Lietzke v. Bright et al (MAG+)

Filing 12

REPORT AND RECOMMENDATIONS of the Magistrate Judge that Lietzke's federal law claims be DISMISSED sua sponte without prejudice; further RECOMMENDS that the Court DECLINE to excerise supplemental jurisdiction over the state law claims; Objections to R&R due by 5/14/2007. Signed by Judge Wallace Capel Jr. on 5/1/2007. (wcl, )

Lietzke v. Bright et al (MAG+)

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Case 2:07-cv-00324-WHA-WC

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION B IL L LIETZKE, P l a in tif f , ) ) ) ) ) ) ) ) ) )

v. B O B B Y BRIGHT, et al., D e f e n d a n ts .

C IV IL ACTION NO. 2:07CV324-WHA

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is case is before the undersigned Magistrate Judge upon Plaintiff's filing of a " C o m p la in t" and an "Amended Complaint." Doc. #1, #9. For the reasons that follow, the u n d e rs ig n e d Magistrate Judge RECOMMENDS that the action be DISMISSED. I. BACKGROUND P lain tiff Bill Lietzke (" L ietz k e " ) , pro se, commenced this action on April 5, 2 0 0 7 , naming the City of Montgomery, Bobby Bright (Bright), Mayor of the City of M o n tg o m e r y , Art Baylor (Baylor), Chief of Montgomery Police Department, and all p o lice officers employed by the City of Montgomery " w h o [we]re responsible for all in c id e n ts stated [below]" (police officers) as Defendants. Am. Compl. (Doc. #9) at u n n u m b e r e d page 11. 1 Plaintiff' s Complaint, as amended, alleges that Defendants

Plaintiff's Complaint, as amended, repeatedly and consistently refers to Chief Baylor, Mayor Bright and the police officers as "City of Montgomery Defendants," which implies that Plaintiff brought this suit against them in their official capacities. E.g., Am. Compl. (Doc. #9) at unnumbered pages 2-3. In describing his claims, he also comments that "the officers were acting

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v io la te d his constitutional rights by subjecting him to harassment, unlawful searches a n d seizures, unlawful arrests, and unlawful detentions, committed a number of state law torts, including assault, battery, false imprisonment, negligence, and potentially in te n tio n a l infliction of emotional distress, as well as " fir s t degree criminal tr e s p a s s in g . " Am. Compl. (Doc. #9) at ¶ ¶ 1 - 2 0 , unnumbered page 11. Lietzke also c la im s that Defendants have violated his right to freedom of speech and freedom of a ss e m b ly . Id. at ¶ 17. Lietzke does not assert any of these particular claims against any o n e Defendant, but instead, generally alleges all claims against all Defendants. Am. C o m p l. (Doc. #9). These claims arise from eight incidents between May 1999 to March

under the scope and control to the City of Montgomery's police department in a respondeat superior capacity." Id. at ¶ 19. As Lietzke discusses the officers' actions as taking place under the control of the police department, rather than on their own behalf, this statement further implies that Lietzke presents his claims against the individual Defendants in their official capacity. Under the applicable standard of review, the Court will construe the allegations in Plaintiff's favor and assume that Lietzke intended to bring the action against Chief Baylor, Mayor Bright, and the police officers in their official capacities. But see McDermott v. Brevard County Sheriff's Office, 2007 WL 788377 at *3 (M. D. Fla. Mar. 14, 2007) (construing the complaint as naming defendants in their individual capacity because plaintiffs titled their claim as against "Individual Defendants"). The Amended Complaint identifies one of the police officers as Sergeant "Bruco." Am. Compl. (Doc. #9) at unnumbered page 4. Plaintiff further names an unidentified number of "John Doe" Defendants in his Complaint. In particular, he names "all others whose true names and legal descriptions are unknown to . . . Plaintiff." Am. Compl. (Doc. #9) at unnumbered page 11. Plaintiff does not set forth any facts involving these Defendants with one exception. Plaintiff indicated that "A suspicious looking black male parked at 529 South Perry Street, Montgomery, Alabama, left th[e] scene" of an incident occurring on December 13, 2006. Plaintiff fails to indicate whether the individual was in any way an active participant in the incident or a police officer. Because Plaintiff fails to set forth any claims against these unidentified Defendants as required under Federal Rule of Civil Procedure 8(a), the undersigned recommends that the action against these John Doe Defendants be dismissed. 2

