1

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MICHAEL STEPP, :

Plaintiff, :

vs. : CIVIL ACTION 05-0303-BH-C

MIKE HALEY, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, a Mobile County Metro Jail 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). It is recommended that the claims against defendant Rose Johnson be

dismissed with prejudice as frivolous, prior to service of process, pursuant to 28 U.S.C. §

1915(e)(2)(B)(i). 

I. Amended Complaint (Doc. 15).

Plaintiff names Rose Johnson, the Director of the Mobile County Department of

Human Resources, as a defendant. Because the allegations against her are brief, they are

set out below:

Failure to provide authority of protection from neglect. 

Failure to provide equal protection of the law. Failure to

Case 1:05-cv-00303-BH-C Document 19 Filed 08/17/05 Page 1 of 7
1The predecessor to this section is 28 U.S.C. § 1915(d). Even though Congress made many

substantive changes to § 1915(d) when it enacted 28 U.S.C. § 1915(b)(2)(B), the frivolity and the

failure to state a claim analysis contained in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104

L.Ed.2d 338 (1989), was unaltered. Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.), cert. denied,

534 U.S. 1044, 122 S.Ct. 624, 151 L.Ed.2d 545 (2001); Brown v. Bargery, 207 F.3d 863, 866 n.4

(6th Cir. 2000). However, dismissal under § 1915(e)(2)(B) is now mandatory. Bilal, 251 F.3d at

1348-49.

2

provide protective services that will ensure proper care. (The

plaintiff is being subjected to neglect.) Supporting facts: The

Mobile County Dept. of Human Resources have willfully and

knownly failed to provide equal protection of the law to protect

plaintiff from neglect. 

. . . .

. . . The defendant Rose Johnson (Director of Dept. of

Mobile County Human Resources) is the supervisor authority

that manages investigations and provides protection services

through enforcement services to adults within Mobile County

Alabama who are being subjected to abuse and neglect. 

. . . .

. . . Pursuant to the Code of Alabama the Mobile County

of Department of Human Resources (Director) Rose Johnson

has authority and a legal duty to investigate and provide

prevention and protection to adults who are being subjected to

abuse and neglect. The Mobile County Department of Human

Resources have willfully and knownly failed to provide equal

protection of the law to protect plaintiff from being subjected 

to neglect by the conditions of the Mobile County Metro Jail.

II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

Because plaintiff is proceeding in forma pauperis, the Court is reviewing plaintiff’s

complaint under 28 U.S.C. § 1915(e)(2)(B).1 Under § 1915(e)(2)(B)(i), a claim may be

dismissed as “frivolous where it lacks an arguable basis in law or fact.” Neitzke v.

Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim

is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at

Case 1:05-cv-00303-BH-C Document 19 Filed 08/17/05 Page 2 of 7
3

327, 109 S.Ct. at 1833, the claim seeks to enforce a right which clearly does not exist, id.,

or there is an affirmative defense that would defeat the claim, such as the statute of

limitations, Clark v. Georgia Pardons & Paroles Bd., 915 F.2d 636, 640 n.2 (11th Cir.

1990). Judges are accorded “not only the authority to dismiss [as frivolous] a claim based

on indisputably meritless legal theory, but also the unusual power to pierce the veil of the

complaint's factual allegations and dismiss those claims whose factual contentions are

clearly baseless.” Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. Moreover, a complaint may

be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which

relief may be granted “only if it is clear that no relief could be granted under any set of

facts that could be proved consistent with the allegations.” Hishon v. King & Spalding,

467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson,

355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)); see Mitchell v. Farcass, 112

F.3d 1483, 1490 (11th Cir. 1997) (noting that § 1915(e)(2)(B)(ii)’s language tracks the

language of Fed.R.Civ.P. 12(b)(6)).

