United States District Court, N.D. Alabama, Western Division
K. KALLON UNITED STATES DISTRICT JUDGE
magistrate judge filed a report on October 17, 2017,
recommending this action be dismissed without prejudice for
failing to state a claim upon which relief can be granted,
pursuant to 28 U.S.C. § 1915A(b). (Doc. 33). The
plaintiff was notified of his right to file objections within
fourteen (14) days of the report and recommendation
(id., at 44-45), and on November 3, 2017, the court
received the plaintiff's objections (doc. 35).
majority of the plaintiff's objections are based on
disagreement with the law the court must apply under 28
U.S.C. § 1915A. This court is bound by the Eleventh
Circuit's rules for reviewing pro se prisoner
complaints pursuant to 28 U.S.C. §§ 1915A and
1915(e). The Eleventh Circuit requires a plaintiff
demonstrate conduct taken under color of law, complained of
in the civil rights suit, violated the plaintiff's
rights, privileges, or immunities under the Constitution or
laws of the United States. See e.g., Griffin v. City of
Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). The
complaint must demonstrate that the facts as pled state a
claim that is “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
[u]nder § 1915A, the district court must review a
prisoner's § 1983 complaint “before docketing,
if feasible, or, in any event, as soon as practicable after
docketing.” 28 U.S.C. § 1915A(a). The district
court must “identify cognizable claims, ”
id. § 1915A(b), and dismiss any portion of the
complaint that  is “frivolous, malicious, or fails to
state a claim upon which relief can be granted.”
Id. § 1915A(b)(1).
Dollar v. Coweta County Sheriff Office, 446 F.
App'x 248, 250 (11th Cir. 2011).
to the plaintiff's specific objections, he first
complains that the magistrate judge failed to address whether
the defendants acted under color of state law. (Doc. 35 at
1). Each of the named defendants is a prison official and the
magistrate judge clearly recognized that each of the named
defendants is a state actor for purposes of § 1983.
Because each defendant's status as a state actor was
accepted as fact, the magistrate's failure to discuss
this is not error.
plaintiff also faults the magistrate judge for not addressing
whether the defendants acted willfully, wantonly, in bad
faith, and in dereliction of other legal standards of intent.
(Doc. 35 at 1). The court is required by 28 U.S.C. §
1915A to consider whether the facts, as alleged by the
plaintiff, state any cause of action upon which relief may be
granted, taking those facts as true and construing them in
the light most favorable to the plaintiff. See e.g.,
Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008).
If those facts as pled do not state a claim for relief that
is plausible on its face, the court must dismiss the
complaint. Iqbal, 556 U.S. at 678. Thus, the
magistrate judge took all of the plaintiff's allegations
of fact, including those regarding the defendants'
actions, as true. Whether the plaintiff can produce evidence
supporting his allegations is not a proper consideration in
§ 1915A review.
plaintiff next asserts the magistrate judge failed to discuss
that the defendants caused the plaintiff a variety of
damages. (Doc. 35 at 1). The question of types of damages
suffered by the plaintiff is not reached prior to a
determination of whether the complaint, as amended, even
states a cause of action upon which relief can be granted.
See Franklin v. Curry, 738 F.3d 1246, 1251 (11th
Cir. 2013) (holding that courts must follow the Supreme
Court's “‘two-pronged approach' of first
separating out the complaint's conclusory legal
allegations and then determining whether the remaining
well-pleaded factual allegations, accepted as true,
‘plausibly give rise to an entitlement to
relief.'”). Because the court cannot find any legal
wrongdoing by a person acting under color of state law is
alleged in the final amended complaint, the harm the
plaintiff claims to have suffered is not relevant.
plaintiff also complains that the magistrate judge failed to
discuss that the plaintiff had invoked his right to a jury
trial under the Seventh Amendment and Rule 38, Fed.R.Civ.P.
(Doc. 35 at 1). The plaintiff is mistaken in his assertion
that because he “invoked his Constitutional Right to a
jury trial” the court must allow this case to proceed
to trial. Because this action does not survive 28 U.S.C.
§ 1915A review, the fact the plaintiff wants his claims
tried by a jury is of no consequence. Rule 38 simply does not
require a court to hold a jury trial any time a demand for
one is made. Rather, Rule 38 recognizes that a right to jury
trial, for claims surviving various types of judicial review,
exists. Because the plaintiff is a prisoner, the court is
required to review his claims, as set forth in §
1915A(b)(1) (requiring screening of a complaint “as
soon as practicable after docketing”). See e.g.,
Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1096
n.11 (11th Cir. 2014) (“under 28 U.S.C. § 1915A,
the district court may sua sponte dismiss a
prisoner's complaint or any portion of the complaint for
any of those four reasons [stated in § 1915A] prior to
service of process”); Smith v. Hutchins, F.
