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El-Bey v. Menefee

United States District Court, M.D. Alabama, Eastern Division

October 27, 2014

WALTER-EL ALKEMET SHAKUR EL-BEY, Plaintiff,
v.
ALFONZA MENEFEE, et al., Defendants.

RECOMMENDATION OF THE MAGISTRATE JUDGE

CHARLES S. COODY, Magistrate Judge.

Before the court is the amended motion for summary judgment (Doc. 47) filed by Defendant Tuskegee University. Having considered the motion, the court concludes that it is due to be granted. Further, the court concludes that all claims against Tuskegee University are due to be dismissed with prejudice, and that Tuskegee University is due to be dismissed from this action.

I. Standard of Review

A. Summary Judgment

"Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine [dispute[1] as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (citation omitted); Fed.R.Civ.P. 56(a) ("The 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."). The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine [dispute] of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence which would be admissible at trial indicating there is no dispute of material fact or by showing 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 322-324.

Once the movant meets his evidentiary burden and demonstrates the absence of a genuine dispute of material fact, the burden shifts to the non-moving party to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists. Celotex, 477 U.S. at 324; Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see also Fed.R.Civ.P. 56(c) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."). A genuine dispute of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263.

To survive the movant's properly supported motion for summary judgment, a party is required to produce "sufficient [favorable] evidence" "that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). "If the evidence [on which the nonmoving party relies] is merely colorable... or is not significantly probative... summary judgment may be granted." Id. at 249-250. "A mere scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1576-1577 (11th Cir. 1990) (quoting Anderson, supra ). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact and, therefore, do not suffice to oppose a motion for summary judgment. Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001). Hence, when a nonmoving party fails to set forth specific facts supported by appropriate evidence sufficient to establish the existence of an element essential to its case and on which the nonmovant will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex, 477 U.S. at 322 ("[F]ailure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.").

For summary judgment purposes, only disputes involving material facts are relevant. United States v. 5800 SW 74th Ave., 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004) ("Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment."). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (citation omitted). To demonstrate a genuine dispute of material fact, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine [dispute] for trial.'" Matsushita Elec. Indus. Co, Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the evidence before the court which is admissible on its face or which can be reduced to admissible form indicates that there is no genuine dispute of material fact and that the party moving for summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex, 477 U.S. at 323-324 (summary judgment appropriate where pleadings, evidentiary materials and affidavits before the court show there is no genuine dispute as to a requisite material fact); Waddell, 276 F.3d at 1279 (to establish a genuine dispute of material fact, the nonmoving party must produce evidence such that a reasonable trier of fact could return a verdict in his favor). However, if there is a conflict in the evidence, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255; Ruiz de Molina v. Merritt & Furman Ins. Agency, 207 F.3d 1351, 1356 (11th Cir. 2000).

Although factual inferences must be viewed in a light most favorable to the nonmoving party and pro se complaints are entitled to liberal interpretation by the courts, a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine issue of material fact. Beard v. Banks, 548 U.S. 521, 529 (2006); Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus, the plaintiff's pro se status alone does not mandate this court's disregard of elementary principles of production and proof in a civil case.

B. 28 U.S.C. § 1915(e)(2)(B)(ii): Failure to State a Claim Upon Which Relief Can be Granted

When, as here, a litigant is allowed to proceed in forma pauperis in this court, the court will screen the litigant's complaint in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). Section 1915(e)(2) requires a district court to dismiss the complaint of a party proceeding in forma pauperis "at any time" if court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

The same standard that governs a dismissal under Federal Rule of Civil Procedure 12(b)(6) also governs the evaluation of a complaint for failure to state a claim upon which relief can be granted under 28 U.S.C. §1915(e)(2)(B)(ii). Douglas v. Yates, 535 F.3d 1316, 1320 (11th Cir. 2008) (applying the standard governing dismissal under Rule 12(b)(6) to review of a pro se complaint under 28 U.S.C. § 1915(e)(2)(B)(ii)). Under this standard, although the court must accept well-pled facts as true, the court is not required to accept a plaintiff's legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009) ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions"). In evaluating the sufficiency of a plaintiff's pleadings, the court must indulge reasonable inferences in plaintiff's favor, "but we are not required to draw plaintiff's inference." Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). Similarly, "unwarranted deductions of fact" in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff's allegations. Id.; see also Iqbal, 556 U.S. at 681 (stating conclusory allegations are "not entitled to be assumed true").

A complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face. See Iqbal, 556 U.S, at 679 (explaining "only a complaint that states a plausible claim for relief survives a motion to dismiss"); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561-62, 570 (2007) (retiring the prior "unless it appears beyond doubt that the plaintiff can prove no set of facts" standard). In Twombly, the Supreme Court emphasized that a complaint "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Factual allegations in a complaint need not be detailed but "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555 (internal citations and emphasis omitted).

In Iqbal, the Supreme Court reiterated that although Fed.R.Civ.P. 8 does not require detailed factual allegations, it does demand "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A complaint must state a plausible claim for relief, and "[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." Id. The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss. Id. at 679. The well-pled allegations must nudge the claim "across the line from conceivable to plausible." Twombly, 556 U.S. at 570.

II. Procedural History

On January 21, 2014, Walter-EL Alkemet Shakur EL-Bey (also known as Walter Earl Topps (Doc. 40-1 p. 36)) filed a pro se complaint against Macon County Probate Judge Alfonza Menefee, Tuskegee University, and acting Tuskegee University Provost Walter Hill. Upon review of the complaint pursuant to the court's duties under 28 U.S.C. § 1915(e)(2)(B), [2] and after holding a status conference on February 28, 2014 to determine if EL-Bey could state a claim against any of the defendants, the court determined that the claims against Walter Hill were due to be dismissed. (Doc. 8; Doc. 9).

