with those circuits that say the common law tort most closely analogous to this situation is that of malicious prosecution." (some quotation marks omitted)); Carter v. Gore, 557 F. App'x 904, 906 (11th Cir. 2014) (per curiam) ("The district court dismissed Carter's claim in part because if Carter's `arrest occurred pursuant to an arrest warrant, then he cannot state a viable § 1983 claim for false arrest or false imprisonment.' Instead, the district court held that Carter could only make out a claim for malicious prosecution, which is the constitutional tort available to people who have been wrongfully arrested pursuant to legal process. . .Given that Carter was arrested pursuant to a warrant, the district court properly concluded that Carter's only available claim against [police officer ]Gore under § 1983 was for malicious prosecution. In Heck v. Humphrey, the Supreme Court distinguished false arrest from malicious prosecution, stating, `unlike the related cause of action for false arrest or imprisonment, [malicious prosecution] permits damages for confinement imposed pursuant to legal process.' 512 U.S. 477, 484, 114 S.Ct. 2364, 2371, 129 L. Ed. 2d 383 (1994). The issuance of a warrant—even an invalid one as Carter alleges was issued here—constitutes legal process, and thus, where an individual has been arrested pursuant to a warrant, his claim is for malicious prosecution rather than false arrest." (citing, inter alia, Whiting)). "This Circuit `has identified malicious prosecution as a violation of the Fourth Amendment and a viable constitutional tort cognizable under § 1983.'" Grider v. City of Auburn, Ala., 618 F.3d 1240, 1256 (11th Cir. 2010) (quoting Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003)). "To establish a § 1983 malicious prosecution claim, the plaintiff must prove two things: (1) the elements of the common law tort of malicious prosecution; and (2) a violation of his Fourth Amendment right to be free from unreasonable seizures." Id.
As such, construing the allegations in Cloy's pro se pleadings liberally, the undersigned finds that Cloy's claims in this action are for malicious prosecution, rather than false imprisonment, under § 1983. Moreover, because Cloy does not specify in what capacit(ies) he is suing the Defendants, the undersigned will presume that each is being sued in both his or her individual and official capacities.
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. This jurisdictional bar applies regardless of the nature of the relief sought." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (citations omitted). "[S]tate officials sued in their official capacity are also protected by the amendment." Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Indeed,
Id. at n.3.
Alternatively, "[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." Carr v. City of Florence, Ala., 916 F.2d 1521, 1525 n.3 (11th Cir. 1990). Moreover, "[s]uing individuals in their official capacities is `another way of pleading an action against an entity of which an officer is an agent.' " Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1524 (11th Cir. 1995) (quoting Graham, 473 U.S. at 165). As such, "[a] state, a state agency, and a state official sued in his official capacity are not `persons' within the meaning of § 1983, thus damages are unavailable. . ." Id. (citing Will, 491 U.S. at 71). The analysis for determining whether a state official is covered by eleventh amendment immunity is the same as that for applying Will v. Michigan Department of State Police — courts consider the laws of the state. Carr, 916 F.2d at 1525 & n.4.
Sheriff Mack asserts that he is entitled to Eleventh Amendment immunity (see Doc. 41 at 2), and the Eleventh Circuit has held "that the eleventh amendment bar[s] a section 1983 lawsuit against an Alabama sheriff in his official capacity." Carr, 916 F.2d at 1525 (citing Parker v. Williams, 862 F.2d 1471 (11th Cir. 1989)). Alabama district attorneys' offices have also been held to be state agencies enjoying Eleventh Amendment immunity. See Garrett v. Talladega Cnty. Drug & Violent Crime Task Force, 983 F.Supp.2d 1369, 1376 (N.D. Ala. 2013) ("All District Attorney's offices are deemed to be agencies of the State of Alabama. Hooks v. Hitt, 539 So.2d 157, 159 (Ala. 1988) (holding that the district attorneys and their employees are `state employees whose salaries are funded by the state') (citing Ala. Code § 12-7-182 (1975)); McMillian v. Monroe County, Ala., 520 U.S. 781, 790, 117 S.Ct. 1734, 1739, 138 L. Ed. 2d 1 (1997) (citing Hooks and observing that an Alabama district attorney is a state official).").
