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Perdue v. Moore

United States District Court, Northern District of Alabama, Western Division

November 6, 2014

CO II KATRINA MOORE, et al., Defendants

Carlos Perdue, Plaintiff, Pro se, Brent, AL.



Plaintiff, Carlos Perdue, has filed a pro se amended complaint pursuant to 42 U.S.C. § 1983 alleging that rights, privileges, or immunities afforded him under the Constitution or laws of the United States have been abridged during his incarceration at Bibb Correctional Facility in Brent, Alabama. Plaintiff names as defendants Warden Willie Thomas, Captain Roesha Butler, Captain John Hutton, Lieutenant Felisha Ford, and Correctional Officer Katrina Moore. Plaintiff seeks monetary and injunctive relief. In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(1), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991).

The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, § 804, 110 Stat. 1321, and 28 U.S.C. § 1915A, requires this court to screen complaints filed by prisoners against officers or employees of governmental entities and to dismiss the complaint or any portion of the complaint that it finds frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. Thus, under § 1915A, the court may sua sponte dismiss a prisoner's complaint prior to service. Nevertheless, in order to protect a pro se prisoner's right of access to the courts, these complaints are read by less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir. 1984); Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976).


Plaintiff alleges that in 2012, he authorized his daughter to transfer $150.00 from his prison account to Inmate Charles Craig's account to help Craig pay for court costs. (Doc. 6, Amend. Compl. at 3.) Plaintiff also authorized his daughter to transfer $150.00 from his prison account to Inmate Manrillio Gonzales's account to pay for two (2) footballs Gonzales made for plaintiff. ( Id.)

Captain Roesha Butler charged plaintiff with conspiracy to transfer funds, which is a violation of institutional rules. ( Id.) Lieutenant Felisha Ford and Correctional Officer Katrina Moore conducted a disciplinary hearing and found plaintiff guilty of the charge.[1] ( Id.) Captain John Hutton froze the $150.00 in Inmates Craig's and Gonzales's respective prison accounts. (Doc. 6, Amend. Compl. at 3.) For relief, plaintiff requests that Defendant Hutton release the $150.00 in each inmate's account. ( Id. at 4.)


A. Warden Willie Thomas.

Plaintiff names Warden Willie Thomas as a defendant but fails to assert any specific allegation against Thomas in the amended complaint. Vague, general or conclusory allegations are insufficient to merit relief under 42 U.S.C. § 1983, much less a complete lack of any allegation. See Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984). Because of plaintiff's failure to state any factual allegations against Defendant Thomas, this defendant is due to be dismissed.

B. Fourteenth Amendment Due Process.

1. Captain Butler, Lieutenant Ford, & Correctional Officer Moore.

Plaintiff alleges that Defendant Butler charged him with conspiracy to transfer funds which is a violation of institutional rules. As a result, plaintiff was placed in the behavioral modification bay for 130 days.

An inmate has a right not to be deprived of a protected liberty interest without due process of law. Therefore, to prevail on his claim that his assignment to the behavioral modification bay violated his constitutional right to due process, the plaintiff must establish that he had a liberty interest in being free from confinement in administrative segregation. See Sandin v. Conner, 515 U.S. 472, 487, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (" The requirements of procedural due process apply only to the deprivation interests encompassed by the Fourteenth Amendment's protection of liberty . . . ." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)).

The U.S. Supreme Court in Sandin v. Conner explained that while no freestanding constitutional liberty interest exists to be free of disciplinary segregation, state law, under certain circumstances, can create a liberty interest protected by the Due Process Clause in the context of " disciplinary changes in a prisoner's conditions of confinement . . . ." Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th Cir. 1996) (quoting Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)). Those state-created interests are " limited to freedom[s] from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection under the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life ." Id. (emphasis added). In applying this standard to the inmate's case in Sandin, the Supreme Court found that thirty (30) days disciplinary segregation was not an atypical or significant hardship from the plaintiff's ordinary conditions of incarceration in the Hawaii prison system. See Sandin v. Conner, 515 U.S. 472, 486, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). As such, the inmate's disciplinary segregation did not amount to a grievous loss protected by the Due Process Clause.

