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 Case 4:04-cv-01017-RBP-HGD

Document 19

Filed 07/10/2006

Page 1 of 17 FILED
2006 Jul-10 PM 02:11 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

RAFIU ABIMBOLA, Plaintiff,
v. CRAIG ROBINSON, et al.,
Defendants.

) ) ) ) ) Case No. 4:04-cv-01017-RBP-HGD ) ) ) )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION On February 10, 2006, the undersigned entered a report and recommendation that this action be dismissed for failing to state a claim upon which relief can be granted. Some of the findings in the initial report and recommendation were based upon the court’s apparent mistaken understanding that the plaintiff was an unadmitted alien. The plaintiff has filed objections to the report in which he indicates that he is a lawful permanent resident of the United States. Based upon the plaintiff’s objections, the following supplemental findings are warranted. Access to Outdoor Recreation In the initial report and recommendation, the court rejected the plaintiff’s complaint that he has been denied outdoor recreation at the Etowah County Detention
Page 1 of 17

Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 2 of 17
Center based upon the fact that the allegation did not rise to the level of the “gross physical abuse” or “intentional and malicious infliction of harm” standards applicable to unadmitted aliens. See Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987); Adras v. Nelson, 917 F.2d 1552 (11th Cir. 1990). However, based upon the allegations set forth in his objections, that standard is not applicable to the plaintiff.
In his objections, the plaintiff contends that he has been “detained without access to ‘sunshine’ or ‘fresh air’ at the Etowah County Jail for about two years.” (Doc. #18, page 6). As a result, he states he suffers from high blood pressure, his skin has begun to turn pale white, his stomach has swollen to his chest, and he has developed an irregular heart beat. Id. at 7.
There appears to be no absolute right of pretrial detainees to outdoor exercise where the detention period is relatively brief. See Wilson v. Blankenship, 163 F.3d 1284 (11th Cir. 1998). However, the issue becomes less clear where the detention period continues over an extended period of time. In Miller v. Carson, 563 F.2d 741, the former Fifth Circuit found that the continuous incarceration of pretrial detainees without access to outdoor recreation, and where such recreation is reasonably possible without a large expenditure of funds, may amount to punishment in violation
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 3 of 17
of the Due Process Clause.1 The Supreme Court has also recognized that detainees may be confined in conditions which involve “genuine privations and hardship” where such confinement is brief, but that Due Process questions arise where such conditions are presented to detainees over an extended period of time. Bell v. Wolfish, 441 U.S. 520, 542 (1979). In this case, the plaintiff’s allegation that he has been deprived of sunlight and fresh air for a period of nearly 24 months at least states an initial claim to which defendants Wes Williamson, Sheriff James Hayes, and Dean Hoth should be required to respond. Access to the Court
In the initial report and recommendation, the court found that the plaintiff had not stated a valid claim of denial of access, in part because of his failure to allege that he suffered any prejudice in pursuit of a legal claim. In his objections, the plaintiff contends that he has in fact suffered prejudice in a federal habeas corpus action in the United States Court of Appeals for the Second Circuit (Abimbola v. Ashcroft, 378 F.3d 173) and in a civil action pending in the Western District of Louisiana (Brown, et al., v. Ridge, et al., No 04-759-A). With respect to the habeas action, the plaintiff was attempting to challenge the Board of Immigration Appeals’ finding that
1 The Eleventh Circuit has adopted precedent decision of the former Fifth Circuit rendered prior to October 1, 1981. See Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981) (en banc).
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 4 of 17
his conviction in Connecticut for larceny in the third degree constituted a “theft offense” and was therefore an aggravated felony under 8 U.S.C. 1101(a)(43)(G). The plaintiff argued that the conduct underlying his conviction constituted “fraud and deceit” rather than theft, and it would therefore not constitute an aggravated felony for INS purposes unless the amounts involved exceeded $10,000.00. See 8 U.S.C. § 1101(a)(43)(M)(I). The Second Circuit concluded that the Connecticut statute under which the plaintiff was convicted was in fact a “theft offense” for purposes of the INS rules, and thus the conviction made him removable as an aggravated felon. The plaintiff now states that while he was litigating that action, the Third Circuit decided the case of Nugent v. Ashcroft, 367 F.3d. 162, which involved the deportation proceedings of a lawful permanent resident and native of Jamaica who had been convicted under the Pennsylvania theft-by-deception statute. In that case, the Third Circuit concluded that because the Pennsylvania statute is “bottomed on ‘fraud and deceit’” the appellant’s conviction did not constitute an aggravated felony because it involved amounts less than $10,000.00. The plaintiff now contends that he was unaware of the decision in Nugent because of deficiencies in the Etowah Detention Center library and, as a result, he was prejudiced in his Second Circuit habeas appeal. He contends that this prejudice now supplies the “injury” necessary to state a claim for denial of access to the courts. In that regard, the plaintiff’s argument is without
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 5 of 17
merit. A finding by the Third Circuit involving a wholly different state statute would have no bearing on the Second Circuit’s analysis of the Connecticut statute under which the plaintiff was convicted. It is not as though the plaintiff was unaware of the theory invoked by the appellant in Nugent and thus was deprived of and failed to present a viable argument. On the contrary, the plaintiff presented the same argument in his habeas petition as the appellant made in Nugent.2 Unlike the appellant in Nugent, the plaintiff was simply unsuccessful. Thus, his contention that he was unaware of the Nugent case, which involved dissimilar facts and a different state statute, does not show that he suffered injury because of any perceived deficiencies in the Etowah library.
Likewise, the plaintiff’s allegation that a magistrate judge has “recommended” dismissal of his civil action in the Western District of Louisiana does not allege sufficient injury to state a claim for denial of access. Not only does the plaintiff fail to state the nature of the deficiency which threatens to result in the dismissal of his complaint, he is extremely vague with respect to the connection between the alleged shortcomings of the Etowah law library and how those shortcoming affected his case
2 In fact, the plaintiff was aware of and asserted this same argument before Immigration authorities as early as December of 2000. (Doc. #18, Exhibit 2). His assertion that the failure to learn about the Nugent decision somehow deprived him of valuable litigation assistance is, at best, disingenuous.
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 6 of 17
in Louisiana. Vague and conclusory allegations are insufficient to state a claim under § 1983. Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir.1984). More importantly, it is clear on the face of the plaintiff’s own allegations that he has not yet suffered actual prejudice in his Louisiana case. Conspicuously absent from the plaintiff’s objections is any statement that the case has actually been dismissed. As such, the plaintiff has failed to allege that he has yet suffered injury as a result of alleged deficiencies at Etowah. Restrictions on the Freedom of Religious Practice for Muslim Detainees
The initial report and recommendation found that the plaintiff had failed to state a claim with respect to his allegation that Muslim detainees are denied First Amendment rights to practice their chosen religion. The court found that the plaintiff had not alleged that he is a member of the Muslim faith or that he has personally been denied the opportunity to practice his chosen faith.3 In his objections, the plaintiff asserts that he “was born into a muslim family” and the he “congregate[s] with the muslims on Fridays for Jumah.” (Doc. #18, page 15). However, neither these
