Nordell v. Montgomery Alabama Police Dept. et al (MAG+)

Filing 69

REPORT AND RECOMMENDATION that: (1) Defendant H.G. Wells and Defendant A.C. Heard be dismissed in both their official and individual capacities as they have not been properly served within 120 days of the commencement of this action; (2) Defendant Gr een be dismissed in her individual capacity as she has not been properly served within 120 days of the commencement of this action; and (3) the 59 Motion to Dismiss be DENIED. Objection due on or before 11/19/2008. Signed by Honorable Terry F. Moorer on 11/6/2008. (cb, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION K A R E N JAYNE NORDELL, P la in tif f , v. H .G . WELLS, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-cv-1007-MHT

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE P u r s u a n t to 28 U.S.C. § 636(b)(1) this case was referred to the undersigned United S t ate s Magistrate Judge for review and submission of a report with recommended findings o f fact and conclusions of law (Doc. 3, filed November 27, 2007). Previously the Court d is m is s e d several defendants and numerous claims pursuant to 28 U.S.C. § 1915. The D e f e n d a n ts that remain are Alabama Police Officer H.G. Wells, Municipal Jail Guard A.C. H e a rd , and Municipal Jail Guard Green. The claims left pertain to the events leading to N o rd e ll's arrest, the allegation of false arrest, and the allegations relating to her confinement. N o w pending before the Court is Defendant's Motion to Dismiss (Doc. 59, filed August 22, 2 0 0 8 ).1 For good cause herein shown, it is the recommendation of the Magistrate Judge that th e Court dismiss Defendants H.G. Wells A.C. Heard in both their official and individual c a p a c itie s and Defendant Green in her individual capacity for failure to perfect service. It is Defendant Green docketed an identical document as two separate documents. See Docs. 59 and 60. Thus, the Court will address them as a single motion. Page 1 of 11
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a ls o the recommendation of the Magistrate Judge that the Court DENY the motion to dismiss. I . BACKGROUNDAND MOTION TO DISMISS P la in tif f Karen Jayne Nordell ("Nordell" or "Plaintiff") is a resident of Troy in Pike C o u n ty, Alabama which is located within the Middle District of Alabama. On November 16, 2 0 0 7 , Nordell initiated this action by filing a Complaint and several motions. The Court d e n ie d Plaintiff's request to appoint counsel, but granted her motion to proceed in forma p a u p e ris . See Docs. 4-5. Further, the Court set a hearing on Nordell's complaint because her h a n d w ritte n complaint is mostly illegible. See Docs. 6, 9. The Court discrerned from the h e a rin g on January 11, 2008 that the gist of Nordell's allegations - as best can be discerned f ro m verbiage which lacks clarity, to be charitable - is a complaint that Defendants wrongfully e v ic te d Nordell and are participating in an ongoing conspiracy to deprive her of constitutional rig h ts . Nordell originally listed a number of defendants and claims. On March 4, 2008, the C o u rt, pursuant to 28 U.S.C. § 1915(e)(2)(B), dismissed all the claims except the claims p e rta in in g to the events leading to Nordell's arrest, the allegation of false arrest, and the alleg atio n s relating to the condition of her confinement. The remaining defendants are D e f en d a n ts H.G. Wells, Municipal Jail Guard A.C. Heard, and Municipal Jail Guard Green. A s best the Court can discern, Nordell brings claims under 42 U.S.C. § 1983 for violations o f the Fourth, Eighth, and Fourteenth Amendments. She seeks a $20 million dollar judgment a g a in s t the Municipal Jail Guards and a $20 million dollar judgment against Wells. See Doc. 1 at p. 2.