In the present case, plaintiff makes no allegation that his confinement to the behavioral modification bay presents " the type of atypical, significant deprivation [that] might conceivably create a liberty interest, " Sandin, 515 U.S. at 486, or that the behavioral modification bay constitutes a " dramatic departure" from the ordinary conditions of confinement for the general population. See Sandin v. Conner, 515 U.S. at 485. While the conditions of the behavioral modification bay may have been less amenable or more restrictive, plaintiff has not established that the conditions in the behavioral modification bay, compared with conditions in general population, created a " major disruption" in his environment or unexpectedly exceeded his sentence in a manner that would evoke the protections of the Due Process Clause. Id. at 486-87. Because plaintiff had no protected liberty interest in avoiding disciplinary confinement, he was not entitled to any particular form of due process with reepsct to the disciplinary hearing he received. Therefore, plaintiff's Fourteenth Amendment due process claims concerning his confinement in the behavioral modification bay are due to be dismissed for failing to state a claim upon which relief can be granted.

2. Captain John Hutton.

Plaintiff alleges that Defendant Hutton wrongfully froze $150.00 in Inmate Craig's and Inmate Gonzales's prison accounts, and he requests that the funds be released. To the extent plaintiff requests that the money be returned to Inmates Craig and Gonzalez, plaintiff is proceeding pro se and cannot prosecute any claims in federal court on behalf of other persons. See Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 127 S.Ct. 1994, 1999, 167 L.Ed.2d 904 (2007); see also, Devine v. Indian River Co. Sch. Bd., 121 F.3d 576, 581-82 (11th Cir. 1997). Moreover, it is a " well-settled principle that a section 1983 claim must be based on the violation of plaintiff's personal rights, and not the rights of someone else." Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir. 1990). Therefore, any claims which plaintiff purports to bring on behalf of these inmates are due to be dismissed.

To the extent plaintiff alleges that Defendant Hutton has intentionally deprived him of the $300.00 and requests that the funds be returned to him, the United States Supreme Court has held that " an unauthorized, intentional deprivation of property by a state employee does not constitute a violation of the due process requirements of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 532-33, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Post-deprivation remedies that satisfy due process are administrative procedures or ordinary tort litigation procedures. See Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), 101 S.Ct. 1908, 68 L.Ed.2d 420, rev'd on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The question then becomes whether plaintiff had either procedure available to him and, if so, whether he exhausted those procedures prior to filing a § 1983 claim. See Hudson, 468 U.S. at 535-36.

The State of Alabama, through its Board of Adjustment, provides a meaningful post-deprivation remedy for plaintiff to seek redress for Defendant Hutton's freeze on plaintiff's funds. See Ala. Code § 41-9-60, et seq . (1982). Furthermore, the post-deprivation remedies available to plaintiff under Alabama tort law are sufficient to satisfy due process. See Hudson, 468 U.S. at 534-35; see also, Browning v. City of Wedowee, Ala., 883 F.Supp. 618, 623 (M.D. Ala. 1995) (citing Ala. Code § 6-5-260 (1975)). Because adequate post-deprivation remedies are available to plaintiff, the alleged deprivation does not violate the Due Process Clause of the Fourteenth Amendment and plaintiff' claim against Defendant Hutton is due to be dismissed. Plaintiff must pursue his administrative claims elsewhere.


Accordingly, for the reasons stated above, the magistrate judge RECOMMENDS that plaintiff's amended complaint be DISMISSED for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A(b)(1).

Any party who objects to this report and recommendation must, within fourteen (14) days of the date on which it is entered, file specific written objections with the clerk of this court. Any objections to the failure of the magistrate judge to address any contention raised in the petition also must be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) ( en banc ). In order to challenge the findings of the magistrate judge, a party must file with the clerk of the court written objections which shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action.

Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge shall make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge. The district judge, however, need conduct a hearing only in his discretion or if required by law, and may consider the record developed before the magistrate judge, making his own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

Objections not meeting the specificity requirement set out above will not be considered by a district judge.

A party may not appeal a magistrate judge's recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a district judge.

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