1

 Section § 1915(e)(2)(B) provides:

(2) Notwithstanding any filing fee, or any portion

thereof, that may have been paid, the court shall

dismiss the case at any time if the court determines

that -- 

(A) the allegation of poverty is untrue; or

(B) the action or appeal –

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief

may be granted; or

(iii) seeks monetary relief against a

defendant who is immune from such relief.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

DANIEL KEITH LOLLEY, :

Plaintiff, :

vs. : CIVIL ACTION 09-00555-CG-B

LOUISIANA CORRECTIONAL 

SERVICES, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, a 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). Because

Plaintiff is proceeding in forma pauperis, this Court is required

to screen Plaintiff’s Complaint pursuant to 28 U.S.C. §

1915(e)(2)(b).1 Upon careful consideration of the Complaint (Doc.

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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). Id. at 1348-49.

2

4), “Supplement to Case Number 09-00555-CG-B” (Doc. 9), and the

“Addendum and Supplement” (Doc. 10), it is recommended that

Defendant John Doe I be dismissed without prejudice (Doc. 4); that

the Supplement to Case Number 09-00555-CG-B (Doc. 9) be granted; and

that the Addendum and Supplement (Doc. 10) be denied to the extent

that it seeks to add as Defendants Commissioner Allen, Director

Golson, and Officer Carter, and be granted with respect to Defendant

Louisiana Correctional Services. By separate order the waiver of

service of process documents will issue for Louisiana Correctional

Services.

I. Amended Complaint. (Doc. 4).

A. Standard of Review Under 28 U.S.C. § 1915(e)(2)(B).

Because Plaintiff is proceeding in forma pauperis, the Court

is reviewing the Complaint (Doc. 4) and the subsequent amendments

and supplements (Docs. 9, 10) under 28 U.S.C. § 1915(e)(2)(B).2

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 327, 109 S.Ct. at

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1833, or the claim seeks to enforce a right that clearly does not

exist. Id.

In addition, a claim 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). In order to state a claim upon which relief can be granted,

there must be “sufficient factual matter, accepted as true, ‘to

state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868

(quoting Bell Atl, Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.

1955, 1974 (2007)). “[W]hen the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged[,]” a claim is

facially plausible. Id.

Plausibility requires more than the possibility that the

defendant engaged in unlawful conduct. Id. “Where the well-pleaded

facts do not permit the court to infer more than the mere

possibility of conduct, the complaint has alleged-but it has not

‘show[n]’-‘that the pleader is entitled to relief.’” Id. at ___,

129 S.Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)(requiring that the

statement of the claim show that the pleader is entitled to

relief)). And “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

Id.

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Furthermore, the Court holds pro se complaints “to less

stringent standards than formal pleadings drafted by lawyers.”

Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d

652 (1972). However, a plaintiff’s pro se status does not excuse

compliance with the Federal Rules of Civil Procedure or the Local

Rules of this District Court. Moon v. Newsome, 863 F.2d 835, 837

(11th Cir. 1989) (a pro se litigant “is subject to the relevant law

and rules of court including the Federal Rules of Civil Procedure);

Local Rule 83.9(b) (“All litigants proceeding pro se shall be bound

by and comply with all local rules of this Court[.]”). Nor is this

Court allowed to serve as de facto counsel for a pro se litigant or

to rewrite otherwise deficient pleadings in order to sustain an

action. GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d

1359, 1369 (11th Cir. 1998). 

B. Analysis.

The Complaint before the Court for screening is an Amended

Complaint (Doc. 4). Plaintiff was previously ordered to refile his

original Complaint because it was not on this Court’s form for

actions alleging violations of 42 U.S.C. § 1983. (Doc. 3).

Plaintiff was advised that the amended complaint would supersede his

original Complaint. (Doc. 4).

 The Court’s complaint form provides that those “persons who

are listed as defendants in section III of the complaint are deemed

by the Court to be the only defendants to this action.” (Id. at 1,

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D). The only individuals listed by Plaintiff in this section are:

Louisiana Correctional Services and John Doe I. (Id. at 7). John

Doe I is identified as a correctional officer at the Perry County

Correctional Center (“PCCC”) who allegedly mishandled Plaintiff’s

Native American religious items. No further identifying information

is provided. Additionally, another John Doe correctional officer

(John Doe II) is referenced in Plaintiff’s allegations although he

is not listed in this section for defendants. (Id. at 4-5). 

