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Morrison v. Hughes

United States District Court, M.D. Alabama, Northern Division

May 15, 2019

LARRY MORRISON, Reg. No. 43820-112, Plaintiff,
v.
AMANDA HUGHES, et al., Defendants.

          OPINION AND ORDER

          W. HAROLD ALBRITTON, III, SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff filed this pro se Bivens action[1] alleging violations of his constitutional rights arising from his participation in and removal from the Residential Drug Abuse Program (“RDAP”) at the Federal Prison Camp in Montgomery, Alabama (“FPC Montgomery”). This case is now before the court on the October 19, 2018 Recommendation of the Magistrate Judge that Plaintiff's Bivens action be dismissed without prejudice as to certain named defendants (Doc. # 31) and Plaintiff's objection thereto (Doc. # 32). Following an independent evaluation and de novo review of the file, the court finds Plaintiff's objection to be without merit and due to be overruled.

         Among the named defendants in Plaintiff's amended complaint are the South East Regional Director, the South East Regional Drug Abuse Program Director, the Central Office Director, and the Central Office Drug Abuse Program Director. See Doc. # 21 at 5. Upon review of the allegations in the amended complaint, the Magistrate Judge found that Plaintiff seeks to hold these parties liable via a theory of respondeat superior. Because a Bivens action will not support a claim under a theory of respondeat superior, see Ashcroft v. Iqbal, 556 U.S. 662, 675-76 (2009), the Magistrate Judge recommended that Plaintiff's amended complaint be dismissed without prejudice as to these defendants and that these defendants be terminated as parties to this action. See Doc. # 31 at 2-4.

         In his objection to the Magistrate Judge's Recommendation, Plaintiff argues that the defendants recommended for dismissal should remain in the case because, he alleges, they were part of a conspiracy to deny his rights with relation to participation in the RDAP program. Doc # 32 at 1-2. A conspiracy claim may be dismissed because of the conclusory, vague, and general nature of the allegations of a conspiracy. Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984). Other than his suppositious allegations, Plaintiff presents nothing, nor can this court discern any evidence, to indicate that the defendants recommended for dismissal entered into a conspiracy to deprive Plaintiff of his constitutional rights. Plaintiff's conclusory assertions that these parties are liable, without alleging facts from which it can be inferred they were personally involved in the constitutional violations about which he complains, are insufficient. Consequently, the action against these defendants is due to be dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii).

         Accordingly, it is ORDERED as follows:

(1) Plaintiff's objection (Doc. # 32) is OVERRULED.
(2) The Magistrate Judge's Recommendation (Doc. # 31) is ADOPTED.
(3) Plaintiff's amended complaint (Doc. # 21) against Defendants South East Regional Director, South East Regional Drug Abuse Program Director, Central Office Director, and Central Office Drug Abuse Program Director is DISMISSED without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
(4) Defendants South East Regional Director, South East Regional Drug Abuse Program Director, Central Office Director, and Central Office Drug Abuse Program Director are TERMINATED as parties to this action.

         It is further ORDERED that this case is referred back to the Magistrate Judge for further proceedings as to the remaining defendants.

         CIVIL APPEALS JURISDICTION CHECKLIST

         1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:

         (a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).

         (b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. ...


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