United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
F. MOORER UNITED STATES MAGISTRATE JUDGE
U.S.C. § 1983 action is pending before the court on a
complaint filed by James Michael West, Jr., a state inmate,
challenging actions which occurred at the Ventress
Correctional Facility from April of 2013 until the filing of
this complaint in October of 2013. West names Christopher
Gordy, James Carlton and Sherwood Carter, all correctional
officials employed at Ventress during the time relevant to
the complaint, as defendants.
instant complaint, West alleges that the defendants violated
his rights secured under the First Amendment by refusing him
access to copies of Black Men magazine which contained
photographs of nude women. West further argues that the
denial of these magazines deprived him of equal protection
because white inmates were allowed to receive magazines with
similar content. West also asserts that the defendants'
denial of the Black Men magazines and the removal of various
pages/cards from his Country Living magazines prior to
delivery to him circumvented his right to due process. West
seeks a declaratory judgment, injunctive relief and monetary
damages for the loss of his property.
defendants filed a special report, supplemental special
report and supporting evidentiary materials addressing the
claims presented in the complaint. In these documents, the
defendants deny their actions violated West's
receipt of the defendants' special report, the court
issued an order directing West to file a response to the
report, including affidavits, sworn statements or other
evidentiary materials. Order of March 5, 2014 - Doc. No.
16 at 2. This order specifically cautioned West that
unless “sufficient legal cause” is shown within
fifteen days of entry of this order “why such action
should not be undertaken, . . . the court may at any time
[after expiration of the time for his filing a response to
this order] and without further notice to the parties (1)
treat the special report and any supporting evidentiary
materials as a motion for summary judgment and (2) after
considering any response as allowed by this order, rule on
the motion for summary judgment in accordance with the
law.” Id. at 2-3. West filed a response in
opposition to the defendants' report, supported by
affidavits on April 2, 2014. The court also provided West an
opportunity to file a response to the defendants'
supplemental special report, Doc. No. 21, to which
he filed no response within the time permitted by the court.
to the directives of the order entered on March 5, 2014, the
court deems it appropriate to treat the defendants'
reports as a motion for summary judgment. Thus, this case is
now pending on the defendants' motion for summary
judgment. Upon consideration of the defendants' motion
for summary judgment, the evidentiary materials filed in
support thereof, the sworn complaint and the response(s)?
filed by West, the court concludes that summary judgment is
due to be granted in favor of the defendants.
SUMMARY JUDGMENT STANDARD
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] 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 to former
rule omitted); Fed.R.Civ.P. Rule 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); Jeffery v. Sarasota White Sox,
Inc., 64 F.3d 590, 593 (11th Cir. 1995) (moving party
has initial burden of showing there is no genuine dispute of
material fact for trial). The movant may meet this burden by
presenting evidence indicating there is no dispute of
material fact or by showing that the nonmoving party has
failed to present appropriate evidence in support of some
element of its case on which it bears the ultimate burden of
proof. Celotex, 477 U.S. at 322-324.
defendants have met their evidentiary burden and demonstrated
the absence of any genuine dispute of material fact with
respect to the claims presented by the plaintiff. Based on
the foregoing, the burden shifts to the plaintiff to
establish, with appropriate evidence beyond the pleadings,
that a genuine dispute material to his case exists. Clark
v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P.
56(e)(3) (“If a party fails to properly support an
assertion of fact or fails to properly address another
party's assertion of fact by [citing to materials in the
record including affidavits, relevant documents or other
materials] the court may . . . grant summary judgment if the
motion and supporting materials -- including the facts
considered undisputed -- show that the movant is entitled to
it.”); Jeffery, 64 F.3d at 593-594 (internal
quotation marks omitted) (Once the moving party meets its
burden, “the non-moving party must then go beyond the
pleadings, and by its own affidavits [or statements made
under penalty of perjury], or by depositions, answers to
interrogatories, and admissions on file, ” demonstrate
that there is a genuine dispute of material fact.). This
court will also consider “specific facts” pled in
a plaintiff's sworn complaint when considering his
opposition to summary judgment. Caldwell v. Warden, FCI
Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014). 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; Allen v. Bd. of
Public Education for Bibb County, 495 F.3d 1306, 1313
(11th Cir. 2007).
civil actions filed by inmates, federal courts
must distinguish between evidence of disputed facts and
disputed matters of professional judgment. In respect to the
latter, our inferences must accord deference to the views of
prison authorities. Unless a prisoner can point to sufficient
evidence regarding such issues of judgment to allow him to
prevail on the merits, he cannot prevail at the summary
Beard v. Banks, 548 U.S. 521, 530, 126 S.Ct. 2572,
2578, 165 L.Ed.2d 697 (2006) (internal citation omitted). To
proceed beyond the summary judgment stage, an
inmate-plaintiff is required to produce “sufficient
[favorable] evidence” which would be admissible at
trial supporting his claims of constitutional violations.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986); Rule 56(e), Federal Rules of Civil
Procedure. “If the evidence [on which the
nonmoving party relies] is merely colorable . . . or is not
significantly probative . . . summary judgment may be
granted.” Anderson, 477 U.S. 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. Anderson v. Liberty
Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d
202 (1986).” Walker v. Darby, 911 F.2d 1573,
1576-1577 (11th Cir. 1990). 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.
Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th
Cir. 1997) (A plaintiff's “conclusory assertions .
