OPINION AND ORDER
MYRON H. THOMPSON, District Judge.
Plaintiff Jason Murphy brings this lawsuit against defendants Bill Franklin (in his individual capacity as Sheriff of Elmore County, Alabama) and Gary Bowers (in his individual capacity as administrator of the Elmore County Jail) under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983. Murphy alleges that, as a pretrial detainee in Elmore County Jail, he was subjected to treatment that was punitive, degrading, inhumane, and which served no valid penological purpose, and that he was afforded no hearing or other avenue to object to such treatment when it occurred.
I.
According to Murphy,
he was detained in the Elmore County Jail after being arrested by the Elmore County Sheriffs Department on December 30, 2003. Without explanation, he was moved into a ‘lock-down’ cell for one day, in which his right hand was cuffed to the frame of his cot and his right leg was shackled to the other end of the cot’s frame. Again without explanation, he was then moved to an isolation cell, where he was shackled hands-to-feet to the toilet, which is actually nothing more than a hole in the ground covered by a grate. He was held in this configuration for almost 12 days and was not released to allow urination or defecation, which caused him to soil himself. He was also not given any personal necessities such as clean, dry clothing, personal hygiene items, or bedding.
II.
Franklin and Bowers filed a motion to dismiss that was referred to a magistrate judge. In her recommendation, the magistrate judge recommended that the ease be dismissed with prejudice in its entirety. She explained that the Fifth Amendment claims were improper because that amendment applies only to the federal government and that all claims for punitive damages should be dismissed under the Eleventh Amendment. She also explained that the Fourth Amendment claims failed because claims involving mistreatment of pretrail detainees are governed by the due process clause of the Fourteenth Amendment. With respect to the Fourteenth Amendment claims, the magistrate judge found that Murphy’s complaint failed to meet the heightened pleading requirement that the Eleventh Circuit Court of Appeals has developed for § 1983 cases and failed to state a claim for a violation of his procedural-due-process rights.
Murphy filed objections to the magistrate judge’s recommendation, arguing that the recommendation erred in concluding that the Fourteenth Amendment claims should be dismissed. He may also have objected to the magistrate judge’s conclusion that the Fourth Amendment claims should be dismissed.
III.
For the reasons that follow, the court will sustain Murphy’s objection with respect to the substantive-due-process claim and overrule his objection with respect to the procedural-due-process claim. To the extent Murphy objected to the magistrate judge’s recommendation on the Fourth Amendment claims, that objection will also be overruled. Although Murphy did not raise this objection, the court will also depart from the magistrate judge’s recommendation to the extent it suggests dismissing the claims for punitive damages.
A. Substantive Due Process
Section 1983 claims may not proceed under a theory of respondeat superi
or.
Belcher v. City of Foley,
30 F.3d 1390, 1396 (11th Cir.1994). Thus, Murphy may proceed against the defendants only under supervisory liability, which arises either when the supervisor personally participates in the alleged constitutional violation or when the actions of the supervising official are causally connected to the alleged constitutional violation.
Gonzalez v. Reno,
325 F.3d 1228, 1235 (11th Cir.2003). The complaint does not allege that Bowers or Franklin personally participated in the alleged misconduct, so Murphy may proceed only under supervisory liability premised on a causal connection.
“A causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so, or when the supervisor’s improper custom or policy resulted in deliberate indifference to constitutional rights.”
Id.
(internal quotations and citation omitted). A causal connection can also be established if allegations support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.
Id.
Murphy’s complaint alleges that Franklin promulgates all policies and procedures at the Elmore County Jail and that Bowers supervises the jail. It also alleges that Franklin ordered Murphy removed from his cell for an interview and then reshackled to the toilet grate.
The magistrate judge concluded that these facts were not sufficient to meet the heightened pleading requirement established by the Eleventh Circuit in § 1983 cases premised on supervisory liability.
Passmore Swann v. S. Health Partners, Inc.,
388 F.3d 834, 837 (11th Cir.2004). Although the complaint alleges that Franklin promulgated, and Bowers implemented, official policies at Elmore County Jail, it does not allege that Murphy was subjected to mistreatment pursuant to any specific official policy. Thus, the complaint fails to explicitly state a key step in the logical chain of supervisory liability.
