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Fuller v. Gates

United States District Court, N.D. Alabama, Jasper Division

January 12, 2015

DELANO RENEE FULLER, Plaintiff,
v.
CAPT. JIM GATES, et. al., Defendants

DeLano Renee Fuller, Plaintiff, Pro se, Elmore, Al.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

STACI G. CORNELIUS, UNITED STATES MAGISTRATE JUDGE.

Plaintiff, Delano Renee Fuller (" Plaintiff"), has filed a pro se complaint pursuant to 42 U.S.C. § 1983 alleging rights, privileges, or immunities afforded him under the Constitution or laws of the United States were abridged during his incarceration at Hamilton A& I Correctional Facility (" HAI") in Hamilton, Alabama.[1] (Doc. 1-1).[2] Plaintiff names as defendants the following individuals and entities: HAI corrections officials Captain Jim Gates, Lt. Terry Tucker, Sgt. Smith, [3] " COI" Randy Barnes, " COI" Jonathon Stidham, and " COI" Ronnie Hall; Platinum Homes Trailer Plant and its plant manager (Eugene), supervisor (Jammie), " lead person" (Tony) and human resource manager (Sheila); [4] and Lamb Motors and Dwight Lamb. Plaintiff seeks injunctive and monetary relief. On March 21, 2014, Plaintiff filed a motion to amend his complaint. (Doc. 12). In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(1), Plaintiff's 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 a complaint or any portion of a complaint 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, 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).

I. MOTION TO AMEND THE COMPLAINT

Since he " ha[s] not previously amended [his] complaint and [Defendants] ha[ve] not filed a responsive pleading, " Plaintiff " could have amended [his] complaint as a matter of course" pursuant to Federal Rule of Civil Procedure 15(a). Coventry First, LLC v. McCarty, 605 F.3d 865, 869 (11th Cir. 2010). Although leave of court was not required to file an amended complaint, it is within the court's discretion to rule upon the motion to amend the complaint. (Id.). In light of the less stringent standards applied to pro se prisoner pleadings, it is recommended that the motion (Doc. 12) be GRANTED. Herein, the undersigned shall consider the claims and allegations made in both the complaint and amended complaint.

II. FACTUAL ALLEGATIONS[5]

Plaintiff contends the job placement board at HAI is governed by Lt. Tucker and Officer Hall. (Doc. 1-1 at 5). After his arrival at HAI on March 26, 2013, Plaintiff constantly asked Lt. Tucker and Officer Hall about getting a day labor job and wrote request slips to Captain Gates " pleading for a job." (Id.). Plaintiff contends two Caucasian inmates who arrived on the same day he did, Brandon Croy and Ryan Kotlic, were sent to work at Platinum Homes and FMI, the latter of which is a fireplace manufacturing plant. (Id.). He also alleges many other white inmates who came to the facility after March 26, 2013, " went to work before [he] did." (Id.).

Plaintiff claims Lt. Tucker and Officer Hall distributed jobs to Caucasian inmates and the majority of the African-American inmates were " overlooked or sent on day labor (slave labor) jobs if the . . . Pilgrim's Pride" chicken plant, where 97% of the African-American inmates worked, did not have any openings. (Id.). He claims Lt. Tucker and Officer Hall did not place African-American inmates " on jobs at Kinro Windows, Pl[atinum] Trail[e]r Plant, [or] Lamb's Motors." (Id. at 7). He asserts " there's one black parolee [(Richard Pyles)] at Lamb's Motors, and 3 white inmates"; " [a]t Kinro's, there is only [one] black inmate [(Michael Washington)] . . . [and] ten white inmates, or more"; and " Benny Hamilton is the only black inmate at Platinum Homes . . . with 13 or more white inmates[.]" (Id.).

