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Taylor v. Oliver

United States District Court, S.D. Alabama, Southern Division

December 21, 2018

PRESTON JEROME TAYLOR, #569337, Plaintiff,
v.
NOAH PRICE OLIVER, Defendant.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a Mobile County Metro Jail in inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action was referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). It is recommended that this action be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted, with leave being granted to file a second amended complaint that complies with the Court's order of August 16, 2018 (Doc. 6) within the time period for filing objections to the Report and Recommendation or, in the alternative, that this action be dismissed without prejudice for failure to obey the Court's order (id.).

         I. Amended Complaint. (Doc. 7).

         This action is before the Court on Plaintiff's first amended complaint, which the Court ordered Plaintiff to file after screening his original complaint. (Docs. 1, 6, 7). The order advised Plaintiff of his complaint's deficiencies, that is, no defendant was named in section III of the complaint form and the complaint contained unrelated claims. (Doc. 6 at 1). Plaintiff was ordered to pick one of his claims and any claims closely related to it to include in his amended complaint and was advised of pleading standards for stating a § 1983 claim upon which relief can be granted. (Id. at 2-4). In addition, Plaintiff was advised that completing the complaint form in its entirety would assist him in overcoming pleading problems and his amended complaint would replace his original complaint, and he was warned that his failure to file a complying amended complaint would result in a recommendation of dismissal of his action. (Id. at 1, 4).

         In the amended complaint filed by Plaintiff, he did not pick one of his claims on which to proceed, but instead he re-alleged most of his original complaint's narrative of his claims. (Doc. 7 at 4-5). However, he did name a Defendant, as ordered. (Id. at 6). The sole Defendant identified by Plaintiff is Noah Oliver, Warden of the Mobile County Metro Jail (“Metro”). (Id.). He claims that, as the warden, Defendant Oliver is “ultimately responsible for every issue regarding this facility.” (Id.). This is the extent of Plaintiff's description of his claim against Defendant Oliver, as no further reference is made to Defendant Oliver in the allegations. (Id. at 4-5). Furthermore, the relief sought by Plaintiff is: “Pain and suffering compensation, the building of the law library as well as all nec[ess]ary adjustments to the laws and this facility.” (Id. at 8).

         According to Plaintiff, the food portions are restricted by calories, lacking in substance per portion, are inconsistent in quantity, and have been cut in half, which even correctional officers feel is inhumane. (Id. at 4). And on the weekends only two meals a day are served, a regular breakfast and a “snack lunch” for dinner. (Id.).

         Plaintiff asserts that he is being subjected to “horrible conditions and poor treatment” as if he already has been found guilty and convicted. (Id.). By law, he maintains, that he is innocent until proven guilty and therefore has a right to privacy and humane treatment. (Id.). Nevertheless, he contends that caged animals in shelters received more food and better treatment than he has. (Id.).

         With respect to his housing, he avers that four to five inmates are assigned to a two-man cell, which he claims is a fire hazard and against the federal code, as men are forced to regularly sleep on the floor. (Id. at 5). To correct this situation, he states that a federal grant should be given to Mobile County, Alabama, to build a new facility to hold its inmates or to add to the facility, or that the county's laws need to be investigated or adjusted with respect to misdemeanors and minor felonies (theft, small property crimes). (Id.). For example, he asserts that, according to the law, a person has a right to a bond on every non-capital offense “regardless of circumstances as long as they haven't been convicted of either offen[s]e”; but what occurs is a person with two felony charges, acquired on two separate occasions, does not have a right to have a bond for each charge, which is contrary to the law. (Id.).

         Furthermore, in an unusual statement, Plaintiff states that “[t]he first matter to be addressed that is considered unconstitutional by legal standards is the fact that this facility does not allow access to a law library.” (Id.). Does this statement mean that the other complained of matters he does not consider to be unconstitutional? He relates that the jail contends that as long as an inmate is not denied legal representation or a visit from his attorney, the jail is in compliance with federal law. (Id.). However, according to the law, he maintains that a man has right to represent himself, especially when he believes counsel may be inadequate. (Id.). He questions how a man can do this or know if his attorney's recommendation is in his best interest without access to legal materials. (Id.).

         In concluding the amended complaint, he refers the Court to original complaint, for the signatures of petitioners and potential witnesses.[1] (Id.; see Doc. 1 at 10).

         II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

         Because Plaintiff is proceeding in forma pauperis, the Court is reviewing his amended complaint (Doc. 7) under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a complaint may be dismissed as “frivolous where it lacks an arguable basis in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). And a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). To avoid dismissal for failure to state a claim upon which relief can be granted, the allegations must show plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level” and must be a “‘plain statement' possess[ing] enough heft to ‘sho[w] that the pleader is entitled to relief.'” Twombly, 550 U.S. at 555, 557, 127 S.Ct. at 1965, 1966 (second brackets in original). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949.

         When considering a pro se litigant's allegations, a court liberally construes them and holds them to a more lenient standard than those of an attorney. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). A liberal construction, however, does not give a court a “license . . . to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Investments v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010). Furthermore, the court treats factual allegations as true, but it does not treat as true conclusory assertions or a recitation of a cause of action's elements. Iqbal, 566 U.S. at 681, 129 S.Ct. at 1951. In addition, a pro se litigant “is subject to the relevant law and rules of court including the Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S. 863 (1989); see S.D. Ala. GenLR 83.5 (requiring any litigant proceeding pro se to comply with this Court's Local Rules and the Federal Rules of Civil and Criminal Procedure).

         III. ...


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