3 The complaint in this action was filed jointly by several prisoners at the Etowah County Detention Center. On June 15, 2004, this action was deemed filed by Abimbola only; and the Clerk was directed to open separate cases for the other named plaintiffs. Additionally, the motion for class certification was denied in that same order. In his objections, the plaintiff makes the frivolous argument that because he was not ordered to amend his complaint following the separation of the case into separate actions, the court is now somehow estopped from denying his attempts to assert the religious claims on behalf of the other plaintiffs. The plaintiff’s argument is wholly without merit and does not warrant further discussion herein.
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 7 of 17
statements nor his previous allegations show that the plaintiff actually practices the
Muslim faith or how any efforts to practice that faith have been unconstitutionally curtailed by the Etowah staff.4
Retaliatory Transfer
It was recommended in the initial report that the plaintiff’s retaliatory transfer
claims be dismissed because he had failed to state which, if any, of the named
defendants were directly involved in the transfers or that any of the named defendants
were aware of his complaints at Concordia Parish Jail. Thus, the court concluded that
he had failed to allege facts which supplied a “causal link” between his activities at
Concordia and his transfer from that facility to other facilities, including the Etowah
facility. In his objections, the plaintiff asserts that defendants Craig Robinson and Dean Hoth were “directly involved” in his transfer “out of Oakdale to Concordia5 and then to this substandards (sic) ‘Etowah.’”6 (Doc. #18, page 18). He further asserts
4 It is interesting to note that in the plaintiff’s Second Circuit habeas case, the court there noted that Abimbola had applied for asylum by asserting “that he would be killed by Muslim extremists if he returned to Nigeria because of his family’s prominent position in their Christian church.” Abimbola v. Ashcroft, 378 F.3d 173, 174 (2nd Cir. 2004).
5 In his initial complaint, the plaintiff states that the alleged retaliatory transfer occurred from Concordia to Pine Prairie because of “several complaints of their harsh treatment at Concordia.” (Doc. #1, page 9). There is no allegation that the plaintiff complained about conditions at Oakdale. Thus, his complaint states that the retaliatory transfer took place out of Concordia not to Concordia. It is unclear why he now asserts allegations regarding a transfer from Oakdale to Concordia.
6 The plaintiff also states that Nancy Hooks, ICE Officer in Charge at Oakdale, who was not named as a defendant in the initial complaint, was also directly involved in his transfers. He urges
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 8 of 17
that defendant Craig Robinson was either directly involved in the “transfer decision” or he “adopted policy and customs for which [the plaintiff] complained which led to his transfer.” (Doc. #18, page 19).
As stated in the initial report and recommendation, claims alleging retaliation must be factual; and mere conclusory allegations of retaliation will not suffice. Adams v. James, 797 F. Supp. 940, 948 (M.D. Fla. 1992). To state a valid claim, a plaintiff must present “specific facts” which show that he was subjected to retaliation because he exercised a constitutional right. Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990). In this case, the plaintiff has set forth no specific facts which show which, if any, of the defendants ordered his transfer because of retaliatory motives. He provides no specific dates and times of transfers or how those transfers correlate to specific complaints. His general and conclusory allegations that the defendants, as a whole, were “directly involved” in his transfers, or that they “adopted policies” which caused the plaintiff to complain, lack sufficient specificity to state a valid claim. In reviewing a complaint, the court “need only accept ‘well-pleaded facts’ and ‘reasonable inferences drawn from those facts.’” Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003); quoting Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485
the court to allow him to amend to include her as a defendant. For the reason stated in the discussion above, his request is DENIED.
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 9 of 17
(11th Cir.1992). In this instance, the lack of specific facts pointing to any one defendant makes it impossible for the court to reasonably draw the inference that any of them engaged in retaliatory conduct. “[C]omplaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.” Barr v. Abrams, 810 F.2d 358 (2nd Cir. 1987). Access to Medical Care
In his initial complaint, the plaintiff made no mention that he personally was in need of any specific medical care. Instead, the complaint asserted a claim on behalf of another detainee with respect to an alleged denial of adequate doses of insulin. (Doc. #1, page 10). Accordingly, the initial report recommended that the claim be dismissed based upon the plaintiff’s lack of standing to assert a claim on behalf of another detainee. Harris v. Evans, 20 F.3d 1118 (11th Cir. 1994). In his objections, the plaintiff now asserts, belatedly, that he suffers from “poor eyesight” and is being denied regular examination by an eye doctor.7
7 He asserts that he should be allowed to visit an eye doctor every six months. He admits that he was examined in April of 2005 and provided glasses. However, he states that the glasses “broke the same week” due to alleged poor quality and have not been replaced. (Doc. #18, page 22).
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 10 of 17
Medical treatment violates the Eighth Amendment only when it is so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness. Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991). The conduct of prison officials must run counter to evolving standards of decency or involve the unnecessary and wanton infliction of pain to be actionable under § 1983. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Nothing in the plaintiff’s new allegations meets this strict burden. Although he has not been allowed to see an eye doctor at the frequency he desires, his vision issues have not been ignored by the prison staff; and he admits that he has been examined and provided glasses. A mere difference of opinion between an inmate and the prison medical staff as to treatment or diagnosis will not, alone, give rise to a cause of action under the Eighth Amendment. Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991). Denial of Access to Nutritional Food
In the initial report and recommendation, the court found that the plaintiff’s allegations regarding lack of adequate nutrition failed to state a claim under constitutional standards. In his objections, the plaintiff makes the general and conclusory allegation that the food served him is “insufficient for Kindergarten children.” (Doc. #18, page 24). He supports this opinion by stating that he is served “beans every day for lunch and dinner and grits every day for breakfast” and that he
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 11 of 17
is served meat only once per week. Id. However, he again fails to show that he has suffered any adverse health affects from the diet provided. As stated in the initial report and recommendation, the Constitution only requires that prisoners be provided “reasonably adequate food” which contains “sufficient nutritional value to preserve health.” Hamm v. Dekalb County, 774 F.2d 1567, 1575 (11th Cir. 1985). The plaintiff has presented no new factual allegations which show that the Etowah County Detention Center has failed to meet these minimum constitutional standards. Access to Telephone
The plaintiff objects to the finding in the initial report and recommendation that he has failed to state a claim with respect to telephone access. He contends that the a charge of $1.00 per minute for local calls and $2.50 per minute for international calls is “tantamount to denial of telephone communication altogether.” (Doc. #18, pages 25-26). He states that his Second Circuit habeas appeal and his civil action in the Western District of Louisiana were “stymied” because of the phone rates. He contends that he could have obtained assistance from “legal advocates” and “other sources” had the Etowah administration provided phone service at a “reasonable” rate. Id. at 25.
