CHARLES S. COODY, Magistrate Judge.
In this 42 U.S.C. § 1983 action, the pro se plaintiff James H. Shortz ("Shortz") complains that defendants Ray Smith and Michele Kilday violated his First Amendment rights when he was denied a meeting room in the Phenix City-Russell County Publix Library. The plaintiff presents a variety of allegations against various defendants including the City of Phenix City, Prosecutor Joe Edwards, Chief of Police Ray Smith, Officer Jessica Carter, City Engineer John Gwin, Officer S. Frederick, and Library Director Michele Kilday. He sues them in their official and individual capacities. The court has jurisdiction of these claims under 28 U.S.C. § 1331 pursuant to its federal question jurisdiction.
On September 2, 2014, the plaintiff filed an amended complaint setting forth his allegations in more detail. This case is now pending before the court on the defendants' motion to dismiss (doc. #38) in which they each assert that the plaintiff has failed to state any claim upon which relief can be granted. They each assert that they are entitled to absolute or qualified immunity based on their particular position. On October 9, 2014, the plaintiff filed a response to the defendants' motion to dismiss. (Doc. #42). After carefully reviewing the defendants' motion to dismiss and the plaintiff's response to the motion, the court concludes that the motion to dismiss is due to be granted in part and denied in part.
In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court must accept well-pled facts as true, but the court is not required to accept a plaintiff's legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009) ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions"). In evaluating the sufficiency of a plaintiff's pleadings, the court must indulge reasonable inferences in plaintiff's favor, "but we are not required to draw plaintiff's inference." Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). Similarly, "unwarranted deductions of fact" in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff's allegations. Id.. See also Iqbal, 556 U.S. at 681 (stating conclusory allegations are "not entitled to be assumed true").
A complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face. See Iqbal, 556 U.S. at 679 (explaining "only a complaint that states a plausible claim for relief survives a motion to dismiss"); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561-62, 570 (2007) (retiring the prior "unless it appears beyond doubt that the plaintiff can prove no set of facts" standard). In Twombly, the Supreme Court emphasized that a complaint "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. at 555. Factual allegations in a complaint need not be detailed but "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citations and emphasis omitted).
More recently, in Iqbal, the Supreme Court reiterated that although FED.R.CIV.P. 8 does not require detailed factual allegations, it does demand "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." 556 U.S. at 678. A complaint must state a plausible claim for relief, and "[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." Id. The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss. Id. at 679. The well-pled allegations must nudge the claim "across the line from conceivable to plausible." Twombly, 550 U.S. at 570.
Further, "[c]ourts do and should show a leniency to pro se litigants not enjoyed by those with the benefit of a legal education." GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Iqbal, 550 U.S. 662. A plaintiff's pro se status must be considered alongside the pleading requirements of Twombly and Iqbal. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). "A document filed pro se is `to be liberally construed,' and `a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Although the court is required to liberally construe Shortz's pleadings, see Hughes v. Rowe, 449 U.S. 5 (1980), the court does not have "license to serve as de facto counsel for a party . . . or to rewrite an otherwise deficient pleading in order to sustain a cause of action." GJR Inv., 132 F.3d at 1369 (citations omitted). The plaintiff's pleadings are not a model of clarity, and thus, it is difficult to describe his claims in any coherent fashion. Nonetheless, the court addresses each named defendant and the merits of any claims against that particular defendant.
Shortz sues the individual defendants in their official as well as their individual capacities. A plaintiff seeking to recover money damages against persons in their official capacities "must look to the government entity itself." Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also, Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999); Vineyard v. County of Murray, Ga., 990 F.2d 1207, 1210 n.3 (11th Cir. 1993); Owens v. Fulton County, 877 F.2d 947, 951 n.5 (11th Cir. 1989) ("For liability purposes, a suit against a public official in his official capacity is considered a suit against the local government entity he represents.") Thus, because the proper defendant in official action case is the local government entity, the claims against the individual defendants in their official capacities are due to be dismissed.
Shortz sues prosecuting attorney Joe Edwards. As city prosecutor, Edwards is immune from suit for actions taken in his prosecutorial capacity. See Imbler v. Pachtman, 424 U.S. 409, 427-28 (1976); Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999).
Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1279 (11th Cir. 2002). Thus, the law of this circuit is clear that state prosecutors are entitled to absolute immunity for actions taken during the development, initiation, prosecution, and presentation of a case. The actions of defendant Edwards about which the plaintiff complains relate to his role "as an `advocate' for the state" and his actions were taken in preparing for or participating in judicial proceedings. Mastroianni v. Bowers, 173 F.3d 1363, 1366 (11th Cir. 1999). Defendant Edwards is therefore "entitled to absolute immunity for that conduct," and he is due to be dismissed as a defendant in this action.
