# McCarty v. Stewart

> District Court, S.D. Alabama · April 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10631433

## Case

- **Court:** District Court, S.D. Alabama
- **Decided:** April 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10631433

## How later opinions describe it (automated extraction)

- finding the marshal was entitled to qualified immunity because absent a court ruling, he “would not have understood his actions [of placing Jordan in the jails] to violate Jordan’s constitutional rights in light of the clearly established law at that time”

## Opinion text

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

MAURICE MCCARTY, #272773, :

Plaintiff, :

vs. : CIVIL ACTION NO. 20-00229-CG-B

CYNTHIA STEWART , :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se and in
forma pauperis, filed a Complaint under 42 U.S.C. § 1983. This
action has been 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, for failure to
state a claim upon which relief could be granted.
I. Proceedings.
A. Complaint. (Doc.1, PageID.1).
In McCarty’s original complaint (Doc. 1, PageID.1), he named
Cynthia Stewart, Holman Correctional Facility’s warden, as the
sole Defendant. McCarty claimed that on August 11, 2019, he was
accused of assault without a weapon even though the victims gave
affidavits that he did not assault them, and the camera inside the
dorm did not place him at the scene. (Id. at 3, PageID.3). McCarty
alleged that, without reviewing the camera footage to verify the
allegations, Defendant Stewart “placed” him in a segregation cell
in which nothing worked. (Id. at 4, PageID.4). He further alleged
that he could not drink the water and that the lights in the cell,

and the ventilation and heat system, were not working. McCarty
alleged that this caused him to have high blood pressure and become
sick. (Id.). For relief, McCarty sought $80,000 in punitive and
compensatory damages. (Id. at 6, PageID.6).
B. Screening of Complaint and Order to Amend. (Doc. 9,
PageId.28).

Because McCarty is proceeding in forma pauperis, the Court
was required to screen his complaint under 28 U.S.C. §
1915(e)(2)(B)(i-iii). In screening his complaint, the Court, in
an order dated February 4, 2021, found that McCarty did not allege
a plausible claim against Defendant Stewart; therefore, the action
was subject to dismissal. (Doc. 9 at 1, PageID.28).
Based on the allegations in McCarty’s complaint, the Court
construed McCarty’s claim as one for a violation of the Eighth
Amendment. (Id. at 3, PageID.30). The Court specifically advised
McCarty of the elements for pleading an Eighth Amendment claim
based on conditions of confinement, including that he must prove
that the condition of which he complained was sufficiently serious
to violate the Eighth Amendment, i.e., that it must be extreme;
2
and that he must prove that Defendant Stewart acted with deliberate
indifference with respect to the condition at issue, that is, that
Stewart knew of and disregarded an excessive risk to his health or
safety by conduct that was more than gross negligence. (Id. at 3-
4, PageID.30, 31); see generally Farmer v. Brennan, 511 U.S. 825,

828 (1994).
The Court also informed McCarty of the specific factual
deficiencies in his complaint in relation to the elements required
to plausibly plead an Eighth Amendment conditions of confinement
claim. Specifically, the Court noted that McCarty’s complaint did
not indicate that Stewart actually placed McCarty in his cell or
that she knew that the cell was not working in regard to water,
lights, and ventilation; the complaint did not indicate that
McCarty was not given water to drink or that he had no access to
a toilet, shower, and sink; the complaint did not indicate the
numbers of days that he was in the cell; the complaint did not
indicate the ventilation that was available in his cell or the

type of ventilation that was previously there but had since broken;
the complaint did not indicate the temperature in the cell and/or
the temperature outdoors; the complaint did not indicate whether
McCarty was being treated for high blood pressure and/or whether
he received his medication while in the cell; and the complaint
did not indicate the illness of which he complained and how he was
3
treated for it. (Id. at 5, PageID.32).
The Court further advised McCarty of the general pleading
requirements for stating a claim under Rule 8(a), see Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

