OPINION AND ORDER
ANDREW L. BRASHER, District Judge.
This matter comes before the court on Defendants Kenneth Harmon and Corry McCartney's Motion to Dismiss the Complaint. (Doc. 15).
Plaintiff Orrilyn Stallworth, an African-American woman, filed this suit against four police officers under 42 U.S.C. § 1983 for false arrest and malicious prosecution. The Complaint alleges that Defendant Rodney Hurst, a Chilton County Sheriff's Deputy, stopped Plaintiff's car one night without a legitimate justification. (Doc. 1 ¶¶ 10-13). He was soon joined on the side of the road by Defendant Matt Foshee, a Clanton police officer, and another unknown deputy. Id. ¶¶ 12-14. According to the Complaint, the officers detained Plaintiff on the ground that Hurst "smelled alcohol" and "smelled marijuana" in Plaintiff's car, even though Plaintiff had not consumed alcohol or used marijuana. Id. ¶¶ 15-16. Plaintiff allowed these three officers to search her vehicle, but they found nothing. Id. ¶ 18. Nonetheless, these three officers arrested the Plaintiff, impounded her vehicle, tested her for alcohol and/or drugs, and charged her with driving under the influence. Id. ¶¶ 15-26. Plaintiff was released from jail when she made bail, and the criminal charge was later dismissed with prejudice on the government's motion. Id. ¶¶ 27-30. Plaintiff contends that this unjustified arrest and prosecution was caused, at least in part, by racial animus. Id. ¶ 31.
At the time of Plaintiff's arrest, Defendant Kenneth Harmon was the shift or watch commander and Defendant Corry McCartney was the Sheriff's supervisor. (Doc. 1 ¶ 22). The Complaint alleges that these supervisors "caused or contributed to cause the unlawful, wrongful, and malicious arrest, imprisonment, and prosecution of plaintiff in that, despite a clear duty and obligation to do so, they culpably and deliberately failed or refused to review the evidence concerning plaintiff's arrest and detention, [and] culpably failed to supervise the actions of [the other] defendants." Doc. 1 ¶ 28 (emphasis added).
The police officers who allegedly stopped and arrested Plaintiff filed Answers to the Complaint (Docs. 14 & 21). But Defendants Harmon and McCartney moved to dismiss the Complaint under Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim upon which relief may be granted. (Doc. 15). Specifically, they argue that supervising officers do not have a duty to investigate the basis of an arrest based on conduct that they did not witness or observe.
Plaintiff brings § 1983 claims against all Defendants for unlawful arrest (Count 1 of the Complaint) and malicious prosecution (Count 2 of the Complaint). An arrest made without probable cause is a violation of an arrestee's clearly established Fourth Amendment rights and a tort under § 1983. See Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir. 1998). Similarly, our Circuit has identified malicious prosecution as a violation of the Fourth Amendment and a viable constitutional tort cognizable under § 1983. See Uboh v. Reno, 141 F.3d 1000, 1002-04 (11th Cir. 1998). See also Delchamps, Inc. v. Bryant, 738 So.2d 824, 831-32 (Ala. 1999) (malicious prosecution is also state-law tort).
However, "[i]t is well established in this Circuit that supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability." Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (internal quotation marks omitted). Instead, for a supervisor to be liable for the acts of his or her subordinate, a § 1983 plaintiff must show that "the supervisor either directly participated in the unconstitutional conduct or that a causal connection exists between the supervisor's actions and the alleged constitutional violation." Keith v. DeKalb Cty., Georgia, 749 F.3d 1034, 1047-48 (11th Cir. 2014). "The necessary causal connection can be established when [1] a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation," [2] "when a supervisor's custom or policy" caused the deprivation of constitutional rights, or [3] "when facts 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." Cottone, 326 F.3d at 1360. In short, "the standard by which a supervisor is held liable in [his] individual capacity for the actions of a subordinate is extremely rigorous." Id.
The Complaint does not allege facts that fit any of these three bases for supervisor liability. It does not allege that Defendants ordered their subordinates to arrest or press charges without probable cause. It does not complain about a policy of doing so. And it does not assert any facts that would suggest widespread abuse such that these supervisors would be on notice of the need for corrective action.
Instead, the Complaint alleges that Defendants Harmon and McCartney are liable for what they failed to do, not for what they did. Specifically, the Complaint alleges that Harmon and McCartney failed "to review the evidence concerning plaintiff's arrest and detention." (Doc. 1 ¶ 28). The problem is that the Eleventh Circuit has already held that such allegations are insufficient to establish supervisor liability in a § 1983 case like this one. In no uncertain terms, the Eleventh Circuit has held that "[t]here is no constitutional requirement for a supervising officer to complete a full on-scene investigation of the basis for an arrest for conduct he did not observe." Wilkerson v. Seymour, 736 F.3d 974, 980 (11th Cir. 2013). Here, Defendants Harmon and McCartney were not present during Plaintiff's arrest when Defendant Hurst claimed to smell alcohol and marijuana. The Complaint also does not allege that Defendants Harmon or McCartney had any knowledge of why Plaintiff was arrested or whether Defendant Hurst's statements were pretext for discrimination. Without something more, Defendants Harmon and McCartney had no duty to investigate the basis of an arrest that they did not observe or participate in. See id.
Apart from the allegation that Defendants Harmon and McCartney did not investigate the evidence underlying the Plaintiff's arrest and detention, the Complaint says very little about them. The Complaint includes boilerplate language asserting that each supervisor was "deliberately indifferent to the impropriety of the detention and arrest of plaintiff and the lack of probable merit of the case against plaintiff, and they deliberately failed to intervene in the process of plaintiff's detention to prevent her incarceration and imprisonment." (Doc. 1 ¶¶ 34, 39). But these statements are nothing more than bare, conclusory allegations. There are no plausible facts to support them. Such "labels and conclusions" are nothing more than "a formulaic recitation of the elements of a cause of action" and are insufficient to survive a motion to dismiss. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
In short, the Complaint fails to state a claim against Defendants Harmon and McCartney. However, it is possible that Plaintiff may be able to allege additional facts that go beyond the Complaint's present allegations. Accordingly, the Complaint will be dismissed without prejudice and the Plaintiff will be given 21 days to amend.
For the foregoing reasons, the court ORDERS as follows:
1. Defendants Harmon and McCartney's Motion to Dismiss (Doc. 15) is GRANTED.
2. Counts One and Two of the Plaintiff's Complaint (Doc. 1) against Harmon and McCartney are DISMISSED WITHOUT PREJUDICE.
3. It is ORDERED that Plaintiff has leave until July 16, 2019, to file an amended complaint that makes sufficient allegations to state a claim against Harmon and/or McCartney.
DONE and ORDERED.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 S.Ct. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 S.Ct. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