The vague nature of the plaintiff’s newly asserted grounds are not sufficient to state a claim for denial of access to the courts based upon the alleged “extortionate”
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 12 of 17
phone rates. He has merely asserted the conclusory allegation the he could have obtained “pertinent case law” from outside sources “but for” the phone rates charged at Etowah. More importantly, as explained earlier in this report, the two cases cited by the plaintiff (his habeas petition and his W.D.La. civil action) are not sufficient to show that he has suffered actual prejudice in the nature of a denial of access to the courts. Thus, his use of those examples to attempt to show that the phone rates at Etowah have resulted in a denial of access is without merit. Additionally, the Eleventh Circuit has concluded that a restriction on telephone use by prisoners does not, alone, violate the First Amendment where prisoners have alternative means of communicating with the outside world, including visitation and the mails. See Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir. 1996). Coupled with the fact that prisoners are not entitled a specific rate for their phone calls,8 it seems clear that the plaintiff has failed to state a First Amendment claim. Alleged Assault on Detainee Enrique Lopez:
The complaint alleges that four guards at the Etowah facility beat, kicked, and maced fellow detainee Enrique Lopez in his cell. The plaintiff contends that as a cellmate of Lopez, he suffered sneezing and coughing of blood as a result of being
8 See Johnson v. State of Cal., 207 F.3d 650, 656 (9th Cir. 2000) and Arsberry v. Illinois, 244 F.3d 558 (7th Cir. 2001).
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 13 of 17
in the vicinity when the mace was sprayed. In the initial report, the undersigned recommended that the plaintiff’s claim be dismissed for the reason that he has no standing to assert an claim on behalf of Lopez and because his own claims did not rise to the level of gross physical abuse or intentional and malicious infliction of harm standard applicable to unadmitted aliens. The plaintiff now objects to that portion of the initial report which found that he had failed to state a claim because of his status as an unadmitted alien.
Claims involving excessive force against pretrial detainees are governed by the Due Process Clause of the Fourteenth Amendment rather than the Eighth Amendment’s cruel and unusual punishment clause. However, because the applicable standard is the same under either standard, Eighth Amendment case law involving the treatment of convicted prisoners applies to cases involving the treatment of pretrial detainees. Bozeman v. Orum, 422 F.3d1265 (11th Cir. 2005). Under applicable Eighth Amendment case law, the courts have recognized that maintaining institutional security and preserving internal order and discipline are essential goals of a prison administration and may require limitation or retraction of the constitutional rights of prisoners. Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L.Ed.2d 47 (1979). Prison officials must therefore be free to take appropriate action to ensure the safety of inmates and staff, and the courts will not normally
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 14 of 17
second-guess prison officials on matters involving internal security. Wilson v. Blankenship, 163 F.3d 1284 (11th Cir. 1998). When disciplinary action is taken by a prison official to prevent a security threat or to restore official control, the court’s Eighth Amendment inquiry focuses on whether force was applied in a good faith effort to maintain or restore discipline or was undertaken maliciously or sadistically to cause harm. Sims v. Mashburn, 25 F.3d 980 (11th Cir. 1994). The factors to be examined in determining whether the use of force was wanton and unnecessary include an evaluation of: 1) the need for the application of the force, 2) the relationship between that need and the amount of force used, 3) the threat reasonably perceived by the responsible officials, and 4) any efforts made to temper the severity of the response. Hudson, 503 U.S. 7.
In the present case, the plaintiff pleads no specific facts which directly show a deprivation of rights. In other words, with respect to prisoners, the actions alleged to have been taken by the guards violate the Constitution only when they are unnecessary and wanton or are done maliciously or sadistically to cause harm. Whitley v. Albers, 475 U.S. 312 (1986). The plaintiff’s bare allegations do not show that the guards’ actions were unnecessary or wanton with respect to the overall circumstances that may have been associated with the incident. Standing alone, the guards’ actions would not automatically constitute an Eighth Amendment violation
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 15 of 17
when viewed in the context of a prison setting where the need for security, order, and discipline are paramount. As stated above, when force is used in a good faith effort to maintain or restore discipline, the Constitution is not necessarily violated. In this case, the plaintiff has pled no facts which address the four factors outlined in Hudson for evaluating excessive force complaints, nor do his bare allegations alone show that the guards’ actions were undertaken maliciously. Therefore, the plaintiff has not stated facts which meet the subjective component of an Eighth Amendment claim. See Boddie v. Schnieder, 105 F.3d 857, 862 (2nd Cir. 1997). “[C]omplaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.” Barr v. Abrams, 810 F.2d 358 (2nd Cir. 1987).
Even if the plaintiff had stated a valid constitutional claim, he would not have been able to assert that claim against the named defendants. Nothing in the complaint shows that any of the defendants were in any way involved in the incident. Supervisory officials are not liable in a Bivens action or a § 1983 action under the theory of respondeat superior for the unconstitutional acts of their subordinates. Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003); Harris v. Ostrout, 65 F.3d 912, 917 (11th Cir. 1995).
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 16 of 17
Other Detention Standards Violations Finally, the plaintiff asserts new claims in his objections which allege that the
defendants have violated INS detention standards by failing to allow him and other detainees to perform work for wages and by failing to provide socks, underwear, and T-shirts to the detainees. However, the mere fact that agency regulations or procedures have been violated does not, alone, result in a constitutional violation. See Magluta v. Samples, 375 F.3d 1269, 1279 n.7 (11th Cir. 2004); United States v. Caceres, 440 U.S. 741 (1979). Because there is no underlying constitutional violation based upon the facts alleged, the plaintiff has failed to state a claim.
RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT Accordingly, for the reasons stated above, the magistrate judge RECOMMENDS that all claims in this action, except the claim against Wes Williamson, Sheriff James Hayes, and Dean Hoth that the plaintiff has been denied access to outdoor recreation, be DISMISSED for failing to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff may file specific written objections to this report and recommendation within eleven (11) days from the date it is filed in the office of the Clerk. Failure to file written objections to the proposed findings and recommendations contained in
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Case 4:04-cv-01017-RBP-HGD Document 19 Filed 07/10/2006 Page 17 of 17
this report and recommendation within eleven (11) days from the date it is filed shall bar an aggrieved party from attacking the factual findings on appeal. Written objections shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. Objections not meeting this specificity requirement will not be considered by a district judge.
A party may not appeal a magistrate judge’s recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a district judge.
The Clerk is DIRECTED to serve a copy of this report and recommendation upon the plaintiff and counsel for defendants.
DONE this 10th day of July, 2006.
HARWELL G. DAVIS, III UNITED STATES MAGISTRATE JUDGE
Page 17 of 17

