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Gray v. Bruton

United States District Court, M.D. Alabama, Northern Division

January 22, 2018

DAVE GRAY, Plaintiff,
v.
MARK BURTON [sic][1], et al., Defendants.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          Susan Russ Walker United States Magistrate Judge

         I. INTRODUCTION

         Plaintiff Dave Gray (Plaintiff”), a former[2] inmate of the Alabama Department of Corrections, brings this action pursuant to 42 U.S.C. § 1983, claiming that he should have received additional credit for time served and, consequently, should have been released earlier. Doc. 1. Plaintiff names as defendants Mark Burton, an employee of the Alabama Department of Corrections; Tanisha Perdue, an employee of the Alabama Department of Corrections in the Central Records Division; and Marvine McMillian, an Administrative Assistant with the Alabama Board of Pardons and Paroles (collectively “Defendants”). Plaintiff seeks an “order to ADOC Central Record to release me on a expired sentence and pay me for each day am incarcerate over my time.” Doc. 1, at 4. Plaintiff sues Defendants in their individual capacities. Docs. 31, 32.

         In accordance with the court's orders, Defendants filed answers, special reports, and supporting evidentiary material in response to the allegations contained in the complaint. Docs.10, 25, 33. The court ordered Plaintiff to file a response, including sworn affidavits and other evidentiary materials, and specifically cautioned Plaintiff that “at some time in the future the court will treat Defendants' report and Plaintiff's response as a dispositive motion and response.” Doc. 34 at 1 (footnote omitted). Plaintiff responded. Docs. 35, 38, 40, 59. The court will treat Defendants' reports as a motion for summary judgment, and the court concludes that this motion is due to be resolved in favor of Defendants.

         II. STANDARD OF REVIEW

         “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.” Fed.R.Civ.P. 56(a). “Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no [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 Fed.R.Civ.P. 56 omitted; “issue” altered to “dispute” to reflect the stylistic change in the current rule). 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) (alterations added). 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 evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-24.

         Defendants have met their evidentiary burden and demonstrated the absence of any genuine dispute of material fact. Thus, the burden shifts to Plaintiff to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to the case exists. 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 … .”); see also Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014) (court considers facts pled in a plaintiff's sworn complaint when considering his opposition to summary judgment”). 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. The evidence must be admissible at trial, and if the nonmoving party's evidence “is merely colorable … or is not significantly probative … summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Fed.R.Civ.P. 56(e). “A mere ‘scintilla' of evidence supporting the opposing party's position will not suffice … .” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (per curiam) (plaintiff's “conclusory assertions …, in the absence of [admissible] supporting evidence, are insufficient to withstand summary judgment”). Only disputes involving material facts are relevant, and what is material is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248. 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. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. Although factual inferences must be viewed in a light most favorable to the nonmoving party and pro se complaints are entitled to liberal interpretation by the court, a pro se litigant does not escape the burden of sufficiently establishing a genuine dispute of material fact. Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus, a plaintiff's pro se status alone does not mandate this court's disregard of elementary principles of production and proof in a civil case. In this case, Plaintiff fails to demonstrate a requisite genuine dispute of material fact so as to preclude summary judgment on his claims against Defendants. See Matsushita, 475 U.S. at 587.

         III. SUMMARY OF MATERIAL FACTS

         The court views the facts in the light most favorable to Plaintiff, the nonmoving party. Under Alabama Code § 15-18-8, a court may sentence a defendant to a twenty-year sentence, split into a three-year term of imprisonment with the remainder suspended and the defendant placed on probation. Ala. Code § 15-18-8(a)(2). It is undisputed that Plaintiff was sentenced in four Alabama state cases as follows:

Case

Sentence

Sentence Begin Date

Jail Credit

Ala. Code § 15-18-8?

CC-2010-1383 (Montgomery County)

Concurrent 15 years

Sept. 29, 2011

188 Days

No

CC-2012-126 (Montgomery County)

Concurrent 20 years, split to serve 3 years

March 7, 2012

170 Days

Yes

CC-2012-252 (Montgomery County)

Concurrent 20 years, split to serve 3 years

March 7, 2012

175 Days

Yes

DC-2011-2495 (Bessemer County)

Concurrent 15 years

April 10, 2012

41 Days

No

Terry Aff., Doc. 25-2 at 1-2; Attach. 1-5, Doc. No. 25-2, at 3-7. Pursuant to Alabama Code § 14-9-41(g)(2), “[w]hen a prisoner is serving two or more sentences which run concurrently, the sentence which results in the longer period of incarceration yet remaining shall be considered the term to which such prisoner is sentenced for the purpose of computing his or her release date.” Additionally, under Alabama Code § 14-3-38(c), an inmate serving concurrent terms is “discharged at the expiration of the longest term of imprisonment to which he was sentenced, less” deductions for good behavior. Applying these state laws, the Alabama Correctional Records Assistant Director treated Plaintiff's Bessemer County Case DC-2011-2495 as the controlling sentence for Plaintiff because it had the longest calculated term of confinement, with a discharge date of July 11, 2016. Doc. No. 25-2, at 2, 8-9. According to an inmate summary dated January 21, 2015, Plaintiff had already completed the split sentences imposed on March 7, 2012. Id.

         Defendant Tanisha Perdue, an “ASA III” employee in the Central Records Division of the Alabama Department of Corrections, avers that she has no control over an inmate's calculated release date, she does not know Plaintiff, and to her knowledge she has had no contact with Plaintiff. Perdue Aff., Doc. 25-3. In response, Plaintiff submitted to the court a document stamped by “Central Records” on March 13, 2014, in which Plaintiff complains about his release date calculation. Doc. 38, at 13. The document includes a handwritten note in the top right-hand corner stating, “Tanisha” and “concerns his sentencing.” Id. Plaintiff also submitted to the court a letter that he sent to Defendant Burton as the Central Records Director, complaining about the release date calculation. Doc. 38, at 14. A handwritten note to Plaintiff on the letter, dated April 29, 2014, and signed by “T. Perdue ASA III, Central Records, ” indicates, “[t]here is nothing to correct, your sentencing information has been entered in correctly.” Id. A handwritten note on another letter stamped June 5, 2014, by “Central Records, ” includes the word, “Tanisha” in the top right-hand corner and states, “concerns his controlling sentence. Still maintains that his time is wrong.” Doc. 38 at 16.

         Defendant Marvine McMillian, an employee with the Alabama Board of Pardons and Paroles, indicates that Plaintiff was denied parole on November 5, 2014. McMillian Aff., Doc. 33-1. McMillian avers that she has no authority to affect or calculate Plaintiff's release date or affect his release to parole. Id. According to McMillian, her only responsibility is to assist in preparing files for the Parole Board's ...


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