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2 0 0 7 .2 S p e c if ic a lly, on October 23, 2005, Lietzke claims that while he was "flagging d o w n cars, walking in the middle street (sic), [and] trying to get cars to stop," M o n tg o m e ry police officers falsely imprisoned him. Am. Compl. (Doc. #9) at ¶ 1. Lietzke further contends that, on December 13, 2006, Defendants sped through Plaintiff's n e ig h b o rh o o d , parked their patrol cars in a lot near his apartment, and entered a law office lo c a te d at 566 Perry Street, Montgomery, Alabama, where Plaintiff was standing. Am. C o m p l. (Doc. #9) at ¶ 10. The officers, he claims, grabbed Plaintiff by the shoulders and a rm s , handcuffed and "dragg[ed]" him out of the law office. Id. Once outside, Lietzke c la im s the officers "continued to taunt, bully, and terrorize" him by slamming his head o n to the patrol car and placing him inside the patrol car, but moments later, released him w ith o u t charge. Id. Lietzke contends that, on January 8, 2007, Montgomery police officers broke into a n d entered his residence at 3:10 a.m. with their pistols pointed at Plaintiff. Id. at ¶ 9. He c la im s the officers shined their flashlights around his residence and "[f]or absolutely no re a so n " taunted, bullied, and terrorized Plaintiff in stating: "Let me see your hands, let m e see your hands;" "Get down on the floor; get down on the floor." Id. He claims that th e y grabbed Plaintiff inside his bedroom and forced his head to hit the floor. Id. Lietzke

To the extent Lietzke attempts to raise claims challenging events occurring before April 13, 2005, those claims are barred by the statute of limitations. See Dukes v. Smitherman, 32 F.3d 535, 537 (11th Cir. 1994). 3

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a lle g e s that he was handcuffed during the incident and ordered to state his name; he a lleg e s that the police officers stated that if Plaintiff did not state his name, they would ta k e him to jail. Id. Sergeant "Bruco" then entered Plaintiff's residence and told the o f f ic e rs to release Plaintiff, which subsequently occurred. Id. H e also contends that, on January 19, 2007, Montgomery police officers "jumped o u t the[ir] car" near the 500 block of South Perry Street in Montgomery, Alabama, and "b ec k o n ed [ ] Plaintiff by hand." Am. Comp. (Doc. #9) at ¶ 8. He claims that the officers "f o llo w ed and stalked" him, grabbed him by the arm, and pulled him to their patrol car, w h e r e the officers handcuffed and searched Lietzke while he was forced to lean against th e car. Id. at ¶ 8. Lietzke further claims that Montgomery police officers harassed P la in tif f from the window of a patrol car on March 4, 2007. Am. Comp. (Doc. #9) at ¶ 7. He claims that the officers "jumped out of the car" and detained Plaintiff outside of a c h u rc h , asking him whether he had somewhere to go and telling him that he could not " h a n g [ ] around the church if [he was not] going in[side] the church." Id. Based on these in c id e n ts , Lietzke seeks monetary and injunctive relief, as well as, an order releasing an in d iv id u a l from the West Virginia prisons and directing the imprisonment of Defendants. Id. at unnumbered page 5. Because Plaintiff is proceeding in forma pauperis, the Court is required under the p ro v is io n s of 28 U.S.C. § 1915(e)(2)(B) to dismiss a case at any time if it determines that th e action or appeal is "(i) frivolous or malicious; (ii) fails to state a claim on which relief

