Radford v. Marshall

• Decision Date: 10 December 2015
• Docket Number: CIVIL ACTION 14-0527-KD-C
• Parties: THOMAS RADFORD, Plaintiff, v. CEDRIC MARSHALL, et al., Defendant.
• Court: U.S. District Court — Southern District of Alabama

THOMAS RADFORD, Plaintiff, v. CEDRIC MARSHALL, et al., Defendant.

CIVIL ACTION 14-0527-KD-C

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

December 10, 2015

ORDER AND REPORT AND RECOMMENDATION

Plaintiff Thomas Radford, an Alabama prison inmate proceeding pro se, filed a complaint under 42 U.S.C. § 1983. This action was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A & B) and General L.R. 72(a)(2)(R), and is now before the Court on various outstanding motions put forth by Radford (Docs. 31-35, 44, 45, 48-50) and Defendants' motions for summary judgment (Docs. 30 & 57). For the reasons stated below, it is ordered that Radford's non-dispositive motions be granted in part and denied in part. The motions to amend or supplement the complaint (Docs. 44, 49, 50) are to be granted in favor of Plaintiff but the remaining motions (Docs. 31, 32, 33, 34, 35, 48) are to be denied. In addition, it is recommended that summary judgment be granted in favor of Defendants Sergeant Cedric Marshall, former Alabama Department of Corrections Commissioner Kim T. Thomas, Warden Cynthia Stewart, Lieutenant R. Davis, C.O.I. Bruce A. Fitch, Sergeant E. McQueen, C.O.I C. Brown, C.O.I. R. Washington, and C.O.I. D. Wetzel, and the claims presented by Plaintiff be dismissed with prejudice.¹

I. Background.

Plaintiff Radford is currently incarcerated at J.O. Davis/Fountain Correctional Facility ("Fountain"), where he is serving a 28-year sentence for kidnapping and murder convictions. (Doc. 1 at 4, 6). In his complaint, Radford claims that on November 4, 2014, an inmate, who was acting as "shift runner," was responsible for delivering monthly transaction sheets to the inmates in Plaintiff's dorm.² Radford asked Sergeant Marshall, the Shift Commander on duty, why the inmate shift runner was allowed to "handle mail/[his] personal property" and was told by Sergeant Marshall that, "we were short of hands so we let him pass them out."³ (Id. at 5).

Additionally, in an amended complaint, Radford states that on January 12, 2015, Lieutenant R. Davis, again, gave an inmate "the U.S. Mail to pass out" to other inmates. (Doc. 25 at 1). And, on February 3, 2015, Radford claims "C.O.I.Bruce A. Finch gave U.S. Mail to Inmate Bell[] to pass out and Plaintiff has not receive[d] his transaction slip that Inmate Bell was passing out." (Id.). Radford asserts he reported the February 3, 2015, incident to Shift Commander Sergeant McQueen and McQueen "shook his head," "seeing nothing wrong with C.O.I. Bruce A. Finch passing mail over to Inmate Bell to pass out for him." (Id.).

In amended complaints, Radford brings forth supplementary claims against supervisory officials, Warden Cynthia Stewart and former Department of Corrections Commissioner Kim Thomas, challenging the conditions of his confinement. Specifically, Radford alleges he has been without hot water for his showers and heated air from the summer of 2013 until February 2015. (Docs. 4, 10, 44, 49). He claims that he was repeatedly told that the heating units would be fixed but they were not, thereby subjecting him to winter temperatures in November 2014 as low as 26 degrees Fahrenheit and wind chills as low as 19 degrees Fahrenheit without heated air or hot water. (Docs. 4 at 4-5; 10 at 3-4). Radford claims, due to the defendants' failure to maintain operable heating equipment, he suffered "actual injury" on or about November 13-14, 2014, but fails to articulate any specific injury. (Docs. 4, 10).

Additionally, in a supplemental pleading, Radford alleges on April 16, 2015, Warden Stewart acted in retaliation against him for filing this lawsuit by failing "to fix the hot water to shower ... leaving Plaintiff . . . [to take] a cold shower and [he] got sick." (Doc. 44 at 1). Radford states he developed a cough and sore throat and had to been seen by a doctor on May 7, 2015.⁴ (Id. at 1, 5, 7).

Radford brings this action against the defendants asserting violations of 18 U.S.C. §§ 1701, 1702, the Eighth Amendment, and the Administrative Regulations of the Alabama Department of Corrections. (Doc. 10 at 8; Doc. 25-1 at 2; Doc. 44). He seeks injunctive and declaratory relief to stop the Alabama Department of Corrections from allowing inmates to handle mail and to order that the heating units be repaired and made operable; he further seeks compensatory and punitive damages, and any other relief the Court deems appropriate for the alleged violations. (Doc. 10 at 7; Doc. 25-1 at 3).

II. Outstanding Motions.⁵

a. Motions to Amend (Docs. 44, 49, 50).