 
 Case 4:04-cv-01017-RBP-HGD

Document 34-1

Filed 11/20/2006

Page 1 of 4 FILED
2006 Nov-20 AM 09:52 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

RAFIU ABIMBOLA, # A72-852-210 Plaintiff, v.
CRAIG ROBINSON, et al., Defendants.

) ) ) ) ) ) Civil Action No. 4:04-cv-01017-rbp-hgd ) ) ) )

DEFENDANTS’ OBJECTIONS TO PLAINTIFF’S REPLY TO DEFENDANTS’ RESPONSE COME NOW Sheriff James Hayes and Wes Williamson, Defendants in the above-styled cause, and lest they be charged with waiving any objection to the “facts” in Plaintiff’s Declaration, submit their disputes as to certain statements by Plaintiff in his Declaration filed with his Reply to Defendants’ Response to Motion for Preliminary Injunction. I. FACTUAL OBJECTIONS Plaintiff states that he has no place to exercise, that running is forbidden in the common area. However, Chief Hassell states that the common area is available for running and there is no smoking in that area. With stairways, six laps equals one mile. Plaintiff has more than enough time to use that area for exercise. (Ex. AA, Hassell aff., ¶ 2.)

Case 4:04-cv-01017-RBP-HGD Document 34-1 Filed 11/20/2006 Page 2 of 4
Plaintiff contends that the playing of basketball is forbidden. However, Chief Hassell explains that the basketball was removed temporarily because inmates were kicking it and damaging lights on the recreation yard. (Ex. AA, Hassell aff., ¶ 3.)
Plaintiff contends that Sergeant Blythe told him that he would not be transferred from the Etowah County Detention Center. However, Sergeant Blythe states that he does not remember telling him that, and if he did tell Plaintiff something to that effect, it would have been based on information he had received from a deportation officer. Sergeant Blythe and Chief Hassell have both approached ICE supervisor, Jerry Smith, and requested that Plaintiff be transferred, but no action has been taken. (Ex. AA, Hassell aff., ¶4; Ex. BB, Blythe aff., ¶ 3.)
Plaintiff claims that Sergeant Blythe went to Plaintiff’s cell with Perry Zaner and Terry Nelson to ask if Plaintiff filed grievances on behalf of other inmates and detainees, but Sergeant Blythe states that he never went to Plaintiff’s cell with those two men. (Ex. BB, Blythe aff., ¶ 4.)
Plaintiff claims the television was taken out of the common area. However, Chief Hassell states that the television was never taken out of the common area. At one time, there were two televisions in the dayroom, but Chief Hassell received complaints about the volume of sound, so he removed one of them. He has received no further complaints and thought the problem was resolved. (Ex. AA, Hassell aff., ¶ 5.)
2

Case 4:04-cv-01017-RBP-HGD Document 34-1 Filed 11/20/2006 Page 3 of 4
Plaintiff claims he was sent to segregation on the “pretext” that his cell was not clean. Sergeant Blythe states that Plaintiff was sent to segregation because his unclean cell, full of trash and paper, has been an ongoing problem and a fire hazard. Plaintiff refused to clean his cell, so he was given minimum sanctions in a disciplinary action. Plaintiff was allowed to take any legal paperwork he needed with him to segregation, he continued to receive his mail, and he was allowed adequate time to do his work in the law library while in segregation. He was not allowed to physically go to work each day in the law library. (Ex. BB, Blythe aff., ¶ 5; Ex. AA, Hassell aff., ¶ 6.)
Detainees like Machado are transferred at Chief Hassell’s request because they pose a security problem, like attempting to bribe officers to bring in contraband. As is the prerogative of ICE, Mr. Banks was transferred by immigration officials. II. CONCLUSION
Defendants object to the factual statements in Plaintiff’s Reply to Defendants’ Response to Motion for Preliminary Injunction.
3

Case 4:04-cv-01017-RBP-HGD Document 34-1 Filed 11/20/2006 Page 4 of 4
Respectfully submitted this the 20th day of November 2006.
s/Winthrop E. Johnson WINTHROP E. JOHNSON, Bar No. JOH086 Attorneys for Defendants Wes Williamson and James Hayes WEBB & ELEY, P.C. 7475 Halcyon Pointe Drive (36117) Post Office Box 240909 Montgomery, Alabama 36124 Telephone: (334) 262-1850 Fax: (334) 262-1889 E-mail: ccornelius@webbeley.com
CERTIFICATE OF SERVICE I hereby certify that on this the 20th day of November, 2006, I have electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, and that I have mailed a true and correct copy of the foregoing by United States Mail, postage prepaid, to the following non-CM/ECF participant:
Rafiu Abimbola A72-852-210
Etowah County Detention Center 827 Forrest Avenue Gadsden, AL 35901
s/Winthrop E. Johnson OF COUNSEL
4

 
 Case 4:04-cv-01017-RBP-HGD

Document 37

Filed 03/20/2007

Page 1 of 3 FILED
2007 Mar-20 PM 01:19 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

RAFIU ABIMBOLA, Plaintiff,
v. CRAIG ROBINSON, et al.,
Defendants.

) ) ) ) ) Case No. 4:04-cv-01017-RBP-HGD ) ) ) )

ORDER OF DISMISSAL The plaintiff instituted the above-styled action complaining that his constitutional rights were violated during his incarceration at the Etowah County Detention Center in Gadsden, Alabama. The only remaining claim in this action involves the plaintiff’s contention that he was denied access to outdoor recreation.1 In conjunction with his claim for compensatory and punitive damages and for injunctive relief, the plaintiff filed a motion for preliminary injunction on July 25, 2006, seeking transfer from the Etowah County Detention Center; to which defendants Williamson, Hayes, and Hoth were ordered to respond. (Doc’s. #21, #22 and #23). Now pending before the court is defendant Hoth’s motion to dismiss, in

1 All other claims were dismissed by order dated October 26, 2006. (Doc. #31).

Case 4:04-cv-01017-RBP-HGD Document 37 Filed 03/20/2007 Page 2 of 3
which he states that the plaintiff’s request for injunctive relief is moot because of his deportation from the United States. (Doc. #36).2 The defendant’s motion is well taken with respect to the plaintiff’s claims for injunctive relief. However, the plaintiff’s removal from the Etowah County Detention Center would not moot his claims for monetary relief. Nevertheless, the monetary claims in this matter are due to be dismissed pursuant to Rule 41(b) on the basis of the plaintiff’s failure and inability to prosecute this action. More than sixty (60) days has elapsed since the plaintiff’s deportation, and he has failed to advise the court of an updated address. It is axiomatic that a plaintiff must keep the Clerk of the Court apprised of his address in order for litigation to proceed in an orderly fashion, and failure to do so is grounds for dismissal. See Odukoya v. Reese, 181 Fed.Appx. 917 (11th Cir. 2006) (Not Selected for Publication in the Federal Reporter); Santistevan v. Colorado School of Mines, 150 Fed.Appx. 927 (10th Cir. 2005) (Not Selected for Publication in the Federal Reporter).
Additionally, the plaintiff’s deportation renders him unable to prosecute this action. As an alien who was deported as a result of being convicted of an aggravated
2 Defendant Robinson attaches the affidavit of Gerald Smith, Supervisory Detention and Deportation Officer with the Immigration and Customs Enforcement (ICE) Detention and Removal Office in New Orleans, Louisiana, who states that the plaintiff was deported from the United States on December 12, 2006.
2

Case 4:04-cv-01017-RBP-HGD Document 37 Filed 03/20/2007 Page 3 of 3
felony, the plaintiff may not, without special permission, be readmitted to the United States for twenty (20) years.3 8 C.F.R. § 212.2. The plaintiff, who is unrepresented by counsel, has failed to show how he can pursue this action in light of his inability to personally appear for hearings or trial. It therefore seems clear that a dismissal for want of prosecution is warranted under the circumstances. See Chavez-Dominguez v. San Antonio Police Department, 54 Fed.Appx. 405 (5th Cir. 2002) (Not Selected for Publication in the Federal Reporter.
Accordingly, based upon the foregoing, it is ORDERED, ADJUDGED and DECREED, that this action be and hereby is DISMISSED WITHOUT PREJUDICE for want of prosecution.
DONE this 20th day of March, 2007.
ROBERT B. PROPST SENIOR UNITED STATES DISTRICT JUDGE
3 The plaintiff was deported as an aggravated felon based upon his Alford plea in Connecticut to charges of Larceny in the Third Degree. See Doc. #29, Exhibit A, and Abimbola v. Ashcroft, 378 F.3d. 173 (2nd Cir. 2004), cert. denied 126 S.Ct. 734 (2005), cert. denied 126 S.Ct. 2870 (2006).
3

 
 CM/ECF - U.S. District Court Northern District of Alabama
Query •

Reports •

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U.S. District Court Northern District of Alabama (Middle) CIVIL DOCKET FOR CASE #: 4:04-cv-01017-RBP-HGD

CLOSED

Abimbola, et al v. Robinson, et al Assigned to: Judge Robert B Propst Referred to: Mag-Judge Harwell G Davis, III Demand: $0 Cause: 42:1983 Prisoner Civil Rights

Date Filed: 05/17/2004 Jury Demand: None Nature of Suit: 555 Prisoner Petition (Prison Condition) Jurisdiction: Federal Question

Plaintiff Rafiu Abimbola

represented by Rafiu Abimbola A72-852-210 ECJ Etowah County Jail 827 Forrest Avenue Gadsden, AL 35901 PRO SE