App'x 785, 787-88 (11th Cir. 2011); Thompson v.
Hicks, 213 F. App'x 939, 942 (11th Cir. 2007).
Where, as here, the plaintiff has failed to state a factually
valid legal claim, dismissal of his claim is warranted.
next objections concern the procedural background and
standard of review. (Doc. 35 at 2). The plaintiff complains
that the magistrate judge stated the May 4, 2017, motion to
amend the complaint sought to add a claim for “seizure
of [the plaintiff's] cell phone and ten self-addressed
stamped manila envelopes” instead of a “cell
phone, cell phone box, ten self-addressed stamped envelopes
and a self-addressed stamped manila envelope.”
(Id.). As the plaintiff filed additional amended
complaints on June 8, 2017, July 7, 2017, and August 7, 2017
(docs. 15, 25, and 30), any misstatement concerning the
number or size of self-addressed stamped envelopes referenced
in the May 4, 2017, amended complaint had no impact on
recommendations in the magistrate judge's report. The
plaintiff's assertion that his final amended complaint
only concerned multiple defendants at two rather than four
institutions (doc. 35 at 2) is contradicted by the content of
that complaint: The plaintiff's August 7, 2017, final
amended complaint asserted claims for a frivolous write up at
Childersberg Work Release (doc. 30 at 3-4); frivolous
disciplinary actions and wrongful confiscation of property
while at Hamilton Work Release (id., at 4-7);
wrongful disciplinary actions, violations of his Fourth and
Eighth Amendment rights, and denial of privileges at Hamilton
A&I (id., at 7-8; doc. 30-1 at 4); and violation
of his right to a classification review and violations of
state procedures in his move to and retention at Bibb
Correctional Facility (doc. 30 at 8; doc. 31 at 1-2).
Moreover, the magistrate judge specifically stated that,
given that the plaintiff could sincerely believe his plethora
of claims all arose from a continuous tort, the report and
recommendation would consider each of the claims raised in
the plaintiff's final amended complaint. (Doc. 33 at 4
plaintiff objects to the standard of review required under 28
U.S.C. § 1915A. (Doc. 35 at 2). Specifically, he asserts
the court must have evidentiary material before it can find
whether genuine issues of material fact exist.
(Id.). The plaintiff is correct in that evidentiary
material is necessary before the court can rule on a summary
judgment motion under Rule 56, and that the standard for
summary judgment is, in part, whether any genuine issues of
material fact remain. However, the report and recommendation
did not reach this issue. Unlike the summary judgment
standard, § 1915A review requires the court to consider
whether the facts stated in the plaintiff's complaint,
taken as true and construed in the light most favorable to
the plaintiff, state a cause of action upon which relief may
be granted. See e.g., Hernandez v. Florida Dept. of
Corrections, 281 F. App'x 862, 864 n.1 (11th Cir.
2008) (“To the extent that Hernandez challenges the
sua sponte dismissal on a procedural basis, we note
that a district court may screen all complaints filed in
forma pauperis and all prisoner suits seeking redress
from governmental entities or government employees ….
Because Hernandez was proceeding in forma pauperis
as a prisoner and suing a state prison and prison officers,
we reject his procedural challenge to the sua sponte
dismissal prior to service of process on the defendants and
prior to discovery.”).
plaintiff objects to the magistrate judge taking judicial
notice of why the plaintiff is serving a life sentence. (Doc.
35 at 3). The plaintiff does not assert that any of the
factual statements are incorrect, or were used improperly,
but only that it is irrelevant to his current claims.
(Id.). As stated in the very footnote to which the
plaintiff objects, this court may take judicial notice of
state court proceedings. (Doc. 33 at 6 n.5, citing Grider
v. Cook, 522 F. App'x 544, 545 n.2 (11th Cir.
2013)). See Tabb v. Brown, 2013 WL 2446288, *1 n.1
(N.D.Ga. June 4, 2013) (“The Court may take judicial
notice of publicly available information about jail inmates
on government websites.”).
report and recommendation, the magistrate judge noted the
plaintiff's claim that when he was transferred to
Hamilton Work Release in October 2016 he was told in
orientation that the Job Placement Officers, including Thomas
Black, knew that prisoners were using cell phones at their
places of employment and were not worried about it. (Doc. 33
at 8). The plaintiff asserts the report and recommendation
failed to name defendant William Morrison in the same
paragraph, as the final amended complaint did. (Doc. 35 at
3). However, the plaintiff does not allege that referring to
“the Job Placement Officers, including Thomas Black,
” as opposed ...