Finally, Alabama law indicates that circuit court clerks' offices are considered state agencies. Compare Ala. Code § 12-17-80 ("Clerks. . .of the circuit court shall be paid by the state. . .Employees in the offices of the circuit clerks. . .shall be paid by the state beginning October 1, 1977. Employees in the offices of clerks. . .shall be paid by the county through September 30, 1977.") and Stegmaier v. Trammell, 597 F.2d 1027, 1037 (5th Cir. 1979)
Jacoby v. Baldwin Cnty., Civil Action No. 12-0640-CG-N, 2014 WL 2641834, at *7 (S.D. Ala. June 13, 2014) (Granade, J., adopting the recommendation of Nelson, M.J.). Accord Carr, 916 F.2d at 1524-25 & n.2. See also Edwards, 49 F.3d at 1524 ("[A] state official sued in his official capacity is a person for purposes of § 1983 when prospective relief, including injunctive relief, is sought." (citing Will, 491 U.S. at 71 n.10)).
Cloy has not sought, nor shown entitlement to, prospective relief to end ongoing and continuing violations of federal law,
As explained above, Seymore has not been served with notice of this action, and it is unclear if Boutwell has. Upon review of the record, the undersigned finds that sua sponte dismissal of these defendants under Federal Rule of Civil Procedure 4(m) for failure to serve would be inappropriate. See Richardson v. Johnson, 598 F.3d 734, 738-40 (11th Cir. 2010) (per curiam) ("[A]s long as the court-appointed agent can locate the prison-guard defendant with reasonable effort, prisoner-litigants who provide enough information to identify the prison-guard defendant have established good cause for Rule 4(m) purposes."). However, the undersigned finds that Cloy has failed to state a claim against either Seymore or Boutwell that would entitle him to relief. See 28 U.S.C. § 1915(e)(2)(iii); Mitschell v. Donald, 213 F. App'x 920, 922 (11th Cir. 2007) (per curiam) ("Under § 1915A, the district court shall review, as soon as possible, a prisoner's complaint in a civil action against a government entity. The district court must then dismiss the complaint if it is frivolous, malicious, or fails to state a claim upon which relief may be granted." (citing 28 U.S.C. § 1915A(a)-(b))).
As was explained to Cloy previously (see Doc. 46 at 2 n.2; Doc. 51 at 1 n.1),
Rehberg v. Paulk, 611 F.3d 828, 837-38 (11th Cir. 2010), aff'd, 132 S.Ct. 1497 (2012).
Hart v. Hodges, 587 F.3d 1288, 1295 (11th Cir. 2009) (per curiam) (footnote omitted).
"If a prosecutor functions in a capacity unrelated to his role as an advocate for the state, he is not protected by absolute immunity but enjoys only qualified immunity." Rehberg, 611 F.3d at 838. However, because Cloy is claiming that Seymore falsified evidence in order to secure charges of Robbery 1st and Burglary 1st from the grand jury, Seymore is clearly entitled to absolute prosecutorial immunity for claims arising from this alleged conduct. See id. at 837-38 ("Prosecutors are [absolutely ]immune for appearances in judicial proceedings, including prosecutorial conduct before grand juries. . ."). For this reason, as well as the reasons stated in Section V.a., supra, the undersigned
Cloy's claims against Boutwell must also fail. It is well established that "[j]udges are entitled to absolute judicial immunity from damages for those acts taken while they are acting in their judicial capacity unless they acted in the "`clear absence of all jurisdiction."'" Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (per curiam) (quoting Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)). Accord Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005) (per curiam). "This immunity applies even when the judge's acts are in error, malicious, or were in excess of his or her jurisdiction." Bolin, 225 F.3d at 1239 (citing Stump, 435 U.S. at 356). "The factors which determine whether an act is judicial `relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.'" Scott v. Dixon, 720 F.2d 1542, 1547 (11th Cir. 1983) (quoting Dennis v. Sparks, 449 U.S. 24, 28 (1980)).
