1 

IN THE UNITED STATES DISTRICT COURT FOR THE 

 SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

GERALD HUDSON, #224330, : 

Plaintiff, : 

vs. : CIVIL ACTION 09-0721-CG-N 

FAMOUS ABSTON, et al., : 

Defendants. : 

 REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed 

a complaint under 42 U.S.C. ' 1983. This action has been referred to the undersigned for 

appropriate action pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 72.2(c)(4). It is 

recommended that pursuant to 28 U.S.C. ' 1915(e)(2)(B)(ii), this action be dismissed 

with prejudice for failure to state a claim upon which relief can be granted. 

I. Nature of Proceedings. 

 Plaintiff’s superseding amended complaint is before the Court. (Doc. 12). Its 

claims are based on two disciplinaries that plaintiff received in October, 2009.1

 (Id.). In 

screening the amended complaint, the Court found that additional information concerning 

 1

 The plaintiff should have filed a separate complaint for each disciplinary that he is 

challenging. See Doc. 12 at 1, C. 

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these disciplinaries was needed. (Doc. 13). Thereupon, plaintiff was ordered to file a 

copy of the disciplinary reports (id.), which he did. (Doc. 14). 

 The following description is based on plaintiff’s allegations (Doc. 12) and the 

information in the disciplinary reports (Doc. 14). The disciplinary report for the 

conviction of consumption, use or under the influence of drugs, alcohol, or other 

intoxicants reflects that plaintiff was written a disciplinary on October 21, 2009 by 

defendant Famous Abston after notice was received on October 19, 2009 that plaintiff’s 

urine specimen tested positive for marijuana. (Id. at 7). On November 1, 2009, 

defendant Steven Lane found plaintiff guilty and recommended a disciplinary sentence of 

ten days in disciplinary segregation and twenty-one days’ loss of phone, store, and 

visitation privileges, with no good time credits to be taken. (Id. at 9; Doc. 12 at 4). On 

November 4, 2009, defendant Warden Walter Myers approved plaintiff’s disciplinary 

conviction and sentence. (Doc. 14 at 9). And defendant Wayne Gray served the final 

disciplinary report on plaintiff on November 5, 2009. (Id.). 

 Plaintiff’s other disciplinary conviction is for insubordination. (Id. at 1). 

Defendant Chandra Johnson wrote plaintiff this disciplinary for his conduct on October 

27, 2009, when he came to the front lobby at 9:25 p.m. and stated in a “loud, belligerent 

tone” that he had tried for the past two days to have his paperwork notarized. (Id. at 2). 

She ordered plaintiff to leave the lobby unless the paperwork was time sensitive. (Id.). 

Nonetheless, plaintiff continued to talk in the same manner, and when he was leaving the 

lobby, he stated, “I am going to make sure Ferrell know[sic] about this.” (Id.). On 

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November 3, 2009, defendant Philip R. Etheridge found plaintiff guilty of the charge and 

imposed a disciplinary sentence of twenty-one days in disciplinary segregation and 

twenty-one days’ loss of phone, store, and visitation privileges. (Id. at 4). He also noted 

that plaintiff is not earning good time. (Id.). On November 6, 2009, defendant Warden 

Myers approved the disciplinary conviction and sentence. (Id.). 

 Turning to the amended complaint, its allegations that do not repeat the 

disciplinary reports’ information are very brief and conclusory. For example, plaintiff 

claims in a general manner “the defendants” acted in concert to deprive him of access to 

the courts and equal protection. (Doc. 12 at 4). 

 Then, in regard to the drug use disciplinary, plaintiff claims that defendants 

Abston, Gray, Lane, and Myers acted in concert to deprive him of his equal protection 

and due process rights when he was prosecuted for inmate Sedrick Ruffin’s positive urine 

specimen, which caused $31.50 to be taken from his inmate account. (Id. at 6). 