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m a y be granted; or (iii) seeks monetary relief against a defendant who is immune from s u c h relief." 28 U.S.C. § 1915(e)(2)(B). Dismissals for failure to state a claim are governed by the same standard as Federal R u le of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th Cir. 1 9 9 7 ). The allegations of the complaint are taken as true and are construed in the light m o s t favorable to the Plaintiff. Davis v. Monroe County Bd. of Educ., 120 F.3d 1390, 1 3 9 3 (11th Cir. 1997). The complaint may be dismissed only if it appears beyond doubt th a t Plaintiff can prove no set of facts that would entitle him to relief. Brown v. Budget R e n t-A -C a r Systems, Inc., 119 F.3d 922, 923 (11th Cir. 1997). Upon review of P lain tiff 's complaint, the Court concludes that Plaintiff has not presented actionable c laim s and that sua sponte dismissal is therefore warranted. See Vanderberg v. D o n a ld s o n , 259 F.3d 1321, 1323 (11th Cir. 2001). II. DISCUSSION A. Criminal Trespassing Claim against All Defendants

In construing the Complaint, as amended, in the light most favorable to Plaintiff, th e undersigned finds that Lietzke has set forth general allegations against all Defendants. Doc. #1, p. 3-4. As stated above, Plaintiff set forth a claim of "first degree criminal tre sp a ss in g " against all Defendants. Am. Compl. (Doc. #9) at unnumbered page 11. This c la im is due to be dismissed, as no citizen has an enforceable right to institute a criminal p ro s e c u tio n . Linda R. v. Richard V., 410 U.S. 614, 619 (1973) ("In American

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ju ris p ru d e n c e at least, a private citizen lacks a judicially cognizable interest in the p ro se c u tio n or nonprosecution of another."); Lopez v. Robinson, 914 F.2d 486, 494 (4th C ir. 1990). Accordingly, the undersigned Magistrate Judge recommends that Plaintiff's " f irs t degree criminal trespassing" claim be dismissed. B. Claims against the City of Montgomery

To the extent Lietzke has sued Mayor Bright, Chief Baylor, and the other u n id e n tif ie d police officers in their official capacities, he has essentially sued the City of M o n tg o m e ry. Shows v. Morgan, 40 F. Supp. 2d 1345, 1361 (M. D. Ala. 1999) (citing K e n tu c k y v. Graham, 473 U.S. 159, 166) (1985) (Official-capacity lawsuits are, "in all re sp e c ts other than name, . . . treated as a suit against the entity."); see also Pompey v. B ro w a rd County, 95 F.3d 1543, 1545-46 n.2 (11th Cir. 1996). The Court finds that L ietzk e has failed to state a claim upon which relief can be granted and seeks monetary re lie f against a defendant that is immune from such relief. There is no respondeat superior liability under § 1983. Griffin v. City of OpaL o c k a , 261 F.3d 1295, 1307 (11th Cir. 2001). It is well-settled that to sue a municipality u n d e r § 1983, "the plaintiff has the burden to show that a deprivation of constitutional rig h ts occurred as a result of an official government policy or custom." Cooper v. Dillon, 4 0 3 F.3d 1208, 1221 (11th Cir. 2005); see also Monell v. Dep't of Social Servs., 436 U.S. 6 5 8 , 690-91 (1978) (holding that a § 1983 action against a governmental body may be b ro u g h t where the alleged unconstitutional action "implements or executes a policy

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s ta te m e n t, ordinance, regulation, or decision officially adopted and promulgated by that b o d y's officers" or those "visited pursuant to governmental custom").3 A local government body is liable under § 1983 "when execution of a g o v e rn m e n t's policy or custom, whether made by its lawmakers or by those whose edicts o r acts may fairly be said to represent official policy, inflicts the injury." Monell, 436 U .S . at 694. "A policy is a decision that is officially adopted by the municipality, or c re a te d by an official of such rank that he or she could be said to be acting on behalf of th e municipality. A custom is a practice that is so settled and permanent that it takes on th e force of law." Cooper, 403 F.3d at 1221 (quotation and citations omitted). "There are three ways to show a governmental policy or custom: (1) an express policy; (2) a w id e sp re a d practice that is so permanent and well-settled as to constitute a custom; or (3) th e act or decision of a municipal official with final policy-making authority." Hyath v. C ity of Decatur, 2006 U.S. Dist. LEXIS 21184, at *29-30 (N. D. Ga. Mar. 28, 2006). " [ M ]u n icip a l liability under § 1983 attaches where-and only where-a deliberate c h o ic e to follow a course of action is made from among various alternatives by the o f f ic ia l or officials responsible for establishing final policy with respect to the subject m a tter in question." Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986); see also