Though Boutwell is not a judge, the Eleventh Circuit has held that a state court clerk's "issuance of a warrant would be a function normally performed by a judge" and is thus a "judicial act" entitling the clerk to absolute judicial immunity for that act. Id. Accord Dykes v. Hosemann, 776 F.2d 942, 946 (11th Cir. 1985) (en banc) (per curiam) ("[I]n Scott v. Dixon, 720 F.2d 1542, 1546-47 (11th Cir. 1983), cert. denied, 469 U.S. 832, 105 S.Ct. 122, 83 L. Ed. 2d 64 (1984), affirming the dismissal of a claim against a court clerk, we held that judicial immunity would be assumed despite the appellants' assertion that the court clerk and another defendant conspired with one another or reached an understanding concerning a judicial act to be performed."); id. at 954 n.2 (Hatchett, J., dissenting) ("Bear in mind that under Scott v. Dixon, 720 F.2d 1542 (11th Cir.1983), a court clerk issuing an arrest warrant is acting in a judicial capacity and entitled to absolute immunity."); Files v. Alexander City, Ala., No. 3:14-CV-239-WKW, 2014 WL 2429248, at *7 (M.D. Ala. May 29, 2014) ("Where a court clerk acts pursuant to authority granted by state law and acts on behalf of a court, the clerk is absolutely immune from damages liability when sued under 42 U.S.C. § 1983 because she is performing a judicial function." (citing Scott)).
Cloy has made no specific factual allegations against Boutwell in his operative complaint, and from the evidence produced by Sheriff Mack, Boutwell's only relevant involvement in the activities underlying this action is that, in her capacity as a staff member of the Baldwin Circuit Court Clerk, she issued the two February 17, 2012 arrest warrants against Cloy. Cloy admits as much in his response to Sheriff Mack's Special Report, claiming he has only stated that Boutwell "signed a worthless instrument." (Doc. 44 at 1). Because this constituted a "judicial act" by Boutwell, she is entitled to absolute judicial immunity on Cloy's claims against her in this action. For this reason, as well as the reasons stated in Section V.a., supra, the undersigned
Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir. 2009) (per curiam) (internal citation and quotations omitted).
In his sworn affidavit, Sheriff Mack states that he "was not personally involved in the arrest or incarceration of Mr. Cloy" and that he "did not appear at any hearing, provide testimony, or personally participate in any court proceeding related to the probation violation charge against Mr. Cloy or any other charges that may have been brought against him at that time." (Doc. 40-3 at 3-4, ¶¶ 6, 9 [Sheriff Mack Aff.]). Cloy has presented not evidence to rebut this assertion, nor has he presented argument or evidence showing any sort of "causal connection" between any action by Sheriff Mack and Cloy's alleged constitutional deprivation.
Moreover, "the existence of probable cause defeats a § 1983 malicious prosecution claim." Grider, 618 F.3d at 1256. "`Probable cause' is defined as facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense. Probable cause may exist based on the collective knowledge of law enforcement officials derived from reasonably trustworthy information." Id. at 1257 (internal citation and quotations omitted). Moreover, Sheriff Mack has asserted the affirmative defense of qualified immunity.
Here, the undisputed record evidence indicates that Sheriff Mack, having been provided with the two February 17, 2012 writs of arrest issued by the Baldwin County Circuit Clerk, had, at the very least, arguable probable cause to arrest and hold Cloy pursuant to the charges underlying those writs.
For these reasons, as well as those stated in Section V.a., supra, the undersigned
In accordance with the above-stated reasoning, the undersigned
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who 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. In order to be specific, an objection must identify the specific finding or 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 found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
Kentucky v. Graham, 473 U.S. 159, 166-67 (1985) (internal citations, quotations, and footnotes omitted).
Even though Seymore and Boutwell have not appeared in this action to raise the issue of Eleventh Amendment immunity, as Cloy is proceeding in forma pauperis, the undersigned finds it appropriate to address the issue sua sponte. 28 U.S.C. § 1915(e)(2)(iii) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that. . .the action or appeal. . .seeks monetary relief against a defendant who is immune from such relief.").
