United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
M. BORDEN, UNITED STATES MAGISTRATE JUDGE.
Kendrick Cook-Bey, an inmate incarcerated at the Bullock
Correctional Facility when he filed this pro se 42
U.S.C. § 1983 action, alleges prison officials at the
Staton Correctional Facility (“Staton”) are
liable for constitutional claims arising from Defendants'
processing and handling of his mail in June 2015. Cook-Bey
sues Lieutenant Camille Luckie, Warden Leeposey Daniels, and
Commissioner Jefferson Dunn. He seeks damages, costs, and
injunctive relief. Doc. 1.
filed an answer, special report, and supporting evidentiary
materials addressing Cook-Bey's claims for relief. Docs.
29 & 30. In these filings, Defendants deny they acted in
violation of Cook-Bey's constitutional rights. Docs. 29
& 30. Upon receipt of Defendants' special report, the
court issued an order directing Cook-Bey to file a response,
including sworn affidavits and other evidentiary materials,
and specifically cautioning Cook-Bey that “the court
may at any time thereafter and without notice to the parties
. . . treat the special report and any supporting evidentiary
materials as a motion for summary judgment.” Doc. 31.
responded to Defendants' special report. Doc. 34. He has
not sworn to the truthfulness of the statements in his
response, however, and it does not meet the requirements of
Federal Rule of Civil Procedure 56(e)(1) that an affidavit
“be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant is
competent to testify on the matters stated.” This
failure on Cook-Bey's part means that his response is not
evidence that could create a genuine issue of material fact.
See Fed. R. Civ. P. 56(e)(1); Holloman v.
Jacksonville Housing Auth., 2007 WL 245555, *2 (11th
Cir. Jan. 30, 2007) (holding that “unsworn statements,
even from pro se parties, should not be considered
in determining the propriety of summary judgment”);
Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1986);
Dickinson v. Wainwright, 626 F.2d 1184, 1185 (5th
Cir. 1980). The court will treat Defendants' report as a
motion for summary judgment, and recommends this motion be
resolved in favor of Defendants.
STANDARD OF REVIEW
judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show there is no genuine
[dispute] as to any material fact and that the moving party
is entitled to judgment as a matter of law.”
Greenberg v. BellSouth Telecomm., Inc., 498 F.3d
1258, 1263 (11th Cir. 2007) (per curiam); Fed.R.Civ.P. 56(a)
(“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.”). The party moving for summary judgment
“always bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of the [record, including
pleadings, discovery materials and affidavits], which it
believes demonstrate the absence of a genuine [dispute] of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The movant may meet this burden by
presenting evidence indicating there is no dispute of
material fact or by showing the non-moving party has failed
to present evidence to support some element on which it bears
the ultimate burden of proof. Id. at 322-24;
Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir.
2011) (holding that moving party discharges his burden by
showing the record lacks evidence to support the nonmoving
party's case or the nonmoving party could not prove his
case at trial).
Defendants meet their evidentiary burden, as they have here,
the burden shifts to Cook-Bey to establish, with appropriate
evidence beyond the pleadings, that a genuine dispute
material to his claims exists. Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991);
Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(3)
(“If a party fails to properly support an assertion of
fact or fails to properly address another party's
assertion of fact [by citing to materials in the record
including affidavits, relevant documents or other materials],
the court may . . . grant summary judgment if the motion and
supporting materials-including the facts considered
undisputed-show that the movant is entitled to it . . .
.”); see also Caldwell v. Warden, FCI
Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014) (holding
that the court should consider facts pled in a
plaintiff's sworn complaint when considering summary
judgment). A genuine dispute of material fact exists when the
nonmoving party produces evidence that would allow a
reasonable factfinder to return a verdict in its favor.
Greenberg, 498 F.3d at 1263. The evidence must be
admissible at trial, and if the nonmoving party's
evidence “is merely colorable . . . or is not
significantly probative . . . summary judgment may be
granted.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50 (1986); Fed.R.Civ.P. 56(e). But a
“mere ‘scintilla' of evidence supporting the
opposing party's position will not suffice.”
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990) (citing Anderson, 477 U.S. at 252). Only
disputes involving material facts are relevant, materiality
is determined by the substantive law applicable to the case.
Anderson, 477 U.S. at 248. However, “mere
conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion.”
Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
demonstrate a genuine dispute of material fact, the party
opposing summary judgment “must do more than simply
show that there is some metaphysical doubt as to the material
facts. . . . Where the record taken as a whole could not lead
a rational trier of fact to find for the nonmoving party,
there is no ‘genuine [dispute] for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). “The evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Anderson, 477
U.S. at 255. At the summary judgment stage, this court should
accept as true “statements in [Plaintiff's]
verified complaint, [any] sworn response to the
[Defendants'] motion for summary judgment, and sworn
affidavit attached to that response[.]” Sears v.
