United States District Court, N.D. Alabama, Middle Division
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE
magistrate judge filed a report on October 1, 2018,
recommending this action be dismissed without prejudice for
failing to state a claim upon which relief can be granted,
pursuant to 28 U.S.C. § 1915A(b)(1). (Doc. 25). The
plaintiff filed objections to the report and recommendation.
(Doc. 28). He has also filed a notice of appeal pursuant to
Rule 4 of the Federal Rules of Appellate Procedure
(doc. 30); a motion for composition of the record on appeal
(doc. 32); and a request for a court order directing the
Clerk to furnish him with copies of his amended complaint and
motion to vacate (doc. 31). The court will address each of
these submissions in turn.
objections, the plaintiff restates his claims that lawmakers
drafted the Alabama Constitution and the Alabama Criminal
Code to discriminate on the basis of race in violation of 42
U.S.C. §§ 1981 and 1983. (Id.). The
plaintiff does not object to the magistrate judge's
conclusion that his claims against the State of Alabama are
barred by Eleventh Amendment immunity. (Id.).
However, he argues his § 1981 and § 1983 claims
against Governor Ivey are not subject to dismissal.
(Id. at 2, 4).
1981 prohibits discrimination based on race in connection
with the performance of a contract. See 42 U.S.C.
§ 1981; CBOCS West, Inc. v. Humphries, 553 U.S.
442, 450 (2008). It does not provide a cause of action
against a state actor. See Butts v. County of
Volusia, 222 F.3d 891, 892-94 (11th Cir. 2000). The
plaintiff has not alleged he was discriminated against based
on race in the making or enforcement of a contract. Rather,
he argues, without citation to supporting authority, that
applying § 1981 only to contracts is
“arbitrary.” (Doc. 28 at 2). The plaintiff's
§ 1981 claims are due to be dismissed because the
plaintiff has not shown he has been discriminated against
based on race in connection with the performance of a
contract or that such claims can proceed against Governor
the plaintiff contends the Alabama Constitution and the
Alabama Criminal Code violate his right to equal protection
under the Fourteenth Amendment. (Doc. 28 at 2). The plaintiff
argues the 1901 Alabama Constitution was enacted with
discriminatory intent and the entire Constitution and Alabama
Criminal Code are null and void as a result. (Id. at
Underwood v. Hunter, 471 U.S. 222, 233 (1985), the
United States Supreme Court struck down a disenfranchising
provision of the Alabama Constitution based in part on the
racial animus underlying the adoption of the 1901 Alabama
Constitution. But, the Court did not strike down the entire
1901 Alabama Constitution. This lower court refuses to do
what the Supreme Court of the land did not do.
the plaintiff fails to demonstrate that the specific Alabama
Criminal Code sections under which he was convicted and
sentenced are constitutionally infirm, facially or as
applied. Indeed, the plaintiff fails to show he is similarly
situated with other persons who received more favorable
treatment and that the reason for the differential treatment
was based on race. See Jones v. Ray, 279 F.3d 944,
946-47 (11th Cir. 2001). Accordingly, the plaintiff's
equal protection claims are also due to be dismissed.
carefully reviewed and considered de novo all the
materials in the court file, including the report and
recommendation, and the plaintiff's objections, the court
ADOPTS the magistrate judge's report and ACCEPTS her
recommendation. Therefore, in accordance with 28 U.S.C.
§ 1915A(b), this action is due to be dismissed without
prejudice for failing to state a claim upon which relief can
plaintiff's notice of appeal (doc. 30), filed before the
entry of this Memorandum Opinion and accompanying Final
Order, was premature. Pursuant to Fed. R. App. P. 4(a)(2),
the court deems the notice of appeal filed on the date of
this Memorandum Opinion and Final Order. When the record is
complete, the court DIRECTS the Clerk to forward the record
to the court of appeals pursuant to Fed. R. App. P. 11. As
such, the court finds the plaintiff's “Motion for
Composition of the Record on Appeal” (doc. 32) MOOT.
response to a prior request for copies of the amended
complaint and motion to vacate, the magistrate judge advised
the plaintiff by an order dated May 24, 2018, that he would
first be required to send the Clerk $17.50 to cover the cost
of copying the documents. (Doc. 18). On January 9, 2019, the
court received from the plaintiff $18.00, which was docketed
as a partial filing fee. The transaction report for the
plaintiff's prison or jail trust account, attached to his
presently pending request for copies, makes clear the
plaintiff intended to remit this sum to cover the cost of
copying the requested documents. (Doc. 31 at 2). The court
DIRECTS the Clerk to send copies of the amended complaint
(doc. 16) and motion to vacate ...