However, at least with respect to Franklin, the court believes the complaint alleges facts that outline a theory of supervisory liability with sufficient specificity. If Franklin ordered Murphy shackled to the toilet grate for no apparent reason on one occasion, a reasonable inference arises that he was at least aware of the policy or practice of shackling inmates in that exact manner as punishment for breaking jail rules and did nothing to stop it. Moreover, it is obvious from reading the complaint that Murphy’s claim is premised on the understanding that his mistreatment occurred pursuant to an official policy promulgated by Franklin and implemented by Bowers. Though the complaint fails to explicitly say so, the court does not find it appropriate to bar all possibility of relief for what may be egregious violation of Murphy’s civil rights based solely on a technical oversight in his complaint.
Accordingly, the court will sustain Murphy’s objection to the magistrate judge’s recommendation to dismiss this claim with prejudice. Instead, the court will grant Murphy leave to amend his complaint to include specific details regarding the missing step in the chain of supervisory liability. When he amends his complaint, Murphy may also find it helpful to reference the numerous allegations by other inmates at Elmore County Jail that detail almost identical treatment,
see supra
note 1, as that information could support a constructive notice theory of supervisory liability to buttress his causal connection theory of supervisory liability.
B. Procedural Due Process
Murphy contends he was denied procedural due process because he was punished without an adequate hearing.
His reliance on
Bell v. Wolfish,
441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), to support this argument is misplaced. The discussion in
Bell
makes clear that any such punishment of a pretrial detainee without adequate hearings is a violation of substantive due process, not procedural due process.
See id.
at 534-35, 99 S.Ct. 1861 (noting that right to be free from punishment in pretrial context is a fundamental liberty interest and referencing the substantive due process rights of a parent to choose their child’s education, marital privacy, and bodily privacy). Therefore, Murphy’s due process claim, to the extent it relies on a theory of punitive steps taken against a pretrial detainee without any hearing, is actually a substantive due process claim, not a procedural due process claim.
Murphy’s complaint also states that he was denied procedural due process because the jail did not create official administrative remedies for such mistreatment and his unofficial complaints were ignored. However, “a procedural due process violation is not complete unless and until the State fails to provide due process.”
McKinney v. Pate,
20 F.3d 1550, 1557 (11th Cir.1994). A state “may cure a procedural deprivation by providing later procedural remedy; only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise.”
Id.
Murphy’s complaint does not allege that all state remedies were foreclosed to him. Although he alleges that any administrative remedies at the jail were exhausted, he does not claim that he was barred from seeking relief from the state courts. In fact, a state-law remedy was available to him. Although a sheriff and the sheriffs subordinates are granted immunity from state-law actions for personal liability arising from their actions and omissions in their official capacities, the sheriff is subject to state-law actions “to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of the law.”
Boshell v. Walker County Sheriff,
598 So.2d 843, 844 (Ala. 1992) (citing
Parker v. Amerson,
519 So.2d 442, 445 (Ala.1987)). The alleged conduct here certainly seems to fall within this exception, so a state court could have awarded Murphy injunctive relief.
If this court entertained Murphy’s procedural-due-process claim, it would foreclose the state’s ability to remedy “the procedural failings of its subdivisions and agencies in the appropriate fora-agencies, review boards, and state courts.”
Pate,
20 F.3d at 1560. “The appropriate forum for addressing [Murphy’s] claim is not a federal court but [an Alabama] state court possessing the ability to remedy the alleged procedural defect; that forum might well have prevented a violation of [Murphy’s] procedural due process rights.”
Id.
at 1561.
Thus, Murphy has not stated a claim for a violation of his procedural-due-process rights. Accordingly, his objection to the magistrate judge’s recommendation to dismiss his procedural-due-process claim under the Fourteenth Amendment will be overruled.
C. Fourth Amendment
The Eleventh Circuit has held that any claims involving mistreatment of pretrial detainees while they are in custody are governed by the due process clause of the Fourteenth .Amendment.
Cottrell v. Caldwell,
85 F.3d 1480, 1490 (11th Cir.1996). Therefore, the magistrate judge did not err in concluding that the Fourth Amendment claims are due to be dismissed.