Fictitious party practice is allowed in federal court only when

sufficient identifying information is available so the defendant may

be served with process. Dean v. Barber, 951 F.2d 1210, 1216 & n.6

(11th Cir. 1992) (finding that the motion to add a defendant should

have been allowed because the information was sufficiently clear

that one person held the post, and noting that a similar situation

would exist where the governor is sued). In the present action, the

undersigned finds that Plaintiff has failed to provide sufficient

identifying information with respect to either John Doe I or John

Doe II. Accordingly, any claims against John Doe I or John Doe II

are due to be dismissed without prejudice as frivolous. In the

future, if Plaintiff becomes aware of identifying information, or

of the officers’ names, so that service of process may issue,

Plaintiff may move to add these individuals as long as it is within

two years from the alleged incident. Lufkin v. McCallum, 956 F.2d

1104, 1105 (11th Cir.) (finding that the statute of limitations for

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a § 1983 action is two years for an action filed in Alabama), cert.

denied, 506 U.S. 917 (1992). 

II. “Supplement to Case Number 09-00555-CG-B” (Doc. 9) and

“Addendum and Supplement” (Doc. 10). 

A. The Pleadings.

Since filing the Court-ordered Amended Complaint (Doc. 4),

Plaintiff has filed two documents, namely “Supplement to Case Number

09-00555-CG-B” (Doc. 9), wherein he complains of subsequent actions,

and “Addendum and Supplement” (Doc. 10), wherein he seeks, inter

alia, to add as Defendants Commissioner Allen, Central Record

Director Golson, and Officer Carter. The two referenced pleadings

are substantially the same except that the Addendum and Supplement

contains additional information and seeks to add additional

Defendants. The Addendum and Supplement, states in part:

Plaintiff Daniel K. Lolley wishes to add to this suite

filed under 42 U.S.C. § 1983, the following: Alabama

D.O.C. Prisoner Commissioner. Richard Allen, Alabama

D.O.C. Director of Central Records, Caroling Golson,

Staton Correctional Facility, third Shift Officer

Carter. August 21, 2009, ADOC inmate Daniel Lolley,

filed a law suit under 42 USC 1983 for violations

against said inmate of Desecration of Sacred items, no

Native American Grounds with sweat lodge, at The Perry

County Correctional Center.

(Id. at 1). Plaintiff further alleges that Officer Carter at Staton

Correctional Facility (“Staton”) told Plaintiff prior to his

transfer from Staton to PCCC on July 17, 2009, if Plaintiff packed

his Native American items, the officers would go through his

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property and remove these items. According to Plaintiff, this is

a violation of Regulation 333 which permits retention of religious

items during transfer. (Id. at 2). Plaintiff contends that his two

transfers from Staton to PCCC occurred just prior to the spring

equinox ceremonies, and deprived him of the opportunity to

participate in these ceremonies which “are intrinsic to his

religious beliefs.” (Id.) Plaintiff alleges that Regulation 333

requires that any institution that houses Native American inmates

have a 20'x 20' ceremonial ground and that such inmates be

transferred to one of the four institutions having sweat lodges in

order to participate in sweat ceremonies. (Id. at 3).

B. Applicable Law.

“A party may amend its pleading once as a matter of course”

until twenty-one days “after service of a responsive pleading or .

. . of a motion under Rule 12(b), (e), or (f), whichever is

earlier.” FED.R.CIV.P. 15(a). Otherwise, a party can only amend

its pleading with the opposing party’s consent or leave of court

with “the court . . . freely giv[ing] leave when justice so

requires.” FED.R.CIV.P. 15(b); see Shipner v. Eastern Air Lines,

Inc., 868 F.2d 401, 407 (11th Cir. 1989). When ruling on a motion

to amend the complaint, “the district court may consider such

factors as ‘undue delay, bad faith or dilatory motive on the part

of the movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue

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of the allowance of the amendment, [and] futility of amendment.’”

Nolin v. Douglas County, 903 F.2d 1546, 1550 (11th Cir. 1990)

(quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9

L.Ed.2d 222 (1962)), overruled on other grounds by McKinney v. Pate,

20 F.3d 1550, 1559-60 (11th Cir. 1994). Permission to amend may be

denied when the claim, as amended, is subject to dismissal. See

Halliburton & Assoc. v. Henderson, Few & Co., 774 F.2d 441, 444-45

(11th Cir. 1985) (to allow an amendment that is subject to dismissal

is an exercise in futility). Id. at 445. Furthermore, the Court

is also under a duty pursuant to 28 U.S.C. § 1915(e)(2)(B) to screen

complaints and amendments filed by prisoners and to dismiss the

claims that are frivolous, fail to state a claim upon which relief

can be granted, and seek monetary damages from a defendant who is

immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(I-iii).

