United States District Court, M.D. Alabama, Northern Division
LARRY MORRISON, Reg. No. 43820-112, Plaintiff,
AMANDA HUGHES, et al., Defendants.
OPINION AND ORDER
HAROLD ALBRITTON, III, SENIOR UNITED STATES DISTRICT JUDGE.
filed this pro se Bivens action 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.
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
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.
it is ORDERED as follows:
(1) Plaintiff's objection (Doc. # 32) is OVERRULED.
(2) The Magistrate Judge's Recommendation (Doc. # 31) is
(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.
further ORDERED that this case is referred back to the
Magistrate Judge for further proceedings as to the remaining
APPEALS JURISDICTION CHECKLIST
Appealable Orders: Courts of Appeals have
jurisdiction conferred and strictly limited by statute:
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).
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. ...