D. Punitive Damages
Franklin and Bowers argue that punitive damages are barred by the
Eleventh Amendment because they are executive officers of the State. Although punitive damages are not available against state officers being sued in their official capacities,
see Colvin v. McDougall,
62 F.3d 1316, 1319 (11th Cir.1995), they are available against such officers being sued in their individual capacities under § 1983.
See Smith v. Wade,
461 U.S. 30, 35-36, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). This suit is against Franklin and Bowers in their individual capacities. Therefore, their motion to dismiss will be denied as to the request for punitive damages.
For the foregoing reasons, it is ORDERED as follows:
(1) Plaintiff Jason Murphy’s objections (Doc. No. 13) are sustained in part and overruled in part.
(2) The magistrate judge’s recommendation (Doc. No. 12) is adopted in part and rejected in part.
(3) Plaintiff Murphy is granted leave to amend his complaint within 14 days, but only with respect to his Fourteenth Amendment substantive-due-process claim.
(4) Defendants Bill Franklin and Gary Bowers’s motion to dismiss (Doc. No. 7) is granted as to plaintiff Murphy’s Fourth Amendment, Fifth Amendment, and Fourteenth Amendment procedural-due-process claims and is denied as to plaintiff Murphy’s Fourteenth Amendment substantive-due-process claim and claim for punitive damages arising from that claim. Defendants Franklin and Bowers may renew their motion to dismiss as to the Fourteenth Amendment substantive-due-process claim when plaintiff Murphy has amended his complaint.
It is further ORDERED that this cause is referred back to the magistrate judge for further appropriate proceedings.
RECOMMENDATION OF THE MAGISTRATE JUDGE
DELORES R. BOYD, United States Magistrate Judge.
After due consideration of the parties’ submissions and the applicable law, the Magistrate Judge concludes that
Defendants’ Motion to Dismiss,
filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. 7, March 22, 2005), should be granted.
I. BACKGROUND
On December 20, 2004, Plaintiff Jason Murphy (“Murphy”) filed this 42 U.S.C. § 1983 (“Section 1983”) action for declaratory and monetary relief arising from alleged violations of rights secured by the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States, all occurring during his incarceration as a pre-trial detainee in the Elmore County Jail between December 30, 2003, and June 28, 2004. Named as defendants are Elmore County Sheriff Bill Franklin (“Sheriff Franklin”) and Elmore County Jail Administrator Gary Bowers (“Bowers”), each sued individually.
Murphy complains about “punitive” conditions of his confinement between December 30, 2003, and March 15, 2004, following an alleged infraction of jail rule. Moved from his cell initially to a “lockdown” cell, at the direction of defendant Bowers, Murphy claims to have been shackled for a full day in a manner which did not facilitate restroom breaks and personal hygiene needs.
Removed to a padded isolation cell, he remained shackled and handcuffed,
with his “hands secured to his feet, and his feet ... secured to a ‘Chinese toilet,’ which consisted of a hole covered with a grate in the floor of the cell.” Described as filthy and unsanitary, this toilet “could only be flushed from outside the cell and only by a person who was not incarcerated and who was inclined to flush it.”
Murphy claims the defendants provided inadequate medical attention to his wrists which were “cut and bleeding ... as a result of the painful chafing of the handcuffs,” and he “was left so shackled and cuffed and suffering pain” from December 31 until January 12, when he was interviewed outside the cell. Afterwards, Sheriff Franklin ordered him “reshackled to the floor drain ... with his hands secured to his feet;” though freed the next day from the drain, he remained handcuffed “toward the end of January” and shackled until the end of February.
While confined in this isolation cell until March 15, 2004, with “only a thin mattress and, and for most of his time ..., no blanket or other cover,” Murphy alleges that he was not permitted to exercise; not provided a change of underwear and items of necessary personal hygiene; and denied telephone calls or writing materials. Nor did he receive “written notice of why he was being punished” or “the opportunity to contest his treatment.” On June 28, 2004, he complained to no avail
about the conditions which resulted in the extreme pain and discomfort, physical injuries, embarrassment, humiliation, severe mental anguish and emotional distress, for which he seeks damages.
