Lietzke v. City of Montgomery et al (MAG+)

Filing 7

REPORT AND RECOMMENDATIONS of the Mag Judge that Lietzke's federal law calims be DISMISSED sua sponte without prejudice; further recommending that the Court DECLINE to exercise supplemental jurisdiction over the state law claims; Objections to R&R due by 7/16/2007. Signed by Judge Wallace Capel Jr. on 7/2/07. (djy, )

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Lietzke v. City of Montgomery et al (MAG+) Doc. 7 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 1 of 16 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. C IT Y OF MONTGOMERY, et al., D e f e n d a n ts . C I V I L ACTION NO. 2:07CV588-ID 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." Compl. (Doc. #1) at 1. For the reasons that follow, the undersigned M a g is tra te Judge RECOMMENDS that the federal claims be DISMISSED. Having re c o m m e n d e d the dismissal of the federal claims, the Magistrate Judge further R E C O M M E N D S that the Court DECLINE to exercise supplemental jurisdiction over the s ta te law claims. I. BACKGROUND P lain tiff Bill Lietzke (" L ietz k e " ) , pro se, commenced this action on June 11, 2 0 0 7 , in the Western District of Washington. On June 19, 2007, United States District J u d g e Robert S. Lasnik entered an Order transferring the action to the Middle District of A laba m a. Order of June 16, 2007 (Doc. #3) at 3. Plaintiff's Complaint - neither sworn n o r notarized - asserts a civil rights action under 42 U.S.C. 1983 (2000) for monetary d a m a g e s and miscellaneous relief. Compl. (Doc. #1) at 4. Lietzke names the City of Dockets.Justia.com Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 2 of 16 M o n tg o m er y , Bobby Bright (Mayor Bright), Mayor of the City of Montgomery, Art Ba y l o r (Chief Baylor), Chief of the Montgomery Police Department, and Walter J. By a r s (Byars), City Attorney for the City of Montgomery, as Defendants. Compl. (D o c . #1) at 1-2. 1 The Complaint alleges that Defendants violated Lietzke' s c o n s titu t io n a l rights by subjecting him to harassment, unlawful searches and seizures, a n d unlawful detentions, and committed a number of state law torts, including assault, fa ls e imprisonment, negligence, " m e n a cin g " as well as " fir s t degree criminal tr e sp a ss in g . " Compl. (Doc. #1) at 5 9 -8 2 . Lietzke also claims that Defendants h a v e violated his rights to freedom of speech and freedom of assembly. Id. at 61. Lietzke does not assert any of these particular claims against any one Defendant, but in s te a d , generally alleges all claims against all Defendants. These claims arise from 54 Plaintiff's Complaint repeatedly and consistently refers to Mayor Bright, Chief Baylor, and Byars as "City of Montgomery Defendants." E.g., Compl. (Doc. #1) at 59-82. Moreover, Lietzke lists the Montgomery Police Department's physical address as the mailing address for Chief Baylor, and the Office of the Mayor's physical address as the mailing address for Mayor Bright. For Byars, he lists the "Legal Department" at the Office of the Mayor's mailing address. Compl. (Doc. #1) at 1-2. Furthermore, in describing each incident upon which he claims his constitutional rights have been violated, he sets forth the allegations based upon the agency relationship between unidentified police officers and the "City of Montgomery Defendants." E.g., id. at 43-58. These facts imply that Plaintiff brought this suit against them in their official capacities. 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 Byars 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"). 2 1 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 3 of 16 in c id e n ts , of which only 15 are relevant, between June 1997 to March 2007.2 Id. at 5-21. S p e c if ica lly, on July 2, 2005, Lietzke claims Defendants, "by and through" their a g e n t police officers, parked patrol cars on the premises of Plaintiff's residence. He claim s that two unidentified police officers "yelled and screamed" at him from the third f lo o r, "Quit staring at me." Compl. (Doc. #1) at 43. That same day, he claims that D e f e n d a n ts, "by and through" their agent police officers, detained Plaintiff unlawfully a n d asked him if he was "alright," because "[s]omebody called us; Somebody that [has] s