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D e f en d a n t Green asserts that Nordell only seeks liability against her in her individual c a p ac ity and therefore her claims are due dismissal. She further asserts that even if Plaintiff a ss e rts claims in her official capacity, they are also due dismissal because they are barred by th e Eleventh Amendment to the United States. The Court therefore assumes Defendant Green a ss e rts its motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for f a ilu re to state a claim for which relief could be granted. I I . FAILURE TO SERVE R u le 4(m) of the Federal Rules of Civil Procedure requires that a plaintiff serve a s u m m o n s and complaint to all defendants within 120 days after the complaint is filed. FED. R . CIV. P. 4(m). Specifically it states: If a defendant is not served within 120 days after the complaint is filed, the c o u rt ­ on motion or on its own after notice to the plaintiff ­ must dismiss the a c tio n without prejudice against that defendant or order that service be made w ith in a specified time. But if the plaintiff shows good cause for the failure, th e court must extend the time for service for an appropriate period. Id . Thus, failure to effect service within 120 days of filing the complaint mandates dismissal o f those who have not been properly served unless an extension is given. Id.; see also H o r e n k a m p v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir. 2005) (When a plaintiff fails to perfect service of process within the 120-day period, the court may dismiss the action or g ra n t an extension of time to serve process for either "good cause" or another sufficient g ro u n d unless the plaintiff can show good cause or establish sufficient grounds for an ex tens ion of this time period.).

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O n August 5, 2008, the Court ordered Nordell to show cause before August 25, 2008 w h y Defendants Wells, Heard, and Green (in her individual capacity only) 2 should not be d is m is s e d because of Nordell's failure to perfect service. See Doc. 56. Nordell filed a r e s p o n s e on August 19, 2008. See Doc. 58. In her response Nordell states that Wells and H e a rd are real persons, but fails to provide any basis as to why she failed to comply with the F e d e ra l Rule of Civil Procedure 4. Nordell does not produce any evidence that she has p ro p e rly served the above parties. This action was filed on November 16, 2007. See Doc. 1. The Court granted Nordell's m o tio n to proceed in forma pauperis on November 29, 2007, but stayed the case pending a rev iew of the claims under 28 U.S.C. § 1915(e)(2)(B). On March 4, 2008, the District Court a d o p te d the January 25, 2008 Report and Recommendation and summons were issued on that d a te . Thus, based on the above, the 120 day requirement for proper service has long since p a ss e d . While a plaintiff may request an extension of time for service of process, Nordell f a ile d to allege the existence of good cause warranting an extension of time for service. Rather, Nordell simply focuses on the "necessity" of these defendants. Consequently, D e f e n d a n t Green is due to be dismissed in her individual capacity and Defendants H.G. Wells a n d A.C. Heard are due to be dismissed in both their official and individual capacities. As

Green has not been properly served in her individual capacity under FED. R. CIV. P. 4(e). Proper service on Green may be effected by (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. See FED. R. CIV. P. 4(e)(2). Page 4 of 11

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N o r d e ll' s claims relating to the events leading up to her arrest and the allegation of false arrest p e rta in solely to Officer H.G. Wells, these Fourth Amendment claims are also dismissed. I I I . STANDARD OF REVIEW UNDER RULE 12(B)(6) A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. G ilm o r e , 125 F. Supp.2d at 471. To survive a motion to dismiss for failure to state a claim, th e plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." B e ll Atlantic Corp. v. Twombly, --- U.S. ---, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). In considering a defendant's motion to dismiss, the "court must view the complaint in the light m o s t favorable to the plaintiff and accept all of the plaintiff's well-pleaded facts as true." Am. U n ite d Life Ins. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007) (citing St. Joseph's Hosp. In c . v. Hosp. Corp. of Am., 795 F.2d 948, 954 (11th Cir. 1986)). In other words, in deciding a 12(b)(6) motion to dismiss, the court will accept the petitioner's allegations as true. Hishon v . King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L. Ed.2d 59 (1984); Ellis v. G e n e ra l Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir. 1998); Roberts v. Florida P o w e r & Light Co., 146 F.3d 1305, 1307 (11th Cir. 1998) (citing Lopez v. First Union N a tio n a l Bank of Florida, 129 F.3d 1186, 1189 (11th Cir. 1997)). However, "[c]onclusory a lleg a tio n s, unwarranted deductions of facts or legal conclusions masquerading as facts will n o t prevent dismissal." Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2 0 0 4 ) (quoting Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)); s e e also Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974)