Plaintiff was " insulted" by the job board's distribution tactics, and after he had been at HAI for two months without getting a job, he spoke out in the cafeteria and asked Lt. Tucker, " What kind of work-release is this; a boot-leg work release?" . (Id. at 10). Lt. Tucker then dismissed the inmates from the chow hall (where the placement office is also located) and took Plaintiff into his office with Officer Hall. (Id.). Lt. Tucker asked Plaintiff if he " knew what they did to smart a-s punks" like him. (Id.). When Plaintiff responded he was not a smart a-s punk and was fifty-four years old, Officer Black[6] burst into the room. (Id.). Plaintiff alleges tempers flared and Lt. Tucker stated he should " knock the s--t out of ya'll and beat you're a-ses." (Id.).[7] Three times Officer Hall " aggressively" asked Plaintiff, " 'You are out there running your mouth at the Lieutenant?'" (Id.). Plaintiff answered back three times, " No!!! I was asking for a job!!!" (Id.). Lt. Tucker told Plaintiff he " better be glad" because Lt. Tucker thought Plaintiff " was one of those young punks with [his] pants falling off." (Id. at 11). Plaintiff considered this to be a racial insult. Lt. Tucker then instructed Plaintiff if he wanted something from him to " pull him to the side and not address him in from of the other inmates." (Id.). Lt. Tucker then told Plaintiff to " get out of here." (Id.).

An hour and a half later Plaintiff was called to the shift office and given a day labor job " with a mean old white man" moving furniture and clothing for two days at $80.00 per day. (Id.). Thereafter, he continued to go to the job placement office almost every day asking for work. (Id.). " After about a month of persist[ence] and Officer Hall lying con[s]tantly about giving [him] a job" while " lining up the best jobs for white inmates, " on the first week of June, Plaintiff was sent to take a physical exam at Platinum Homes, " one of or the most prestigious jobs among the inmates, " along with Caucasian inmates Michael Rainey and Joshua Moreland. (Id. at 12). He was hired, but on the morning of his third day of work an employee named Tony approached Plaintiff as Plaintiff was assembling bathroom sinks and told Plaintiff " Eugene told him to tell [Plaintiff] to go outside because" the prison van was there to pick [Plaintiff] up. (Id.).

Plaintiff asked what was wrong, and Tony told Plaintiff " Jammie[, ] one of the supervisors, told him that Eugene the plant manager had hired too many when they hired [Plaintiff] and the two young white inmates." (Id. at 13). Plaintiff rushed about the plant to find out what was happening, but Sheila, the human resources employee, left her office when she saw Plaintiff approaching. (Id.). Plaintiff immediately went toward the break room and saw Eugene and Sheila talking. (Id.). Plaintiff explained what he had been told. (Id.). According to Plaintiff, Eugene acted nervous, as if he were scared of Plaintiff because of his race. (Id.). Eugene responded that the reason he was letting Plaintiff go was not because he had hired too many employees but because Plaintiff was not keeping up with production. (Id.). Plaintiff states this explanation is not possible because he is extremely physically fit, more so than the two inmates hired at the same time he was. (Id. at 13-14). Eugene simply responded he might be wrong but he had a " gut feeling and . . . had to let [Plaintiff go.]" (Id. at 14).

When he got back to the prison, Plaintiff was relieved to discover he was not in trouble for being terminated and acted as if he were confused about the matter when speaking with Lt. Tucker. (Id.). Lt. Tucker then stated he was going to tell Plaintiff the truth and informed Plaintiff he was " fired from Platinum Homes . . . because someone out there in the . . . plant heard [him] making racial comments about Platinum Homes not hiring no black people or black inmates." (Id. at 15). Plaintiff denies he ever made such a statement but also asserts the statement is true. (Id.). Plaintiff alleges he was " racially discriminated against and fired for no other legitimate reason and lied and conspired against by Eugene, Tony, Jammie, Sheila[, ] Lt. Tucker and Officer Hall, " who acted " as if [Plaintiff] was the culprit of racism" when all he wanted was a job. (Id.).

Plaintiff began working at Lamb Motors on June 22, 2013. (Id. at 5). He claims Lt. Tucker and Officer Hall did not " willfully place[]" him on the job, but rather he received the assignment because inmate Richard Pyles, an African-American who also worked at Lamb Motors, requested it. (Id. at 5-6). Plaintiff declares that during the first week he was employed at Lamb Motors he overheard Officer Stidham murmur to Lt. Tucker, asking how Plaintiff got the job, and Lt. Tucker responded Pyles had requested it. (Id. at 17).

On the evening of August 27, 2013, Plaintiff was called to clean debris left from a car accident on " Interstate 22." (Id. at 5). Thereafter, Plaintiff was accused of taking personal items (a ring and necklace) belonging to the accident victims. (Id.). Plaintiff asserts he knew he was being watched and denies taking anything from the accident scene. (Id.). After the job was completed, Plaintiff admits " he retrieved the ring and necklace" in his work area at the back of Lamb Motors and fellow inmate Charles Crabtree saw him put the jewelry in his socks as they were being transported back to the prison by a Lamb Motors' security officer. (Id. at 18).

