Hall et al v. The State of Alabama et al(MAG+)

Filing 46

REPORT AND RECOMMENDATION of the Magistrate Judge that (1) The motions to dismiss (Docs. 28 , 35 , and 36 ) be GRANTED. (2) The motion to dismiss (Doc. 34 ) be DENIED as moot. (3) Defendants Powe, Corporal Hall, Liedl, Johnson, Enj, Jenkins, and former Mayor Bright be dismissed without prejudice. (4) Defendant Morman be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). (5) All other defendants be dismissed with prejudice. (6) ANy outstanding motions be DENIED as moot. Objections to R&R due by 2/2/2010. Signed by Honorable Terry F. Moorer on 1/19/2010. (dmn)

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION A N T O N IO HALL, et al., P l a i n t if f s , v. T H E STATE OF ALABAMA, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) C A S E NO. 2:09-cv-342-MHT [w o] 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. 4, filed April 17, 2009). Now pending before the Court a re multiple motions to dismiss and Plaintiff's response. For good cause herein shown, it is th e recommendation of the Magistrate Judge that the Court GRANT the motions to dismiss. I . PARTIES AND COMPLAINT P r o se Plaintiffs, Antonio Hall and Carolyn Hall (collective "the Halls") brought suit o n April 15, 2009. See Doc. 1, Complaint. On May 12, 2009, the Court ordered the Halls to a m e n d their complaint and to identify with specificity what all of their allegations and claims a re as to each defendant. See Doc. 5. After the Court granted them an extension, the Halls f ile d their amended complaint on June 15, 2009. See Doc. 8. In the amended complaint the H a lls assert various allegations against a plethora of individuals including: (1) the State of Page 1 of 35 A lab a m a ; (2) Bobby Bright in his individual capacity; (3) Troy King in his official capacity a s Attorney General of the State of Alabama and in his individual capacity; (4) State of A la b a m a Attorney General's Office; (5) Ellen Brooks in her official capacity as District A tto rne y of Montgomery County, Alabama and in her individual capacity; (6) the Auburn P o lic e Department & Detective Division; (7) the Montgomery Police Department; (8) H.B. P o w e in his official and individual capacity; (9) J.W. Hall in his official and individual c a p ac ity; (10) Unit 320 Liedl #1487 in his official and individual capacity; (11) Corporal J o h n s o n in his official and individual capacity; (12) R.L. Enj in his official and individual c a p ac ity; (13) the State of Alabama District Attorney's Office; (14) Will Vines in his official c a p ac ity as Deputy District Attorney of Montgomery County, Alabama and in his individual c a p a c ity; (15) Stephanie Morman in her official capacity as Deputy Solicitor General and in h e r individual capacity; (16) the Office of Attorney General; and (17) Jason Jenkins in his o f f ic ia l and individual capacity. See Doc. 8 at p. 1. The Halls, in the eighteen page complaint p lu s the one hundred and thirty-four pages of attachments, ostensibly assert claims for v io la tio n s of the Fourth, Fifth, Sixth, and Fourteenth Amendments via 42 U.S.C. 1983 and th e Americans with Disabilities Act, 42 U.S.C. 12101.1 2 See generally id. Robert requests These are all the allegations as best the Court can discern from verbiage of the amended complaint. The Court will address the allegations as they pertain to the various defendants in later sections. Defendants State of Alabama, Attorney General Troy King, Office of the Attorney General, Office of the Attorney General - General Criminal Appeals Division, District Attorney Ellen Brooks, Deputy District Attorney Will Vines, and the District Attorney's Office also reference a 42 U.S.C. 1981 claim. However, the court finds no reference to 1981 in the Page 2 of 35 2 1 (1 ) twenty million dollars in damages, (2) expungement of the criminal records from the u n d e rlyin g state proceedings, (3) a public and/or written apology, and (4) all defendants be b ro u g h t to trial to answer for their actions. Id. at p. 16-17. All Defendants with the exception of Stephanie Morman have filed their respective m o tio n s to dismiss. See Docs. 28, 35, and 36.3 The defendants assert a variety of defenses w h ich will be addressed specifically in the sections below. The Court ordered Plaintiffs to file th e i r response on or before October 16, 2009. However, Plaintiffs did not file their response u n til October 27, 2009. See Doc. 42. Some defendants then filed a motion to strike the re s p o n s e as untimely. See Doc. 43. The Court denied the motion to strike. See Doc. 45. I I . JURISDICTION AND VENUE T h e Court finds that it exercises subject matter jurisdiction pursuant to 28 U.S.C. 1 3 3 1 (federal question jurisdiction), 1343(a) (civil rights), 42 U.S.C. 1983 (Civil Rights Act o f 1871, as amended), and 42 U.S.C. 12101 (Americans with Disabilities Act). Further, th e re are allegations sufficient to support personal jurisdiction and venue.4 Amended Complaint. However, a 1981 claim would fail because 1981 provides rights