Opinion
Civil Action 98-0568-RV-M.
May 1, 2000.
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 Local Rule 72.2(c)(4), and is now before the Court on Defendant Wayne Brunson's motion for summary judgment (Doc. 31). It is recommended that summary judgment be granted for Defendant Brunson on the federal claims and that the federal claims be dismissed with prejudice, and that the state law claims be dismissed without prejudice.
The Court converted Defendant's Special Report (Doc. 11), Answer (Doc. 14), and response to the Court's order (Doc. 27) into a motion for summary judgment (Doc. 31). Plaintiff was given notice that the motion for summary judgment would be taken under submission, was advised of the pertinent summary judgment law and of the consequences of a summary judgment motion, and was provided an opportunity to respond to the summary judgment motion. (Doc. 31) Plaintiff responded by filing "Motion for Summary Judgment Pursuant to Rule 56(a), (c), ( e). Rules of Civ.Proc." (Doc. 32), which was sworn before a notary.
Plaintiff's summary judgment motion (Doc. 32), Plaintiff requests the Court "to renew his answer to the court order which was filed August 31, 1999. plaintiff asked this Court to Treat his answer to the court order as a motion, and Renew his answer."See Doc. 26, Plaintiff's Answer to the Court Order. In light of the Court's Report and Recommendation on Defendant's summary judgment motion, plaintiff's summary judgment motion is moot.
I. proceedings.
The Court is treating Plaintiff's complaint (Doc. 1) as a sworn affidavit because it is signed under penalty of perjury.Sammons v. Taylor, 967 F.2d 1533, 1545 n. 5 (11th Cir. 1992);Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986). Nevertheless, a verified complaint's allegations are subject to the scrutiny that an affidavit receives from a court when a court is considering a summary judgment motion, i.e., conclusory statements of ultimate facts, conclusions of law, and statements unsupported by personal knowledge are not considered competent evidence to defeat summary judgment. Murrell v. Bennett, 615 F.2d 306, 310 n. 5 (5th Cir. 1980).
The sole Defendant to this action is Wayne Brunson, Clerk for the Circuit Court of Clarke County, Alabama. (Doc. 1, Complaint) Plaintiff claims that Defendant Brunson denied him access to the courts when with deliberate indifference he notified the Alabama Court of Criminal Appeals that Plaintiff did not have a matter pending in the circuit court. (Id.) Plaintiff asserts that by providing this false information, Defendant Brunson denied plaintiff his right to appeal the denial of his motion for an evidentiary hearing in his Rule 32 proceeding. (Id.) Plaintiff claims that Defendant Brunson violated Plaintiff's right of access to the courts and his rights under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments and the Alabama Constitution, and violated Ala. Code § 12-2-97(3)-(5), governing a clerk's duties, and Ala.R.App.P. 11(a)(1). (Id.) Plaintiff seeks $100,000 in compensatory damages and $200,000 in punitive damages for his emotional and mental distress. (Id.)
B. Undisputed Facts.
Plaintiff filed a Rule 32 petition in the Circuit Court of Clarke County, Alabama. (Doc. 1) Plaintiff's petition was not denied. (Id.) Thereupon, plaintiff filed a motion for an evidentiary hearing on his Rule 32 petition. (Id.) The Court denied Plaintiff's motion, ruling "[t]his Court is without jurisdiction to hear the claims set forth in the petitioner's motion for an evidentiary hearing because the five-year sentence imposed on the defendant in CC-85-131 on March 22, 1991 has ended." (Id.; Doc. 11, Ex. B, Defendant's Special Report) Plaintiff filed a notice of appeal of this ruling on December 12, 1997. (Doc. 1)
In the Special Report and in Defendant Brunson's affidavit, it is stated that Plaintiff's "Rule 32 petition in CC-84-131.70 was denied." (Doc. 11, at 2, at Ex. A, at 1) However, Plaintiff's allegations in his complaint (Doc. 1) and the unconverted documentary evidence reflect that it was Plaintiff's motion for an evidentiary hearing that was denied. (Doc. 1; Doc. 11, Ex. B; Doc. 28)
The notice of appeal was sent to the Alabama Court of Criminal Appeals on December 22, 1997. (Doc. 1; Doc. 11, Exs. A D) On December 23, 1997, the Alabama Court of Criminal Appeals received the notice and stamped it "filed." (Doc. 11, Exs. A B) On December 29, 1997, the notice of appeal was return to the Clerk's Office with a note stating that it was incomplete. (Doc. 11, Exs. A F)
Plaintiff received a letter from the Clerk of the Alabama Court of Criminal Appeals dated February 19, 1998, which stated:
The attached motion for supplementing or correcting the record alleging that the circuit clerk has not transmitted your notice of appeal and record on appeal is being returned to you because this Court has no matter pending in your name.
