Cloy v. Boutwell

• Decision Date: 22 December 2014
• Docket Number: CIVIL ACTION NO. 12-00718-KD-N
• Parties: RICKIE LEE CLOY, Plaintiff, v. TRACY BOUTWELL, HUEY "HOSS" MACK, and MATTHEW SEYMORE, Defendants.
• Court: U.S. District Court — Southern District of Alabama

RICKIE LEE CLOY, Plaintiff, v. TRACY BOUTWELL, HUEY "HOSS" MACK,and MATTHEW SEYMORE, Defendants.

CIVIL ACTION NO. 12-00718-KD-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

December 22, 2014

REPORT AND RECOMMENDATION

Plaintiff Rickie Lee Cloy ("Cloy"), proceeding pro se and in forma pauperis (see Doc. 6), has brought this action asserting claims under 42 U.S.C. § 1983.¹ Pursuant to SD ALA Local Rule 72.2(c)(4), this matter has been referred to the undersigned United States Magistrate Judge for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B)-(C) and Federal Rule of Civil Procedure 72(b).

I. Procedural History

Cloy's second amended complaint, dated June 11, 2013 (Doc. 21), as supplemented (Doc. 25), is the operative pleading in this action (see Doc. 18; Doc. 28 at 1; Doc. 32 at 1; Doc. 38 at 1)² and asserts claims against Defendants Huey "Hoss"Mack, Sheriff of Baldwin County, Alabama ("Sheriff Mack"); Matthew Seymore, a Baldwin County Assistant District Attorney ("Seymore"); and Tracey Boutwell, a staff member of the Baldwin County Circuit Court Clerk's Office ("Boutwell").³ The causes of action in the operative complaint arise from events occurring in 2012 in Baldwin County, Alabama, in which Cloy was arrested and set to prison for a probation violation.

Sheriff Mack was provided notice of this lawsuit (see Doc. 34) and has filed a Special Report (Doc. 40) and Answer (Doc. 41), which have been converted to a Motion for Summary Judgment under Federal Rule of Civil Procedure 56 by order of the undersigned (Doc. 46). Cloy filed a response (Doc. 44) to the Special Report.

Three attempts were made to send notice of this lawsuit to Seymore and Boutwell. (See Docs. 28, 29, 31, 32, 33, 35, 38, 39, 45). All three attempts to provide notice to Seymore have been unsuccessful, with the Baldwin County District Attorney's Office informing the Court that he is no longer employed there (see Doc. 45). Though the third notice sent to Boutwell (Doc. 39) has not been returned as undeliverable, as the previous two (Docs. 31, 35) were, Boutwell "has notacknowledged receipt of Cloy's complaint or waived service of summons." (Doc. 46 at 2 n.1).

II. Summary Judgment Standards

In analyzing the propriety of a motion for summary judgment, the Court begins with these basic principles. The Federal Rules of Civil Procedure grant this Court authority under Rule 56 to render "judgment as a matter of law" to a party who moves for summary judgment. Federal Rule of Civil Procedure 56(a) provides that "[t]he 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." In Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L .Ed. 2d 265 (1986), the Supreme Court held that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact...." However, all of the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004).

Federal Rule of Civil Procedure 56(e) further provides:

If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:

(1) give an opportunity to properly support or address the fact;(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or

(4) issue any other appropriate order.

The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the 'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence showing there is no dispute of material fact or by pointing out to the district court that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-25.

Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to show the existence of a genuine issue of material fact. See Stabler v. Fla. Van Lines, Inc., Civil Action No. 11-0103-WS-N, 2012 WL 32660, at *5 (S.D. Ala. Jan.6, 2012) (citing Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991)). Summary judgment is proper when "a party fails to make a showing sufficient to establish the existence of an essential element of that party's case." McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004) (citations and internal quotation marks omitted). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict forthat party.... If the 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, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (internal citations omitted). "After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." AGSouth Genetics, LLC v. Cunningham, No. CA 09-745-C, 2011 WL 1833016, at *2 (S.D. Ala. May 13, 2011). " 'An issue of fact is "material" if, under the applicable substantive law, it might affect the outcome of the case. An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.' " Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014) (quoting Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004) (citations omitted)).

"A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers..." E.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation and quotations omitted). Nevertheless, "a court may not 'serve as de facto counsel for a party' or 'rewrite an otherwise deficient pleading in order to sustain an action.' " Muhammad v. Bethel, 430 F. App'x 750, 752 (11th Cir. 2011) (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds, see Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010)). Additionally, "[t]here is no burden upon the district court to distill every potentialargument that could be made based upon the materials before it on summary judgment. Rather, the onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned." Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc) (internal citation omitted). Accord, e.g., Gennusa v. Canova, 748 F.3d 1103, 1116 (11th Cir. 2014).

III. Determination of Facts⁴

On May 13, 2011, in the criminal action State of Alabama v. Cloy Ricky Lee, Case # CC 2007 000958.00, Baldwin County Circuit Judge James Reid issued a writ for Cloy's arrest, or bench warrant, for the purpose of conducting probation revocation proceedings. (Doc. 40-1 at 2). On February 17, 2012, Boutwell, on behalf of the Baldwin County Circuit Court Clerk, issued writs of arrest for Cloy upon the return of an indictment against Cloy by the Grand Jury of Baldwin County charging Burglary 1^st Degree (Case # GJ 2012 020360.00) and Robbery 1^st (Case # GJ 2012 020361.00) with bond set at $50,000.00. (Doc. 40-2 at 4-5). Cloy was arrested by the Gulf Coast Regional Fugitive Task Force on May 2, 2012, pursuant to the two February 17, 2012 warrants and the probation violation (id. at 6; Doc. 40-3 at 3, ¶ 4) and was booked into the Baldwin County Corrections Center the next day (Doc. 40-2 at 7; Doc. 40-3 at 3, ¶ 5). After Cloy's booking, Judge Reid's bench warrant was executed by a member of Sheriff Mack's staff that same day. (Doc. 40-1 at 3; Doc. 40-3 at 3, ¶ 7). Confirmation was also received that day that Cloy had active arrestwarrants issued by the police departments of Gulf Shores and Foley, Alabama. (Doc. 40-2 at 8-9).

Judge Reid's executed bench warrant was filed with Baldwin County Circuit Court Clerk on May 7, 2012. (Doc. 40-1 at 3). On May 9, 2012, Judge Reid set Cloy's case for a probation revocation hearing on May 24, 2014. (Doc. 40-1 at 4). On May 17, 2012, Judge Reid set Cloy's bond at $20,000, "to be approved by the Sheriff." (Doc. 40-2 at 10). On May 31, 2012, Judge Reid entered an order (dated May 24, 2012) in Cloy's criminal case stating as follows:

The defendant and counsel and counsel for the State of Alabama appeared in open court on a probation hearing in the above captioned case. The defendant having been charged with violating the terms and conditions of his probation, to wit:

1) Failure to Report;

2) Failure to Pay Supervision Fees;

3) Failure to Pay Court Ordered Monies;

and defendant having confessed to the charges, the Court adjudicated the defendant guilty of violating the terms and conditions of probation and ORDERS that the defendant's probation be revoked. It is FURTHER ORDERED that the defendant be remanded to eh [sic] Alabama Department of Corrections to serve the balance of his sentence.

(Doc. 40-1 at 5).

That order also taxed costs of the proceedings against Cloy and ordered him to...