173 L.Ed.2d 868 (2009), and for pleading a § 1983 claim. Zatler v.
Wainwright, 802 F.2d 397, 401 (11th Cir. 1986); Williams v.
Bennett, 689 F.2d 1370, 1380 (11th Cir.), cert. denied, 464 U.S.
932 (1983). (Id. at 5-6, PageID.32, 33).
Rather than recommending the dismissal of McCarty’s deficient
original complaint, the Court granted him leave to file an amended
complaint. (Id.). McCarty was warned that his failure to file a
complying amendment within the required time would result in the
dismissal of his action. (Id. at 2, PageID.29).
C. Amended Complaint. (Doc. 10, PageID.35).
McCarty filed an amended complaint and named as Defendants,
Lt. Banks, Sgt. Earl, and Lt. Ashley Kidd. (Id. at 5, PageID.39).

Cynthia Stewart was no longer listed as a Defendant. The date of
the alleged incident was again listed as August 11, 2019. (Id. at
4, PageID.38). As best the Court can discern, it appears that, in
the amended complaint, McCarty has shifted his focus from an Eighth
Amendment claim regarding the conditions of his confinement to a
Fourteenth Amendment claim regarding a disciplinary proceeding.
4
According to McCarty, even though he denied any personal
involvement in the assault that was being investigated, and the
victims reported that they had the “wrong man,” Cynthia Stewart
stated that she did not care and directed that McCarty be found
guilty and locked up. (Id. at 4, PageID.38). McCarty alleges that

he was placed in Cell M-55 at Holman, which is a lock-up cell that
is known as not fit to live in. (Id.). He became very sick, lost
about thirty pounds in three weeks, attempted suicide, had high
blood pressure, and became depressed. (Id.). McCarty asserts
that he felt as though he had no help to prove his innocence and
that lines 1 through 5 of his disciplinary should be corrected and
that line 2 is “clearly wrong.” (Id.). While McCarty referenced
the disciplinary report, he did not attach a copy of his
disciplinary report to his amended complaint.
In the amended complaint, McCarty alleges that Defendant
Banks placed him in the cell because Stewart told Banks to lock
him up, and no other cell was available. (Id. at 5, PageID.39).

He also alleges that Defendant Earl knew about the cell and
McCarty’s witnesses, but “[s]he made him do it and wrote him up
for trying to help.” (Id.). According to McCarty, “Cynthia
Stewart told arresting offic[er] Lt. Ashley Kidd to write Earl up
again if he tr[ies] to help [McCarty].” (Id.). McCarty further
alleges that Defendant Kidd, the arresting officer, disregarded
5
the victims’ statements, and this resulted in McCarty being thrown
in lock-up. (Id. at 6, PageID.40). McCarty asserts that Defendant
Kidd admitted that they do what Stewart says even if it is wrong,
and McCarty questions “[s]o how is Cynthia don't have nothing to
do with [me] being mistreated.” (Id.). For relief, McCarty seeks

$80,000 in compensatory and punitive damages. (Id. at 7,
PageID.41).
II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).
As noted, because McCarty is proceeding in forma pauperis,
the Court is must screen his amended complaint (Doc. 10, PageID.35)
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). A claim is
frivolous as a matter of law where, inter alia, the defendants are
immune from suit, id. at 327, 109 S.Ct. at 1833, or the claim seeks
to enforce a right that clearly does not exist. Id.

Moreover, 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 Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127
6
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.” Id. 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).
When considering a pro se litigant’s allegations, a court

gives them a liberal construction holding them to a more lenient
standard than those of an attorney, Tannenbaum v. U.S., 148 F.3d
1262, 1263 (11th Cir. 1998), but “this leniency does not give a
court license to serve as de facto counsel for a party, or to
rewrite an otherwise deficient pleading in order to sustain an
action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–69
7
(11th Cir.) (citation and quotation marks omitted), cert. denied,
574 U.S. 1047 (2014). Furthermore, a court treats as true factual
allegations, 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. 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).
III. Discussion.
As noted above, McCarty’s original complaint did not present
a plausible claim against Defendant Stewart; thus, he was given an
opportunity to amend his complaint in order to avoid its dismissal.
McCarty was advised at length regarding his pleading deficiencies
and ordered to file an amended complaint that complied with Rule
8(a) of the Federal Rules of Civil Procedure and stated a plausible
claim.1 (Doc. 9, PageID.28).
Notwithstanding the Court’s directives, in his amended