e e m you for a long time called us." Id. at 44. O n August 3, 2005, Lietzke claims Defendants, "by and through" their agent p o lic e officers, stopped a patrol car in traffic, jumped out of the car, and "grabbed" and " p u s h e d " Plaintiff onto the patrol car. He alleges the officers "continued to taunt, bully, a n d terrorize" him while gripping Plaintiff's arms and garments to force his hands onto th e car. He also claims the officers kicked his legs to force him to spread them open. The o f f ic e rs , he asserts, pushed him to the ground. He claims they stated "Have a seat on the g ro u n d ." And, "[s]omebody called us saying you were jumping out in front of cars." Compl. (Doc. #1) at 45. The following month, on September 18, 2005, Lietzke claims Defendants, "by and th ro u g h " their agent police officers, "pounded" on his apartment door at 3:15 a.m. "with 2 To the extent Lietzke attempts to raise claims challenging events occurring before June 11, 2005, those claims are barred by the statute of limitations. See Dukes v. Smitherman, 32 F.3d 535, 537 (11th Cir. 1994). The undersigned notes that 39 of Lietzke's challenged incidents occurred before June 11, 2005. Compl. (Doc. #1) at 4-42. 3 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 4 of 16 h e a v y objects." Lietzke claims when he opened the door, the officers asked stated that th e y wanted to enter his apartment to see who else was there and what was "going on" in sid e . Lietzke alleges that he did not give the officers permission to enter his apartment, b u t they did so, shining their flashlights and searching his apartment. Compl. (Doc. #1) at 46. O n October 23, 2005, Lietzke claims that while he was "flagging down cars, w a lk in g in the middle street (sic), [and] trying to get cars to stop," Defendants, "by and th ro u g h " their agent police officers, falsely imprisoned him. Compl. (Doc. #1) at 47. About six weeks later, on December 2, 2005, Defendants, "by and through" their agent p o lic e officers, approached the 500 block of South Perry Street, Montgomery, Alabama, to "encounter a suspicious white male who accosted" Plaintiff. Lietzke alleges that the " C ity of Montgomery Defendants" proceeded to "harass and bully" Plaintiff by yelling f ro m the patrol car. Compl. (Doc. #1) at 49. Approximately six months later, on or about June 18, 2006, Lietzke claims that D e f en d a n ts , "by and through" their agent police officers, approached Plaintiff at the scene o f an automobile accident on South Perry Street, in Montgomery, Alabama, and bullied a n d harassed him when Plaintiff watched an injured passenger get placed into an a m b u la n c e. Lietzke alleges the City of Montgomery Defendants exclaimed, "Get out of m y way." "Get your butt back over there and out of my way." Compl. (Doc. #1) at 50. Almost three months later, on or about September 6, 2006, Defendants, "by and 4 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 5 of 16 th ro u g h " their agent police officers, harassed Plaintiff from the window of a patrol car by a sk in g him where he was "supposed to be." Compl. (Doc. #1) at 51. That same day, he c laim s Defendants, "by and through" their agent police officers, parked a patrol car in f ro n t of Plaintiff and his neighbor and harassed them by asking what Plaintiff had stated. Compl. (Doc. #1) at 52. On September 15, 2006, nine days later, Defendants, "by and through" their agent p o lic e officers, startled and harassed Plaintiff from the window of a patrol car. City of M o n tg o m e ry Defendants, he alleges, approached Plaintiff "on the one way street opposite tra f f ic , jumped out of the patrol car, and unlawfully detained . . . Plaintiff." He claims th a t City of Montgomery Defendants alleged that "some persons called . . . Defendants a n d stated that . . . Plaintiff was running in the middle of the street." Compl. (Doc. #1) at 53. About three months later, on December 6, 2006, Defendants, "by and through" th e ir agent police officers, pulled off the interstate, stopped in front of Plaintiff, and h ara ssed Plaintiff from the window of a patrol car. Lietzke claims City of Montgomery D e f e n d a n ts stated that "some persons called . . . Defendants and stated that they saw . . . P la in tif f walking." Compl. (Doc. #1) at 54. Lietzke further