IN THE UNITED STATES DISTRICT COURT FOR THE 

 SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

ANTHONY N. JONES, : 

Plaintiff, : 

vs. : CIVIL ACTION 09-0835-CG-M 

GRANTT CULLIVER, 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 pursuant to 28 

U.S.C. ' 636(b)(1)(B) and Local Rule 72.2(c)(4). Plaintiff=s 

action is before the Court on Plaintiff=s Motion for a Temporary 

Restraining Order or, in the Alternative, for a Preliminary 

Injunction (AMotion@) (Docs. 30, 31). After careful 

consideration, it is recommended that the Motion be denied. 

In Plaintiff’s ' 1983 Amended Complaint (Doc. 20), he 

complains about the medical care that he was receiving for his 

ulcer and hemorrhoids at Holman Correctional Facility (“Holman”) 

and at St. Clair Correctional Facility (“St. Clair”). The 

Amended Complaint’s Defendants work at either Holman or St. 

Clair. After screening the Amended Complaint (Doc. 20), it was 

recommended that some of the Holman Defendants be dismissed for 

failure to state a claim against them upon which relief can be 

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granted and that all of the St. Clair Defendants be dismissed 

for lack of venue. (Doc. 25). Holman Defendants who were not 

recommended for dismissal were Dr. Robert Barnes, Nurse Donny 

Myers, and Dr. Negash Tesemma. In the recommendation it was 

also recommended that Plaintiff’s request for a preliminary 

injunction in the Amended Complaint (Doc. 20 at 14, 22) be 

denied as moot because Plaintiff was located at Donaldson 

Correctional Facility (“Donaldson”) away from Defendants who 

were located at other institutions. (Doc. 25 at 13-14). 

Regardless of this prior recommendation of dismissal of the 

injunctive relief request based on mootness, Plaintiff filed the 

present Motion (Docs. 30, 31). In the present Motion for 

injunctive relief, Plaintiff seeks to receive proper medical 

care “for several ailments, i.e. his [stomach ulcer, which is 

‘acute,’ flairing and soaring hemorrhoids problems and a 

grotesque pain and small swelling on his left testicle] that’s 

also triggering ‘tingling’ up the crease of buttocks and at his 

very [anus] wherein plaintiff is presently being denied 

appropriate medical care.” (Doc. 30 at 1). Plaintiff chiefly 

recounts the medical treatment at Holman by Defendants Dr. 

Barnes1

 and Dr. Tesemma in the Motion (Docs. 30, 31) and briefly 

 1

 Plaintiff has informed the Court that Dr. Barnes resigned 

his position at Holman in August, 2009, and was replaced by Dr. 

Tesemma. (Doc. 30 at 2; Doc. 31). Based on other prisoner 

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mentions Defendant Dr. White at St. Clair (Doc. 31). When 

Plaintiff signed this Motion, he indicated that he was 

incarcerated at Donaldson. (Doc. 30 at 19). The Court checked 

the Alabama Department of Corrections’ website and verified that 

Plaintiff is still incarcerated at Donaldson. 

Controlling Plaintiff’s Motion is his transfer to Donaldson 

away from the conditions about which he complains at Holman and 

at St. Clair. APast exposure to illegal conduct does not 

constitute a present case or controversy involving injunctive 

relief[.]@ Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985). 

"Absent class certification, an inmate’s claim for injunctive 

and declaratory relief in a section 1983 action fails to present 

a case or controversy once the inmate has been transferred." 

Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir.) (citing Wahl, 

supra,), cert. denied, 488 U.S. 1046 (1989); see Hathcock v. 

Cohen, 287 Fed. Appx. 793, 798 (11th Cir. July 23, 2008) 

(unpublished) (same).2

 

 

actions on the Court’s docket, the Court is aware that Dr. 

Barnes is no longer at Holman. 

2 AUnpublished opinions are not considered binding precedent, but 

they may be cited as persuasive authority.@ 11TH CIR. R. 36-2

(2005). 

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In Spears, an Alabama prison inmate complained about West 

Jefferson’s administrative segregation’s conditions of 

confinement. After filing his complaint, the inmate was 

transferred from West Jefferson to another facility. As a 

result, the inmate’s claims for injunctive and declaratory 

relief were found to be moot because he was no longer subject to 

the conditions at West Jefferson about which he complained. Id. 

 Because Plaintiff is no longer incarcerated at Holman or 

St. Clair, he is not subject to Defendants Dr. Barnes’s, Dr. 

Tesemma’s and Dr. White’s medical treatment of his conditions. 

Accordingly, Plaintiff’s Motion is moot, and it is recommended 

that Plaintiff’s Motion be denied. 

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 

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Recommendation@ within ten days3

 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 transc4ript, is advised that a judicial determination 

that transcription is necessary is required before the United 

States will pay the cost of the transcript. 

DONE this 2nd day of August, 2010. 

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE 

 3

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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