 Concerning the insubordination disciplinary, defendant Chandra Johnson is 

alleged to have denied him access to the courts and then punished him for seeking access. 

(Id. at 5). Defendant Etheridge allegedly conspired with defendant Johnson to prosecute 

plaintiff when he found plaintiff guilty without any evidence. (Id.). And defendant 

Myers also conspired with the other defendants when he approved plaintiff’s prosecution 

for seeking access to the courts and for plaintiff being punished for another inmate’s 

positive urine specimen. (Id.). 

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 For relief, plaintiff seeks $10 million and expunction of the disciplinaries from his 

institutional and parole files. (Id. at 7). 

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

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

amended complaint (Doc. 12) under 28 U.S.C. ' 1915(e)(2)(B).2

 Under '

1915(e)(2)(B)(i), a claim may be dismissed as Afrivolous where it lacks an arguable basis 

in law or fact.@ Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 

L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the 

defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, or the claim seeks to 

enforce a right that clearly does not exist. Id. 

Moreover, a complaint may be dismissed under 28 U.S.C. ' 1915(e)(2)(B)(ii) for 

failure to state a claim upon which relief may be granted. Mitchell v. Farcass, 112 F.3d 

1483, 1490 (11th Cir. 1997). To avoid dismissal for failure to state a claim upon which 

relief can be granted, the allegations must show plausibility. Bell Atl. Corp. v. Twombly,

550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). AA claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.@ Ashcroft v. 

Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009). That is, 

 2

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 when Congress enacted 28 

U.S.C. ' 1915(b)(2)(B) in 1996. Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.), cert. denied, 

534 U.S. 1044 (2001). However, dismissal is now mandatory under ' 1915(e)(2)(B). Bilal, 251 

F.3d at 1348-49. 

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A[f]actual allegations must be enough to raise a right to relief above the speculative level@

and must be a A>plain statement= possess[ing] enough heft to >sho[w] that the pleader is 

entitled to relief.=@ Twombly, 550 U.S. at 555, 557, 127 S.Ct. at 1965, 1966 (second and 

third brackets in original). AThreadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice.@ Iqbal, ___ U.S. at ___, 129 

S.Ct. at 1949. 

When considering a pro se litigant’s allegations, a court gives them a liberal 

construction holding them to a more lenient standard than those of an attorney. Haines v. 

Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-596, 30 L.Ed2d 652 (1972). However, a 

court does not have a license . . . to rewrite an otherwise deficient pleading [by a pro se

litigant] in order to sustain an action.” GJR Investments v. County of Escambia, Fla., 132 

F.3d 1359, 1369 (11th Cir. 1998). Furthermore, a pro se litigant is subject to the relevant 

law and rules of court including the Federal Rules of Civil Procedure. Moon v. 

Newsome, 863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S. 863 (1989).

III. Discussion. 

A. Conspiracy Claim. 

 Plaintiff alleges that the defendants “conspired” or “acted in concerted” without 

providing any other facts to support these conclusions. In order to establish a ' 1983 

conspiracy, Aa plaintiff must show among other things, that the defendants >reached an 

understanding to violate [his] rights.=@ Rowe v. Fort Lauderdale, 279 F.3d 1271, 1283 

(11th Cir. 2002) (citation omitted) (brackets in original). This necessitates that plaintiff 

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provide more than a label or a conclusion. Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.

He must raise his right to relief above the speculative level and show sufficient facts to 

suggest that an agreement was made. Id. at 556, 127 S.Ct. at 1965. In addition to 

pleading facts to show that an agreement was reached to deny plaintiff’s rights, an 

Aunderlying actual denial of [his] constitutional rights@ must be shown. Hadley v. 

Gutierrez, 526 F.3d 1324, 1332 (11th Cir. 2008). 

