United States District Court, N.D. Alabama, Western Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.
April 1, 2019, the magistrate judge filed a report in which
he recommended that the Court, pursuant to 28 U.S.C. §
1915A(b), dismiss this action without prejudice for failure
to state a claim upon which relief can be granted. (Doc. 12).
Ms. Flippo objected to the report and recommendation and
requested permission to amend her complaint. (Doc. 13). For
the reasons that follow, the Court overrules Ms. Flippo's
objections and denies her request to amend.
district court “may accept, reject, or modify, in whole
or part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When
a party objects to a report and recommendation, the district
court must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”
Id. The Court reviews for plain error proposed
factual findings to which no objection is made, and the Court
reviews propositions of law de novo. Garvey v.
Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see
also United States v. Slay, 714 F.2d 1093, 1095 (11th
Cir. 1983) (per curiam), cert. denied, 464 U.S. 1050
(1984) (“The failure to object to the magistrate's
findings of fact prohibits an attack on appeal of the factual
findings adopted by the district court except on grounds of
plain error or manifest injustice.”) (internal citation
omitted); Macort v. Prem, Inc., 208 Fed.Appx. 781,
784 (11th Cir. 2006).
current complaint, Ms. Flippo asserts a due process claim
pursuant to 42 U.S.C. § 1983. (Doc. 1, pp.
5-6). In support of her claim, Ms. Flippo argues
that two state court condemnation judgments concerning her
money are void because the State of Alabama did not have
jurisdiction to initiate either condemnation proceeding.
(Doc. 13, p. 2). Ms. Flippo contends that the state lacked
jurisdiction to entertain the condemnation actions because
when the State of Alabama filed the actions and when the
state court entered judgments in favor of the State,
“there was no final state criminal conviction and no
adequate facts available for the court to make such
determination . . .” of criminal guilt. (Doc. 13, p.
3); (see also Doc. 13, p. 6) (“the funds were
condemned prior to a criminal conviction in any court of
law”). Ms. Flippo correctly notes that the State of
Alabama ultimately dropped its criminal charges against her,
and she is subject only to a federal criminal conviction. She
contends that a state court and a federal court could not
“simultaneously exercise in rem jurisdiction
over the same property.” (Doc. 13, pp. 5-6). Finally,
Ms. Flippo contends that under Alabama Code § 15-5-14,
the State of Alabama had a statutory obligation to return the
funds to her after the State dropped its charges against her,
and she did not have to request the funds. (Doc. 13, pp.
7-8). Because the State failed to return the funds, the State
“fail[ed] to follow its own procedural rules, ”
and “any post-deprivation procedure was
inadequate.” (Doc. 13, p. 8).
Court may not address the merits of Ms. Flippo's legal
arguments because a state court remedy is available to Ms.
Flippo. A party may not successfully assert a federal §
1983 due process claim based on allegedly inadequate state
court procedures if a state remedy is available to rectify
the alleged due process violation. In other words,
no procedural due process violation has legally
occurred until the state remedies have proven to be
inadequate to rectify the violation. The plaintiff cannot
show that state remedies are inadequate if he has not pursued
all such remedies. “When a state procedure is
inadequate, no procedural due process right has been violated
unless and until the state fails to remedy that
Ellis v. City of Boaz, No. 4:14-cv-02081-TMP, 2017
WL 897597, at *5 (N.D. Ala. March 7, 2017) (quoting
McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir.
1994)) (emphasis in Ellis); see also Ellis,
2017 WL 897597, at *5 (“[T]here simply cannot be a due
process violation if an adequate state remedy is available.
In such cases, the elements of a due process claim have not
been met, and therefore the claim cannot go forward.”).
Rule 60 of the Alabama Rules of Civil Procedure affords a
potential state remedy. If, as she contends, the state court
condemnation judgments against her funds are void or
otherwise unenforceable, Ms. Flippo may bring motions in the
state court proceedings pursuant to Rule 60(b)(4) or Rule
60(b)(6) to obtain relief from the state court judgments.
Ala. R. Civ. P. 60(b)(4) (providing a basis for post-judgment
relief if “the judgment is void”); Ala. R. Civ.
P. 60(b)(6) (providing a basis for post-judgment relief for
“any other reason justifying relief from the operation
of the judgment”). There is no time limit on a motion
under Rule 60(b)(4) or Rule 60(b)(6). See R.J. Reynolds
Tobacco Co. v. Cantley, 717 So.2d 751, 758 (Ala. 1998)
(four-month limitation in Rule 60(b) applies “to
clauses (1) through (3)”) (citations omitted); Ex
parte R.S.C., 853 So.2d 228, 233 n.1 (Ala. Civ. App.
2002), as modified on denial of reh'g (Jan. 17,
2003) (“A Rule 60(b)(4), (5), or (6) motion may be
filed within a ‘reasonable time' after entry of a
judgment.”) (citing Ex parte E.D., 777 So.2d
113 (Ala. 2000)). In addition, Rule 60(b) “does not
limit the power of a court to entertain an independent action
within a reasonable time and not to exceed three (3) years
after the entry of the judgment (or such additional time as
is given by § 6-2-3 and § 6-2-8, Code of Alabama
1975) to relieve a party from a judgment, order, or
proceeding, or to set aside a judgment for fraud upon the
court.” Ala. R. Civ. P. 60(b).
Flippo does not challenge the magistrate judge's finding
that she “did not appeal [from the condemnation
judgments] or pursue any other post-judgment litigation,
” (Doc. 12, p. 5), and the Court finds no error in that
finding. Because she has not used the state court remedies
available to her under Rule 60(b), Ms. Flippo's §
1983 due process claim is meritless.
Flippo has asked to amend her complaint to add a Commerce
Clause claim. On the record in this case, addition of an
interstate commerce claim would be futile.
reviewing the record, the Court accepts the magistrate
judge's recommendation and denies Ms. Flippo's motion
for leave to amend as futile and dismisses her case without
prejudice under 28 U.S.C. § 1915A(b) because the
available state remedies preclude a due process claim. The
Court will enter a separate final order.
 Ms. Flippo also describes her claim as
a takings claim. (Doc. 1, ...