United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION AND ORDER
KARON OWEN BOWDRE, Chief District Judge.
The magistrate judge filed a report and recommendation on December 26, 2012, recommending that this action filed pursuant to 42 U.S.C. § 1983 be dismissed under 28 U.S.C. § 1915A(b) for failing to state a claim upon which relief may be granted. (Doc. 20). The plaintiff filed objections to the report and recommendation on January 15, 2013. (Doc. 23).
For the reasons stated in this Memorandum Opinion and Order, the court ADOPTS IN PART and REJECTS IN PART the magistrate judge's report. More specifically, the court DISMISSES all claims in the amended complaint except the plaintiff's claim that defendants Thomas, Davenport and Corizen were deliberately indifferent to his serious medical needs from May 15, 2010 until September 2012. Further, the court FINDS the plaintiff's request for injunctive relief to be MOOT, and REJECTS the magistrate judge's report to the extent that it denies the plaintiff's request for emotional damages. The court also DENIES the plaintiff's Motion requesting permission to amend the complaint (doc. 23, at 19-20) and DENIES his Motion for Reconsideration of Appointment of Counsel (doc. 27).
I. Pertinent Procedural History
On May 15, 2012,  the plaintiff filed his civil rights complaint. (Doc. 1). On July 16, 2012, he filed a "Motion to Clarify Claims and Defendants." (Doc. 13). On July 26, 2012, the court ordered the plaintiff to amend his complaint in accordance with the following instructions:
Plaintiff must amend his complaint by completing a new 1983 complaint form. The new complaint must be labeled "Amended Complaint" and "4:12-CV-1899-KOB-JEO" must be written on the first page. In the amended complaint, plaintiff should name as defendants only those persons who violated his constitutional rights. Plaintiff must identify those persons as defendants both in the heading and in Part III of the complaint. Plaintiff should also state clearly how each named defendant violated his constitutional rights, the date(s) on which the incident(s) occurred, and where the incident(s) occurred. PLAINTIFF MUST CLEARLY SET FORTH THE FACTS CONCERNING ANY INCIDENT ABOUT WHICH HE COMPLAINS. Plaintiff is ADVISED that 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). The amended complaint must include all of plaintiff's claims in this action; IT SHOULD NOT REFER BACK TO THE ORIGINAL COMPLAINT. Plaintiff is ADVISED that the Court will consider only the claims set forth in the amended complaint. After completing the new complaint form, plaintiff should mail it to the Clerk of the Court.
(Doc. 15 at 1-2).
On August 8, 2012, the plaintiff filed an amended complaint (doc. 17), which is the operative complaint. (Doc. 17). The plaintiff claims that as a St. Clair Correctional Facility (SCCF) inmate, the defendants discriminated against him on the basis of his race, indigent status, politics, and because the Alabama Constitution does not have an Equal Protection Clause. ( Id. at 5-7). The plaintiff alleges he was charged an excessive phone service charge because of his race and the defendants discriminated in the enforcement of rules; he was denied adequate medical care, food, clothing, shelter, reasonable safety, sanitation, and exercise because the Alabama Prison System is admittedly violent, dangerous, unconstitutionally overcrowded, understaffed and underfunded; he was subjected to abusive language by officers, hazardous living conditions, inadequate sanitation, and inadequate exercise; he was charged a service charge for money orders and officers took store goods that belonged to him for no reason; the defendants violated his constitutional rights by strip searching him, searching his cell with dogs, requiring him to give a urine sample and then gave him a false disciplinary where he was not allowed to question the witnesses he requested. ( Id. at 6-12).
The magistrate judge explained in detail his recommendations as to why each of the plaintiff's claims did not rise to the level of a constitutional violation and cited legal authority to support his explanations. (Doc. 20). True to the instructions in the order to amend, the report and recommendation considers only the claims and allegations in the amended complaint. ( Id. at 2-3). The report instructed the plaintiff that while he could object to the magistrate judge's factual and legal recommendations, "the filing of objections [was] not a proper vehicle to make new allegations or present additional evidence. Objections not meeting the specificity requirement set out above will not be considered by a district judge." ( Id. at 21-22).
On January 15, 2013, the plaintiff filed his objections. (Doc. 23). He reviews each paragraph of the report and recommendation, and for the most part, restates the same allegations in his amended complaint or cites the amended complaint. ( Id. ). The plaintiff argues the amended complaint does show he suffered various constitutional violations, and the magistrate judge did not consider "the unrefuted and undisputed claims." ( Id. at 7). As will be set out further in this Memorandum Opinion and Order, the plaintiff does make some additional allegations in his objections. He also cites repeatedly to a motion for temporary restraining order (TRO) and motion for reconsideration of the denial of that motion ("motion for reconsideration") to support his objections. ( Id. at 3-5, 7-9, 12-14, 16-18) (citing Docs. 9 and 12, respectively). These documents were filed prior to the operative amended complaint and contain factual allegations that were not pled in the operative amended complaint. The court denied the TRO motion on July 10, 2012. (Doc. 11). Although the plaintiff declares the motion for reconsideration is pending, that motion was denied on January 9, 2013. (Doc. 21).
The plaintiff further contends the magistrate judge "did not consider the facts in the record[, ]" and cites to documents 1 through 6, and 10-11 as support for his objections, i.e., virtually every document in the record up until that point. (Doc. 23 at 4, 5, 12-13). With the exception of the motions pertaining to the request for preliminary injunctive relief, none of the documents sets out any factual allegations pertinent to the questions presently before the court that are substantially different from the amended complaint.
Finally, the plaintiff demands an opportunity to amend his complaint to allege that his transfer to W.E. Donaldson Correctional Facility was in retaliation for filing this lawsuit, that he is continuing to be denied medical care by defendants Corizen and Prison Commissioner Thomas, that he is denied access to a law library, and that he is subjected to the same unconstitutional conditions of confinement he alleges were in existence at St. Clair Correctional Facility. ( Id. at 20).
On July 3, 2014, the plaintiff filed a Motion for Reconsideration of Appointment of Counsel. (Doc. 27). That motion is currently pending and will be addressed in this Memorandum Opinion and Order.
II. Standard of Review
This court has a duty to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A [district] judge... may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Where an objecting "party makes only conclusory or general objections, or simply reiterates his original arguments, the court reviews the Report and Recommendation only for clear error.'" Farid v. Bouey, 554 F.Supp.2d 301, 307 (N.D.N.Y. May 20, 2008) (quoting McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y. Sept. 26, 2007)) (citations and quotations omitted).
Having carefully reviewed and considered de novo all the materials in the court file, including the report and recommendation and the objections to them, the court is of the opinion that the magistrate judge's report is due to be ...