United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE
an Alabama prison inmate proceeding pro se and
in forma pauperis, filed a complaint under 42 U.S.C.
Â§ 1983. This action has been referred to the undersigned for
appropriate action pursuant to 28 U.S.C. Â§ 636(b)(1)(B) and
S.D. Ala. GenLR 72(a)(2)(R). After careful review, it is
recommended that this action be dismissed without prejudice
pursuant to 28 U.S.C. Â§ 1915(e)(2)(B)(ii), prior to service
of process, for failure to state a claim upon which relief
can be granted.
Complaint. (Doc. 1).
complaint before the Court was extracted from the Court's
file in Landaverde v. Jefferson Davis Community
College, CA No. 18-0295-TFM-N (S.D. Ala. Mar. 11, 2019)
(“Landaverde I”), because its
allegations bore no relation to the allegations in
Landaverde I. (Doc. 2; see Landaverde I,
Doc. 17). The present complaint was filed in Landaverde
I as an amended complaint on January 23, 2019. (Doc.
to the complaint's allegations (Doc. 1), on February 20,
2015, Plaintiff received a write-up for an institutional rule
violation of escape without force. (Doc. 1 at 4). Then, on
February 24, 2015, at Fountain Correctional Center
(“Fountain”), Captain Knight found him not guilty
of the charge. (Id.).
that Plaintiff was found not guilty on the institutional
escape charge, the sole Defendant, Captain Lanetta Banks, who
was at Loxley Work Release, obtained a felony warrant for
first-degree escape against Plaintiff, which Captain Knight
served on him on March 6, 2015. (Id. at 4-5). When
Defendant Banks learned Plaintiff was found not guilty on the
felony escape charge, she obtained another felony warrant for
first-degree escape against him, which Captain Knight served
on him on April 4, 2016. (Id. at 5). And, on
September 20, 2016, he was found not guilty on the second
escape charge by Judge Scott P. Taylor. (Id.).
contends that Defendant Banks acquired felony warrants
charging him twice for the same crime and both times he was
found not guilty. (Id.). He maintains that Defendant
Banks has destroyed him mentally and damaged his character,
which resulted in him losing his finger at the cabinetmaking
trade shop at Fountain because he was not able to stay
focused on his task. (Id.). For relief, Plaintiff
seeks $2 million from Defendant Banks.
Standards of Review Under 28 U.S.C. §
Plaintiff is proceeding in forma pauperis, the Court
is reviewing his complaint (Doc. 1) under 28 U.S.C. §
1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be
dismissed as “frivolous where it lacks an arguable
basis in law or fact.” Neitzke v. Williams,
490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338
(1989). In addition, a complaint may be dismissed under 28
U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim
upon which relief may be granted. Mitchell v.
Farcass , 112 F.3d 1483, 1490 (11th Cir. 1997).
avoid dismissal for failure to state a claim upon which
relief can be granted, the allegations must show
plausibility. Bell Atlantic Corp. v. Twombly , 550
U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
That is, “[f]actual allegations must be enough to raise
a right to relief above the speculative level” and must
be a “‘plain statement' possess[ing] enough
heft to ‘sho[w] that the pleader is entitled to
relief.'” Twombly, 550 U.S. at 555, 557,
127 S.Ct. at 1965, 1966 (second brackets in original). But
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. at
1949. Furthermore, when a successful affirmative defense,
such as a statute of limitations, appears on the face of a
complaint, dismissal for failure to state a claim is also
warranted. Jones v. Bock, 549 U.S. 199, 215, 127
S.Ct. 910, 920-21, 166 L.Ed.2d 798 (2007).
considering a pro se litigant's allegations, a
court holds them to a more lenient standard than those of an
attorney and gives them a liberal construction.
Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998). But it does not have “license . . .
to rewrite an otherwise deficient pleading in order to
sustain an action.” GJR Inv., Inc. v. Cty. of
Escambia, Fla. , 132 F.3d 1359, 1369 (11th Cir. 1998),
overruled on other grounds by Iqbal, 566 U.S. 662.
The court treats factual allegations as true, but it does not
treat as true conclusory assertions or a recitation of a
cause of action's elements. Iqbal, 556 U.S. at
681, 129 S.Ct. at 1951. In addition, a pro se
litigant “is subject to the relevant law and rules of
court including the Federal Rules of Civil Procedure.”
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.),
cert. denied, 493 U.S. 863 (1989).
sure, Plaintiff's description of his claims against
Defendant Banks is brief. The best that the Court can discern
is Defendant Banks obtained two criminal felony warrants
against Plaintiff for first-degree escape. (Doc. 1 at 4-5).
The first warrant was served on Plaintiff on March 6, 2015,
and the second warrant was served on him on April 4, 2016,
after Defendant Banks discovered Plaintiff was found not
guilty on the first felony warrant. Plaintiff was then found
not guilty on the second felony warrant on September 20,
2016. (Id. at 5). Plaintiff complains that he was
“charged . . . twice for the same crime.“
from the criminal proceedings, Plaintiff was also charged
with an institutional rule violation for escape without
force. (Id. at 4). He was found not guilty in a
hearing on the rule violation (i.e., a disciplinary charge).
(Id.). Defendant Banks is not connected to the
disciplinary proceeding in Plaintiff's allegations.
Therefore, a § 1983 claim has not been stated against
her based on the disciplinary allegations. Zatler v.
Wainwright,802 F.2d 397, 401 (11th Cir. 1986) (finding
a § 1983 plaintiff must establish a causal connection