 Inasmuch as plaintiff alleges no facts suggesting a conspiracy or an agreement, 

other than his mention of the word Aconspired@ or “acted in concert,” his allegations do 

not allow the Court to draw the conclusion that a conspiracy claim is plausible. Iqbal, 

___ U.S. at ___, 129 S.Ct. at 1949. Accordingly, he has failed to state a conspiracy 

claim upon which relief can be granted, and such claim is due to be dismissed. See 

Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984) (holding that a conspiracy 

allegation that is vague and conclusory fails to state a claim upon which relief can be 

granted and is subject to dismissal). 

B. Access-to-Courts Claim. 

 Plaintiff alleges that he was denied access to the courts by defendants, and, in 

particular, defendant Johnson’s actions. No information is provided concerning the 

underlying case in which the denial of access to the courts occurred or what occurred in 

the underlying case as a result of defendant Johnson’s actions. 

 Due to plaintiff’s conclusory pleading of this claim, he has failed to establish the 

required injury for stating a claim for denial of access to courts. That is, he has not 

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shown that he has been frustrated or impeded in the prosecution of his conviction=s direct 

appeal, of his habeas petition, or of his civil rights action implicating a basic 

constitutional right3

 and that his underlying case was nonfrivolous. Lewis v. Casey, 518 

U.S. 343, 353-54, 116 S.Ct. 2174, 2181-82, 135 L.Ed.2d 606 (1996); see Christopher v. 

Harbury, 536 U.S. 403, 416, 122 S.Ct. 2179, 2187, 153 L.Ed.2d 413 (2002) (holding that 

to show a claim is nonfrivolous, the underlying Aclaim must be described well enough to 

apply the >nonfrivolous= test and to show that the >arguable= nature of the underlying claim 

is more than hope.@). Accordingly, the Court finds that plaintiff’s allegations do not 

allow the Court to draw the conclusion that it is plausible that he has been denied access 

to the courts. Iqbal, ___ U.S. at ___, 129 S.Ct. at 1949. Thus, plaintiff’s claim for denial 

of access to courts fails to state a claim upon which relief can be granted. Moore v. 

Plaster, 266 F.3d 928, 933 (8th Cir.) (affirming the dismissal of access-to-courts claims 

because the plaintiff made no showing the dismissed underlying actions were 

nonfrivolous), cert. denied, 535 U.S. 1037 (2002).

C. Equal Protection Claim. 

 Plaintiff also claims that he was denied equal protection of the law. However, he 

provides no facts to support this claim. That is, he does not allege that another inmate 

receivable more favorable treatment and that this inmate is similar situated to him, and 

that he was invidiously discriminated against on account of some protected constitutional 

 3

The Eleventh Circuit in Wilson v. Blankenship, 163 F.3d 1284, 1291 (11th Cir. 1998), 

interpreted this statement to include Adirect or collateral appeals@ of criminal convictions.

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interest. In order “[t]o establish an equal protection claim, a prisoner must demonstrate 

that (1) >he is similarly situated with other prisoners who received= more favorable 

treatment; and (2) his discriminatory treatment was based on some constitutionally 

protected interest such as race.” Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001) 

(quoting Damiano v. Florida Pardons & Parole Comm=n, 785 F.2d 929, 932-33 (11th Cir. 

1986) (per curiam)). Thus, the absence of relevant allegations prevent the Court from 

finding a plausible equal protection claim. Iqbal, ___ U.S. at ___, 129 S.Ct. at 1949. 

Accordingly, plaintiff has failed to state a claim upon which relief can be granted. See

Fullman, 739 F.2d at 556-57 (“In civil rights actions, . . . a complaint will be dismissed as 

insufficient where the allegations it contains are vague and conclusory.”).

D. Disciplinary Claims. 

1. Absence of Liberty Interests. 

a. Confinement to Disciplinary Segregation. 

Plaintiff is challenging two disciplinaries that did not result in the loss of goodtime credits. (Doc. 14 at 4, 9). However, plaintiff’s disciplinary sentences did require his 

confinement to disciplinary segregation for ten and twenty-one days, and each 

disciplinary sentence required twenty-one days’ loss of phone, store, and visitation 

privileges. (Id.). 