contends that a week later D ef en d an ts , "by and through" their agent police officers, sped through Plaintiff's n e ig h b o rh o o d and entered a law office located at 566 Perry Street, Montgomery, A la b a m a , where Plaintiff was standing. Compl. (Doc. #1) at 55. The officers, he 5 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 6 of 16 c la im s , grabbed Plaintiff by the shoulders and arms, handcuffed and "dragg[ed]" him out o f the law office. Id. Once outside, Lietzke claims the officers "continued to taunt, bully, a n d terrorize" him by slamming his head onto the patrol car and placing him inside the p a tro l car, but moments later, released him without charge. Id. A b o u t a month later, Lietzke contends that, on January 8, 2007, Defendants, "by a n d through" their agent police officers, entered his "residential structure" without p e rm is s io n at 3:10 a.m. with their pistols pointed at Plaintiff. Id. at 56. He claims the o f f ic e rs shined their flashlights around his residence and "[f]or absolutely no reason" ta u n te d , bullied, and terrorized Plaintiff in stating: "Let me see your hands, let me see yo u r hands;" "Get down on the floor; get down on the floor." Id. He claims that they g ra b b e d Plaintiff inside his bedroom and forced his head to hit the floor. Id. Lietzke 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 "Bruce" 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, Defendants, "by and through" their a g e n t police officers, "jumped out the[ir] patrol car" near 547 South Perry Street in M o n tg o m e ry, Alabama, and "beckoned [ ] Plaintiff by hand." Comp. (Doc. #1) at 57. He claims that the officers "followed and stalked" him, grabbed him by the arm, and p u lled him to their patrol car, where the officers handcuffed and searched Lietzke while 6 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 7 of 16 h e was forced to place his hands on the car. Id. Last, Lietzke claims that Defendants, "by a n d through" their agent police officers harassed Plaintiff from the window of a patrol car o n March 4, 2007. Comp. (Doc. #1) at 58. He claims that the officers detained Plaintiff o u ts id e of a church, asking him whether he had somewhere to go and telling him that he c o u ld not "hang[ ] around the church if [he was not] going in[side] the church." Id. 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 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 la in tif f 's complaint and for the reasons that follow, the undersigned recommends that P lain tiff has not presented actionable claims and that sua sponte dismissal is therefore w a rr a n te d . See Vanderberg v. Donaldson, 259 F.3d 1321, 1323 (11th Cir. 2001). 7 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 8 of 16 II. DISCUSSION A. Criminal Trespassing Claim against All Defendants A s stated above, Plaintiff set forth a claim of "first degree criminal trespassing" a g a in s t all Defendants. Compl. (Doc. #1) at 23. This claim is due to be dismissed, as no c itiz e n has an enforceable right to institute a criminal prosecution. Linda R. v. Richard V ., 410 U.S. 614, 619 (1973) ("In American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another."); Lopez v . Robinson, 914 F.2d 486, 494 (4th Cir. 1990). Accordingly, the undersigned Magistrate J u d g e recommends that Plaintiff's "first degree criminal trespassing" claim be dismissed a g a i n s t all Defendants. B. Claims against the City of Montgomery To the extent Lietzke has sued Mayor Bright, Chief Baylor, and Byars in their o f f ic ia l capacities, he has essentially sued the City of Montgomery. Shows v. Morgan, 40 F . Supp. 2d 1345, 1361 (M. D. Ala. 1999) (citing Kentucky v. Graham, 473 U.S. 159, 1 6 6 ) (1985) (Official-capacity lawsuits are, "in all respects other than name, . . . treated as a suit against the entity."); see also Pompey v. Broward County, 95 F.3d 1543, 1545-46 n .2 (11th Cir. 1996). The Magistrate Judge finds that Lietzke has failed to state a claim u p o n which relief can be granted. The Supreme Court has placed strict limitations on municipal liability under s e c tio n 1983. Municipalities may not be held liable for constitutional deprivations on the 8 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 9 of 16 th e o ry of respondeat superior. