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McKinney v. Kilgore

United States District Court, N.D. Alabama, Eastern Division

May 2, 2018

JIMMY KILGORE, et al., Defendants.



         On June 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 Cir. 1984).
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 the Court.

(Doc. 6, pp. 1-2). On June 14, 2017, Mr. McKinney filed an amended complaint. (Doc. 9).

         On 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).

         A 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).

         Mr. 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).

         In 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).

         Following this paragraph, Mr. McKinney makes several Statements of Claims. For example, Mr. McKinney states:

         3. 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 ...

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