IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

KENNETH HILL, #181096, :

Plaintiff, :

vs. : CIVIL ACTION NO. 15-00179-WS-B

STATE OF ALABAMA, :

Defendant. :

REPORT AND RECOMMENDATION

Plaintiff Kenneth Hill, 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 this action be 

dismissed with prejudice, prior to service of process, pursuant 

to 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous.

I. Complaint. (Doc. 1).

The sole Defendant to this brief Complaint is the State of 

Alabama. (Doc. 1 at 1, 4). Hill alleges that as an inmate 

confined to Fountain Correctional Facility’s lock-up, he is 

entitled to go outside at least forty-five minutes to one hour 

each day. (Id. at 4). However, inmates in lock-up have only 

been allowed to go outside for one to two hours a week, if at

all. (Id.). Hill further alleges that in lock-up, there is no

sprinkler system, which is a safety and security hazard. (Id.). 

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For relief, Hill requests “more yard time and [the] add[ition 

of] sprinkler systems.” (Id. at 7).

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

Because Hill is proceeding in forma pauperis, the Court is 

reviewing his Complaint (Doc. 1) under 28 U.S.C. § 1915(e)(2)(B). 

Under § 1915(e)(2)(B)(i), a claim may be dismissed as “frivolous 

where it lacks an arguable basis either 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 Atlantic Corp. v. Twombly, 550 U.S. 

544, 557, 127 S. Ct. 1955, 1966, 167 L. Ed. 2d 929 (2007). “A 

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, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 

L. Ed. 2d 868 (2009). That is, “[f]actual allegations must be 

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enough to raise a right to relief above the speculative level” 

and must be 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 brackets in 

original). But “[t]hreadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not 

suffice.” Iqbal, 556 U.S. at 678, 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, 595-96, 30 L. Ed. 2d 652 (1972), but it 

does not have “license . . . to rewrite an otherwise deficient 

pleading in order to sustain an action.” GJR Invs. v. County of 

Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled 

on other grounds by Randall v. Scott, 610 F.3d 701, 710 (11th 

Cir. 2010) (relying on Iqbal, 556 U.S. 662, 129 S. Ct. 1937). 

Furthermore, while a court treats as true factual allegations, 

it does not treat as true conclusory assertions or a recitation 

of a cause of action’s elements. Iqbal, 566 U.S. at 681, 129 S.

Ct. at 1951. In addition, 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. Analysis.

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As noted supra, in this § 1983 action, Hill names the State 

of Alabama as the sole defendant. Section 1983 requires a 

“person” be named as a defendant. 42 U.S.C. § 1983; see Parratt 

v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1913, 68 L. Ed.

2d 420 (1981) (in order to state a claim under § 1983, a 

plaintiff must be deprived of a federal right by a “person” 

acting under color of state law), overruled on other grounds, 

Daniels v. Williams, 474 U.S. 327 (1986). A state, however, is 

not a “person” for the purpose of a § 1983 action. Will v. 

Michigan Dep’t of State Police, 491 U.S. 58, 109 S. Ct. 2304, 

2312, 105 L. Ed. 2d 45 (1989). Thus, this action against 

Defendant State of Alabama is frivolous as a matter of law and 

is due to be dismissed.

Furthermore, an alternate ground for dismissing this action 

exists. That is, the State of Alabama is entitled to the 

Eleventh Amendment’s sovereign immunity. The Eleventh Amendment 

“prohibits federal courts from entertaining suits by private 

parties against States and their agencies.” Alabama v. Pugh, 

438 U.S. 781, 781, 98 S. Ct. 3057, 3057, 57 L. Ed. 2d 1114 

(1978) (ruling the Eleventh Amendment barred an action against 

the State). The two exceptions to sovereign immunity are if the 

state has waived its immunity or Congress has abrogated the 

state’s immunity. Va. Office for Prot. & Advocacy v. Stewart,

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___ U.S. ___, ___, 131 S. Ct. 1632, 1637-38, 179 L. Ed. 2d 675

(2011); Carr v. City of Florence, Ala., 916 F.2d 1521, 1524 

(11th Cir. 1990); Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 

2003). Alabama, however, has not waived its Eleventh Amendment 

immunity. Pugh, 438 U.S. at 782, 98 S.Ct. at 3057-58 (finding 

Article I, § 14, of the Alabama Constitution prohibits Alabama 

from giving its consent and therefore the State of Alabama was 

entitled to Eleventh Amendment immunity); Lancaster v. Monroe 

County, Ala., 116 F.3d 1419, 1429 (11th Cir. 1997) (holding 

Alabama has not waived its Eleventh Amendment immunity). Nor 

has Congress in § 1983 abrogated a state’s Eleventh Amendment 

immunity. Carr, 916 F.2d at 1525 (citing Quern v. Jordan, 440 

U.S. 332, 345, 99 S. Ct. 1139, 1147, 59 L. Ed. 2d 358 (1979)); 

see Sossamon v. Texas, ___U.S. ___, ___, 131 S. Ct. 1651, 1658, 

19 L. Ed. 2d 700 (2011) (ruling that the test for determining 

whether a state has waived its sovereign immunity is a stringent 

one that requires the relevant statute to unequivocally express 

the state’s consent to be sued); see generally Bendolph v. 

Alabama, CA No. 13-0154-WS-N, 2013 WL 4501345, at *3 (S.D. Ala. 

Aug. 22, 2013) (unpublished).

IV. Conclusion.

Based upon the foregoing reasons, it is recommended that 

this action be dismissed with prejudice, prior to service of 

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process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who 

objects to this recommendation or anything in it must, within 

fourteen (14) days of the date of service of this document, file 

specific written objections with the Clerk of this Court. See

28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. 

The parties should note that under Eleventh Circuit precedent, 

“the failure to object limits the scope of [] appellate review 

to plain error review of the magistrate judge’s factual 

findings.” Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 

2013). In order to be specific, an objection must identify the 

specific finding or recommendation to which objection is made, 

state the basis for the objection, and specify the place in the 

Magistrate Judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the Magistrate 

Judge is not specific.

DONE this 16th day of April, 2015.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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