Although Shortz names Jessica Carter and S. Frederick as defendants in this action, his complaint fails to adequately establish a legal basis to support any claim against either Carter or Frederick. Shortz identifies no statutory grounds or other legal theory upon which a claim is based, and his complaint contains no allegations from which it could be inferred that Carter or Frederick took any action to deprive Shortz of his constitutional rights.
Liberally construing his complaint, Shortz alleges that Carter arrested him on a "warrant issued and executed having no probable cause,
Shortz concedes that there was a warrant issued for him. He admits that Carter arrested him pursuant to that warrant. Thus, the question is whether Carter's arrest of Shortz was reasonable. "[T]he fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner or, as we have sometimes put it, in "objective good faith."" United States v. Leon, 468 U.S. 897, 922-923 (1984). Messerschmidt v. Millender, ___ U.S. ___, ___, 132 S.Ct. 1235, 1245 (2012) (citation omitted). One exception to this rule exists when "it is obvious that no reasonably competent officer would have concluded that a warrant should issue." Id., quoting Malley v. Briggs, 475 U.S. 335, 341 (1986). But,
Messerschmidt, 132 S. Ct. at 1245 (citation omitted).
Shortz has not alleged any facts from which the court could conclude that the warrant for his arrest fell within the narrow exception such that Carter or any reasonable officer would have known that it should not have issued. The fact that Carter did not have the warrant in her possession is certainly not violative of the Constitution. Cf. United States v. Bembry, 321 F. App'x 892, 894 (11th Cir. 2009) (No. 08-13032) ("Because the arresting officer arrested. . . [the defendant] pursuant to a valid arrest warrant, he did not violate federal law when he did not have the warrant in hand or nearby"). Consequently, his arrest pursuant to that warrant was not violative of the Fourth Amendment, and he makes no further claim against defendant Carter.
The sole allegation against Frederick is that he erroneously documented information on a computer generated police report. Characterizing defendant Frederick's statements as "lies" is simply insufficient to state a federal claim. Merely stating that conduct was "unlawful" is nothing more than a legal conclusion entitled to no deference by the court. Iqbal, 556 U.S. at 680. In Twombly, the Supreme Court emphasized that a complaint "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. at 555. Moreover, although FED.R.CIV.P. 8 does not require detailed factual allegations, it does require "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. Shortz must do more than simply assert that he is entitled to relief from Frederick, and this he fails to do. His allegations regarding Frederick are wholly insufficient under Twombly, supra, and therefore, due to be dismissed.
Because Shortz has failed to adequate allege that defendants Carter and Frederick unlawfully deprived him of any rights under federal law, his complaint fails to state a claim against them, and Carter and Frederick are due to be dismissed as defendants in this action.
In his amended complaint, Shortz alleges that "John Gwin, Phenix City engineer, conspired to conceal the fact that Neil Koon forged land deeds, filed the forged deeds in the probate court of Russell County, Alabama and sold part of Plaintiff's one hundred fourteen (114) year old family estate." (Doc. #31 at 8). It appears that Shortz is attempting to state a claim against Gwin for a conspiracy with Koon to deprive him of his constitutional rights and property under color of state law in violation of 42 U.S.C. § 1983. See 42 U.S.C. § 1983 (establishing liability for the deprivation of constitutional rights under the color of state law); Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) (holding that an otherwise private person acts "under color of" state law, and may be subject to liability under §1983, when engaged in a conspiracy with state officials to deprive another of federal rights).
The timeliness of a § 1983 action is governed by the personal injury statute of limitations of the state in which the action arose, which, in Alabama, is two years from the time the cause of action accrues. ALA. CODE 1975 § 6-2-38(1); Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989). Generally, a cause of action accrues under § 1983 when the plaintiff knows or has reason to know that he has been injured and who inflicted the injury. Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987). This action was originally filed on June 19, 2014. (Doc. #1). Shortz attaches to his amended complaint exhibits consisting of a 2004 warranty deed (Doc. #31, Ex. 7) and a 1965 warranty deed (Doc. #31, Ex. 8). Accordingly, Shortz's § 1983 claim against Gwin is clearly barred by the two-year statute of limitations applicable to § 1983 actions in Alabama. See Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011) (holding that all constitutional claims brought under § 1983 are tort actions subject to the statute of limitations governing personal injury actions of the state in which the action has been brought, which, in Alabama, is two years). The motion to dismiss as it relates to Gwin is due to be granted, and Gwin is due to be dismissed as a defendant in this action.
The plaintiff sues the City of Phenix City, presumably for actions taken by city employees.
Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 690-691 (1978). In addition, however, "in an official-capacity suit the entity's "policy or custom" must have played a part in the violation of federal law." Kentucky, 473 U.S. at 166. "These policies may be set by the government's lawmakers, "or by those whose edicts or acts may fairly be said to represent official policy." McMillian v. Monroe County, Ala., 520 U.S. 781, 784-785 (1997). The plaintiff makes no allegations and presents no facts that the City had a policy, custom or practice that condoned any allegedly unlawful actions of its employees. Moreover, the plaintiff makes no allegation of improper training or supervision by the City. Accordingly, the City may be held liable only if its employees acted with final policymaking authority.
Brown, 188 F.3d at 1290. The plaintiff has stated no facts that would support a claim against the City.
Alternatively, "[a] city may be held responsible where the authorized policymakers `approve a subordinate's decision and basis for it.'" Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir. 1996); see also Ortega v. Christian, 85 F.3d 1521, 1526 (11th Cir.1996). The plaintiff's claims stem from acts of police officers and judicial officers. The plaintiff has presented no facts or raised any allegations that the city endorsed or approved the actions of the named defendants. Thus, the court concludes that any claims against the City are due to be dismissed.
In his amended complaint, the plaintiff alleges that defendants Ray Smith
In support of their motion to dismiss, Smith and Kilday asserts that they are entitled to qualified immunity for their actions because they was acting within the discretion of their authority. The doctrine of qualified immunity protects government officials sued in their individual capacities as long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009). "[Q]ualified immunity is a privilege that provides `an immunity from suit rather than a mere defense to liability.'" Bates v. Harvey, 518 F.3d 1233, 1242 (11th Cir. 2008) (quoting Saucier v. Katz, 533 U.S. 194, 200-01 (2001)). For this reason, the Supreme Court instructs courts to resolve "immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991); GJR Invs., 132 F.3d at 1370 (Noting it is "important for a court to ascertain the validity of a qualified immunity defense as early in the lawsuit as possible.").
District courts are no longer bound to follow the "inflexible" two-part inquiry for qualified immunity that had been required by Saucier, supra. Pearson, 555 U.S. 227. "The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 236. Under Saucier, the court first asked a "threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" 533 U.S. at 201. If the answer to that question was affirmative, the next question was "whether the right was clearly established . . . in light of the specific context of the case, not as a broad general proposition." Id. The court may still apply the two-part inquiry from Saucier when that "order of decision making will best facilitate the fair and efficient disposition of [the] case." Pearson, 555 U.S. at 242. However, lower courts have the discretion to decide in which order to ask those questions.
Any reasonable public official should know that denying Shortz permission to use a public library room based solely on the perceived content of his speech would violate his First Amendment rights. Consequently, at this stage, the defendants' motion to dismiss based on qualified immunity is due to be denied.
On September 30, 2014, the plaintiff filed a motion seeking a preliminary injunction enjoining the defendants from pursuing criminal charges against him and requesting a hearing on the motion to dismiss. (Doc. #41). For the reasons which follow, both motions are due to be denied.
A preliminary injunction is an extraordinary and drastic remedy which should not be granted unless the movant clearly carries the burden of persuasion as to all prerequisites. United States v. Jefferson County, 720 F.2d 1511 (11th Cir. 1983) (emphasis added).
A district court may grant injunctive relief only if the moving party shows that:
Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004) quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (per curiam).
The requesting party's failure to demonstrate a "substantial likelihood of success on the merits" may defeat the party's claim, regardless of its ability to establish any of the other elements. See Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994). Here, the court readily concludes that the plaintiff has failed to demonstrate a "substantial likelihood of success on the merits of his claim." Because Shortz seeks relief from adverse decisions issued by the state court which are not yet final, he is due no relief from this court on such claims as there is an adequate remedy at law.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge as follows:
(1) That the defendants' motion to dismiss (doc. #38) the claims against defendants the City of Phenix City, Joe Edwards, Jessica Carter, S. Frederick and John Gwin be GRANTED and these defendants be DISMISSED as defendants in this action.
(2) That the defendants' motion to dismiss the claims against defendants Ray Smith and Michele Kilday in their official capacities be GRANTED.
(3) That, with respect to the plaintiff's First Amendment claim against defendants Smith and Kilday in their individual capacities, the motion to dismiss be DENIED.
(4) That the plaintiff's motion for a preliminary injunction and motion for a hearing (doc. #41) be DENIED.
(5) That the remaining First Amendment claims against defendants Smith and Kilday be REFERRED back to the Magistrate Judge for further proceedings.
It is further
ORDERED that the parties shall file any objections to the said Recommendation on or before
Failure to file written objections to the proposed findings and recommendations in the Magistrate Judge's report shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report 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 Prichard, 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.
