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Calloway v. Stewart

United States District Court, S.D. Alabama, Southern Division

October 9, 2014

TYRICKA LAVON CALLOWAY, AIS# 174732 Plaintiff,
v.
CYNTHIA STEWART, et al., Defendants.

REPORT AND RECOMMENDATION

BERT W. MILLING, Jr., Magistrate Judge.

Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed an amended complaint under 42 U.S.C. § 1983. (Doc. 6). This action was referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). After careful review of the complaint, it is recommended that Plaintiff's Complaint under § 1983 be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

I. Summary of Alleged Facts in Complaint

This action is brought pursuant to 42 U.S.C. § 1983 alleging rights, privileges, or immunities guaranteed to Plaintiff under the Constitution were violated due to the conduct and actions of Defendants Stewart, Smith, Raybon, Giles, Kim Thomas, Conway, Ed Paulk, Lynn, Goocher, Greene, Maclean, and Bentley.

While serving concurrent sentences for manslaughter and attempted murder (doc. 6 at 6) at Bullock Correctional Facility ("Bullock"), Plaintiff filed a lawsuit against prison officials, namely Warden Rene Mason, Warden Sandra Giles, Warden Kenneth Jones, and numerous correctional officers for, inter alia, failure to protect, conditions of confinement, disciplinary procedures, access to courts, and retaliation.[1] (See Case No. 2:13:cv-00311-WHA-WC filed May 7, 2013 in the United States District Court for the Middle District of Alabama). Plaintiff was subsequently transferred to Fountain Correctional Facility ("Fountain") in April of 2014 and to J.O. Davis Correctional Facility ("J.O. Davis") on June 12, 2014. (Doc. 6 at 14, 17, 21). On June 15, 2014, Plaintiff filed this current lawsuit challenging his transfer to and conditions of imprisonment at Fountain and J.O. Davis. (Doc. 1). However, since the filing of this action, Plaintiff has been transferred to Loxley Work Release Center in Loxley, Alabama. (Doc. 11). The allegations of Plaintiff's complaint are as follows:

Count One: Plaintiff alleges on June 2, 2014, while housed at Fountain, Corporal Green allowed an "unauthorized" inmate, known as "Scarface" to enter Plaintiff's dormitory. (Doc. 6 at 11). Armed with two prison-made knives, "Scarface" stabbed an inmate multiple times. ( Id. ). Due to the size and proximity of the double bunked beds used at Fountain to accommodate the large prison population, Corporal Green was unable to visually observe the attack or quickly locate the assailant or the weapons used. ( Id. at 12). Plaintiff claims the use of the double bunked beds evidences overcrowdedness at the prison and indicates deliberate indifference to his safety on the part of Defendants Stewart, Raybon, Smith, Thomas, and Bentley. ( Id. ).
Count Two: Plaintiff alleges the following living conditions which he claims are unsafe.
1. Throughout his incarceration at J.O. Davis, Plaintiff alleges Defendants Stewart, Smith, Raybon, Goocher, Thomas, Lynn Bentley, and Paulk are liable for subjecting him to unsafe conditions due to inadequate or nonexistent fire safety equipment. ( Id. at 14). Specifically, Plaintiff alleges the prison lacks smoke detectors, sufficient fire escapes, and sufficient fire extinguishing equipment, thereby, compromising his safety. ( Id. ).
2. Defendants Stewart, Smith, Raybon, Goocher, Thomas, Lynn, and Bentley are allegedly responsible for subjecting Plaintiff to contaminated showers with "busted" shower floors, walls, and ceilings, as well as, standing water, and backed up sewage that expose Plaintiff to various infections, bacteria, and diseases. ( Id. at 14-15).
3. Plaintiff contends that as of November 1, 2013, Defendants Thomas and Bentley began reassigning HIV positive inmates throughout the state penal institutions. ( Id. at 15). Plaintiff claims, however, that Defendants Stewart, Smith, Raybon, Goocher, Thomas, and Bentley failed to subsequently equip Fountain and J.O. Davis with "adequate cleaning supplies/detergents; bleach, etc., to aid in the prevention, of spreadable diseases, or infections in the living areas, [including the] cafeteria... [as there is no hot water to sanitize kitchen utensils]; showers; sinks; toilets; laundry; shared by those reassigned male HIV-positive inmates." ( Id. ). Plaintiff claims these "safety violations" equate to deliberate indifference to his health. ( Id. at 16).
4. Additionally, Plaintiff claims Defendants Stewart, Smith, Raybon, Bentley, Thomas, Lynn, and Paulk created a substantial risk of harm to him by failing to repair a damaged overhead light fixture that contained exposed electrical wiring and was often susceptible to rainwater due to a leak in the roof. ( Id. ). Plaintiff further claims that his bed was contaminated with rust and lead paint which was peeling away from the metal frame. (Doc. 1 at 10).
Count Three: Plaintiff asserts that the transfers from Bullock to Fountain and J.O. Davis occurred during the time that Plaintiff's Motion to Show Cause was pending before the United States District Court for the Middle District of Alabama.[2] (Doc. 6 at 17). It is Plaintiff's contention that he was subjected to a "warden-to-warden" transfer in retaliation for filing suit in the Middle District of Alabama and that the transfer was an effort by Defendants Stewart, Raybon, and Smith, who conspired with Defendants Conway, Maclean, and Thomas, to prevent or complicate his efforts to access the courts.[3] ( Id. ).