Plaintiff
Adalberto M Andrade TERMINATED: 06/15/2004

Plaintiff
Alexander W Ndaula TERMINATED: 06/15/2004

Plaintiff
Leroy Bacchus TERMINATED: 06/15/2004

Plaintiff
Nico Benn TERMINATED: 06/15/2004

Plaintiff
Hussien Nasrallah TERMINATED: 06/15/2004

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CM/ECF - U.S. District Court Northern District of Alabama
Plaintiff Abdul K Muhammad TERMINATED: 06/15/2004
Plaintiff Agusto Moreira TERMINATED: 06/15/2004 Plaintiff Jean Dorival TERMINATED: 06/15/2004 Plaintiff Christian Gonzalez TERMINATED: 06/15/2004 Plaintiff Enirque Lopez TERMINATED: 06/15/2004 Plaintiff Okechucwu Amadi TERMINATED: 06/15/2004 Plaintiff Adriono Quante TERMINATED: 06/15/2004 Plaintiff Dervin Heaven TERMINATED: 06/15/2004 Plaintiff Bandioujau Sacko TERMINATED: 06/15/2004 Plaintiff

represented by Abdul K Muhammad ECJ Etowah County Jail 827 Forrest Avenue Gadsden, AL 35901 PRO SE

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CM/ECF - U.S. District Court Northern District of Alabama
Raed Jaghama TERMINATED: 06/15/2004 Plaintiff Patrick Brown TERMINATED: 06/15/2004 Plaintiff Hubert Taylor TERMINATED: 06/15/2004 Plaintiff Claud Williams TERMINATED: 06/15/2004 Plaintiff Eric Bell TERMINATED: 06/15/2004 Plaintiff Franklin Moreno TERMINATED: 06/15/2004 Plaintiff Jose Gonzales TERMINATED: 06/15/2004
V. Defendant Craig Robinson Field Office Director, U.S. Immigration & Customs
Defendant

represented by John C Bell US ATTORNEY'S OFFICE 1801 4th Avenue North Birmingham, AL 35203-2101 244-2001 Email: John.Bell2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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CM/ECF - U.S. District Court Northern District of Alabama
Wes Williamson Chief, Etowah County Detention Center
Defendant James Hayes Sheriff, Etowah County
Defendant Dean Hoth ICE supervisor, Etowah County Detention Center Defendant

represented by Daryl L Masters WEBB & ELEY PC 166 Commerce Street, Suite 300 PO Box 238 Montgomery, AL 36101-0238 1-334-262-1850 Email: rrobertson@webbeley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John C Bell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Winthrop E. Johnson WEBB & ELEY PC 7475 Halcyon Pointe Drive P. O. Box 240909 Montgomery, AL 36124 US 334-262-1850 Fax: 334-262-1889 Email: wjohnson@webbeley.com ATTORNEY TO BE NOTICED
represented by Daryl L Masters (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Winthrop E. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by John C Bell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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CM/ECF - U.S. District Court Northern District of Alabama
Mark Johns ICE Field Director, Atlanta

Date Filed

#

Docket Text

05/17/2004 05/17/2004 05/17/2004 06/15/2004
06/15/2004
06/17/2004 06/29/2004 07/08/2004 07/14/2004

1 COMPLAINT filed (referred to Mag-Judge Harwell G. Davis III ) (MAA) (Entered: 05/19/2004)
2 MOTION by plaintiff Rafiu Abimbola for order for class certification filed (MAA) (Entered: 05/19/2004)
3 DECLARATION in support of request to proceed ifp by plaintiff Rafiu Abimbola filed (MAA) (Entered: 05/19/2004)
4 ORDER-Complaint deemed to have been filed by first named pla, Rufiu Abimbola; Clerk DIRECTED to make 21 copies of complaint, open new and separate cases for each named inmate, denying motion for order for class certification [2-1] filed ( by Judge Robert B. Propst ) cm (MAA) (Entered: 06/15/2004)
DOCKET modification (utility event) terminating party Jose Gonzales, party Franklin Moreno, party Eric Bell, party Claud Williams, party Hubert Taylor, party Patrick Brown, party Raed Jaghama, party Bandioujau Sacko, party Dervin Heaven, party Adriono Quante, party Okechucwu Amadi, party Enirque Lopez, party Christian Gonzalez, party Jean Dorival, party Agusto Moreira, party Abdul K Muhammad, party Hussien Nasrallah, party Nico Benn, party Leroy Bacchus, party Alexander W Ndaula, party Adalberto M Andrade see doc #4 (MAA) (Entered: 06/15/2004)
5 RESPONSE by plaintiff Leroy Bacchus filed (MAA) (Entered: 06/18/2004)
6 ORDER -Pla must correct the deficient pleading w/iu 30 days as set out filed ( by Mag-Judge Harwell G. Davis III ) cm (MAA) (Entered: 06/30/2004)
7 OPPOSITION by plaintiff Rafiu Abimbola to order [4-1] filed (MAA) (Entered: 07/08/2004)
8 MOTION by plaintiff Rafiu Abimbola to proceed in forma pauperis with affidavit of Rafiu Abimbola attached filed (MAA) (Entered: 07/15/2004)

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CM/ECF - U.S. District Court Northern District of Alabama

08/05/2004

9 REQUEST by plaintiff Rafiu Abimbola for case status filed no cs (KSS) (Entered: 08/05/2004)

09/13/2004

10 ORDER -"Notice of Appeal" (doc #7) is construed as motion for reconsideration of 6/15/04 order and is DENIED filed ( by Judge Robert B. Propst ) cm (MAA) (Entered: 09/13/2004)

09/13/2004

11 ORDER terming motion (application) of pla to proceed IFP; pla is directed to pay a partial filing fee of $ 8.40 and sign the attached consent form failing which the case will be dismissed w/o further notice filed ( by Magistrate-Judge Paul W. Greene for U. S. Magistrate Harwell G. Davis III ) cm (MAA) (Entered: 09/13/2004)

09/30/2004

12 MOTION by plaintiff Rafiu Abimbola for reconsideration of order requesting partial/full payment of filing fees and denying motion for class certification filed cs (Former Employee) (Entered: 10/01/2004)

11/18/2004

13 ORDER Pla ORDERED to certify in writing and under oath that he is not presently accused of, convicted of, sentenced for, ar adjudicated delinquent for violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program wi U.S.C. 1915(h). Signed by Judge Harwell G Davis III on 11/18/04. (MAA, ) (Entered: 11/18/2004)

11/29/2004

14 Declaration by Rafiu Abimbola on behalf of himself and "co plaintiffs" certifying that plas are civil detainees (MAA, ) (Entered: 11/30/2004)

12/22/2004

15 ORDER granting pla's application to proceed in forma pauperis, Clerk is directed to term doc's 3 Affidavit filed by Rafiu Abimbola, 8 Motion
for Leave to Proceed in forma pauperis filed by Rafiu Abimbola, . Signed by Judge Harwell G Davis III on 12/20/2004. (KSS, ) (Entered: 12/22/2004)

02/10/2006

16 REPORT AND RECOMMENDATION that action be DISMISSED for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C.1915 (e)(2)(B)(ii), objections within 15 days, Objections to R&R due by 2/27/2006. Signed by Judge Robert B Propst on 2/10/06. (MAA, ) (Entered: 02/10/2006)

02/15/2006

17 MOTION for Extension of Time of 30 days to object to Magistrate's R&R by Rafiu Abimbola. (MAA, ) (Entered: 02/17/2006)

02/24/2006

ORDER granting 17 Motion for Extension of Time; objections to Report and Recommendation to be filed by 3/27/06. Signed by Judge Harwell G Davis III on 2/24/06. (LBG, ) (Entered: 02/24/2006)

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CM/ECF - U.S. District Court Northern District of Alabama

03/29/2006

18 Opposition to Magistrate Judge's Report & Recommendation filed by Rafiu Abimbola. (Attachments: # 1)(MAA, ) (Entered: 03/30/2006)