Please be advised that, as of this date, no notice of appeal has been transmitted to this Court. However, I am, by copy of this letter to the circuit clerk, requesting that the same be transmitted, if it was in fact filed.
(Doc. 1, attachment) On June 3, 1998, Plaintiff filed the present action. (Doc. 1)
On September 16, 1998, a record on appeal was filed in Plaintiff's criminal case CC-84-131.70 in the Alabama Court of Criminal Appeals. (Doc. 27, Ex. A) On January 15, 1999, the Alabama Court of Criminal Appeals rendered a decision, ruling:
On November 21, 1997, the appellant filed a motion for an evidentiary hearing on his Rule 32 petition. (C.R. 40-41.) The circuit court denied the motion, stating:
"This Court is without jurisdiction to hear the claims set forth in the petitioner's motion for an evidentiary hearing because the five-year sentence imposed on the defendant in CC-85-131 on March 21, 1991 has ended."
(C.R. 45.)
There is nothing in the record to indicate that the trial court ruled on Parker's petition; consequently, "there is no final judgment from which the appellant my properly proceed to this Court." Goodwin v. State, [Ms. CR-97-0851, June 19, 1998] ___ So.2d ___, ___ (Ala.Cr.App. 1998). Based on the foregoing, this appeal is dismissed.
All the Judges concur.
(Doc. 28)
Defendant Brunson states in his affidavit that
One of the clerks in my office routinely handles these matters. It appears that the returned Notice of Appeal with the attached note was inadvertently put into plaintiff's other criminal case file CC-91-68. Additionally, when this error was discovered, other documents from plaintiff concerning the appeal of the denial of the Rule 32 petition in case CC-84-131.70 were discovered in file CC-91-68.
Although I have no idea how this error occurred, it is my opinion that it was the result of outside help being used during the Christmas season combined with the fact that many of our regular employees were using vacation days during that time. Measures have been taken to ensure that this error does not happen again. As a result of this error, when subsequent correspondence was received by my office regarding plaintiff's appeal in CC-84-131.70, the response was given that there was no appeal pending in that matter. At no time prior to my discovery of the error in question, was I aware that this statement was erroneous.
Immediately upon receiving knowledge of the clerical error, which caused plaintiff's Notice of Appeal to not be resubmitted at that time, I immediately contacted Lane Mann, Clerk of the Court of Criminal Appeals, in an attempt to rectify the error. I was informed at that time that no prejudice had occurred to plaintiff and that the Notice of Appeal could be resubmitted. The Notice of Appeal was then resubmitted on September 17, 1998.
(Doc. 11, Ex. A)
Contrary to plaintiff's allegations, I deny intentionally denying him access to the court. What occurred here was a regrettable clerical error made either by one of my employees or a temporary holiday employee. Further, at all times relevant to the allegations contained in plaintiff's complaint, I acted in my official capacity as Circuit Clerk of Clarke County.
I deny intentionally violating any well-established constitutional right of the plaintiff and deeply regret any concern our error caused him.
After reviewing Defendant's special report and answer which indicated that Plaintiff had been given his appeal, the Court observed that Plaintiff had not denied or contested Defendant Brunson's assertion that Plaintiff was allowed to pursue his appeal. (Doc. 24) Thereupon, the Court ordered Plaintiff to advise the Court if he had resubmitted his appeal, the status of his appeal, and the ruling, if any, and ordered Defendant Brunson to provide documentation showing the status of the appeal. (Doc. 24) Plaintiff stated that his appeal was ruled on and that it was dismissed. (Docs. 26 28) Plaintiff submitted a copy of the memorandum opinion issued by the Alabama Court of Criminal Appeals. (Doc. 28) Despite Plaintiff being allowed to pursue his appeal, Plaintiff still argues, in a conclusory manner, that he has been denied his right to appeal and Defendant Brunson prejudiced Plaintiff's issues on appeal. (Doc. 26) Plaintiff contends that he "still does not have the appeal documentation for the appeal." (Doc. 26)
Absent from Plaintiff's complaint (Doc. 1), Plaintiff's responses to the Court's order (Docs. 26 28), and Plaintiff's motion for summary judgment (Doc. 32) is evidence of a specific injury that Plaintiff has sustained as a result of being given an out-of-time or a delayed appeal of the Clarke County Circuit Court's ruling on Plaintiff's motion for an evidentiary hearing on his Rule 32 petition.