 Since the decision in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 

L.Ed.2d 418 (1995), an inmate must demonstrate a “grievous loss” in a disciplinary 

proceeding in order for a liberty interest to be found to which due process attaches. In 

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Sandin, supra, when an inmate challenged his thirty-day segregation sentence based on a 

due process violation, the Supreme Court was unable to find a right inherent in the Due 

Process Clause not to be placed in disciplinary segregation and a state-created liberty 

interest to be free from disciplinary segregation. Id. at 487, 115 S.Ct. at 2302. In 

concluding that no liberty interest was implicated by placement in disciplinary 

segregation, and thus no due process was required, the Court stated its holding was a 

return to the due process principles of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 

41 L.Ed.2d 935 (1974), and Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 

451 (1976), that required an inmate to suffer a Agrievous loss@ before a liberty interest 

could be found. Sandin, 515 U.S. at 478-83, 115 S.Ct. at 2297-2300 (recognizing that the 

good-time credits were a state-created liberty interest and their deprivation would be a 

“grievous loss”). The Sandin Court ruled that in the future liberty interests Awill be 

generally limited to freedom from restraint which, while not exceeding the sentence in 

such an unexpected manner as to give rise to protection by the Due Process Clause of its 

own force, (citations omitted), nonetheless imposes atypical and significant hardship on 

the inmate in relation to the ordinary incidents of prison life.@ Id. at 480, 484, 115 S.Ct. 

at 2298, 2300. The Court concluded confinement to disciplinary segregation was not a 

dramatic departure from the ordinary conditions of incarceration, was the type of 

discipline a prisoner should expect as an incident to his criminal sentence, and Adid not 

present the type of atypical, significant deprivation in which a state might conceivably 

create a liberty interest.@ Id. at 485-86, 115 S.Ct. at 2301. 

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In the present action, plaintiff’s confinement to disciplinary segregation for ten 

days and twenty-one days did not deprive plaintiff of a liberty interest inherent in the 

Constitution. Similarly, there is no state-created liberty interest present because 

plaintiff’s allegations are sparse and do not include information on which a liberty 

interest could be found. Thus, plaintiff’s segregation confinement did not deprive him of 

a state-created liberty interest to which due process could attach. Accordingly, plaintiff 

has failed to state a claim upon which can be granted. Compare Williams v. Fountain, 

77 F.3d 372, 374 n.3 (11th Cir.) (finding that twelve months of solitary confinement 

represent[s] substantially more atypical and significant hardship[s] . . . in relation to the 

ordinary incidents of prison life, [and] we assume that [a prisoner suffering such] a 

liberty deprivation [is] entitled to due process), cert. denied, 519 U.S. 952 (1996), with

Sandin, 515 U.S. at 475, 487, 115 S.Ct. at 2296, 2302 (finding a thirty-day disciplinary 

sentence did not violate the Constitution or impinge upon a state-created liberty interest); 

Rodgers v. Singletary, 142 F.3d 1252, 1253 (11th Cir. 1998) (affirming that two months’ 

confinement to administrative segregation was not a deprivation of constitutionally 

protected liberty interest). 

b. Loss of Phone, Store, and Visitation Privileges. 

 Plaintiff’s two-time loss of twenty-one-days of phone, store, and visitation 

privileges, is not a liberty interest to which due process attaches, either under the 

Constitution or by the State’s creation. The Constitution does not grant an inmate a right 

in visitation, store, and telephone privileges. See Kentucky Dept. of Corrections v. 

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Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989) (finding an 

inmate does not have a protected interest in visitation arising from the Due Process 

Clause); Moore v. Pemberton, 110 F.3d 22, 23 (7th Cir. 1997) (finding no loss of liberty 

or property when prisoner received as part of his disciplinary punishment a two-week 

loss of commissary privileges); Walker v. Loman, 2006 WL 3327663, at *1 and *3 (M.D. 