07/10/2006

19 REPORT AND RECOMMENDATION that all claims except the claim against Wes Williamson, Sheriff James Hayes and Dean Hoth that pla has been denied access to outdoor recreation be DISMISSED for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. 1915 (e)(2)(B)(ii), obj within 11 days . Signed by Judge Harwell G Davis III on 7/10/06. (MAA, ) (Entered: 07/10/2006)

07/21/2006

20 MOTION for Extension of Time to 8/20/06 to file objection to Report and Recommendation by Rafiu Abimbola. (MAA, ) (Entered: 07/21/2006)

07/25/2006

ORDER granting 20 petitioner's motion for extension of time to file objections to magistrate judge's report and recommendation. Signed by Judge Harwell G Davis III on 7/25/2006. (SHW) (Entered: 07/25/2006)

07/25/2006

21 MOTION for Preliminary Injunction Directing transfer from Etowah County Jail by Rafiu Abimbola. (MAA, ) (Entered: 07/26/2006)

07/25/2006

22 Brief in support of motion for preliminary injunction. (MAA, ) (Entered: 07/26/2006)

08/30/2006

23 ORDER-It is ORDERED that dfts Wes Williamson, Sheriff James Hayes and Dean Hoth respond to pla's motion for preliminary injunction within 11 days; failure to respond within time prescribed may result in the imposition of the injunctive relief requested in pla's motion; Clerk DIRECTED to serve order upon pla; further DIRECTED to serve order and a copy of pla's motion [doc #21) and memo of law [doc #22] upon dfts Wes Williamson, Sheriff James Hayes and Dean Hoth at the Etowah County Detention Center. Signed by Judge Harwell G Davis III on 8/30/06. (MAA, ) (Entered: 08/30/2006)

09/05/2006

24 Opposition to report and recommendation 19 filed by Rafiu Abimbola. (MAA, ) (Entered: 09/08/2006)

09/11/2006

25 MOTION for Extension of Time to File Response/Reply as to 23 Order,, by Craig Robinson, Wes Williamson, Dean Hoth. (Bell, John) (Entered: 09/11/2006)

09/12/2006

ORDER granting 25 Motion for Extension of Time to File Response/
Reply; response to plaintiff's motion for injunctive relief to be filed by 10/13/06. Signed by Judge Harwell G Davis III on 09/12/06. (LBG, ) (Entered: 09/12/2006)

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CM/ECF - U.S. District Court Northern District of Alabama

09/14/2006

26 Opposition to motion for extension of time 25 filed by Rafiu Abimbola. (MAA, ) (Entered: 09/18/2006)

09/27/2006

27 NOTICE of Appearance by Winthrop E. Johnson on behalf of Wes Williamson, James Hayes (Johnson, Winthrop) (Entered: 09/27/2006)

10/13/2006

28 MOTION to Dismiss : Response to Order Entered On August 30, 2006 and in the Alternative, Motion to Dismiss by Dean Hoth. (Attachments: # 1 Declaration of Dean Hoth# 2 Exhibit A to Declaration# 3 Exhibit B to Declaration# 4 Exhibit C to Declaration# 5 Exhibit D to Declaration# 6 Exhibit E to Declaration# 7 Exhibit F to Declaration# 8 Exhibit G to Declaration)(Bell, John) (Entered: 10/13/2006)

10/13/2006

29 RESPONSE to Plaintiff's Motion for Preliminary Injunction filed by Wes Williamson, James Hayes. (Attachments: # 1 Exhibit A (Abimbola Opinions# 2 Exhibit B (Hassell Affidavit)# 3 Exhibit C (Intergovernmental Service Agreement)# 4 Exhibit D (Hoth Declaration) # 5 Exhibit E (Thomas E-Mail Traffic))(Masters, Daryl) (Entered: 10/13/2006)

10/18/2006

30 MOTION for Extension of Time of 14 days to respond to motion to dismiss by Rafiu Abimbola. (MAA, ) (Entered: 10/18/2006)

10/23/2006

ORDER granting 30 plaintiff's Motion for Extension of Time. Signed by Judge Harwell G Davis III on 10/23/2006. (SHW) (Entered: 10/23/2006)

10/26/2006

31 ORDER adopting and accepting 19 Report and Recommendation,
ORDERED that all of pla's claims except claim against Wes Williamson, Sheriff James Hayes and Dean Hoth that pla has been denied access to outdoor recreation are DISMISSED pursuant to 28 U.S. C. 1915 (e)(2)(B)(ii); further ORDERED that the remaining claim against dfts are REFERRED to the magistrate judge for further proceedings. Signed by Judge Robert B Propst on 10/16/06. (MAA, ) (Entered: 10/26/2006)

11/03/2006

32 Opposition to dft's response 29 to motion for prelim injunction filed by Rafiu Abimbola. (MAA, ) (Entered: 11/03/2006)

11/03/2006

33 Declaration of Rafiu Abimbola in support of opposition. (MAA, ) (Entered: 11/03/2006)

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CM/ECF - U.S. District Court Northern District of Alabama

11/20/2006

34 Defendant's Objections to Plaintiff's Reply to Defendants' Response> filed by Wes Williamson, James Hayes. (Attachments: # 1 Exhibit AA (Affidavit of Scott Hassell)# 2 Exhibit BB (Affidavit of Eddie Blythe)) (Johnson, Winthrop) (Entered: 11/20/2006)

12/11/2006

35 REPLY to dfts' objection 34 with declaration of Andrew Hango, declaration of Dervin Heaven and attachments filed by Rafiu Abimbola. (MAA, ) (Entered: 12/12/2006)

01/11/2007

36 MOTION to Dismiss as Moot by Craig Robinson. (Attachments: # 1 Exhibit 1: Declaration of Smith with attachment)(Bell, John) (Entered: 01/11/2007)

03/20/2007

37 ORDER -For reasons as set out in order, it is ORDERED that this action is DISMISSED WITHOUT PREJUDICE, for want of prosecution,DISMISSING CASE. Signed by Judge Robert B Propst on 3/20/07. (MAA, ) (Entered: 03/20/2007)

04/02/2007

Mail Returned, received 3/28/07 as Undeliverable. Mail sent to Rafiu Abimbola (MAA, ) (Entered: 04/02/2007)

04/04/2007

Mail Returned (order of 3/20/07) as Undeliverable. Mail sent to Abdul K. Muhammad (MAA, ) (Entered: 04/04/2007)

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 'I! :1 " i
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA

AD ALBERTO ANDRADE

'.

Plaintiff,

Versus

JAMES HAYES, SHERIFF OF ETOWAH COUNTY,
SCOTT HASSELL, CHIEF OF ETOWAH COUNTY DETENTION CENTER,
EDDIE BLYTHE, SGRT. UNIT MANAGER OF ETOWAH COUNTY DETENTION CENTER,
Respondent.

COMPLAINT UNDER THE CIVIL ACT 42 U.S.C. SECTION 1983 FOR COMPENSATORY AND PUNI~RELIEF

Comes now, Plaintiff Andrade, Adalberto (l1Andrade l1 ) Pro-Se in the above styled case and respectfull~'moves this Honorable Court to issue this complaint under the Civil- Act 42 U.S.C. section 1983.
:\: This Honorable Court should liberally and broadly contrue Andrade's complaint, since he is acting. Pro-Se. See Haines v. Kerner, 404 U.S. Ct. 519 (1972), and Conley v.Gibson, 355 U.S. Ct. 41 (1957).

Ii
'I I

Ii

JURISDICTION

'\

I 1. This Court's jurisdiction under Count one (I) of Andrade's
1
complaint, is pursuant to .Title 42 U.S.C. ~ection 1983.