II. Discussion.
A. Summary judgment Standards.
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted:
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 and that the moving party is entitle to judgment as a matter of law.
Fed.R.Civ.P. 56(c). A factual dispute is "`genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing [substantive] law." Id. accord, Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir.), cert. denied, 507 U.S. 911, 113 S.Ct. 1259, 122 L.Ed.2d 657 (1993).
The basic issue before the Court on a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512. The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden the Court must view the movant's evidence and all factual inferences arising from it 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); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993); Tipton, 965 F.2d at 989-99. "If reasonable minds could differ on the inferences arising from undisputed facts, then a court must deny summary judgment." Miranda v. B B Cash Grocery Store. Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank Trust Co. v. Fidelity Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)),modified on other grounds Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1019 n. 1 (11th Cir. 1994). In addition to demonstrating that there is no genuine issue of material fact, the movant must also satisfy the ultimate burden of persuasion on the claim by showing that it would be entitled to a directed verdict at trial. Fitzpatrick, 2 F.3d at 1116.
Once the movant satisfies its initial burden under Rule 56(c) of demonstrating the absence of a genuine issue of material fact, the burden shifts to the nonmovant to "come forward with specific facts showing that there is a genuine issue for trial."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis omitted). Otherwise stated, in order to preclude summary judgment, the nonmovant must "show the existence of a genuine issue as to a material fact." Fitzpatrick, 2 F.3d at 1116. "A mere `scintilla' of evidence supporting the [nonmoving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). "[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole." Tipton, 965 F.2d at 998 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)). "[T]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton, 965 F.2d at 999 (quoting Anderson, 477 U.S. at 255, 106 S.Ct. at 2513 (citing Adickes, 398 U.S. at 158-59, 90 S.Ct. at 1608-09)). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (quotation marks and citation omitted).
Moreover, once the movant meets its burden of demonstrating the absence of a genuine issue of material fact due to the lack of colorable evidence or the absence of evidence on an essential element of the non-movant's case, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), the non-movant bears "the burden of coming forward with sufficient evidence on each element that must be proved[,]" Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir. 1990) (emphasis in original) (citation omitted). If "a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial [,]" Rule 56(c) mandates that summary judgment be entered against the non-movant. Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552.
B. Negligence.
Defendant Brunson has asserted that the negligent conduct of clerk office employees in the misfiling of Plaintiff's notice of appeal caused the failure to resubmit Plaintiff's notice of appeal to the Alabama Court of Criminal Appeals and the subsequent erroneous information to be given to the Alabama Court of Criminal Appeals advising that Plaintiff did not have a matter pending. (Doc. 14, at 3; Doc. 11, at 5) Defendant Brunson, however, maintains that negligent conduct cannot be the basis for § 1983 liability. (Id.)
Negligence or mere lack of due care does not deprive an individual of his rights under the due process clause of the Fourteenth Amendment. Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1985). This holding that negligent conduct will not support § 1983 liability has been extended to access to courts cases. Kincaid v. Vail 969 F.2d 594, 602 (7th Cir.), cert. denied, Sceifers v. Vail, 506 U.S. 1062, 113 S.Ct. 1002, 122 L.Ed.2d 152 (1993)
Court is only addressing negligence in the context of the First and Fourteenth Amendments because Plaintiff does not have an access-to-courts claim based on the Fifth, Sixth, or Eighth Amendment.