Furthermore, Plaintiff asserts he was denied a transfer to a minimum security facility on or about June 20, 2014, in retaliation for exercising his right to file suit against prison authorities. ( Id. at 18). Plaintiff was anticipating a transfer from J.O. Davis to Decatur Honor Camp, a facility closer to his family in Huntsville, Alabama, which had been recommended by Defendant Warden Raybon and J.O. Davis Classification Specialist Michael Hoffman. ( Id. ). However, state officials on the Central Review Board, Defendants Maclean and Greene, ultimately denied the transfer reasoning "crime details" from Plaintiff's conviction "indicate[d] a need for direct supervision" and that Plaintiff's behavior while in prison "was not conducive with [a lower security level placement.]" ( Id. ). Plaintiff, conversely, argues he met all the necessary criteria for such a transfer and asserts the denial was due solely to his past litigation and complaints against members of the Central Review Board. ( Id. ). He bases this argument on the knowledge that his codefendant, who is serving consecutive sentences for greater offenses of murder and attempted murder, was transferred to the honor camp two years prior. ( Id. at 19). Plaintiff, consequently, alleges his transfers and his denial for transfer were exclusively conducted for retaliatory purposes and in attempt to deny him access to the courts. (Doc. 6 at 21).

Count Four: Plaintiff asserts that J.O. Davis lacks a physical law library and does not "provide legal materials, forms, updates as required by law to aid in the preparation of plaintiff's pending litigation in state/federal court." ( Id. ). It is Plaintiff's allegation that Defendants Stewart, Smith, Raybon, and Giles conducted an inmate "swap" to prevent him from filing future lawsuits, "as well as Special Reports' under the pending suit [he had] in the United States District Court for the Middle District [of Alabama]." ( Id. ).

II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

Because Plaintiff is proceeding in forma pauperis, the Court is reviewing his complaint (Doc. 1) under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).[4] 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.

Moreover, a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which 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 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (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, 557 (second brackets in original). But "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Furthermore, when a successful affirmative defense, such as a statute of 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 (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 (1972). The 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, 566 U.S. 662). Furthermore, the 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.), cert. denied, 493 U.S. 863 (1989).

III. DISCUSSION

Plaintiff alleges in his complaint that Defendants violated his First, Eighth, and Fourteenth Amendment constitutional rights. The Court will review each of his claims in turn.

1. Declaratory and Injunctive Relief Sought is Moot.

The claims of Count One and Count Two of Plaintiff's complaint relate solely to the conditions of confinement at Fountain and J.O. Davis. During the pendency of this action, however, Plaintiff has been transferred to Loxley Work Center in Loxley, Alabama. ( See Doc. 11). The transfer to Loxley Work Center moots Plaintiff's request for any injunction or declaratory relief. The law is clear that in order for a plaintiff to have standing to sue, an actual controversy must exist at all times his case is pending. Alvarez v. Smith, 558 U.S. 87, 92 (2009); U.S. CONST. Art. III, § 2. The Supreme Court has held:

"The federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues concrete legal issues, presented in actual cases, not abstractions, ' are requisite. This is as true of declaratory judgments as any other field." United Public Workers of America v. Mitchell, 330 U.S. 75, 89 (1947). "The difference between an abstract question and a controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).

Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). See also, City of Los Angeles v. Lyons, 461 U.S. 95, 101-102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)("Abstract injury is not enough. The plaintiff must show that he "has sustained or is immediately in danger of sustaining some direct injury" as the result of the challenged official conduct and the injury or threat of injury must be both "real and ...


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