1 See Jemison v. Mitchell, 380 Fed. Appx. 904, 907 (11th Cir. 2010)
(“When it appears that pro se plaintiff’s complaint, if more
carefully drafted, might state a claim, the district court should
give the pro se plaintiff an opportunity to amend his complaint
instead of dismissing it with prejudice.”); Duong Thanh Ho v.
Costello, 757 Fed. Appx. 912 (11th Cir. 2018) (affirming the
dismissal of the complaint as the magistrate judge’s order
expressly informed the plaintiff of the deficiencies in his
complaint and of the rules he needed to follow in filing an amended
complaint and that the failure to do so would result in dismissal,
but he failed to file an amended complaint).
8
complaint, McCarty named three new persons as Defendants, dropped
Cynthia Stewart as a Defendant, and failed to develop his
conditions-of-confinement claim against Stewart or any of the
other newly named Defendants. Instead, the allegations in
McCarty’s amended complaint concern Stewart’s alleged order

directing the three Defendants to place McCarty in the cell, to
write him up (i.e., charge him with a disciplinary violation), and
to find him guilty of the disciplinary charge, even though he was
innocent. McCarty makes no mention of the specific conditions of
the cell so as to establish that the conditions were extreme and
deprived him “of the minimal civilized measure of life’s
necessities.” Chandler v. Crosby, 379 F.3d 1278, 198 (11th Cir.
2004); Saunders v. Sheriff of Brevard Cnty., 735 Fed. Appx. 559,
(11th Cir.)2, cert. denied, 139 S. Ct. 1325 (2019). Significantly,
he also failed to advise the Court as to the actual duration of
his confinement in the cell or to connect an injury to the alleged
deprivation in his amended complaint. See Jordan v. Doe, 38 F.3d

1559, 1564-65 (11th Cir. 1994)(a deprivation of a single human
need if sufficiently severe will constitute a deprivation of the
minimal civilized measure of life’s necessities as informed by
contemporary standards of decency).

2 “Unpublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11TH CIR. R. 36-2.
9
Here, like his original complaint, McCarty’s amended
complaint does not comply with Rule 8(a) in that it does not
contain a plausible claim upon which relief may be granted. In
his amended complaint, McCarty complains about the roles
Defendants Kidd and Earl played in his disciplinary proceeding.

However, he provides no information about the nature of the
disciplinary nor the sentence he received.
To allege a due process claim based on a disciplinary
proceeding, there must be a deprivation of a liberty interest.
Sandin v. Conner, 515 U.S. 472, 484 (1995). In Sandin, the Supreme
Court held that liberty interests “will be generally limited to
freedom from restraint which, while not exceeding the sentence in
such an unexpected manner as to give rise to protection by the Due
Process Clause of its own force, . . . , nonetheless imposes
atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Id. at 480, 484 (citations
omitted). The Court concluded that the prisoner’s thirty-day

confinement to disciplinary segregation was not a dramatic
departure from the ordinary conditions of his incarceration, was
the type of discipline he should expect as an incident to his
criminal sentence, and “did not present the type of atypical,
significant deprivation in which a state might conceivably create
a liberty interest.” Id. at 485-86. Accordingly, in order to
10
find a liberty interest, the atypical and significant hardship
must exist for a significant length of time, Smith v. Deemer, 641
Fed. Appx. 865, 868 (11th Cir. 2016), and the atypical and
significant hardship must be harsh in comparison to the general
population prison. Wilkinson v. Austin, 545 U.S. 209, 223-24

(2005). Here, McCarty does not allege that his term of
imprisonment was unexpectedly altered by the disciplinary or that
he lost good-time credit. Magluata v. Samples, 375 F.3d 1269,
1282 (llth Cir. 2004). He also offers no facts regarding the
actual length of his confinement, nor does he describe any
operational differences between where he was placed as a result of
the disciplinary and where he was housed before the disciplinary
hearing. Simply put, McCarty has failed to plausibly allege that
he was deprived of a liberty interest, and in the absence of a
liberty interest, any claims about the initiation of, conduct of,
and result of his disciplinary hearing fail to state a plausible
claim upon which relief can be granted.