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(co n clus o ry allegations and unwarranted deductions of fact are not admitted as true).3 T h u s , a complaint should be dismissed "when the allegations in a complaint, however tru e , could not raise a claim of entitlement to relief." Twombly, --- U.S. ---, 127 S.Ct. at 1966. F u r th e r, "this basic deficiency should ... be exposed at the point of minimum expenditure of tim e and money by the parties and the court." Id. (citations omitted). "While a complaint a tta c k ed by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a p lain tiff 's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more th a n labels and conclusions, and a formulaic recitation of the elements of a cause of action w ill not do." Id. at 1964-65 (citations omitted). Factual allegations must be enough to raise a right to relief above the speculative level. Id. Thus, it does not require a heightened fact p lea d in g of specifics, but only enough facts to state a claim to relief that is plausible on its f a c e . Id. at 1974. It is not enough that the pleadings merely "le[ave] open the possibility that th e plaintiff might later establish some set of undisclosed facts to support recovery." Id. at 1 9 6 8 (internal quotation and alteration omitted). Consequently, the threshold for a complaint to survive a motion to dismiss is "exceedingly low." Ancata v. Prison Health Services, Inc., 7 6 9 F.2d 700, 703 (11th Cir. 1985). A ll litigants, pro se or not, must comply with the Federal Rules of Civil Procedure. A lth o u g h the court is required to liberally construe a pro se litigant's pleadings, the court does

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Page 6 of 11

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n o t have "license to serve as de facto counsel for a party. . .or to rewrite an otherwise deficient p le a d in g in order to sustain an action." GJR Investments, Inc. v. County of Escambia, Fla., 1 3 2 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted). IV. REMAINING CLAIMS AGAINST GREEN D e f e n d a n t Green asserts in her motion to dismiss that Nordell only seeks liability a g a in s t her in her individual capacity; however, in Nordell's response she clearly states the c la im s against Green are brought in both her individual and official capacity. See Doc. 66 at p . 1. Thus the court must, for the purposes of a motion to dismiss, construe the situation in f a v o r of the non-movant plaintiff. Therefore, the Court will look to claims against Green in h e r official capacity. T h e Court must isolate the precise constitutional violations alleged against Green. See G r a h a m v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989). If a c o n s titu t io n a l claim is covered by a specific constitutional provision, then the Court must a n a lyze the claim under the standard appropriate to that specific provision. Graham, 490 U.S. a t 394, 109 S.Ct. at 1870-71; Raspberry v. Johnson, 88 F.Supp.2d 1319, 1328-29 (M.D. Ala. 2 0 0 0 ). However, it is unclear from the Complaint under which amendment Nordell attempts to bring her claims. Generally, the types of allegations asserted against Green are brought u n d e r the Eighth and/or Fourteenth Amendments of the Constitution. From the factual allegations, the Court concludes Nordell was a pretrial detainee since

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it does not appear she was convicted of any crime. 4 Consequently, the Eighth Amendment d o e s not apply because it was designed to protect those convicted of crimes. Whitley v. A lb e r s , 475 U.S. 312, 318, 106 S.Ct. 1078, 1083-84, 89 L.Ed.2d 251 (1986); Lumley v. City o f Dade City, Fla., 327 F.3d 1186, 1196 (11th Cir. 2003). Consequently, the Court reviews N o rd e ll's § 1983 claims under the Fourteenth Amendment standard. V . ANALYSIS P u r s u a n t to the Fourteenth Amendment, a pretrial detainee can allege that a defendant w a s deliberately indifferent to a plaintiff's medical needs, Hamm v. DeKalb County, 774 F.2d 1 5 6 7 (11th Cir. 1985), challenge the conditions of her confinement, Magluta v. Samples, 375 F .3 d 1269 (11th Cir. 2004), or state a claim of excessive force, Bozeman v, Orum, 422 F.3d 1 2 6 5 (11th Cir. 2005). It appears from the complaint that Nordell asserts all three types of c o m p la in ts under the Fourteenth Amendment against Green in her official capacity. T o the extent Nordell sues Green in her official capacity, she has essentially sued the C ity of Montgomery. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L .E d .2 d 114 (1985) (Official capacity lawsuits for damages are, "in all respects other than n a m e , ... treated as a suit against the entity."); see also Busby v. City of Orlando, 931 F.2d 7 6 4 , 776 (11th Cir. 1991) ("[S]uits against municipal officers are therefore, in actuality, suits