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1307 (11th C ir. 2001). It is well-settled that to sue a municipality under 1983, "the plaintiff has the b u rd e n to show that a deprivation of constitutional rights occurred as a result of an o f f ic ia l government policy or custom." Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2 0 0 5 ); see also Monell v. Dep't of Social Servs., 436 U.S. 658, 690-91 (1978) (holding th a t a 1983 action against a governmental body may be brought where the alleged u n c o n stitu tio n a l action "implements or executes a policy statement, ordinance, regulation, o r decision officially adopted and promulgated by that body's officers" or those "visited p u rsua n t 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 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). 9 3 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 10 of 16 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 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, 30 F.3d 1332, 1 3 4 3 (11th Cir. 1994), is helpful. In Church, the Eleventh Circuit explained: "[M]unicipal liability may be based upon (1) an action taken or policy made by an official re sp o n s ib le for making final policy in that area of the city's business; or (2) a practice or c u sto m that is so pervasive, as to be the functional equivalent of a policy adopted by the f in a l policymaker." Church, 30 F.3d at 1343. To establish the existence of a practice or c u sto m under the second prong, "it is generally necessary to show a persistent and wides p re a d practice." Id. at 1345. Section 1983 only "imposes liability on a government that, 10 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 11 of 16 u n d er color of some official policy, `causes' an employee to violate another's c o n stitu tio n a l rights." Monell, 436 U.S. at 692. Put differently, the governmental policy o r custom must be the moving force behind the constitutional deprivation. Farred v. H icks , 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 rig h t, Chief Baylor and Byars "have permitted . . . a custom and policy of menacing, n e g lig e n c e , assault and harassment against [him]." See Compl. (Doc. #1) at 66. This a rg u m e n t fails as a matter of law for two reasons. First, "[t]he Constitution affords no p ro tec tio n against ordinary negligence, even if that negligence is committed by a public o f f ic ia l acting in his official capacity." Green v. Lisa's Chinese Take-Out, 2006 WL 1 1 3 4 1 3 1 at *1 (S. D. Ga. Apr. 25, 2006) (citing Daniel v. Williams, 474 U.S. 327, 328-32 (19 8 6 )); see also Doe v. New York City Dep't of Soc. Servs., 649 F.2d 134, 143 (2d Cir. 1 9 8 1 ) ("[O]rdinary negligence by itself could not establish a cause of action under [ S e c tio n ] 1983[.]"). Second, while Plaintiff has set forth a series of incidents involving th e "City of Montgomery Defendants" "by and through" their agent police officers, P lain tiff has failed to allege any facts showing that Mayor Bright, Chief Baylor and Byars d elib era tely chose to menace, assault, or harass Plaintiff. Rather, Plaintiff's claims are b a se d entirely on the agency relationship of Mayor Bright, Chief Baylor, and Byars with th e unidentified Montgomery police officers. As stated above, there is no respondeat s u p e rio r liability under 1983. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1307 (11th 11 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 12 of 16 C ir. 2001). Plaintiff therefore fails to state a claim as a matter of law. Id. M o r e o v e r , the language of 1983 plainly requires an affirmative causal c o n n e ctio n between the actions taken by the defendant and the constitutional d ep r ivation . Swint v. City of Wadley, Ala. , 51 F. 3 d 988, 999 (11th Cir. 1995). Lietzke also fails to allege any facts in his Complaint, which indicate a causal c o n n e ctio n between Mayor Bright, Chief Baylor and/or Byars and the acts of the u n id e n tifie d police officers. Because Lietzke' s allegations concern the acts of u n id e n tifie d individual police officers, it is inconceivable that the City of Montgomery c o u ld be liable to Lietzke based on these particular facts. Cf. City of Los Angeles v. H e lle r , 475 U. S. 796, 799 (1986). Based on the foregoing, the Court finds