II. STANDARD OF REVIEW:
Rule 12(b)(6) Dismissal
A Rule 12(b)(6) motion challenges the legal sufficiency of a complaint, and dismissal should be granted under this rule only if the movant demonstrates “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson,
355 U.S. 41, 45-6, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957);
accord, Hishon v. King & Spalding,
467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984);
Hughes v. Rowe,
449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980);
Fuller v. Johannessen,
76 F.3d 347, 349-350 (11th Cir.1996). For the threshold review presented by a Rule 12(b)(6) motion, “[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.”
Scheuer v. Rhodes,
416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974);
accord, Swierkiewicz v. Sorema, N.A.,
534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002);
Brandt v. Bassett,
69 F.3d 1539, 1550 (11th Cir.1995).
The court must accept as true the plaintiffs factual allegations, draw all reasonable inferences in the plaintiffs favor, and construe the pleadings liberally so as to do substantial justice.
Conley v. Gibson,
355 U.S. at 48, 78 S.Ct. 99;
Hishon, id,; Fuller v. Johannessen, id.
The duty to construe a complaint liberally, however, is not the equivalent of a duty to re-write the complaint.
Conley, id., Peterson v. Atlanta Hous. Auth.,
998 F.2d 904, 912 (11th Cir.1993). Only “well-pleaded facts” and “reasonable inferences drawn from those facts” should be accepted,
Oladeinde v. City of Birmingham,
963 F.2d 1481, 1485 (11th Cir.1992). “[Unsupported conclusions of law or of mixed fact and law have long been recognized not to prevent a Rule 12(b)(6) dismissal.”
Marsh v. Butler County,
268 F.3d 1014, 1036 n. 16 (11th Cir.2001).
III. DISCUSSION
Murphy concedes that his Fifth Amendment claims are due to be dismissed on the asserted ground that the Amendment applies only to the federal government.
Though not addressed at all in Murphy’s response, Defendants maintain correctly that claims for punitive damages are due to be stricken.
Disputed are Defendants’ contentions (a) that
Graham v. Connor,
490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) dictates dismissal of Fourth Amendment claims; and (b) that Fourteenth Amendment claims fail to satisfy pleading requirements for Section 1983 cases involving qualified immunity, and even if they did, the defendants are entitled to qualified immunity. Because the court concludes that the Section 1983 claims do not survive the heightened pleading standard required for supervisory officials asserting qualified immunity, no discussion of the qualified immunity defense is necessary.
A.
Fourth Amendment Claims
In reliance on
Graham v. Connor,
490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), Defendants maintain correctly that the Fourteenth Amendment’s “due process clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” Murphy’s response is somewhat ambiguous:
It is agreed that claims of excessive force asserted by pretrial detainees are governed by a substantive due process standard. This tenet is thoroughly examined not only in
Graham v. Conner [Connor]
but in numerous cases within the 11th Circuit.
See, Cottrell v. Caldwell,
85 F.3d 1480 (11th Cir.1996). However, as the Supreme Court points out in
Graham,
issues concerning pretrial detainees create a mix of substantive and procedural due process. * * * This considered, although the plaintiff agrees that
Graham v. Conner [Con-nor]
is instructional in examinations of the Fourth Amendment relevant to pretrial detainees, the Court certainly does not intend to make the Due Process Clause of the Fourteenth Amendment exclusive.
Because the controlling law is clearly established, however, the court readily concurs that the complaint does not trigger any Fourth Amendment analysis.
Cottrell v. Caldwell,
85 F.3d 1480 (11th Cir.1996) (“Claims involving the mistreatment of ... pretrial detainees in custody are governed by the Fourteenth Amendment’s Due Process Clause ... ”).
B. Fourteenth Amendment Claims: Pleading Specificity
In principal reliance on
GJR Investments, Inc. v. County of Escambia,
132 F.3d 1359, 1367 (11th Cir.1998), Defendants argue that the “individual capacity claims against [them] are due to be dismissed as the Complaint, on its face, does not meet the Eleventh Circuit’s pleading standard for 1983 cases involving qualified immunity”:
The Plaintiffs Complaint contains little more than conclusory allegations * * * Because the Plaintiff has failed to allege with any degree of particularity or specificity the acts or omissions of Franklin and Bowers directly affecting the Plaintiff, and has left out crucial facts within
his possession that factor heavily into these Defendants’ entitlement to qualified immunity, the Complaint is due to be dismissed.
