United States District Court, N.D. Alabama, Eastern Division
DIONNE C. MCKINNEY, Plaintiff,
JIMMY KILGORE, et al., Defendants.
MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE
2, 2017, the magistrate judge notified plaintiff Dionne C.
McKinney that his original complaint was deficient and
directed Mr. McKinney to correct the deficiencies consistent
with instructions set out in the order. (Doc. 6). The
magistrate judge's June 2, 2017 order stated:
Although the plaintiff has provided some allegations to
support his claims, he has not stated clearly how each named
defendant violated his constitutional rights, the date(s) on
which the incident(s) occurred, and where the incident(s)
occurred. The plaintiff must clearly set forth the
facts that support his claims against the
defendants. The 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
The amended complaint must include all of the plaintiff's
claims in this action; IT SHOULD NOT REFER BACK TO THE
ORIGINAL COMPLAINT. The plaintiff is ADVISED
that the Court will consider only the claims set
forth in the amended complaint. After completing the new
complaint form, the plaintiff should mail it to the Clerk of
(Doc. 6, pp. 1-2). On June 14, 2017, Mr. McKinney filed an
amended complaint. (Doc. 9).
October 20, 2017, the magistrate judge entered a report,
pursuant to 28 U.S.C. § 1915A(b)(1), in which he
recommended that the Court dismiss without prejudice for
failing to state a claim upon which relief may be granted all
claims in this action except Mr. McKinney's Fourteenth
Amendment equal protection claim against defendants Sheriff
Jimmy Kilgore, Chief Deputy Ken Flowers, Jail Administrator
Ron Smith, and Assistant Jail Administrator Jason Shea Brown
for creating and implementing a discriminatory outdoor
exercise policy on the basis of sex, and Mr. McKinney's
First Amendment claim against defendant Mail Clerk Jo Liner
for rejecting his letters. (Doc. 10). The magistrate judge
recommended that the Court refer back to the magistrate judge
for further proceedings Mr. McKinney's claims against
defendants Kilgore, Flowers, Brown, Smith, and Liner. (Doc.
10, p. 20). The magistrate judge advised Mr. McKinney of his
right to file specific written objections within14 days and
instructed him that:
[o]bjections should specifically identify all findings of
fact and recommendations to which objection is made and the
specific basis for objection. Failure to object to factual
findings will bar later review of those findings, except for
plain error. See 28 U.S.C. § 636(b)(1)(C);
Thomas v. Arn, 474 U.S. 140 (1985), reh'g
denied, 474 U.S. 1111 (1986); Dupree v. Warden,
715 F.3d 1295, 1300 (11th Cir. 2013). Objections
also should specifically identify all claims contained in the
complaint that the report and recommendation fails to
address. Objections should not contain new allegations,
present additional evidence, or repeat legal arguments.
(Doc. 10, pp. 20-21). On November 11, 2017, Mr. McKinney
filed objections to the report and recommendation. (Doc. 11).
district court “may accept, reject, or modify, in whole
or part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When
a party objects to a report and recommendation, the district
court must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”
Id. The Court reviews for plain error proposed
factual findings to which no objection is made, and the Court
reviews propositions of law de novo. Garvey v.
Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see
also United States v. Slay, 714 F.2d 1093, 1095 (11th
Cir. 1983) (per curiam), cert. denied, 464 U.S. 1050
(1984) (“The failure to object to the magistrate's
findings of fact prohibits an attack on appeal of the factual
findings adopted by the district court except on grounds of
plain error or manifest injustice.”) (internal citation
omitted); Macort v. Prem, Inc., 208 Fed.Appx. 781,
784 (11th Cir. 2006).
McKinney organizes his objections into three paragraphs that
contain legal terms intermingled with various facts. (Doc.
11, pp. 1-6, ¶¶ 1, 6, 10). Each paragraph is
followed by numbered “Statement[s] of Claims, ”
all of which are comprised of conclusory legal declarations
against various named defendants that, in large part, are not
contained in the amended complaint. (Doc. 11, pp. 3-7).
paragraph one, Mr. McKinney objects to the dismissal of his
Fourth and Fourteenth Amendment claims for unreasonable
search and detention beginning March 21, 2017, against
Kilgore, Flowers, Smith, and Brown. (Doc. 11, pp. 1-2).
Citing Dionne McKinney v. Jeb Fannin, et al., No.
1:17-cv-00596-VEH-TMP (N.D. Aug. 3, 2017), Mr. McKinney
asserts that United States District Judge Virginia Emerson
Hopkins “stated that” on March 21, 2017, Agent
Ledbetter, Sgt. Michael Smith, and County Clerk Brian York
conspired to violate his Fourth and Fourteenth Amendment
rights with “an unreasonable form complaint-arrest
warrant. . . unaccompanied by a separate affidavit” or
a probable cause determination by “a judicial
officer.” (Doc. 11, pp. 1-2). Therefore, Mr. McKinney
argues that Kilgore, Flowers, Smith, and Brown violated his
Fourth and Fourteenth Amendment rights because they
“knew or should have known” the warrant violated
the Fourth Amendment and was issued “without due
process.” (Doc. 11, pp. 2-3).
this paragraph, Mr. McKinney makes several Statements of
Claims. For example, Mr. McKinney states:
Statement of Claim
(Conspiracy) Defendant Talladega County Chief Deputy Sheriff
Ken Flowers acting under color of state law, willfully
deprived the plaintiff of his liberty without Due Process of
Law, under ...