The Court also notes that McCarty contends that Defendant
Banks followed Cynthia Stewart’s order to put McCarty in a cell
and placed him in the only available cell. Following a supervising
official’s order and placing a plaintiff in the only available
cell does not reflect the deliberate indifference necessary for
stating an Eighth Amendment violation. Farmer v. Brennan, 511
11
U.S. at 837-38. Cf. Jordan, 38 F.3d at 1567 (finding the marshal
was entitled to qualified immunity because absent a court ruling,
he “would not have understood his actions [of placing Jordan in
the jails] to violate Jordan’s constitutional rights in light of
the clearly established law at that time”); Lee v. Blackmon, 2016

U.S. Dist. LEXIS 22418, 2016 WL 749173, at *6 (N.D. Fla. Jan. 22,
2016) (“Nurses and other such prison personnel are not deliberately
indifferent when they reasonably follow the orders of a doctor or
other supervisory medical personnel.”); Vela v. White, 703 F.3d
147, 152 (5th Cir. 1983)(finding the officer was entitled to
qualified immunity because he was following an order of his
supervisor in arresting the plaintiff and there was no indication
that he bore any ill-will to the plaintiff). Without a court
decision holding that the reason for the placement was
unconstitutional or that the conditions (for which there is no
information in the amended complaint) were unconstitutional,
McCarty has not alleged a plausible claim against Defendant Banks

for a violation of his constitutional rights as no deliberate
indifference is shown on his part.
In sum, McCarty has not complied with Rule 8(a)’s requirement
of pleading “a short and plain statement” showing that he is
entitled to relief. FED.R.CIV.P. 8(a)(2). That is, he has not
pled a complaint in this action that contains sufficient factual
12
matter, taken as true, that states a claim that is plausible on
its face. Iqbal, 556 U.S. at 678. Because McCarty was given the
opportunity to amend his complaint and correct the noted
deficiencies so as to be able to state a plausible claim against
the Defendants, and yet has not done so, it is recommended that

this action be dismissed without prejudice for failure to state a
claim upon which relief could be granted. See Britt v. United
States Gov’t, 773 Fed. Appx. 494, 495 (11th Cir. 2019)(affirming
the action’s dismissal for failure to file an amended complaint
that complied with Rule 8). To the extent that McCarty believes
that he can correct the deficiencies noted in the Court’s orders
and that he can file a complaint that complies with the pleading
requirements of Rule 8, then he must file his complying complaint
along with objections to this Report and Recommendation.
IV. Conclusion.
Based upon the foregoing reasons, it is recommended that this
action be dismissed without prejudice, prior to service of process,

for failure to state a claim upon which relief could be granted.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on
all parties in the manner provided by law. Any party who objects
to this recommendation or anything in it must, within fourteen
(14) days of the date of service of this document, file specific
13
written objections with the Clerk of this Court. See 28 U.S.C. §
636(b)(1); FED.R.CIV.P. 72(b); S.D. Ala. Gen.LR 72(c). The parties
should note that under Eleventh Circuit Rule 3-1, “[a] party
failing to object to a magistrate judge’s findings or
recommendations contained in a report and recommendation in

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the
right to challenge on appeal the district court's order based on
unobjected-to factual and legal conclusions if the party was
informed of the time period for objecting and the consequences on
appeal for failing to object. In the absence of a proper objection,
however, the court may review on appeal for plain error if
necessary in the interests of justice.” 11th Cir. R. 3-1. In
order to be specific, an objection must identify the specific
finding or recommendation to which objection is made, state the
basis for the objection, and specify the place in the Magistrate
Judge’s report and recommendation where the disputed determination
is found. An objection that merely incorporates by reference or

refers to the briefing before the Magistrate Judge is not specific.
Ordered this 22nd day of April, 2021.

/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10631433. Public record. Not legal advice.