While acknowledging the cited cases, Murphy argues that the Circuit’s standard “seems to fly in the face of
Leatherman v. Tarrant County, et al,
507 U.S. 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993):
In
Leatherman
the Court opines specifically that a federal court may not apply a “heightened pleading standard” more stringent than the usual pleading requirements of Federal Rules of Civil Procedure, Rule 8(a). Federal Rules of Civil Procedure, Rule 8(a)(2) simply requires that a complaint include a short and plain statement of the claim showing that the pleader is entitled to relief.
Close scrutiny of the controlling case law does not disclose the conflict suggested, and in fact, any perceived conflict is laid to rest by the circuit court’s careful reading of
Leatherman
in
GJR Investments,
132 F.3d 1359 at 1368:
We stress at this point, ... that the heightened pleading requirement is the law of this circuit.... Although the Supreme Court has held that courts may not impose a heightened pleading requirement in § 1983 cases involving municipalities,
see Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit,
507 U.S. 163, 167-68, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993), the Court specifically declined to extend its holding to cases involving individual government officials,
see id.
at 167, 113 S.Ct. at 1162, and we likewise decline to do so here.
Circuit caselaw since
GJR Investments
affirms that the “heightened pleading” standard governs Murphy’s complaint against the supervisory county officials who have asserted their qualified immunity against the claims in this Section 1983 case.
The court thus proceeds to apply this standard in examining the allegations against Sheriff Franklin and Jail Administrator Bowers.
Murphy describes each defendant as “a person whose conduct proximately and directly harmed” him
(Compl.
¶¶ 4-5); identifies the Sheriff as the official responsible for “general supervision” of the jail, ... “who supervises all personnel and who establishes and promulgates all policies and procedures”
(Compl.
¶ 10); and attributes to Bowers the “direct supervision” of the jail
(Compl.
¶ 11). Among the additional facts in ¶¶ 7-35 of the complaint, however, these defendants are named again in only the following three paragraphs:
12. On or about December 30, 2003, as a result of an alleged infraction of jail rules, Plaintiff was taken from his cell
at the direction of Bowers
and put in a “lockdown” cell.
18. Plaintiff was left so shackled and cuffed and suffering pain from December 31, 2004, until January 12, 2004, when
Franklin ordered Plaintiff removed from his cell for an interview.
Following the interview, Franklin ordered that Plaintiff be reshackled to the floor drain as before, with his hands secured to his feet.
35. Plaintiff exhausted all available administrative remedies.
Bowers and Franklin denied him relief.
(iemphasis
supplied)
Murphy fails to attribute to either defendant any actionable wrongdoing for his role in either imposing or implementing discipline in response to an infraction by Murphy which is not here denied; nor does he attach any legal impropriety to the fact that both denied the relief he requested in the administrative process. Moreover, Murphy’s litany of unconstitutional conditions suffered during his disciplinary confinement — from the handcuffing and shackling which prevented access to restrooms, hygiene, and recreation to the denial of telephone and other communication privileges — involved no participation by, or specific notice to, these supervisory defendants. Murphy specifies no act or omission by these defendants as unconstitutional; no facts allege particularized conduct by either which should be evaluated.
In response to defendants’ contention that his complaint falls well short of the heightened pleading standard, Murphy states that he “makes no claim under a theory of
respondeat supeñor”
and, instead, posits supervisory liability because they “allegedly participated in the violation of the plaintiffs constitutional rights by directing, authorizing, or condoning the deprivation through their policies and/or practices. This participation was more than casual and clearly related to the alleged deprivations.”
This court has carefully considered the specific allegations highlighted to demonstrate these supervisory defendants’ culpability — for Jail Administrator Bowers, ¶¶ 11, 12, 44, and 49, and for Sheriff Franklin, ¶¶ 10, 18, 55, 56, 57, 63, and 68 (Compl. at 8-9) — in the context of the controlling law. The conclusion is inescapable that no facts are specified sufficiently for individual liability against Sheriff Franklin and Jail Administrator Bowers’ for either personal conduct resulting in a constitutional deprivation or for supervisory action causally linked to the alleged constitutional deprivation.