Plaintiff asserts he " did not think [Crabtree] was going to tell on" him. (Id.). But Crabtree did inform the shift officers that Plaintiff had stolen jewelry from the scene of the accident. (Id.). Plaintiff denies he took the jewelry from the accident. (Id.). Instead, he asserts the jewelry was among " many valuables" he " found" at Lamb Motors during the three months he " washed, cleaned, and . . . detailed cars in the direct sun and heat . . . without an inkling of shade." (Id.). Plaintiff states that " anytime Mr. Lamb or Brian [the salesman] did not want anything taken from a vehicle[, ] they made it known[.]" (Id. at 19).

In any event, corrections officers shook down Plaintiff's bed area looking for the jewelry that night. (Id. at 6). They found nothing. (Id.). When Plaintiff was called to go to work the next morning, another officer intercepted him, and his bed area was shaken down again. (Id.). Nothing was found. (Id ). Plaintiff was then taken to the shift office and sat there for two hours, which caused him to miss work. (Id.). The next morning Plaintiff's bed area was shaken down for the third time. (Id.). On this occasion Officer Stidham and another officer conducted the search. (Id.). The ring and necklace were found in a box containing the addresses of Plaintiff's " sister's Pastor" and a " friend." (Id. at 7). Plaintiff asserts he was using " the two addresses in a kite mail fashion to attempt to mail the ring and necklace out" of HAI because he had never seen as much racism in his fifty-four years--twenty-three of which he has spent incarcerated--as he had at HAI. (Id. at 8).

Plaintiff alleges " [Lt.] Tucker immediately took [him] off [the] job, " even though Mr. Lamb did not accuse him of stealing anything from the vehicle and no one had claimed the ring or necklace. (Id. at 19). Plaintiff asked Capt. Gates in front of Sgt. Smith if he could speak with Mr. Lamb, but Capt. Gates refused and informed Plaintiff if he tried to get in touch with Mr. Lamb he would receive a disciplinary charge. (Id.).

On August 30, 2013, Plaintiff was charged with violating " Rule 509[, ] possession of state and or other's property, " with regard to the confiscated ring and necklace. (Id.). Officer Barnes was the hearing officer at the disciplinary hearing that took place on September 8, 2013. (Id. at 19-20). The statement of charges Officer Barnes read against Plaintiff made it sound as if Plaintiff was caught during a routine shakedown trying to smuggle jewelry. (Id. at 20). Officer Barnes refused to ask five of the eight questions Plaintiff submitted to be asked to Officer Stidham. (Id.). Officer Barnes also threatened to remove Plaintiff from the room after telling Plaintiff to shut up several times. (Id.). Finally, Officer Barnes did remove Plaintiff from the room, and the hearing was conducted outside of his presence. (Id.).

Plaintiff asked to appeal from the disciplinary hearing, but Officer Barnes told him that was not done at HAI. (Id.). On September 9, 2013, Plaintiff went to disciplinary court, a guilty verdict was entered, and Plaintiff suffered a loss of privileges. (Id.). The next day he received a final copy of the disciplinary report. (Id.). When he noticed his questions were not contained in the report, he requested and received a copy of his questions. (Id. at 20-21). The copy of his questions showed Officer Barnes deemed only three of Plaintiff's questions relevant, but Plaintiff does not state what those questions or the answers to them were. (Id. at 21). Plaintiff was told he would have to seek free world remedies if he wanted to protest the disciplinary infraction. Plaintiff alleges his disciplinary hearing was inadequate and unprofessional. (Id.).

Finally, Plaintiff alleges that after he was caught with the jewelry " [Lt.] Tucker immediately took [his] job at Lamb's Motors and gave it to (white inmate) David Dotson." (Id. at 7). He declares Caucasian inmates Jerry Thomas and Larry Norrell were both found to be in possession of synthetic marijuana, which he contends is illegal and considered prison contraband, but they were not given a disciplinary charge or removed from their jobs. (Id. at 7-8). Moreover, Caucasian inmate Charles Crabtree was caught with cell phones and failed a drug test, yet he only received thirty days loss of good time and was never removed from his job at Lamb Motors. (Id. at 9).