Roberts, 2019 WL 1785355, *3 (11th Cir. April 24, 2019);
see also United States v. Stein, 881 F.3d 853 (11th
Cir. 2018) (holding that a plaintiff's self-serving and
uncorroborated, but not conclusory, statements in an
affidavit or deposition may create an issue of material fact
which precludes summary judgment); Feliciano v. City of
Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013)
(citations omitted) (“To be sure, [plaintiff's]
sworn statements are self-serving, but that alone does not
permit us to disregard them at the summary judgment stage. .
. . ‘Courts routinely and properly deny summary
judgment on the basis of a party's sworn testimony even
though it is self-serving.'”). However, general,
blatantly contradicted, and merely “[c]onclusory,
uncorroborated allegations by a plaintiff in [his verified
complaint or] an affidavit or deposition will not create an
issue of fact for trial sufficient to defeat a well-supported
summary judgment motion.” Solliday v. Fed.
Officers, 413 Fed.Appx. 206, 207 (11th Cir. 2011)
(citing Earley v. Champion Int'l Corp., 907 F.2d
1077, 1081 (11th Cir. 1990)); see also Holifield v.
Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (holding
that conclusory allegations based on subjective beliefs are
likewise insufficient to create a genuine dispute of material
factual inferences must be viewed in a light most favorable
to the nonmoving party and pro se complaints are
entitled to liberal interpretation by the court, a pro
se litigant does not escape the burden of sufficiently
establishing a genuine dispute of material fact. See
Beard v. Banks, 548 U.S. 521, 525 (2006); Brown v.
Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus, a
plaintiff's pro se status alone does not mandate
this court disregard elementary principles of production and
proof in a civil case. Here, Cook-Bey fails to demonstrate a
requisite genuine dispute of material fact to preclude
summary judgment on his claims against Defendants. See
Matsushita, 475 U.S. at 587.
4, 2015, Luckie summoned Cook-Bey to Hall One at Staton to
pick up his mail. The mail consisted of religious material
and was addressed to the Moorish Science Temple “c/o
Chaplain Stephen Smith.” When Cook-Bey arrived at Hall
One, a trainee told him he had to be handcuffed. Cook-Bey
responded that he did not consent to being handcuffed behind
his back to pick up mail. Cook-Bey also mentioned that
Administration Regulation 448 sets forth the procedure for
mail. The trainee left the area and returned with Luckie, who
told Cook-Bey that if he wanted his mail he first would have
to be handcuffed. Cook-Bey reiterated to Luckie that he did
not “consent” to that policy. Luckie then
directed another correctional officer to handcuff Cook-Bey,
who said he had no choice and complained that he should not
have to be in handcuffs since the mail was of a religious
nature addressed to the Moorish Science Temple in the care of
the chaplain. Cook-Bey asked Luckie how he could sign for his
mail with his hands cuffed behind his back, but Luckie only
said that if he did not wish to be handcuffed then he would
not get his mail. Doc. 1-1 at 1-2.
notified Dunn and Daniels in writing on June 10, 2015 of the
“federal mail violation” by Luckie. On June 15,
2015, Cook-Bey told Chaplain Smith that Luckie withheld his
mail addressed to the Moorish Science Temple in care of the
Chaplain. After Chaplain Smith spoke with Luckie by phone, he
told Cook-Bey to speak with her. After refreshing
Luckie's memory regarding their June 4, 2015 encounter,
Luckie told Cook-Bey that the mail had been destroyed because
he did not want it. Doc. 1-1 at 2-3.
maintains that Luckie's conduct violated his First
Amendment rights to free speech and freedom of religion
because her actions resulted in the restriction of his mail
for no reason, and that her destruction of his mail violated
prison regulations. Cook-Bey further complains that
Defendants failed to provide him with due process mandated by
the prison regulation regarding inmate mail, and that Dunn
and Daniels refused to remedy the matter with his mail after
being notified of his complaints. Doc. 1 at 4-5.
extent Cook-Bey requests monetary damages from Defendants in
their official capacities, they are entitled to absolute
immunity. Official capacity lawsuits are “in all
respects other than name, . . . treated as a suit against the
entity.” Kentucky v. Graham, 473 U.S. 159, 166
the Eleventh Circuit has held, the Eleventh Amendment
prohibits federal courts from entertaining suits by private
parties against States and their agencies [or employees].
There are two exceptions to this prohibition: where the state
has waived its immunity or where Congress has abrogated that
immunity. A State's consent to suit must be unequivocally
expressed in the text of [a] relevant statute. Waiver may not
be implied. Likewise, Congress' intent to abrogate the
States' immunity from suit must be obvious from a clear
Selensky v. Alabama, 619 Fed. App'x 846, 848-49
(11th Cir. 2015) (internal quotation marks and citations
omitted). Thus, a state official may not be sued in his or
her official capacity unless the state has waived its
Eleventh Amendment immunity, see Pennhurst St. Sch. &
Hosp. v. Halderman, 465 U.S. 89, 100 (1984), or Congress
has abrogated the state's immunity, see Seminole
Tribe v. Florida, 517 U.S. 44, 59 (1996).
Neither waiver nor abrogation applies here. The Alabama
Constitution states that “the State of Alabama shall
never be made a defendant in any court of law or
equity.” Ala. Const. Art. I, § 14. The Supreme
Court has recognized that ...