and remedies only with respect to racial discrimination. See Givens v. Chambers, 548 F.Supp.2d 1259, 1268-69 (M.D. Ala. 2008) (citations omitted). There are no claims of racial discrimination in the Amended Complaint - only discrimination under the Americans with Disabilities Act. Defendants Auburn Police Department & Detective Division and Jason Jenkins filed their motion to dismiss on August 3, 2009. See Doc. 35. On August 4, 2009, they filed an Amended Motion to Dismiss. See Doc. 36. As such, the original motion to dismiss is now moot. Defendants Auburn Police Department & Detective Division and Jason Jenkins assert venue with the Middle District of Alabama is not appropriate and asserts venue is proper in the Eastern Division. However, there is some apparent confusion as the Eastern Division is a part of the Middle District of Alabama. This case was filed in the Middle District of Alabama, Page 3 of 35 4 3 I I I. STANDARD OF REVIEW 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 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). 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, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2 0 0 7 ); see also Ashcroft v. Igbal, -- U.S. -- , -- , 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2 0 0 9 ) (A complaint should be dismissed under Rule 12(b)(6) only where it appears that the f a cts alleged fail to state a "plausible" claim for relief.). In considering a defendant's motion to dismiss, the "court must view the complaint in the light most favorable to the plaintiff and a c ce p t all the plaintiff's well-pleaded facts as true." Am. United Life Ins. v. Martinez, 480 F .3 d 1043, 1057 (11th Cir. 2007) (citing St. Joseph's Hosp. Inc. v. Hosp. Corp. of Am., 795 F .2 d 948, 954 (11th Cir. 1986)). In other words, in deciding a 12(b)(6) motion to dismiss, the c o u rt will accept the petitioner's allegations as true. Hishon v. King & Spalding, 467 U.S. 69, 7 3 , 104 S.Ct. 2229, 2232, 81 L. Ed.2d 59 (1984); Ellis v. General Motors Acceptance Corp., Northern Division. Regardless, venue in the Middle District of Alabama is appropriate. The Court need not address its divisions with specificity at this time. Page 4 of 35 1 6 0 F.3d 703, 706 (11th Cir. 1998); Roberts v. Florida Power & Light Co., 146 F.3d 1305, 1 3 0 7 (11th Cir. 1998) (citing Lopez v. First Union National Bank of Florida, 129 F.3d 1186, 1 1 8 9 (11th Cir. 1997)). However, "[c]onclusory allegations, unwarranted deductions of facts o r legal conclusions masquerading as facts will not prevent dismissal." Jackson v. BellSouth T e le c o m m s ., 372 F.3d 1250, 1262 (11th Cir. 2004) (quoting Oxford Asset Mgmt., Ltd. v. J a h a ris , 297 F.3d 1182, 1188 (11th Cir. 2002)); see also Associated Builders, Inc. v. Alabama P o w e r Co., 505 F.2d 97, 100 (5th Cir. 1974) (conclusory allegations and unwarranted d ed u ctio n s of fact are not admitted as true).5 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, 550 U.S. at 558, 127 S.Ct. at 1 9 6 6 . Further, "this basic deficiency should . . . be exposed at the point of minimum e x p e n d itu re of time and money by the parties and the court." Id. (citations omitted). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual a lle g a tio n s , a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' r e q u ire s more than labels and conclusions, and a formulaic recitation of the elements of a c a u se of action will not do." Id. at 1964-65 (citations omitted). Factual allegations must be e n o u g h to raise a right to relief above the speculative level. Id. It is not enough that the p le a d in g s merely "le[ave] open the possibility that the plaintiff might later establish some set 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 5 of 35 5 o f undisclosed facts to support recovery." Id. at 1968 (internal quotation and alteration o m itte d ). That said, a complaint may survive a motion to dismiss for failure to state a claim, h o w e v e r , even if it is "improbable" that a plaintiff would be able to prove those facts. T w o m b ly , 550 U.S. at -- , 127 S.Ct. at 1965-66. 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). I V . CLAIMS UNDER 42 U.S.C. 1983 GENERALLY 4 2 U.S.C. 1983 creates a mechanism for recovering monetary damages from and s e c u rin g injunctive relief against governmental actors and entities whose actions under color o f state or local law deprive a plaintiff of rights, privileges, or immunities secured by the U n ite d States Constitution or federal statutes. Malone v. Parker, 953 F.Supp. 1512, 1515 ( M .D . Ala. 1996). Section 1983 itself creates no substantive rights; rather, it provides a re m e d y for deprivation of federal rights established elsewhere. Barfield v. Brierton, 883 F.2d 9 2 3 , 934 (11th Cir. 1989) (citations omitted). The Halls make a number of 1983 claims. Specifically, they assert violations of the F if th , Sixth, and Fourteenth Amendments of the United States Constitution. To obtain relief u n d e r 1983, the Halls must show they were deprived of a federal right by