III. DISCIPLINARY INFRACTIONS

A. August 2013 Disciplinary Infraction

In his original complaint, Plaintiff declared the disciplinary procedures that resulted in his August 2013 infraction were " inadequate and . . . (un)professional." (Doc. 1-1 at 21). In his amended complaint, Plaintiff alleges he desires to sue for violations of his procedural and substantive due process rights. (Doc. 12 at 1).

1. Fourteenth Amendment Due Process

The due process clause is triggered by the deprivation of a protected liberty interest. See White v. Thompson, 299 F.App'x 930, 932 (11th Cir. 2008) (citing Kirby v. Siegelman, 195 F.3d 1285, 1290 (11th Cir. 1999)). In almost all instances, a determination that a plaintiff has a liberty interest in an alleged deprivation is a threshold question to be answered in the affirmative before a procedural due process claim becomes viable. See id. If this question is answered in the negative, no further inquiry is required, unless the deprivation resulted from admitted lies or deception, in which case further study is necessary to determine whether an inmate was treated " arbitrarily and capriciously in violation of due process." Monroe v. Thigpen, 932 F.2d 1437, 1442 (11th Cir. 1991). In the discussion below, the undersigned shall address whether Plaintiff's procedural and/or substantive due process rights were violated.

a. Procedural Due Process

" Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law." Sandin v. Conner, 515 U.S. 472, 485, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). There is no authority for finding a freestanding constitutional liberty interest exists in an inmate's privileges. However,

States may under certain circumstances create liberty interests which are protected by the Due Process Clause. See also Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by 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."

Sandin v. Conner, 515 U.S. at 483-484.

Plaintiff alleges he lost privileges as a result of the August 2013 disciplinary infraction but does not state what those privileges were.[8] In any event, it has long been accepted " loss of privileges is not 'an atypical and significant hardship. . .in relation to the ordinary incidents of prison life.'" Anderson v. Jones, 1999 WL 1565203, at *9 (S.D. Ala. 1999), aff'd, 245 F.3d 795 (11th Cir. 2000) (other citations omitted). Plaintiff has not met the threshold requirements necessary to invoke the protection of the due process clause. Therefore, he has failed to state a procedural due process claim upon which relief may be granted.

Alternatively, even if Plaintiff did have a liberty interest in the punishment he received, he admits he was notified of the charge against him, was afforded a disciplinary hearing where he was allowed to present questions, [9] was notified of the hearing officer's decision, and received a copy of the disciplinary report. (Doc. 1-1 at 19-21). Based on Plaintiff's own allegations, there was clearly some evidence to support Officer Barnes' finding Plaintiff was guilty of the infraction. This proceeding was all the process to which Plaintiff was entitled under the due process clause. See O'Bryant v. Finch, 637 F.3d 1207, 1213 (11th Cir. 2011) (citing Wolff v. McDonnell, 418 U.S. 539, 563-67, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (" Wolff instructed that prisoners must receive: (1) advance written notice of the charges against them; (2) an opportunity for the inmate to call witnesses and present documentary evidence, so long as doing so is consistent with institutional safety and correctional goals; and (3) a written statement by the factfinder outlining the evidence relied on and the reasons for the disciplinary action.")); see also Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (holding procedural due process is satisfied if there is " some evidence" in the record to support the finding of guilt).

For the foregoing reasons, Plaintiff's procedural due process claim is due to be dismissed for failure to state a claim upon which relief may be granted.

b. Substantive Due Process

Because Plaintiff has no liberty interest in the above deprivation, the only other potential avenue for relief is connected to his substantive due process rights. However, Plaintiff may not maintain such a claim unless a defendant relied on information that was admittedly false, such that Plaintiff was treated " arbitrarily and capriciously in violation of due process." See Monroe, 932 F.2d at 1442 (emphasis added). In this case, Plaintiff has not alleged any defendant utilized or relied on admittedly false information when the disciplinary charge was initiated and prosecuted or when he was found guilty. Additionally, Plaintiff's admissions regarding his conduct show Officer Barnes did not " engage in 'flagrant or unauthorized action'" when he found Plaintiff guilty of the violation. See id. at 1442.

For the foregoing reasons, this claim is due to be dismissed.

