United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE
a Mobile County Metro Jail in inmate proceeding pro
se and in forma pauperis, filed a complaint
under 42 U.S.C. § 1983. This action was referred to the
undersigned for appropriate action pursuant to 28 U.S.C.
§ 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). It is
recommended that this action be dismissed without prejudice,
prior to service of process, pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim upon which
relief can be granted, with leave being granted to file a
second amended complaint that complies with the Court's
order of August 16, 2018 (Doc. 6) within the time period for
filing objections to the Report and Recommendation or, in the
alternative, that this action be dismissed without prejudice
for failure to obey the Court's order (id.).
Amended Complaint. (Doc. 7).
action is before the Court on Plaintiff's first amended
complaint, which the Court ordered Plaintiff to file after
screening his original complaint. (Docs. 1, 6, 7). The order
advised Plaintiff of his complaint's deficiencies, that
is, no defendant was named in section III of the complaint
form and the complaint contained unrelated claims. (Doc. 6 at
1). Plaintiff was ordered to pick one of his claims and any
claims closely related to it to include in his amended
complaint and was advised of pleading standards for stating a
§ 1983 claim upon which relief can be granted.
(Id. at 2-4). In addition, Plaintiff was advised
that completing the complaint form in its entirety would
assist him in overcoming pleading problems and his amended
complaint would replace his original complaint, and he was
warned that his failure to file a complying amended complaint
would result in a recommendation of dismissal of his action.
(Id. at 1, 4).
amended complaint filed by Plaintiff, he did not pick one of
his claims on which to proceed, but instead he re-alleged
most of his original complaint's narrative of his claims.
(Doc. 7 at 4-5). However, he did name a Defendant, as
ordered. (Id. at 6). The sole Defendant identified
by Plaintiff is Noah Oliver, Warden of the Mobile County
Metro Jail (“Metro”). (Id.). He claims
that, as the warden, Defendant Oliver is “ultimately
responsible for every issue regarding this facility.”
(Id.). This is the extent of Plaintiff's
description of his claim against Defendant Oliver, as no
further reference is made to Defendant Oliver in the
allegations. (Id. at 4-5). Furthermore, the relief
sought by Plaintiff is: “Pain and suffering
compensation, the building of the law library as well as all
nec[ess]ary adjustments to the laws and this facility.”
(Id. at 8).
to Plaintiff, the food portions are restricted by calories,
lacking in substance per portion, are inconsistent in
quantity, and have been cut in half, which even correctional
officers feel is inhumane. (Id. at 4). And on the
weekends only two meals a day are served, a regular breakfast
and a “snack lunch” for dinner. (Id.).
asserts that he is being subjected to “horrible
conditions and poor treatment” as if he already has
been found guilty and convicted. (Id.). By law, he
maintains, that he is innocent until proven guilty and
therefore has a right to privacy and humane treatment.
(Id.). Nevertheless, he contends that caged animals
in shelters received more food and better treatment than he
respect to his housing, he avers that four to five inmates
are assigned to a two-man cell, which he claims is a fire
hazard and against the federal code, as men are forced to
regularly sleep on the floor. (Id. at 5). To correct
this situation, he states that a federal grant should be
given to Mobile County, Alabama, to build a new facility to
hold its inmates or to add to the facility, or that the
county's laws need to be investigated or adjusted with
respect to misdemeanors and minor felonies (theft, small
property crimes). (Id.). For example, he asserts
that, according to the law, a person has a right to a bond on
every non-capital offense “regardless of circumstances
as long as they haven't been convicted of either
offen[s]e”; but what occurs is a person with two felony
charges, acquired on two separate occasions, does not have a
right to have a bond for each charge, which is contrary to
the law. (Id.).
in an unusual statement, Plaintiff states that “[t]he
first matter to be addressed that is considered
unconstitutional by legal standards is the fact that this
facility does not allow access to a law library.”
(Id.). Does this statement mean that the other
complained of matters he does not consider to be
unconstitutional? He relates that the jail contends that as
long as an inmate is not denied legal representation or a
visit from his attorney, the jail is in compliance with
federal law. (Id.). However, according to the law,
he maintains that a man has right to represent himself,
especially when he believes counsel may be inadequate.
(Id.). He questions how a man can do this or know if
his attorney's recommendation is in his best interest
without access to legal materials. (Id.).
concluding the amended complaint, he refers the Court to
original complaint, for the signatures of petitioners and
potential witnesses. (Id.; see Doc. 1 at 10).
Standards of Review Under 28 U.S.C. §
Plaintiff is proceeding in forma pauperis, the Court
is reviewing his amended complaint (Doc. 7) under 28 U.S.C.
§ 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a
complaint 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). And 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). To 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).
“Threadbare 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
considering a pro se litigant's allegations, a
court liberally construes them and holds them to a more
lenient standard than those of an attorney. Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998). A
liberal construction, however, does not give a court a
“license . . . to rewrite an otherwise deficient
pleading in order to sustain an action.” GJR
Investments v. County of Escambia, Fla., 132 F.3d 1359,
1369 (11th Cir. 1998), overruled on other grounds by
Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010).
Furthermore, 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, 566 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); see S.D. Ala. GenLR 83.5 (requiring any
litigant proceeding pro se to comply with this
Court's Local Rules and the Federal Rules of Civil and