Ala. Nov. 15, 2006) (holding the 90-day loss of store, telephone and visitation privileges, 

recommended custody increase, and referral for possible free-world prosecution did not 

result in the deprivation of a liberty interest) (unpublished). Moreover, the Alabama 

courts have determined a prisoner does not have a state-created liberty interest in store, 

telephone and visitation privileges. Dumas v. State, 675 So.2d 87, 88 (Ala. Crim. App. 

1995). An inmate=s ability to visit, to shop, and to use the telephone is heavily restricted 

while in prison, as are most aspects of an inmate=s life. Sandin, 515 U.S. at 485, 115 

S.Ct. at 2301. And the further restriction of these privileges for a short period of time is a 

less severe punishment than confinement to disciplinary segregation. Such restriction is 

not Aatypical,@ nor is it a Asignificant hardship@ under the Sandin analysis, and is a type of 

discipline that should be expected by a prisoner as an incident to his criminal sentence. 

See Id. at 475, 485, 115 S.Ct. at 2296, 2301. Thus, plaintiff does not have a liberty 

interest in phone, store, and visitation privileges to which due process could attach. 

2. Lack of Evidence Claim. 

Plaintiff further alleges that there was no evidence to convict him of 

insubordination and that another inmate’s urine was used to convict him for using drugs. 

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The Court construes these claims to be for a due process violation based on the lack of 

evidence to support his disciplinary convictions. However, because plaintiff does not 

have liberty interest under the Constitution or created by state law not to be confined to 

disciplinary segregation and not to have his phone, store, and visitation privileges further 

restricted temporarily, due process does not attach, and his claim fails. McKeithan v. 

Jones, 212 Fed. Appx. 129, 130 (3d Cir. Jan. 8, 2007) (finding that the Court could not 

address the plaintiff’s challenges to factual conclusions by the hearing officer because 

under Sandin a protected interest was not violated); Hartley v. McNeil, 2008 WL 

1844416, at *3 (N.D. Fla. Apr. 23, 2008) (because the plaintiff did not have a liberty 

interest under Sandin, supra, the protections offered by Wolff , supra, and Hill, infra, did 

not apply) . 

However, assuming arguendo that plaintiff did have a liberty interest, the decision 

in Superintendent, Mass. Correctional Inst., Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 

2768, 2774, 86 L.Ed.2d 356 (1985), would be applicable to plaintiff’s claim that there 

was no evidence to support his disciplinary convictions. The Hill Supreme Court 

determined that a finding of Asome evidence@ in the disciplinary report to support a 

disciplinary conviction revoking good-time credits (a state-created liberty interest) 

satisfies due process. Id. The “some evidence” standard does not require that the entire 

record be examined, or an independent assessment of witnesses’ credibility, or the reevaluation of evidence. Id. Rather, “the relevant question is whether there is any 

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evidence in the record that could support the conclusion reached by the disciplinary 

board.” Id. at 456, 105 S.Ct. at 2774. 

In the present action, the disciplinary report for each disciplinary conviction 

reflects the evidence relied on by the hearing officer. In regard to the drug use 

disciplinary, the procedures implemented, which included chain-of-custody evidence, 

were noted in the disciplinary report by defendant Lane and were relied on by him. 

Plaintiff points to no deficiency, but simply asserts that it was another inmate’s urine that 

was tested. With no facts for the Court to draw the conclusion that it was another 

inmate’s urine that was tested, this bald assertion by plaintiff lacks plausibility. 

Notwithstanding the Court concludes that there was “some evidence” in the disciplinary 

report to support the drug-use disciplinary. Thus, such a claim fails to state a claim upon 

which relief can be granted. 