2. Fourteenth Amendment Equal Protection

" To establish an equal protection claim, a prisoner must demonstrate that (1) he is similarly situated to other prisoners who received more favorable treatment; and (2) the state engaged in invidious discrimination against him based on race, religion, national origin, or some other constitutionally protected basis." Sweet v. Secretary, Dept. of Corrections, 467 F.3d 1311, 1318 -1319 (11th Cir. 2006) (citing Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001)); Damiano v. Florida Parole and Prob. Comm'n, 785 F.2d 929, 932-33 (11th Cir. 1986).

Plaintiff alleges Lt. Tucker gave his job at Lamb Motors to Caucasian inmate David Dotson (Doc. 1-1 at 7), but he has not alleged Dotson was similarly situated to him. Specifically, and as set out in Section IV.B. infra, Plaintiff cannot allege discrimination in hiring because he was accepted for employment by Lamb Motors and lost the job because he violated prison rules. Plaintiff does not allege Dotson lacked the skill set to perform the Lamb Motors job but was hired, nonetheless. Nor does he contend Dotson engaged in conduct similar to his and yet was not removed from employment at Lamb Motors.

Plaintiff declares two other Caucasian inmates were caught with synthetic marijuana but were not removed from their jobs or given a disciplinary infraction. (Id. at 7-8). A fourth Caucasian inmate was caught with cell phones and failed a drug test, but he was not removed from his job at Lamb Motors and only received thirty days loss of good time as punishment. (Id. at 9). Plaintiff alleges these inmates received more favorable treatment because they are Caucasian and he is African American. (Id. at 7-9). Plaintiff's equal protection claim must fail because he has not shown the offense he committed was similar to those committed by these Caucasian inmates. Plaintiff's disciplinary charge involved taking property from his work release job and attempting to smuggle it out of the prison. The Caucasian inmates, however, were charged with drug possession and use, as well as cell phone possession. These offenses do not involve potential victims (including their work release employers) or profiteering. Since Plaintiff's allegations do not establish he was similarly situated to the inmates to whom he compares himself, he cannot show those individuals were treated more favorably than him on the basis of his race.

For the foregoing reasons, this claim is due to be dismissed for failure to state a claim upon which relief may be granted.

B. Second Disciplinary Infraction

In his amended complaint, Plaintiff alleges he was charged with and found guilty of another disciplinary infraction for creating a security hazard by " trying to prevent inhaling second hand[] smoke on the bus in route to work[]." (Doc. 12 at 2). Plaintiff claims the disciplinary hearing officer found him guilty of the offense without admitting, considering, or making Plaintiff's statements a part of the record. (Id.).

Plaintiff claims his due process and equal protection rights were violated. (Id.). However, he does not identify a defendant in connection with these claims; describe with specificity his actions in protesting the second hand smoke; or state when the disciplinary infraction occurred, what punishment he received, or how his treatment was inequitable. Conclusory and general assertions are not sufficient to state a claim upon which relief under § 1983 can be granted. See Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984). Accordingly, these claims are due to be dismissed.

IV. EMPLOYMENT

Plaintiff alleges the named defendants violated the Equal Protection Clause because they discriminated against him on the basis of his race in connection with his efforts to seek and retain employment.

A. State Actors

While the defendants employed by the Alabama Department of Corrections are undisputedly state actors, the status of the other defendants, Platinum Homes, Lamb Motors and their employees, is not certain. In his motion to amend the complaint, Plaintiff asserts all he " need[s] to show is that the person or persons" he is suing were " working for the prison system or some other part of state or local government at the time of the acts of job discrimination by Platinum Homes Trail[e]r Plant and Lamb's Motors, who had a contract with the prison system." (Doc. 12 at 1). He further alleges that while employed at " Lamb's Motors under Dwight Lamb, " he was " compelled to work under discriminating terms and under unsanitary conditions by cleaning up excessive blood, bones, teeth and brain matter from vehicles of which no other employees were compelled to do." (Id. at 2). He claims such actions violated the Eighth Amendment's proscription against cruel and unusual punishment and his Fourteenth Amendment right to equal protection. (Id. at 2).