Though attributed to the defendants, no “policies and/or practices” are detailed as the basis for these defendants’ “directing, authorizing, or condoning” the deprivation of Murphy’s constitutional rights.”
Murphy does not allege that either defendant implemented or condoned any standard or routine policy or practice in the jail for pretrial detainees to be handcuffed, shackled, and otherwise mistreated for punitive purposes as alleged by Murphy; nor does he suggest any widespread abuse of pretrial detainees of which these defendants had reasonable notice.
Nor do any facts indicate that these supervisory defendants
participated in or directed discipline for Murphy which so exceeded authorized pe-nological purposes as to be only punitive in purpose.
At most, the cited paragraphs — construed most favorably to the plaintiff— relate the defendants’ supervisory responsibilities for operation of the jail and their “direction” for the imposition of discipline for Murphy’s breach of jail rules.
A general “direction” by Bowers that Murphy be disciplined by transfer from his cell to a lockdown cell is not the equivalent of a specific directive for Bowers to be handcuffed and shackled in the manner described or subject to any of the deprivations alleged.
Similarly, a general attribution to the Sheriff of responsibility for establishing and promulgating “all policies and procedures” (¶¶ 10, 55) does not establish that he established and promulgated any policy and procedure which directed or sanctioned punitive mistreatment of pretrial detainees in general or Murphy in particular. Murphy’s allegation in ¶ 56 that the Sheriff “had personal and official knowledge of how Plaintiff was treated” is a conclusion not premised on well-plead facts.
With respect to his claim against Bowers and Franklin for denial of “procedural due process rights” owed him as a pretrial detainee, Murphy contends that he was “provided no written notice of why he was being punished; ... not given the opportunity to contest his treatment; provided no hearing, either before the imposition of punishment or after the imposition of punishment; [and] provided no opportunity to object to his punishment.”
His status as a pretrial detainee insulates him from detention “conditions and restrictions [which] amount to punishment or otherwise violate the Constitution,” Murphy reasons:
A detainee may not be punished prior to an adjudication of guilt.
(citation omitted).
It follows that, allegations of inhumane treatment aside, any form of punishment imposed upon the plaintiff while he maintains his pre-trial detainee status must be construed as a denial of due process.......[T]he plaintiff has alleged that he was subjected to inhumane treatment and conditions by Bowers and Franklin ... the treatments and conditions were not intended to fulfill any articulable penological purpose ...
In addition to the erroneous suggestion that all conditions imposed on a pretrial detainee constitute punishment,
Murphy’s proposition suffers from his failure to allege in the complaint any inadequacy either in the due process provided in the administrative remedies he exhausted or in any other state remedies
:
[A] procedural due process violation is not complete ‘unless and until the State fails to provide due process.’
(citation omitted)
In other words, the state may cure a procedural deprivation by providing a later procedural remedy; only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise.
McKinney v. Pate,
20 F.3d 1550, 1557-1564 (11th Cir.1994)
(en banc
)
IV. CONCLUSION
Because the Complaint fails to state a claim for which relief can be granted against the supervisory defendants pursuant to the claims asserted under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, it is the Recommendation of the Magistrate Judge that Defendants’ Rule 12(b)(6) Motion to Dismiss(Doc. 7) be GRANTED and that this Section 1983 cause of action be DISMISSED WITH PREJUDICE.
It is further
ORDERED that the parties shall file any objections to the said Recommendation before October 17, 2005. Any objections filed must specifically identify the findings in the Magistrate Judge’s Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file written objections to the proposed findings and advisements in the Magistrate Judge’s Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice.
Nettles v. Wainwright,
677 F.2d 404 (5th Cir.1982).
See Stein v. Reynolds Securities, Inc.,
667 F.2d 33 (11th Cir.1982).
See also Bonner v. City of Prich
ard,
661 F.2d 1206 (11th Cir.1981,
en
banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30,1981.
Done this 3rd day of October, 2005.