C. Commissioner Allen and Director Golson.

In order to state a claim upon which relief may be granted in

a § 1983 action, a plaintiff must establish a causal connection

between a defendant’s actions, orders, customs, or policies and a

deprivation of the plaintiff’s constitutional rights. See Zatler

v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986); Williams v.

Bennett, 689 F.2d 1370, 1380 (11th Cir.), cert. denied, 464 U.S. 932

(1983). In Plaintiff’s Addendum and Supplement, he merely mentions

the names of Commissioner Allen and Director Golson, references

regulations and then identifies his alleged deprivations. He does

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not describe what either Allen or Golson is alleged to have done

to violate his constitutional rights. Such assertions are not

sufficient because the complaint must “state with some minimal

particularity how overt acts of the defendant caused a legal wrong.”

Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008) (quotation

and quotation marks omitted) (“A complaint will be held defective

. . . if it fails to connect the defendant with the alleged wrong”)

(quotation, quotation marks, and brackets omitted). In other words,

an amended or supplemental complaint must be “plausible on its

face.” Id. at 1321 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

554, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). Because

Plaintiff has not shown that his claims against Commissioner Allen

and Director Golson are plausible, he has failed to state a claim

against them. Thus, Plaintiff’s Addendum and Supplement is due to

be denied in regards to his claims against Commissioner Allen and

Director Golson as those claims would be futile. 

D. Officer Carter.

In the Addendum and Supplement, Plaintiff identifies Defendant

Officer Carter as a correctional officer at Staton in Elmore,

Alabama, which is located in the Middle District of Alabama.

Plaintiff complains of actions allegedly undertaken by Officer

Carter at Staton in Elmore, Alabama. Because Elmore, Alabama is not

located in this district, venue is not proper for actions allegedly

undertaken by Officer Carter in the Middle District. See 28 U.S.C.

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§ 1391(b) (venue is proper where the defendants reside or where the

incident occurred). Moreover, it is apparent that the incident at

Staton is separate and distinct from the incidents which are alleged

to have occurred at the PCCC, and they arise from a different

nucleus of facts. Accordingly, the claims against Officer Carter

would be subject to dismissal if the Addendum and Supplement was

granted. See Whitfield v. Gupta, 2006 WL 418538, at *1 (S.D. Ill.

Feb. 21, 2006) (unpublished) (denying plaintiff’s motion to amend

to add new defendants based on Fed.R.Civ.P. 20 because the claims

did not arise from the same incident and instructing plaintiff to

file a new action in the district where venue is proper); cf.

FED.R.CIV.P. 20(a)(2) (“Persons . . . may join in one action as

defendants if any right to relief is asserted against them . .

.aris[es] out of the same transactions or occurrences, or series of

transactions or occurrences[.]”). Accordingly, the claims against

Officer Carter are futile in regards to this action.

III. Conclusion.

Based upon the foregoing reasons, it is recommended that

Defendants John Doe I and John Doe II be dismissed without prejudice

(Doc. 4); that the Supplement to Case Number 09-00555-CG-B (Doc. 9)

be granted; and that the Addendum and Supplement (Doc. 10) be denied

to the extent that it seeks to add as Defendants Commissioner Allen,

Director Golson, and Officer Carter, and be granted with respect to

Defendant Louisiana Correctional Services. 

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The instructions that follow the undersigned’s signature

contain important information regarding objections to the Report and

Recommendation. 

DONE this the 21st day of May, 2010. 

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 2:09-cv-00555-CG-B Document 13 Filed 05/21/10 Page 11 of 13
3 Effective December 1, 2009, the time for filing written

objections was extended to “14 days after being served with a

copy of the recommended disposition[.]” FED.R.CIV.P. 72(b)(2).

12

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). 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, in part, 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 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. Opposing party’s response to the objection. Any opposing

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party may submit a brief opposing the objection within ten (10)

days of being served with a copy of the statement of objection. 

Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. 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.

DONE this the 21st day of May, 2010.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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