Platinum Homes and its plant manager (Eugene), supervisor (Jammie), " lead person" (Tony), and human resource manager (Sheila) are clearly private entities and individuals. So are Lamb Motors and Dwight Lamb. To state a viable claim against them under § 1983, Plaintiff must assert " both an alleged constitutional deprivation 'caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, ' and that 'the party charged with the deprivation must be a person who may fairly be said to be a state actor.'" American Mfrs. Mut. Ins. Co. v. Sullivan 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (emphasis in original)).

" Only in rare circumstances can a private party be viewed as a '[S]tate actor' for section 1983 purposes." Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.1992). Indeed, to hold that private parties . . . are State actors, this court must conclude that one of the following three conditions is met: (1) the State has coerced or at least significantly encouraged the action alleged to violate the Constitution (" State compulsion test"); (2) the private parties performed a public function that was traditionally the exclusive prerogative of the State (" public function test"); or (3) " the State had so far insinuated itself into a position of interdependence with the [private parties] that it was a joint participant in the enterprise[]" (" nexus/joint action test"). NBC, Inc. v. Communications Workers of America, 860 F.2d 1022, 1026--27 (11th Cir.1988).

Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001).

The Fourteenth Amendment " 'erects no shield against merely private conduct, however discriminatory or wrongful.'" Blum v. Yaretsky, 457 U.S. 991, 1002-1003, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948)). " [P]rivate contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts." Rendell-Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). Plaintiff cannot show " the State is responsible for the specific conduct of which the plaintiff complains" by merely asserting in conclusory fashion Platinum Homes, Lamb Motors and their employees had a " contract" with the Alabama Department of Corrections. Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (emphasis in original). Nor can Plaintiff show simply by virtue of this assertion that his duties at Lamb Motors, however unpleasant, establish the State should be held responsible for the conditions under which he worked.[10] Accordingly, to the extent Plaintiff alleges the private companies and their employees are state actors based on a contract with the Alabama Department of Corrections, the motion to amend the complaint is due to be denied.

B. The Defendant Correctional Officers

As set out earlier, " [t]o establish an equal protection claim, a prisoner must demonstrate that (1) he is similarly situated to other prisoners who received more favorable treatment; and (2) the state engaged in invidious discrimination against him based on race, religion, national origin, or some other constitutionally protected basis." Sweet v. Secretary, Dept. of Corrections, 467 F.3d 1311, 1318 -1319 (11th Cir. 2006) (citing Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001); Damiano v. Florida Parole and Prob. Comm'n, 785 F.2d 929, 932-33 (11th Cir. 1986)).

1. Job Placement

Plaintiff alleges he wrote letters to Capt. Gates about getting a job, and Lt. Tucker and Officer Hall awarded employment to other Caucasian inmates before they awarded employment to Plaintiff. (Doc. 1-1 at 5). However, Plaintiff does not describe the job skills or history of any of the Caucasian inmates with whom he compares himself. Nor does he describe the particular job skills required for the positions for which they were hired. Plaintiff admits he is a fifty-four year old man who has been incarcerated almost half of his adult life. (Id. at 8). He describes no skills he possesses other than his physical strength. Therefore, he cannot establish he was similarly situated to any of the Caucasian inmates he alleges were employed before him. Thus, although Plaintiff alleges he was treated differently based on his race, his failure to establish any Caucasian inmate was similarly situated to him means he cannot establish an equal protection claim.

Plaintiff also contends, on the whole, the named defendants placed a greater percentage of Caucasian inmates at Kinro's, Platinum Homes, and Lamb Motors, the most desired work release employers. (Id. at 5, 7). However, the ratio of African American inmates to Caucasian inmates at each of these companies means little because Plaintiff admits he, an African American, was placed at two of those facilities, and the question before the undersigned is whether any defendant violated Plaintiff's right to equal protection of the law. Based on Plaintiff's own allegations, he cannot show similarly situated inmates (nor has he identified any) were treated more favorably than him on the basis of his race.

This claim is due to be dismissed for failure to state a claim upon which relief may be granted.

2. Job retention

Although Plaintiff admits Lt. Tucker and Officer Hall sent him to Platinum Homes to work and he was accepted as an employee there, he alleges that only three days into his employment Lt. Tucker and Officer Hall, along with employees of that company, conspired with one another to terminate him based on his race. His theory of a conspiracy is predicated on several factors, but none of them, individually or collectively, establish his claim.