Turning to plaintiff=s disciplinary hearing for insubordination, plaintiff simply 

states that there was no evidence to convict him without providing any further factual 

information to support this assertion. Whereas, the disciplinary report reflects the sworn 

testimony of the charging officer, defendant Johnson, which the hearing officer, 

defendant Etheridge, found to be credible. (Doc. 14 at 4). Thus, the insubordination 

disciplinary conviction is supported by Asome evidence@ and, therefore, satisfies due 

process. In light of there being “some evidence” and an absence of facts allowing the 

Court to draw the conclusion that there was no evidence to support his disciplinary 

conviction, plaintiff’s claim lacks plausibility. Accordingly, the Court finds that such a 

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claim by plaintiff fails to state a claim upon which relief can be granted. See Black v. 

Warren, 134 F.3d 732, 734 (5th Cir. 1998) (although the plaintiff argued no evidence 

supported his disciplinary, the Fifth Circuit affirmed the district court=s decision based on 

Sandin, and opined that A[e]ven if a constitutional liberty interest is implicated by Black=s 

challenge to the disciplinary decision on the ground that no evidence supports the charge, 

the record reveals that >some evidence= supports the charge.@). 

3. Retaliation Claim. 

Plaintiff briefly indicates that he was punished for “seeking access to the courts.” 

(Doc. 12 at 5). This claim is construed liberally by the Court as a retaliation claim. 

However, it falls short of being a viable retaliation claim. In order to state a retaliation 

claim, “a plaintiff must establish first, that his speech or act was constitutionally 

protected; second, that the defendant’s retaliatory conduct adversely affected the 

protected speech; and third, that there is a causal connection between the retaliatory 

actions and the adverse effect on speech.” Douglas v. Yates, 535 F.3d 1316, 1321 (11th 

Cir. 2008) (quotation omitted). In addition, plaintiff must allege sufficient facts to show 

that the retaliation claim is plausible. Id. (quoting Twombly, 127 S.Ct. at 1974). 

Here, plaintiff has not alleged facts to show that his request for notarial services 

caused him to be charged with a disciplinary by defendant Johnson. Plaintiff alleges 

simply that he was disciplined as a result of his request. Whereas, to state a retaliation 

claim the facts must lead to the conclusion that plaintiff was retaliated against by 

defendant Johnson on account of this request. Smith v. Florida Dept. of Corrections, 

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2010 WL 1377351, at ** 5 (11th Cir. Apr. 8, 2010) (unpublished). That is, “a 

chronology of events from which retaliation may plausibly be inferred” must be alleged. 

Id. (quoting Cain v. Lane, 857 F.2d 1139, 1141-43 (7th Cir. 1988)). 

Examining the other allegations in the amended complaint, they evince that 

plaintiff was written a disciplinary for being insubordinate. Consequently, the Court 

finds that plaintiff’s brief and unsupported allegation does not support that a 

determination that he was disciplined in retaliation. See Id. (finding that the reason for 

the inmate receiving a disciplinary was his refusal to obey an order and that a retaliatory 

motive could not be inferred from him refusing to leave the infirmary when he had been 

ordered to do so). Accordingly, plaintiff has failed to state a retaliation claim upon which 

relief can be granted. 

IV. Conclusion. 

Based upon the foregoing reasons, it is recommended that pursuant to 28 U.S.C. '

1915(e)(2)(B)(ii), this action be dismissed with prejudice for failure to state a claim upon 

which relief can be granted. 

The instructions that follow the undersigned=s signature contain important 

information regarding objections to the report and recommendation. 

DONE this 2nd day of July, 2010. 

 

 /s/ Katherine P. Nelson

 KATHERINE P. NELSON 

 UNITED STATES MAGISTRATE JUDGE 

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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 fourteen 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 AStatement of Objection to Magistrate Judge=s Recommendation@ within 

ten days4

 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. 

 /s/ Katherine P. Nelson

 UNITED STATES MAGISTRATE JUDGE 

 4

 Effective December 1, 2009, the time for filing written objections was extended to A14 

days after being served with a copy of the recommended disposition[.]@ FED.R.CIV.P. 72(b)(2). 

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