On June 6, 2014, Tuskegee University filed a motion for summary judgment. (Doc. 25). On June 23, 2014, the court ordered EL-Bey to file an amended complaint consisting of "a short, plain statement in which the Plaintiff shall describe with reasonable particularity the nature of the allegedly unconstitutional actions that... Defendant Tuskegee University took toward him on June 18, 2013."[3] (Doc. 30). Following a status conference on July 23, 2014, the court granted leave to Tuskegee University to amend its summary judgment motion after the filing of the amended complaint. (Doc. 38).

On August 1, 2014, EL-Bey filed an amended complaint. (Doc. 40). In his amended complaint, EL-Bey alleges the following against Tuskegee University:

1. On 13 June 2013 on the orders of Barbara Chisholm and Walter Hill, two Tuskegee University campus police officers (Lieutenant Edwards and unknown) did grab and forcefully lift Mr. EL-Bey from a seated position and slam him to the ground and apply handcuffs upon Mr. EL-Bey while conducting business in the Tuskegee University Bursar's office under the color of authority. At this time and to date Tuskegee University was indebted to Mr. EL-Bay the amount of $5, 493.
2. On 13 June 2013 Peter Spears did conspire with Walter Hill and Chief Martis to initiate a trespassing order for Mr. EL-Bey. Chief Martis did not comply stating, "I do not want to interfere with your education process."
3. On 17 June 2013 Tuskegee University did charge Mr. EL-Bey with Defiance of Authority and Conduct Inappropriate for a Tuskegee University Student, and forced him under threat and coercion to sign a form obligating him complete 30hrs of community service on the university campus as well as complete a psychiatric program.
4. On 23 October 2014 Tuskegee University's Peter Spears and Walter Hill did conspire with the Alabama Law Enforcement Tactical System (LETS) and Alabama Bureau of Investigation (ABI) to initiate an alert on Mr. EL-Bey and his automobile.
5. During the time of the complaints set forth and into the present Mr. EL-Bey is a student at Tuskegee University involved in a dispute process over grades and perceived harassment and discrimination by the University and its professors, faculty, and staff due to his physical appearance and religious/spiritual beliefs. On many occasions Mr. EL-Bey was asked if he was a Christian and/or if he believed in god as if it were an integral part of the academic process.

(Doc. 40 p. 3 ¶¶ 1-5) (sic).

On August 21, 2014, Tuskegee University filed an amended motion for summary judgment (Doc. 47) to which EL-Bey has responded[4] (Doc. 52). Accordingly, the motion for summary judgment is now under submission.

III. Facts

EL-Bey is a graduate student in the Tuskegee University College of Agriculture, Environment and Nutrition Sciences. (Doc. 49-2 pp. 6-7 ¶ 3). On June 12, 2013, EL-Bey went to the Bursar's office and requested a check for a financial aid refund. (Doc. 49-2 p. 1 ¶ 2). The Bursar, Barbara Chisolm, [5] informed EL-Bey that a refund had been allocated to his account. (Doc. 49-2 p. 1 ¶ 2). The following day, June 13, 2014, EL-Bey returned to the Bursar's office and demanded that he receive the refund immediately. (Doc. 49-2 p. 1 ¶ 4). Student refund checks are typically generated by the accounts payable department within 14 days after the refund registers on their account, but Chisolm submitted a request to expedite the payment to EL-Bey. (Doc. 49-2 p. 2 ¶¶ 5-6). Chisolm informed EL-Bey that the check would not be available immediately and that he could not wait in the Bursar's office for the refund check because the Bursar's office does not disburse the checks in its office; checks are either mailed to the student or disbursed via direct deposit. (Doc. 49-2 ¶¶ 7, 16).

EL-Bey was not satisfied with Chisolm's attempt to expedite the payment. (Doc. 49-2 p. 2 ¶ 7). Several times, Chisolm asked him to leave the office, but he refused, insisting that he would not leave the office until he received the refund check. (Doc. 49-2 p. 2 ¶¶ 7, 9). After Chisolm asked EL-Bey to leave several times without success, she called campus police. (Doc. 49-2 p. 2 ¶ 9).

Campus police arrived and three times asked EL-Bey to leave. (Doc. 49-2 p. 2 ¶ 10). He refused. (Doc. 49-2 p. 2 ¶ 11). The police then attempted to remove EL-Bey from the office, and he physically resisted. (Doc. 49-2 p. 2 ¶ ¶ 13-14). EL-Bey alleges that he was removed from his seat, handcuffed, and "slammed to the ground" during the incident. (Doc. 40 ¶ 1). He also alleges that Tuskegee University officials sought to "initiate a trespassing order" against him, but the Tuskegee University Police Chief did not comply because he was concerned that criminal charges would interfere with EL-Bey's education. (Doc. 40 p. 3 ¶ 2).

Later in the day on June 13, 1013, Chisolm personally hand-delivered a refund check to EL-Bey at the campus police department. (Doc. 49-2 p. 3 ¶ 22).

On June 14, 2013, Tuskegee University brought student disciplinary charges against EL-Bey for the following two violations of the student handbook: defiance of authority (for refusing Chisolm's instructions to leave the Bursar's office) and conduct inappropriate for a Tuskegee University student (for "[d]emanding a financial aide [sic] refund check, refusing to leave the premises when told to and becoming belligerent when officers arrived"). (Doc. 40-1 p. 8; Doc. 49-2 p. 35). On June 17, 2013, EL-Bey entered a plea of guilty to"all accussed [sic]" charges (Doc. 49-2 p. 34); he was sanctioned with probation and required to complete community service and mental health counseling. (Doc. 49-2 p. ...


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