. ., in the absence of [admissible] supporting evidence, are
insufficient to withstand summary judgment.”);
Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir. 1995)
(grant of summary judgment appropriate where inmate produces
nothing beyond “his own conclusory allegations”
challenging actions of the defendants); Fullman v.
Graddick, 739 F.2d 553, 557 (11th Cir. 1984)
(“Mere verification of party's own conclusory
allegations is not sufficient to oppose summary
judgment[.]”); Evers v. General Motors Corp.,
770 F.2d 984, 986 (11th Cir. 1985) (“[C]onclusory
allegations without specific supporting facts have no
probative value.”). Hence, when a plaintiff fails to
set forth specific facts supported by requisite evidence
sufficient to establish the existence of an element essential
to his case and on which he 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.”); Barnes v. SouthWest Forest
Industries, Inc., 814 F.2d 607, 609 (11th Cir. 1987) (If
on any part of the prima facie case the plaintiff presents
insufficient evidence to require submission of the case to
the trier of fact, granting of summary judgment is
appropriate.); Chapman v. AI Transport, 229 F.3d
1012, 1023 (11th Cir. 2000) (en banc) (summary judgment
appropriate where no genuine dispute of material fact
exists). At the summary judgment stage, this court must
“consider all evidence in the record . . . [including]
pleadings, depositions, interrogatories, affidavits, etc. --
and can only grant summary judgment if everything in the
record demonstrates that no genuine [dispute] of material
fact exists.” Strickland v. Norfolk Southern
Railway Co., 692 F.3d 1151, 1154 (11th Cir. 2012).
summary judgment purposes, only disputes involving material
facts are relevant. United States v. One Piece of Real
Property Located at 5800 SW 74th Avenue, Miami, Florida,
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. Secretary
of the Department of Children and Family Services, 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. v. ZenithRadio 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 there is no genuine
dispute of material fact and 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 no genuine
dispute as to a requisite material fact); Waddell v.
Valley Forge Dental Associates, Inc., 276 F.3d 1275,
1279 (11th Cir. 2001) (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
factual inferences must be viewed in a light most favorable
to the nonmoving party and pro se complaints are
entitled to liberal interpretation, a pro se
litigant does not escape the burden of establishing by
appropriate and sufficient evidence a genuine dispute of
material fact. Beard, 548 U.S. at 525, 126 S.Ct. at
2576; West v. Crawford, 906 F.2d 667, 670 (11th Cir.
1990). Thus, the plaintiff's pro se status does
not mandate this court's disregard of elementary
principles of production and proof in a civil case.
court has undertaken a thorough and exhaustive review of all
the evidence contained in the record. After such review, the
court finds that West has failed to demonstrate a genuine
dispute of material fact in order to preclude entry of
summary judgment in favor of the defendants.
extent West sues the defendants in their official capacities,
they are immune from monetary damages. Official capacity
lawsuits are “in all respects other than name, . . .
treated as a suit against the entity.” Kentucky v.
Graham, 473 U.S. 159, 166 (1985). “A state
official may not be sued in his official capacity unless the
state has waived its Eleventh Amendment immunity, see
Pennhurst State School & Hospital v. Halderman, 465
U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984), or
Congress has abrogated the state's immunity, see
Seminole Tribe v. Florida, [517 U.S. 44');">517 U.S. 44, 59], 116 S.Ct.
1114, 1125, 134 L.Ed.2d 252 (1996). Alabama has not waived
its Eleventh Amendment immunity, see Carr v.
City of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990)
(citations omitted), and Congress has not abrogated
Alabama's immunity. Therefore, Alabama state officials
are immune from claims brought against them in their official
capacities.” Lancaster v. Monroe County, 116
F.3d 1419, 1429 (11th Cir. 1997).
light of the foregoing, the defendants are entitled to
sovereign immunity under the Eleventh Amendment for claims
seeking monetary damages from them in their official
capacities. Lancaster, 116 F.3d at 1429; Jackson
v. Georgia Department of Transportation, 16 F.3d 1573,
1575 (11th Cir. 1994); Parker v. Williams, 862 F.2d
1471 (11th Cir. 1989).
complains that the defendants improperly withheld one or more
of his Black Men magazines in violation of his Frist
Amendment rights. Specifically, West argues that denying him
access to these magazines deprived him of his right to
receive reading materials “which promote African
American (black) women.” Complaint - Doc. No.
1 at 2. The defendants maintain that they rejected the
magazines at issue because the publications contained
photographs of nude women, some of which depicted women
covered only in body paint, and the defendants deemed the
rejected magazines a potential threat to the security of the
Administrative Regulation No. 448, inmates are
“permitted to send and receive correspondence unless
there is reasonable suspicion that such correspondence may
present a threat to the safety and security of the facility,
public, staff, or inmates.” Doc. No. 15-6 at
4. The regulation defines nudity as “[a] pictorial
depiction where the genitalia or female breasts are exposed.
Publications containing nudity illustrative of medical,
educational, or anthropological content may be excluded from
this definition.” Id. at 3. Defendant Carter
maintains that the magazines were inspected “to ensure
that [they did] not contain material that would present a
clear threat or danger to institutional security.”
Doc. No. 15-2 at 2. Any magazine deemed to present a
threat to security was denied. Id.
affidavit filed by Gwendolyn Mosley, an Institutional
Coordinator for the Alabama Department of Corrections,
explains the basis for rejection of ...