Federal Rule of Civil Procedure 15(a) permits a party to amend a pleading once 'as a matter of course at any time before a responsive pleading is served,' or, otherwise, 'only by leave of court or by written consent of the adverse party.'" Farris v. United States, 333 F.3d 1211, 1215 (11th Cir. 2003) (per curiam). A motion for leave to amend complaint should be granted "when justice so requires" but the denial of a motion to amend has been determined to be appropriate when there is evidence of "undue delay, bad faith, or dilatory motive on [the] part of movant, repeated failure to cure deficiencies by amendments that were previously allowed, undue prejudice to opposing party by virtue of allowance of amendment, futility of amendment, etc. . ." Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). Generally, courts should allow for amendmentsto pleadings unless it is absolutely clear that amendment would be futile, giving pro se litigants an opportunity to amend his or her complaint to correct any deficiencies. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Rule 15(a) embodies a "policy favoring liberal amendment," Verizon Del., Inc. v. Covad Communs. Co., 377 F.3d 1081, 1091 (9th Cir. 2004); "leave to amend should be . . . granted more liberally to pro se plaintiffs," Lira v. Herrera, 427 F.3d 1164 (9th Cir. 2005) (quoting Ramirez v. Galaza, 334 F.3d 850, 867 (9th Cir. 2003) (internal quotations and alterations omitted), "where no prejudice or disadvantage [is] suffered by the opposing side." McDowall v Orr Felt & Blanket Co., 146 F.2d 136 (6th Cir. 1944) (citing Norton v. Larney, 266 U.S. 511, 516 (1925)).

Keeping in mind the leniency afforded pro se plaintiffs, and the established tendency of courts to allow amendments to complaints, the Court hereby grants Plaintiff's "Motion to Supplement Pleadings" (Doc. 44), "Motion for Leave to Supplement Complaint" (Doc. 49), and "Motion for Leave to Amend/Supplement Complaint" (Doc. 50). Radford's claims, facts, and additional named defendants referenced in these motions are hereby incorporated into Plaintiff's complaint and have been taken into consideration for purposes of deciding if summary judgment is appropriate in this action.

b. Motion for "Case Number, 84 Summons, and 30 days to Amend" (Doc. 45).

As stated above, liberality in amendment of pleadings is important to assure a party fair opportunity to present his claims and defenses; however, equal attention should be given to the proposition that there must be an end to particular litigation. NCI Group, Inc. v. Cannon Servs., 2011 U.S. Dist. LEXIS 131908, *16-18, n.9 (N.D. Ga. Nov. 16, 2011) ("The Eleventh Circuit has expressedparticular concern regarding amendments that follow motions for summary judgment. In Freeman v. Continental Gin Co., 381 F.2d 459, 469 (5th Cir. 1967), the court stated: 'A busy district court need not allow itself to be imposed upon by the presentation of theories seriatim. Liberality of amendment is important to assure a party a fair opportunity to present his claims and defenses, but equal attention should be given to the proposition that there must be an end finally to a particular litigation. . . . Much of the value of summary judgment procedure . . . would be dissipated if a party were free to rely on one theory in an attempt to defect [sic] a motion for summary judgment and then, should that theory prove unsound, come back long thereafter and fight on the basis of some other theory.'"). Radford's motion, filed on July 30, 2015, titled "Motion for Case Number, 84 Summons, and 30 day[s] to Amend Complaint" (Doc. 45) is one such motion that comes in conflict with generous amendment rulings and should be denied.

The motion listed approximately 84 defendants' names in the style of the case and stated, "Plaintiff asking for a Case Number and 84 Summons to bring these defendant[s] to Court in the Southern District of Alabama." (Id. at 3). The motion is completely void of any facts or claims against any named defendant and identified no commonality with the current action. The motion is unintelligible as it lacks sufficient detail for the Court to discern its purpose, much less merit, and for these reasons the motion cannot be entertained. Therefore, the undersigned recommends that Plaintiff's "Motion for Case Number, 84 Summons, and 30 Days to Amend Complaint" be denied.

c. Motion for Protective Order against Corizon Health (Doc. 48).

Plaintiff's motion for a restraining order is directed to Corizon Health ("Corizon"), a third party provider of healthcare services to inmates at Fountain, who is not a defendant to this action. Plaintiff claims on August 12, 2015, he was interviewed or questioned about his mental wellbeing by a Corizon employee, Ms. Nichols. (Doc. 48). Plaintiff avers he has never suffered from any mental illness or taken medication for the same and states that each time he files a lawsuit, "Corizon Health Service come around stating Plaintiff needs medication which is not true." (Id. at 2). Radford alleges his First Amendment rights, purportedly to bring suit, are being violated by Corizon and seeks relief in the form of "a[n] order to protect." (Id.). However, Plaintiff Radford has not met his burden of establishing a constitutional violation, nor the needed elements for the Court's intervention.⁶

It is well established that inmates are protected by the ...