In the complaint (Doc. 1), Plaintiff conclusorily asserts violations of his First, Fifth, Sixth, Eighth, and Fourteenth Amendment rights, without specifying a particular aspect of an amendment under which he wants to proceed. Plaintiff's allegations, however, are in the nature of an access-to-courts claim. Tarter v. Hury, 646 F.2d 1010, 1014 (5th Cir. 1981) (finding that there was no denial of access to the courts when the clerk refused to docket the criminal defendant's pro se motion because he was represented by counsel). Moreover, Plaintiff identifies his claim as an access to courts claim. (Docs. 1 32, at 1)
The right of access to courts arises from many sources. Green v. Warden. U.S. Penitentiary, 699 F.2d 364, 369 (7th Cir.) (finding that the right of access to the courts has been recognized as arising from the First, Fifth, and Fourteenth Amendments and the Privileges and Immunities Clause), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983); see Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (holding that inmates who claimed that their Fourteenth Amendment rights were violated had a fundamental right of access to the courts); Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir. 1995) (finding that the right of access to courts arises from the First Amendment); Rivera v. Allin, 144 F.3d 719, 723-24 (11th Cir.) (same as Harris), cert. dismissed, 524 U.S. 978, 119 S.Ct. 27, 141 L.Ed.2d 787 (1998); see also Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (relying on and clarifying Bounds in an access-to-courts case)
Plaintiff's claims for violations of the Sixth and Eighth Amendments are not the traditional bases of an access-to-courts claim. Green, 699 F.2d at 369. Nevertheless, no specific information is provided for a violation of the Sixth and Eighth Amendments. Therefore, the Court will not discuss these amendments because on summary judgment, Plaintiff is required to produce specific evidence to support his conclusory assertions or suffer the dismissal of his conclusory claims. Bennett v. Parker, 898 F.2d 1530, 1532 (11th Cir.), cert. denied, 498 U.S. 1103, 111 S.Ct. 1003, 112 L.Ed.2d 1085 (1991). Furthermore, there is no violation of the Fifth Amendment because the Fifth Amendment is only applicable where federal defendants have been sued. Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979);accord Ortega v. Rowe, 796 F.2d 765, 766 (5th Cir.) (proceeded against federal defendants under the Fifth Amendment and against the city under the Fourteenth Amendment), cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987). Accordingly, Plaintiff's claims for violations of Fifth, Sixth, and Eighth Amendments are due to be dismissed.
Plaintiff has used the legal terminology that Defendant's actions were deliberately indifferent. (Doc. 1, complaint) Even though Plaintiff states that Defendant was deliberately indifferent, there are no allegations in the complaint that conclusively support this assertion that Defendant has been deliberately indifferent.
Defendant offers in his affidavit how the failure to resubmit Plaintiff's notice of appeal occurred. (Doc. 11, Ex. A, at 2) Defendant can only offer an explanation based on the condition of Plaintiff's criminal files which were reviewed after the fact because he states that he was not involved in the actual handling of Plaintiff's appeal. (Id.) Defendant further describes the basis for the Alabama Court of Criminal Appeals being told that Plaintiff did not have an appeal. (Id.) Defendant's explanation for the failures is entirely plausible as it is based on the documents that he discovered and on his staffing of the office, and gives insight to the workings of the Clarke County Circuit Clerk's Office and to how the failures occurred. Based on Defendant's description, it appears that the failures were the result of negligence, and not of deliberate acts.
In plaintiff's sworn response (Doc. 32), Plaintiff has not countered Defendant's detailed statements regarding the failure to resend Plaintiff's notice of appeal and to inform the Alabama Court of Criminal Appeals that Plaintiff had filed a notice of appeal. Instead, Plaintiff argues against immunity and rests on the conclusory statements made in his verified complaint (Doc. 1) and responses (Docs. 26 32). The Court, however, finds that Plaintiff's allegation of deliberate indifference is conclusory, and that it was incumbent on plaintiff to come forward with specific evidence when confronted with Defendant's affidavit's information indicating that negligence was the basis for the complained of actions. Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir.) (discounting a conclusory affidavit in the absence of other supporting evidence), cert. denied, 498 U.S. 1103, 111 S.Ct. 1003, 112 L.Ed.2d 1085 (1991). The Court finds that Plaintiff's evidence is a scintilla, at best, to establish that Defendant's conduct was deliberately indifferent. Accordingly, summary judgment is due to be granted for Defendant on Plaintiff's federal claims due to plaintiff's failure to offer evidence upon which a reasonable jury could find for Plaintiff.Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.