III. Discussion.

Defendant Johnson is alleged to be the Director of the Mobile County Department

of Human Resources. Plaintiff claims that as director she is responsible for adult inmates

who allegedly suffer abuse and neglect at the Mobile County Metro Jail. At one point,

plaintiff bases his claim on an unidentified section of the Alabama Code. However, after an

examination of the Alabama Code and case law, the Court did not find that it is the

responsibility of the director of the county department of human resources to oversee the

Case 1:05-cv-00303-BH-C Document 19 Filed 08/17/05 Page 3 of 7
2Section 38-94 provides:

4

treatment of local jail inmates. In fact, regarding the responsibilities of the county

director, § 38-2-8(b) of the Alabama Code provides, in pertinent part:

All administrative and executive duties and responsibilities of

the county department shall be performed by the county

director and must be in accordance with the rules and

regulations of the state department, subject to the approval of

the state board. These duties and responsibilities shall include

relief to persons in need of assistance; the performance of

family welfare services; the care of children who are

dependent, neglected, under insufficient guardianship or

otherwise handicapped, and such other child-care activities as

shall be directed to it by the State Department of Human

Resources; and the investigation of application for admissions

to and discharges from county institutions providing care and

treatment of indigents. 

ALA. CODE § 38-2-8(b). These enumerated duties do not include the oversight of inmate

treatment at the county jail. 

Moreover, plaintiff is subject to oversight by the county sheriff by his placement

into the sheriff’s custody. ALA. CODE § 14-6-1 (1995) (mandating that the sheriff, or a

jailer who is appointed by the sheriff, “has the legal custody and charge of the jail in his

county and all prisoners committed thereto”). If there are any failings by the sheriff or his

staff, then plaintiff has recourse to the state and federal court systems. 

In addition, another section of the Alabama Code, § 38-9-4, requires the human

resources department to investigate complaints about adults who are in need of protection

due to a danger to their health or safety and to arrange for necessary services.2 However,

Case 1:05-cv-00303-BH-C Document 19 Filed 08/17/05 Page 4 of 7
(a) Protective services may be arranged when an adult person is in need of care and protection

because of danger to his health or safety; provided, that nothing in this chapter shall be construed to

mean that the department is chargeable for the cost of such care except where such care is specifically

provided for by law or departmental regulations and funding exists for such purpose. All protective

services shall be in conformity with the wishes of the person to be served unless the person is unable or

unwilling to accept such services, and if the person is unable or unwilling to accept such services, the

court may order such services. The department may be required to provide or arrange for services

only for persons it is equipped to serve and agrees to serve.

(b) The department shall seek out, through investigations, complaint from citizens or otherwise,

the adults in the state who are in need of care and protection because of danger to their health or safety,

and shall, as far as may be possible, through existing agencies, public or private, or through such other

resources as are available, aid such adults to a fair opportunity in life.

5

this section is found in Chapter 9, which is titled “Protection of Aged or Disabled Adults.” 

Consequently, this provision of the code is inapplicable to the present action because

plaintiff is not aged or disabled. 

Therefore, plaintiff’s allegations fall short of showing that defendant Johnson, in her

position as Director of Mobile County Department of Human Resources, owes a legal duty

to him as a jail inmate. Because of this failure, plaintiff cannot connect defendant Johnson

to a violation of his constitutional rights. Zatler v. Wainwright, 802 F.2d 397, 401 (11th

Cir. 1986) (finding a plaintiff must establish a causal connection between a defendant’s

actions, orders, customs, policies, or breaches of statutory duty and a deprivation of the

plaintiff’s constitutional rights in order to state a claim upon which relief may be granted in

a § 1983 action); Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir.) (same), cert.

denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983). Accordingly, plaintiff has

failed to state a claim under § 1983 against defendant Johnson. IV. Conclusion.

Case 1:05-cv-00303-BH-C Document 19 Filed 08/17/05 Page 5 of 7
For the reasons stated above, and because the Court did not find that defendant

Johnson as Director of Mobile County Department of Human Resources owes a legal duty

to plaintiff, it is recommended that the claims against defendant Rose Johnson be

dismissed with prejudice as frivolous, prior to service of process, pursuant to 28 U.S.C. §

1915(e)(2)(B)(i).

The attached sheet contains important information regarding objections to the Report

and Recommendation. 

DONE this 12th day of August, 2005. 

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE 

 

 

 

 

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. 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 this Court. Failure to do so will bar a de novo determination by the district

Case 1:05-cv-00303-BH-C Document 19 Filed 08/17/05 Page 6 of 7
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 case 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.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 1:05-cv-00303-BH-C Document 19 Filed 08/17/05 Page 7 of 7