PARTIES
II
II 2. Plaintiff, Andrade is an Immigration detainee currently
detained at Etowah County Detention Center ("E.C.D.C. "), in Gadsden, Alabama. He is the complaint for the negligent loss of hii legal documents, and for intentional infliction of pain and sufferring, and for emotional distress.
I 3. Defendant James Hayes ("Mr. Hayes"), is the Sheriff of Etowah
l:
County, in Gadsden, Alabama, he is legally responsible for the overall operation of Etowah Conty Detention Center.

4. Defendant, Scott Hassell ("Mr. Hassel"), is t'he Chief of Etowah County Detention Center He is legally responsible for the operation housed in Etowah County Detention Center, having being contracted by Department Homeland Security to house
;- i;
Immigration Customs Enforcement Detainees.

5. Defendant, Eddie Blythe ("r~r. Blythe"), by his official designated Title as a Sergent in the Etowah County, Sheriff office, he is responsible for the daily overseeing and coordination of all activities related to all immigration detainees at the Etowah County Detention Center. As such and among other

-2-

II
11 I
things he is in charge of ICE detainees welfare, complaints, disciplinary pr'oceedings gre~-vances, legal mails etc.

OVERT·ACTS

11
\' 6. On or about Nay 2004, Andrade requested the Clerk's office \1 of the Fifth Circuit of Appeals in New Orleans, Louisiana to
I send him all the Records of his Appeals in Court's possession
in order for him to prepare his Reply Brief on his Appeal that is now pending in that Court.
7. The Records reflects that on or about June 9, 2004, the Fifth Circuit Court of Appeals forwarded a record .on Appeal to Andrade at the Etowah County Detention Center for use in preparing and in filing of his Brief on Appeal, in his case currently pending before the Fifth Circuit Court of Appeal.

8. Meanwhile, the Record excerpts on Appeal had been sent"by the

Fifth Circuit Clerk to Andrade, in care of the Etowah County

Detention Center. The Etowah County Detention Center record refer
:" j:
that the package from the Fifth Circuit send via U.P.S. was recieved
00
at the Etowah County Detention Center mail center/room and signed

I for on;

\,

I
('

9.

By

July

2004

the

package

had

not

been

delivered

to

Andrade.

I Andrade then filed his response Brief without the benefit of the
P
I Records.

\i

I:

-3-

Ii
I!

10. At the time the Records was delivered to the Etowah County
! Detention Center ("E.C.D.C.Y) via U.P.S. mail, the records II reflects that Andrade, was in segregation for allegedly p~rticipation
! in or inciting a group demonstration.
11. On or about June 18, 2004 andrade received a letter from Fift~ Circuit Court of Appeals requesting that he Return the oiiginal Records on Appeals and Suplemental Record.
12. On or about June 21, 2004 Andrade responded to Fifth Circuit Court of Appeals informing the Court that he did not have any Records on Appeals to submit to the Court.
13. On or About July 3, 2004 again Andrade received a letter from the Fifth Circuit Court Df Appeals advising him that his case cannot proceed until the records on Appeal is retuned .
....: . 14. On or about July 3, 2004 ~ndrade again responded to the
..
Court letter advising the Court that he had received the requested Records from the Court.
15. -''~In or about July 9, 2004, around two P.M. Andrade asked Sergent Blythe the Unit Manager here at Etowah CQunty Detention Center ("E.C.D.C.") for assistance in locating the package from the Fifth Circuit with the Records on Appeal. Sergent Blythe later info~med Andrade that a lady officer at the facility
I signed for the package, but he did not know what had happened
1
!I
!I
-4-

to the package, with Record an Appeal after it was signed for.
16. On or about July 15, 2604 again Andrade wrote a' letter to I
the Fifth Circuit Court of Ap~eal to inform that the Records
11
II were indeed sent to the facil~ty and received by~the institution
I
via U.P.S. mail.
17. On or about July 16, 2004 Andrade also wrote a greivance letter to the Chief of Etowah County Detention Center regarding the missing Andrade's Court package, with the Records on Appeal, sent by the Fifth Circuit Court of Appeal.
18. On or about July 19, 2004 Andrade received an answer from
I
the Chief of Etowah County Detention Center Mr. Scott Hassell stating that the Records has been lost.
19. On or about July 22, 2004 again Andrade received a letter
~.
from the Fifth Circuit od Appeals, advising him that it will be necessary for the Records on Appeal to be reconstructed in accordance with the docket entries of the District Court.
20.Aiirade believes the staff at Etowah County Detention Center intentionally and d~librately declined to delive~ the package to him or to return it to the Court as retaliation, due to some problems And~ade was experiencing with facility regarding the prison condition and tretment of detainees at E.C.D.C ..
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21 Specifically on June 2, 2004, following a peacefull demonstration over the bad ~ood and conditions at the facility, Andrade was segregated along with two others detainees and was accused of engaging in or inciting a group demonstration.
22. While Andrade was in segregation Srgt. Blythe, the E.C.D.C. Unit Manager Requested to know Andrade's case status. Andrade then explained to Sgrt. Blythe that he was waiting for some Records from the Fifth Circuit Court of Appeal to prepare and file his Reply Brief.
23. The Records also reflects that a few days after the food incident, the package with Records on Appeal was received at the Etowah County Detention Center.
24. As a result of Andrade's peacefull demonstration over the bad food at the facility the E.C.D.C has beem trying to obstruct justice in Andrade's case, in an attempt to effectuate Andrade's removal from the United' States.
25. ;AIs: futher consequences of the loss of Andrade's three(3) volume Records on Appeal, Andrade could not properly Brief his
~ !
Appeals or provide sufficient evidence in support of his Appeal.
26. As a consequence of this retaliatory and deliberate and willful Act of wanter negligence Andrade's has been experiencing elevated blood pressure for which he is currently been treated.
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27. The wilfull and deliberated retaliatory actions by the Etowah staff has impacted A_ndrade 1 s entire litigation efforts.

28. This has caused Andrade to spend additional time, longer
'.
than is necessary incarcerated.

29. This action has caused Andrade negligent (deliberate) infliction of emotional distress.

30. Deprivation of Andrade's Constitutional right to legal materials.

1\
11

AtJdAftcl-e ~

II 31. D~~~~;s7~. . . .a.'41 iffectivelly impededraccess to the Court.

Ii
32. All of the foregoing and ~ as this Honorable Court deems
1\
just and proper.
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\\
ii

PRAYER FOR RELIEF

1

WHEREFORE, Plaintiff Andrade respectfully prays'"'t"hat this Honorable Court; 1. Grant unto Plaintiff Andrade general, irreparable, consequential and lost expectations damages in amount of US$ 200.000.00 against each"defendant, and Punitive damages in the Amount of US.$ 200.000.00 against each defendant, 2. Issue a writ of mandamus compelling the defendants to promptly compensate the defendants to promptly compensate Andrade for his,damage. 3.Award Plaintiff Andrade his Cost in this action; and

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I

I!4. Grant such other and further relief as this Honorable Court may

deem just and proper.

.

'signed this 16th, day of August 2004.

- .
Adalberto

Andrade,

Plain~iff,

pro 5e

A76-487-012

Etowah County Detention Center

827 Forrest Avenue

Gadsden, AL 35901

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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

Argi:ta~RMIi~Jb~tDJ: 1· fir•.
Plaintiff,
Versus.
CRAIG ROBINSON, ET. AL., Respondents.