A "threshold identification of a custom or policy" should initially be made to ensure that a municipality is "held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or those officials whose acts may fairly be said to be those of the municipality." McDowell v. Brown, 392 F.3d 1283, 1290 (11th Cir. 2004). 7

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C h u rc h v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994) ("Only those municipal o f f ic e rs who have final policymaking authority may by their actions subject the g o v ern m en t to § 1983 liability."). "State and local positive law determine whether a p a rtic u la r official has final policymaker authority for § 1983 purposes." Cooper, 403 F .3 d at 1221. T h e discussion of these principles in Church v. City of Huntsville is helpful. In C h u rc h , the Eleventh Circuit explained: "[M]unicipal liability may be based upon (1) an a c tio n taken or policy made by an official responsible for making final policy in that area o f the city's business; or (2) a practice or custom that is so pervasive, as to be the f u n c tio n a l equivalent of a policy adopted by the final policymaker." Church, 30 F.3d at 1 3 4 3 . To establish the existence of a practice or custom under the second prong, "it is g e n e ra lly necessary to show a persistent and wide-spread practice." Id. at 1345. Section 1 9 8 3 only "imposes liability on a government that, under color of some official policy, `c a u se s' an employee to violate another's constitutional rights." Monell, 436 U.S. at 692. Put differently, the governmental policy or custom must be the moving force behind the c o n s titu tio n a l deprivation. Farred v. Hicks, 915 F.2d 1530, 1532-33 (11th Cir. 1990). L ib e ra lly construing Plaintiff's complaint, Lietzke appears to allege that Mayor B r ig h t and Chief Baylor "have permitted a custom and policy of harassment against [ h im ]." Am. Compl. (Doc. #9) at ¶ 21. While Plaintiff has set forth a series of incidents in v o lv in g Montgomery police officers, Plaintiff has failed to allege any facts showing that

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M a yo r Bright and Chief Baylor deliberately chose to harass Plaintiff. Moreover, the la n g u a g e of § 1983 plainly requires an affirmative causal connection between the a c tio n s taken by the defendant and the constitutional deprivation. Swint v. City of W a d ley , Ala. , 51 F. 3 d 988, 999 (11th Cir. 1995). Lietzke also fails to allege any facts in his Complaint, as amended, which indicate a causal connection between Mayor Br ig h t and/or Chief Baylor and the acts of the individual police officers. Because L ietz k e ' s allegations concern the acts of unidentified individual police officers, it is in c o n c e i v a b l e that the City of Montgomery could be liable to Lietzke based on these p a r tic u la r facts. Cf. City of Los Angeles v. Heller, 475 U. S. 796, 799 (1986). Based o n the foregoing, the Court finds that the City of Montgomery is immune from suit, and c o n s e q u e n tly, Plaintiff has failed to state a claim upon which relief can be granted. Plaintiff's claims against the City of Montgomery are due to be dismissed under 28 U .S .C . § 1915(e)(2)(B)(ii)-(iii). C. Claims against Mayor Bright and Chief Baylor

A ll claims against Defendants Mayor Bright and Chief Baylor are due to be d is m is s e d for another reason. These claims are based solely upon their status as s u p e rv is o rs . Under § 1983, as provided above, liability will not be imposed solely on the b a sis of respondeat superior or vicarious liability. See Monell v. Dep't of Social Serv., 4 3 6 U.S. 658, 690-92 (1978); Harris v. Ostrout, 65 F.3d 912, 917 (11th Cir. 1995); L a M a rc a v. Turner, 995 F.2d 1526, 1538 (11th Cir. 1993), cert. denied, 510 U.S. 1164