that P la in tif f has failed to state a claim upon which relief can be granted. Plaintiff's claims a g a in s t the City of Montgomery are due to be dismissed under 28 U.S.C. 1 9 1 5 ( e ) ( 2 ) ( B ) ( ii ).4 C. Claims against Mayor Bright, Chief Baylor and Byars A ll claims against Defendants Mayor Bright, Chief Baylor and Byars 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 Lietzke's Complaint states that this "custom and policy" has effected "others in similar situations." Compl. (Doc. #1) at 66. While this language could be read to imply that Lietzke might add other parties to the litigation, he has not listed any so-called "John Doe" plaintiffs in his Complaint. Moreover, even if other parties were added, for the reasons explained above, Lietzke has failed to state a claim upon which relief can be granted as a matter of law. 12 4 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 13 of 16 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 (1 9 9 4 ). Supervisors, like Mayor Bright, Chief Baylor, and Byars are not wholly immune f ro m suit under 1983. Supervisory liability attaches only when the supervisor p erso n ally participates in the allegedly unconstitutional acts of his subordinates or where th e actions of the supervising official bear a causal relationship to the alleged c o n s titu tio n a l deprivation. Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003). "The causal connection can be established when a history of widespread abuse puts the re sp o n s ib le supervisor on notice of the need to correct the alleged deprivation, and he f a ils to do so. The deprivations that constitute widespread abuse sufficient to notify the s u p e rv is in g official must be obvious, flagrant, rampant, and of continued duration, rather th a n isolated occurrences." Braddy v. Fla. Dep't of Labor & Employment Sec., 133 F.3d 7 9 7 , 802 (11th Cir. 1998) (quoting Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1 9 9 0 )). In this case, Plaintiff's Complaint fails to allege that Mayor Bright, Chief Baylor a n d Byars personally participated in the incidents alleged. Plaintiff's Complaint also fails to show 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 repeated gaps of time in between the in c id e n ts . For instance, a six-month gap of time occurred between the alleged incident on 13 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 14 of 16 D e c em b e r 2, 2005, and the June 18, 2006 incident. A three-month gap of time followed th e June incident, as the next alleged incident occurred on September 6, 2006. The rep ea ted gaps in time suggest that these incidents were isolated occurrences. Moreover, w h ile Lietzke has asserted fifteen incidents over this two-year period, less than half of the in c id e n ts occurred within a month of each other. Accordingly, Plaintiff has failed to set f o rth facts demonstrating that the alleged deprivations were obvious, flagrant, rampant, a n d of continued duration. Indeed, three alleged incidents (July 2, 2005, September 15, 2 0 0 6 , and December 6, 2006) present facts in which the unidentified officers seem to o f f er assistance in response to calls received about Plaintiff's well-being, rather than h a ra ss , menace, or assault him. Thus, "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 n o tif y Mayor Bright, Chief Baylor and Byars. Compare Clark v. Evans, 840 F.2d 876, 8 8 5 (11th Cir. 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, 14 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 15 of 16 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."). As the Complaint f a ils to set forth any facts suggesting that Mayor Bright, Chief Baylor and/or Byars had n o tice of the alleged constitutional deprivations, Plaintiff's claims against Mayor Bright, C h ie f Baylor, and Byars 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 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 15 Case 2:07-cv-00588-ID-WC Document 7 Filed 07/02/2007 Page 16 of 16 O R D E R E D 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 July 16, 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 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 2nd day of July, 2007. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 16

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