CV 04-TMP-1235M

AMENDED PETITION FOR CIVIL RIGHTS ACT 42 U.S.C. SECTION 1983 AND CIVIL RIGHTS COMPLAINT PURSUANT TO TITLE 28 U.S.C. SECTION 1331

Comes now Plaintiff, Adalberto Andrade, (Andrade), Pro-Se, by this means give in this Amended Petition for Civil Right Act 42 U.S.C. section 1983 and Civil Right Com p1 a in t Pur sua nt toT i t 1e 28 U. S . C. sec t ion 13 3'1 in light of the changes in his circumstance since the filing of the instant complaint under the Civil Act, this change involve the denial of access to medical care, and Act of intimidqtion and retaliation, which exercising Andrade's Constitutional Rigts under the United States Constitution.

PRELIMINARY STATEMENT As a starting point matter, Andrade will give as an Amended Complaint about denial-of access to medical care and the illegal Segregation by the Etowah County Detention Center (E.C.D.C.) staffs menbers, after a peacfull demonstration and hunger strike by Immigration and Customs Enforcement ("ICE") detainees.

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AMENDED/ SUPP LEMENTAL ARGUMENT PHESENTED· I. PLAINTIFF ANDRADE WAS DENIED HIS RIGHT TO MEDICAL CARE, AND WAS SEGREGATED FOR 30 DAYS FOLLOWING A PEACEFUL DEMONSTRATION OVER THE
BAD FOOD SERVED BY THE E.C.D.C.
Plaintiff Andrade is in the Phycical custody of the Immigration and Customs Enforcement ("ICE"), He is currently detained at Etowah County Detention Center (E.C.D.C.) at 827 Forrest Avenue, Gadsden, Alabama, 35901, where the ICE have contract to House Immigrant detainee such as the Plaintiff.
Andrade has been in the ICE Custody for 44 months and counting, but he has never seen any clumsy officer like some of them in E.C.D.C.
Andrade has a Skin infection which he contacted while in ICE custody, three (3) years ago.
On or about July 7, 2004, after several complaints Andrade was taken to Clinic at 4th South Street, in Gadsden Alabama to see a "Skin Doctor", after waiting all this years.
For that problem the Doctor, Mr Thomas C. Peterson prescribed Andrade a Soap, a Cream, and an Antibiotic Medicine which are not available in Andrade's home Country "Cape Verde".
The Doctor also recommended to see Andrade after two months. To date, Andrade has been unable to see the Doctor again.
Wi th the Skin infection and Scars ; that the Doctor said ' they have no cure because long time infected and with out proper medical care. The E.C.D.C. have remained deliberately indefferent to Andrade's urgent Skin medical nee~$ and denied Andrade access
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to the medical care. To date, Andrade is not being given the prescribed
medicine by the Doctor, and it has been over two months already. Every time Andrade ask for the'medicine, the answer, ... we ordered them ... we have not get them yet.
Andrade try to obtain another solution by writing greivances but bee ignored, the solution still the same, prompting Andrade to write letter to the Doctor Office, to have the Doctor call the facility and have them provide Andrade with the Medicine. But Andrade only recently received a copy of the prescreption, and the bail from the Doctor's Office.
To date, however, Andrade has been unable to receive the prescribed Medicine by the Doctor, and Andrade Skin is geting black mark allover, is geting worst and worst everyday.
This denial of access to medical care to Andrade due to Defendant's subjective deliberate indefferent constitute a cruel and unusual punishment. See Taylo v. Adams, 221 F. 3d. 1258 (11th Cir. 2000). Since denial is certainly not objectively reasonable and is in no way reasonably related to any imaginable legitimate governmental objective. See also Nerren v. Livingston Police Departement,86 F. 3d.469 (5th Cir. 1996).
With all this Skin infection, Scars, Andrade's cellmate, Lopes were sprayed in the face indeside the cell room with tear gas mace for an unspecified reason prior to his being handcuffed and taken to segregation, because He ask for his legal/papers.
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Andrade who was in the room with his fellow detainees at the time begain sneezing and caughing up blood and within hours later, Andrade Skin become irritated and soon developed into rashes.The rashes also soon turned into lesions as a result of the mace sprayed in the cell room. All requests for medical attention have all but been ignored.
The E.C.D.C. which is operated like a super maximun security should be found unconstitutional as applied to Andrade, an ICE detainee, not doing any criminal sentence~
II. RETALIATION AGAINST OETAINEE ANDRADE BY ETOWAH COUNTY DETENTION CENTER
STAFF MENBERS IN SEGREGATING HIM FOR UNSPECIFIED REASON
Etowah County Detention Center intimidate and retaliate against Andrade and his fellow detainee is in violation of Andrade Constitutional rights, under the United States Constitution, by segregating Andrade.
On or about June 2, 2004, following a peacefull demonstration over the bad food being served at the Etowah County Detention Center (E.C.D.C.) Andrade was segregated and accused of engaging in or inciting a group demonstration, desobeying an order, being the leader of the protest, which Andrade asserts were false allegations. Even if Andrade did, for that reason the ICE manual standard allows for peacful demonstration and hunger strike to protest against any detention facilities policies as long as there in no violence.
Andrade has been in the ICE custody for more than three
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years,and been moved to defferent Federal and County facilities by ICE but never get in any- type of trouble all this years.
Andrade have clearly distinguished him self from vast majority of other detainees, allover ICE detention Center. For example at Oakdale, Louisiana, Andrade held a different Job, Andrade have been working as a rec~eation orderly, as a Cook in the Kicthen at the FDC, guitar instructor, photographer etc. These facts is clearly demonstrated in Andrade's ICE records. This Honorable Court ,Ima), conduct its own investigation into this matter, if necessary. Andrade demonstrated genuine rehabilitation as the evidence of his behalf. He have never have any problems with any staff menbers or any fellow detainees, at any detention Center. From the day one, the ICE moved Andrade to E.C.D.C., there is always problem, because the staffs staffs menbers here .. are indifferent to detainees needs plus bad food, mails, problems with legal materials, phone cards etc, etc. At E.C.D.C. ICE detainees, are viewed as less than human. Some officer at E.C.D.C. considered himself toughguys. I believe it is not the policy of the United States of America to treat detainees worst than animals. E.C.D.C. treat detainees the way they like, like the detainees are just animals. They treat detainees like they are in bondage, detainees must stay quiet, after the grotesque treatment, because if you say a words you will be segregated and punished by E.C.D.C .. I believe this treatment is worse than for inmates on death row. To my knowledge all the officer at E.C.D.C including the Chief needs the special training to
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deal v/ith people under the pressuer and emotional stress. E.C.D.C some of the officer, for e~ample like Mr. Sherrell, when they say something you only listen to them they wont listen to your needs. H'ow can someone be able· to help anybody if he or she dont know what you need, in order to help anyone you need to listen to they needs/problems.
CONCLUSION WHEREFORE, Andrade respectfully prays that this Honorable Court enter Judgment granting Andrade; A declaration that the Act and ommissions of the defendants discribed hereien violated Andrade's rights under the Constitution and laws Qf the United States. Ordering defendants to comply with the ICE detention standards manual as it relate to provide medical needs consist ant according to ICE detention standards and the United States Constitution. Grant unto plaintiff Andrade general, irreparable consequential and expectations damage, in the amount to be set by the Court, and Punitive damage in the amount to be set by the Court. A Jury trial on all issues triable by Jury any additional relief this Honorable Court deems just and proper, (equitable).

Dated August 30, 2004.

Respectfully Submitted
~"'~?t~ A76-487-012 Etowah County Detention Ctr. 827 Forrest Avenue Gadsden Alabama 35901

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