United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL JR. CHIEF UNITED STATES MAGISTRATE JUDGE.
U.S.C. § 1983 action is pending before the court on an
amended complaint filed by Douglas John Howell, a state
inmate currently incarcerated at the Staton Correctional
Facility. In this civil action, Howell alleges that members
of the Alabama Board of Pardons and Paroles recently barred
him from further consideration for parole in violation of the
Ex Post Facto Clause, due process and equal protection based
on a law passed after his 2005 conviction for first degree
rape. Specifically, Howell alleges Governor Kay Ivey
“signed this Bill into effect noting that from that
time forward these cases would be sentenced accordingly [with
the qualifying sex offenders deemed ineligible for parole].
Commissioner Jeff Dunn and Lynn Head at the Alabama [Board]
of Pardons and Paroles began applying this same status of
barring any party under this classification from parole
regardless of the sentencing date of their crime.” Doc.
5 at 5. Howell requests that the court order he “be
reinstated for parole [consideration]” and “given
equal consideration” for release on parole. Doc. 5 at
20, 2018, defendant Ivey filed a motion to dismiss (Doc. 35)
in which she argues as follows:
As a matter of Alabama state law, Governor Ivey lacks
authority to grant any kind of relief involving parole. . . .
[Under well settled law, the Alabama Board of Pardons and
Paroles] possesses “full and complete authority”
with respect to the parole process. State ex rel. Bridges
v. Waters, 108 So.2d 146, 147 (Ala. 1959). Nowhere does
current Alabama law give the Governor a formal role to play
in that process.
This Court recently recognized that a state official's
lack of authority over parole matters justifies dismissal of
that official from this very lawsuit. . . . The same analysis
equally requires Rule 12(b)(6) dismissal of Governor Ivey; in
short, Howell has not pleaded “factual content that
allows the court to draw the reasonable inference that . . .
[Governor Ivey] is liable for the misconduct alleged.”
Ascroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell v. Atlantic Corp. v. Twombly, 550 U.S. 544, 556
(2007). Indeed, a state official's lack of parole
authority does not only support Rule 12(b)(6) dismissal, as
the Court concluded with respect to Commissioner Dunn. It
also supports dismissal of that official on jurisdictional
grounds as a matter of Article III standing doctrine. This is
because such an official is not causing, and an order against
that official would not redress, Howell's asserted injury
- i.e., his lack of parole eligibility. Cf. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(reciting the basic elements of standing). Whether the Court
analyzes this motion as a question of the legal sufficiency
of Howell's claim against Governor Ivey (under Rule
12(b)(6)) or as a question of its jurisdiction over her
(under Rule 12(b)(1)), the end result is the same: Howell
should not be allowed to pursue his claims against Governor
Governor Ivey is also entitled to dismissal under principles
of sovereign and Eleventh Amendment immunity. Under these
doctrines, a state official defendant must have
“‘some connection with the enforcement of the
[challenged] act'”; if not, the complaint
“‘is merely making [the official] a party as a
representative of the state, and thereby attempting to make
the state a party.'” Summit Med. Assocs. v.
Pryor, 180 F.3d 1326, 1341 (11th Cir. 1999) (quoting
Ex parte Young, 209 U.S. 123, 157 (1908)). . . . For
the reasons previously given by Commissioner Dunn, accepted
by the Court, and discussed above, Governor Ivey lacks the
requisite connection to [the parole board's application
of] whatever parole statute or policy Howell is challenging.
Accordingly, the Court should dismiss Governor Ivey for this
additional reason as well. Cf. Summit Med. Assocs. v.
Pryor, 180 F.3d 1326, 1341-42 (11th Cir. 1999)
(dismissal of Alabama Governor for this reason); C.M. ex
rel. Marshall v. Bentley, 13 F.Supp.3d 1188, 1205-06
(M.D. Aa. 2014) (same).
Finally, Governor Ivey cannot be made a defendant merely
because she [or a predecessor] allegedly “signed . . .
into effect” whatever parole law Howell is challenging.
Doc. 5 at 5. “Under the doctrine of absolute
legislative immunity, a governor cannot be sued for signing a
bill into law.” Women's Emergency Network [v.
Bush, 323 F.3d 937, 950 (11th Cir. 2003)] (citing
Supreme Ct. of Va. v. Consumers Union of United States,
Inc., 446 U.S. 719 (1980).
at 1-4 (paragraph numbering omitted).
on the arguments set forth by Governor Ivey, the court
entered an order directing that on or before July 9, 2018
Howell “show cause why the motion to dismiss filed by
defendant Ivey should not be granted.” Doc. 36. Howell
has failed to file a response to this order within the time
allowed by the court.
reasons set forth by defendant Ivey in her motion to dismiss,
the court finds that this motion should be granted.
Accordingly, it is the Recommendation of the Magistrate Judge
1. The motion to dismiss filed by Kay Ivey be GRANTED.
2. The claims against Kay Ivey be DISMISSED with prejudice.
3. Kay Ivey be DISMISSED as a party to this cause of action.
4. The claims for relief presented against Lyn Head, the only
member of the Alabama Board of Pardons and Paroles named as a
defendant and the sole remaining defendant, be referred back