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(1 9 9 4 ). Supervisors, like Mayor Bright and Chief Baylor, are not wholly immune from su it under § 1983. Supervisory liability attaches only when the supervisor personally p a rtic ip a te s in the allegedly unconstitutional acts of his subordinates or where the actions o f the supervising official bear a causal relationship to the alleged constitutional d e p riv a tio n . Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003). "The causal c o n n e c tio n can be established when a history of widespread abuse puts the responsible s u p e rv is o r on notice of the need to correct the alleged deprivation, and he fails to do so. The deprivations that constitute widespread abuse sufficient to notify the supervising o f f ic ia l must be obvious, flagrant, rampant, and of continued duration, rather than isolated o c c u rre n c es ." Braddy v. Fla. Dep't of Labor & Employment Sec., 133 F.3d 797, 802 (11 th Cir. 1998) (quoting Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990)). In this case, Plaintiff's Complaint fails to allege that Mayor Bright and Chief B a ylo r personally participated in the incidents alleged. Plaintiff's Complaint also fails to s h o w that their actions bear a causal relationship to the incidents. Plaintiff's alleged d e p riv a tio n s occurred over a two-year period with over a year between the first (occurring in October 2005) and second (occurring in December 2006) incidents. This lengthy gap in time suggests that the first and second incidents were isolated occurrences. While the se c o n d incident was closer in time to the remaining two other incidents (occurring in D e c em b e r 2006 and January 2007), "[a] few isolated instances of harassment will not su f f ice ," Braddy, 133 F.3d at 802, to constitute a history of widespread abuse sufficient to

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n o tify Mayor Bright and Chief Baylor. Compare Clark v. Evans, 840 F.2d 876, 885 (11th C ir. 1988) (per curiam) ("[I]t is clear that four cases [alleging a prison policy of d is re g a rd in g committal orders by state court judges] in four years would have been in s u f f ic ie n t to put Evans [commissioner of the Department of Corrections] on notice, e sp e c ia lly since the record is clear that such matters were handled at lower administrative le v e ls and would not have come to the attention of Evans.") with Holland v. Connors, 491 F .2 d 539, 541 (5th Cir. 1974) (per curiam) (vacating and remanding for factual d e v e lo p m e n t the district court's dismissal of a prisoner's section 1983 complaint alleging th a t the prison superintendent "was legally responsible for these acts of his subordinates, d e sp ite the fact that the Superintendent was not present during the illegal questioning, b e c au s e such practices were so widespread and had been standard procedure at the in s titu tio n for so long that he was or must have been aware of them."). Thus, the C o m p la in t fails to set forth any facts suggesting that Mayor Bright and Chief Baylor had n o tic e of the alleged constitutional deprivations. For these reasons, Plaintiff's claims a g a in s t Mayor Bright and Chief Baylor are due to be dismissed. D. State Law Claims Against All Defendants

To the extent Lietzke' s allegations may be construed as state law claims, his c o n te n tio n s are due to be dismissed. If the federal claims over which the court has o rig in a l jurisdiction are dismissed, the court may decline to exercise jurisdiction over s ta te law claims. See 28 U.S.C. § 1367(c)(3); McCulloch v. PNC Bank, Inc., 298 F.3d

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1 2 1 7 , 1227 (11th Cir. 2002). In view of this Court's determination that the federal claims p re se n ted in Lietzke's Complaint should be dismissed, the Court concludes that his s u p p le m e n ta l state law claims are also due to be dismissed. Id. III. CONCLUSION A c c o rd in g ly, for the reasons discussed above, it is the RECOMMENDATION of th e Magistrate Judge that Lietzke's federal law claims be DISMISSED sua sponte w ith o u t prejudice. Having recommended the dismissal of the federal claims, the M a g i str a te Judge further RECOMMENDS that the Court DECLINE to exercise su p p lem en tal jurisdiction over the state law claims. It is further ORDERED that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before May 14, 2007. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation objected to. Frivolous, c o n c lu s iv e or general objections will not be considered by the District Court. The parties a re advised that this Recommendation is not a final order of the court and, therefore, it is n o t appealable. F a ilu re to file written objections to the proposed findings and recommendations in th e Magistrate Judge's report shall bar the party from a de novo determination by the D is tric t Court of issues covered in the report and shall bar the party from attacking on a p p e al factual findings in the report accepted or adopted by the District Court except upon g ro u n d s of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th

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C ir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also B o n n er v. City of Prichard, 661 F.2d 1206 (11th C i r. 1981) (en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close o f business on September 30, 1981. D O N E this the 1st day of May, 2007. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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