Plaintiff alleges he is very strong because he works out six days per week. (Id. at 13-14). Based solely on his strength, Plaintiff contends he was performing well on the job. Plaintiff also alleges he was told three different stories as to why he was terminated from Platinum Homes. Jammie, a supervisor, informed Plaintiff that Tony, a " lead person, " said Eugene, the plant manager, was terminating Plaintiff because he hired too many employees. (Id. at 13). Eugene told Plaintiff he was not keeping up with production. (Id.). Lt. Tucker informed Plaintiff the real reason he was fired was he was overhead complaining Platinum Homes did not hire African Americans, which Plaintiff denies. (Id. at 15).

Plaintiff does not explain why or how his strength was the only skill required to perform his job at Platinum Homes. He does not dispute Eugene's assertion he was not keeping up with production, which required the assembly of manufactured sinks. He does not allege other Caucasian employees were failing to keep up with production but were not terminated. Nor does he allege Platinum Homes had not, in fact, hired too many employees. He denies making any comments about Platinum Homes' failure to hire African Americans and states the accusation was made to make it appear as though he, not any of the defendants, was focused on race. (Id.). However, whether Plaintiff made the statement, he has not pointed to any Caucasian employee of Platinum Homes who made similar statements but was not terminated. Based on his disbelief of the stated reasons for his termination from Platinum Homes, Plaintiff declares the named defendants conspired to violate his equal protection rights.

Platinum Homes is a private entity, and its employees are private citizens. As such, they " cannot be liable under section 1983 unless" a conspiracy is shown. See Rowe v. City of Fort Lauderdale 279 F.3d 1271, 1283 (11th Cir. 2002) (citing NAACP v. Hunt, 891 F.2d 1555, 1563 (11th Cir.1990)). If the conspiracy claim fails, " the substantive claim necessarily fail[s] with it." Id.

To establish a prima facie case of section 1983 conspiracy, a plaintiff must show, among other things, that the defendants " reached an understanding to violate [his] rights." The plaintiff does not have to produce a " smoking gun" to establish the " understanding" or " willful participation" required to show a conspiracy, but must show some evidence of agreement between the defendants. Bailey v. Bd. of County Comm'rs of Alachua County, 956 F.2d 1112, 1122 (11th Cir.1992) (" The linchpin for conspiracy is agreement, which presupposes communication.").

Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283-1284 (11th Cir. 2002) (internal citations omitted).

Plaintiff does not make any allegations Officer Hall was involved in or even aware of the circumstances surrounding his termination. Therefore, the claim against him is due to be dismissed. Additionally, the fact Plaintiff was told three different stories about why he was terminated, standing alone, simply does not show some evidence of an agreement among the other named defendants to violate his right to equal protection of the law. Plaintiff has not alleged sufficient facts to show there was a conspiracy among any of the defendants. Even if the court were to find that the differing stories show some sort of an agreement between defendant Tucker and an unidentified Platinum Homes employee to make up a lie about Plaintiff in order to terminate Plaintiff, Plaintiff still has not pointed to a Caucasian inmate who was subjected to the same type of lie but was not terminated. Therefore, the substantive equal protection claim also fails.

V. THREATS

Generally speaking, allegations of verbal abuse or harassment by prison officials against a prisoner do not state a constitutional violation sufficient to form the basis of a claim under § 1983. Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979); McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993); Stacey v. Ford, 554 F.Supp. 8 (N.D.Ga. 1982). Furthermore, where threats of violence do not result in physical contact or where threats are not carried out, a claim based on such threats is due to be dismissed in a § 1983 action, even where such threats are without apparent justification. Hernandez v. Florida Department of Corrections, 281 F.App'x 862, 866 (11th Cir. June 9, 2008); Simms v. Reiner, 419 F.Supp. 468, 474 (N.D. Ill. 1976); accord Bolden v. Mandel, 385 F.Supp. 761, 764 (D. Md. 1974). Under these principles, Plaintiff's allegations of verbal threats made by Lt. Tucker and the fact Sgt. Smith was merely present when Lt. Tucker made the statements are insufficient to state a constitutional claim.

RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT

Accordingly, for the reasons stated above, the magistrate judge RECOMMENDS that Plaintiff's motion to amend the complaint be GRANTED and this action be DISMISSED for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A(b)(1) and/or (2).

NOTICE OF THE RIGHT TO OBJECT

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 recommendations 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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