C. Access to Courts.
In the alternative, Defendant is due to have summary judgment entered on Plaintiff's federal claims for Plaintiff's failure to establish that his right of access to the courts has been violated. In response to Plaintiff's claim that his right of access to the courts has been violated, Defendant asserts that Plaintiff has failed to state a claim upon which relief can be granted because Plaintiff has shown no prejudice that he suffered. (Doc. 11, at 3, ¶ 1 at 4, ¶ 5)
A violation of the right of access to the courts requires that a prisoner establish that his right of access to the courts has been frustrated or impeded, thereby causing him to suffer an actual injury. Lewis v. Casey, 518 U.S. 343, 349-51, 353, 116 S.Ct. 2174, 2179-81, 135 L.Ed.2d 606 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 823, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977)). If a prisoner is unable to establish an actual injury, the prisoner lacks standing to bring a claim for the denial of access to the courts. Id.
"A prisoner must show actual injury in the pursuit of specific types of nonfrivolous cases: direct or collateral attacks on sentences and challenges to conditions of confinement." Wilson v. Blankenship, 163 F.3d 1284, 1290 (11th Cir. 1998) (emphasis added) (citing Lewis, 518 U.S. at 355-57, 116 S.Ct. at 2182). "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Lewis, 518 U.S. at 355, 116 S.Ct. at 2182.
Some examples of an actual injury are the missing of deadlines or being prevented from raising claims. Wilson, 163 F.3d at 190 n. 10 (citing Lewis, 518 U.S. at 348, 116 S.Ct. at 2182). To prove the injury, a prisoner "must provide evidence of . . . deterrence, such as a denial or dismissal of a direct appeal, habeas petition, or a civil rights case [vindicating basic constitutional rights]. . . ." Id. at 1290-91; see Bass v. Singletary, 143 F.3d 1443, 1446 (11th Cir. 1998).
Plaintiff claims that he was denied being allowed to appeal the circuit judge's ruling on his motion for an evidentiary hearing filed in his Rule 32 proceeding. (Doc. 1) When plaintiff was allowed to proceed with his appeal for the denial of his motion requesting an evidentiary hearing, the Alabama Court Criminal Appeals dismissed his appeal because no final judgment had been entered in Plaintiff's Rule 32 proceeding. (Doc. 32) As a result of the dismissal of his appeal, plaintiff is precluded from establishing that his appeal of the denial of his motion for an evidentiary hearing was nonfrivolous. Therefore, Plaintiff is unable to establish that he suffered an actual injury. Due to Plaintiff's failure to establish the injury element of an access-to-courts claim, Defendant is due to be granted summary judgment on Plaintiff's federal claims for Plaintiff's failure to establish an essential element of his action. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552.
submitted a certified copy of the appellate docket sheet prepared on September 8, 1999, which indicates that no appeal was taken by Plaintiff from the Alabama Court of Criminal Appeals' decision rendered on January 15, 1999. (Doc. 27) Moreover, after the entry of the decision, the docket sheet reflects only one entry which was made on February 2, 1999, when the certificate of judgment was issued. Plaintiff has not offered any evidence that would indicate that he appealed the Alabama Court of Criminal Appeals' decision and that he was successful on his appeal.
to the Court finding that Plaintiff's federal claims in this action are due to be dismissed for either of the above reasons, the Court is foregoing a discussion regarding the causal connection required to be established in a § 1983 action and the applicability of respondeat superior.
D. Supplemental Jurisdiction.
In the complaint (Doc. 1), plaintiff alleges violations of the Alabama Constitution, Rule 11(a)(1) of the Alabama Rules of Appellate Procedure, and Ala. Code § 12-2-97(3)-(5). This Court may decline to exercise its supplemental jurisdiction over state law claims if all of the claims over which it had original jurisdiction have been dismissed. 28 U.S.C. § 1367 (c)(3). Because the federal claims in this action are being recommended for dismissal, it is recommended that the Court decline to exercise its supplemental jurisdiction over Plaintiff's state law claims and that they be dismissed without prejudice. Thornton v. City of Montgomery, 78 F. Supp.2d 1218, 1232 (M.D. Ala. 1999);Wheeler v. City of Macon, 52 F. Supp.2d 1372, 1381 (M.D. Ga. 1999); see L.S.T., Inc. v. Crow, 49 F.3d 679, 685 (11th Cir. 1995) (directing the district court on remand to consider whether it should continue to exercise supplemental jurisdiction because the related federal claims had been eliminated).
III. Conclusion.
Based upon the foregoing reasons, it is recommended that summary judgment be granted for Defendant Brunson on the federal claims and that the federal claims be dismissed with prejudice, and that the state law claims be dismissed without prejudice.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636 (b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en, banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636 (b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.