As the Fourth Amendment claims relating to arrest were dismissed, the sole remaining allegations are those pertaining to the conditions of confinement - i.e. all events took place after the arresting officer had turned Nordell over to Jail officials. As a pretrial detainee, Nordell's claims are governed by the Fourteenth Amendment and not the Fourth Amendment. Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996). Page 8 of 11

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d ire c tly against the city that the officer represents."); Thornton v. City of Montgomery, 78 F .S u p p .2 d 1218, 1231 (M.D. Ala. 1999) (quoting Kentucky). In the motion to dismiss, Defendant states Green, in her official capacity, is entitled to E lev e n th Amendment immunity because the City of Montgomery would be entitled to im m u n ity. See Doc. 59 at p. 3. The Eleventh Amendment provides that "[t]he judicial power o f the United States shall not be construed to extend to any suit in law or equity, commenced o r prosecuted against one of the United States by citizens of another state, or by citizens or s u b je c ts of any foreign state." See also Toth v City of Dothan, Ala., 953 F. Supp. 1502, 1506 (M .D . Ala. 1996) (citing Eleventh Amendment). In other words, "the Eleventh Amendment u n e q u iv o c a lly bars suits for money damages against a state by the citizens of that state, unless th e state consents to suit or specifically waives its Eleventh Amendment immunity." R a s p b e r r y, 88 F.Supp.2d at 1324-25 (citing Pennhurst States School and Hosp. v. Halderman, 4 6 5 U.S. 89, 98-100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). However, while immunity e x te n d s to state agencies, it generally does not extend to independent entities such as m u n ic ip a litie s . Miccosukee Tribe of Indians of Florida v. Florida State Athletic Com'n, 226 F .3 d 1226, 1231 (11th Cir. 2000) (citing Tuveson v. Florida Governor's Council on Indian A ffa ir s , Inc., 734 F.2d 730, 732 (11th Cir. 1984); see also Green v. City of Bessemer, A la b a m a , 202 F.Supp.2d 1272, 1274 (N.D. Ala. 2002) ("municipalities enjoy no sovereign im m u n ity under the Eleventh Amendment."); Richards v. Southeast Alabama Youth Services D iv e rs io n Center, 105 F.Supp.2d 1268, 1273 (M.D. Ala. 2000) ("Eleventh Amendment does

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n o t typically apply to political subdivisions such as municipalities."). Beyond the conclusory statement that the Eleventh Amendment bars the official c a p ac ity claims, Defendant offers no support as to how or why Eleventh Amendment im m u n ity prevents Nordell's claims. Thus, the Court rejects the City's general assertion of i m m u n i t y. 5 V I . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that (1) D e f e n d a n t H.G. Wells and Defendant A.C. Heard be dismissed in both their o f f icia l and individual capacities as they have not been properly served within 1 2 0 days of the commencement of this action. (2 ) D e f en d a n t Green be dismissed in her individual capacity as she has not been p ro p e rly served within 120 days of the commencement of this action. (3 ) T h e Motion to Dismiss (Doc. 59) be DENIED.

I T IS FURTHER ORDERED that the parties file any objections to the this R e c o m m e n d a tio n on or before November 19, 2008. Any objections filed must specifically id e n tify the findings in the Magistrate Judge's Recommendation to which the party is

The Court notes there is a question whether Nordell can sustain her claims against Green in her official capacity since there is no respondeat superior for § 1983 claims. Monell v. Dep't. of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); Holloman ex. rel. Holloman v. Harland, 370 F.3d 1252, 1290 (11th Cir. 2004). However, the Court does not address that here in a Rule 12(b)(6) situation. Rather, the Court will enter a separate show cause order on that matter pursuant to its ongoing review as required under 28 U.S.C. § 1915. Page 10 of 11

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o b je c tin g . Frivolous, conclusive or general objections will not be considered by the District C o u rt. Additionally, any objections must either be typed or printed handwriting legible to the Court. Any objections that are illegible or otherwise unclear shall be disregarded b y the Court. The parties are advised that this Recommendation is not a final order of the c o u rt and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein v. R e y n o ld s Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 6 6 1 F.2d 1206 (11th Cir. 1981, en banc) (adopting as binding precedent all of the decisions o f the former Fifth Circuit handed down prior to the close of business on September 30, 1 9 8 1 ). D O N E this 6th day of November, 2008. /s / Terry F. Moorer T E R R Y F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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