a person acting u n d e r color of state law. Patrick v. Floyd Medical Center, 201 F.3d 1313, 1315 (11th Cir. 2 0 0 0 ) . The Supreme Court has reiterated this requires "both an alleged constitutional d e p riv a tio n `caused by the exercise of some right or privilege created by the State or by a rule Page 6 of 35 o f conduct imposed by the State or by a person for whom the State is responsible,' and that `th e party charged with the deprivation must be a person who may fairly be said to be a state a c to r.'" Id. (quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 9 8 5 , 143 L.Ed.2d 130 (1999)) (emphasis in original); see also West v. Atkins, 487 U.S. 42, 484 9 , 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (United States Supreme Court reiterates two p ro n g requirement). As such, the Court looks to each 1983 claim generally. A. F ifth Amendment Due Process Claims F irs t, a common flaw in civil rights complaints are allegations of violations of c o n stitu tio n a l violations which do not apply in this context. It is fundamental to constitutional la w that the Due Process Clause of the Fifth Amendment applies only to conduct committed b y officials of the federal government; it does not apply to state actors. See Riley v. Camp, 130 F .3 d 958, 972 n. 19 (11th Cir.1997) (Tjoflat, J., dissenting from the denial of rehearing en b a n c ). The complaint contains no allegations that federal actors did anything to harm the H a lls , therefore, the Fifth Amendment provides no basis for relief in this case.6 As such, the F if th Amendment claims merit dismissal. Rather, those claims must proceed under the F o u rte e n th Amendment. B. S ix th Amendment Claims T h e Halls also assert Sixth Amendment claims for speedy trial violations and failure to inform them of the nature and cause of the accusation. See Doc. 8 at p. 6-8. First, the In the rambling citations used by the pro se plaintiffs, they even cite this at one point. See Doc. 8 at p. 8. Page 7 of 35 6 C o u rt will consider the allegations regarding a speedy trial violation. A n accused's right to a speedy trial is guaranteed by the Sixth Amendment of the U n i te d States Constitution and by Art I, 6 of the Alabama Constitution, 1901. Plaintiffs' c o m p la in ts regarding a speedy trial violation are muddled and confusing. The section of the A m e n d e d Complaint related to the speedy trial allegations starts with a recitation of the b a la n c in g test applied by courts vis a vis a speedy trial claim. See Doc. 8 at p. 6-7; see also E x parte Walker, 928 So.2d 259, 263 (Ala. 2005) (citing Barker v. Wingo, 407 U.S. 514, 530, 9 2 S.Ct. 2182, 33 L.Ed.2d 101 (1977)) (The four factors to be considered in weighing the c o n d u c t of the State and an accused are: (1) the length of the delay, (2) the accused's assertion o f his right, (3) the reason for the delay, and (4) prejudice to the accused.). The Halls then go o n to aver the defendants violated this right by excessive delays and length of delays by not c o m p lyin g with discovery requirements. See Doc. 8 at p. 7. To the extent, the Halls assert a violation of the Speedy Trial Act, 18 U.S.C. 3161 e t seq., it applies only to federal prosecutions, and "it is only a federal arrest, not a state arrest, w h ic h will trigger the commencement of the time limits set in the Act." United States v. S h a h r y a r, 719 F.2d 1522, 1524 (11th Cir.1983). As for a violation of the Sixth Amendment o f the United States Constitution and by Art I, 6 of the Alabama Constitution, 1901, P lain tiff s cannot maintain the cause of action because the criminal prosecution was ultimately d is m is s e d by the State. See Doc. 8 at p. 4 ("And after their cases were nol pros on January 2 5 , 2007 and appealed by the State to be nol pros again on August 14, 2008.") Page 8 of 35 C. F o u r te e n th Amendment Due Process Claims T h e Halls apparently allege a violation of the Fourteenth Amendment because the d e f en d a n ts failed to provide a critical video to Plaintiff's defense counsel in the course of the c rim in a l prosecution. Plaintiffs assert the failure to provide the videotape violates the p rin c ip le s established in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1 9 6 3 ) and its progeny. See Doc. 8 at 8-12. The Brady rule is grounded in a defendant's right to a fair trial. This Court acknowledges the Brady violations as they are well documented th ro u g h the underlying state criminal proceeding. Judge McCooey initially dismissed the p ro s e c u tio n against the Halls because of the Brady violation. The Alabama Court of Criminal A p p e a ls subsequently acknowledged the Brady violations, but stated the Circuit Court erred in imposing the extreme sanction of dismissal. Alabama v. Hall, 991 So.2d 775 (Ala. Crim. A p p . 2007) (also included as part of Amended Complaint. Doc. 8-3, at p. 48-64). The A la b a m a Supreme Court denied certiorari on March 14, 2008. Ex parte Hall, 991 So.2d 782 (A la . Mar 14, 2008). However, Chief Justice Cobb wrote and published a dissent to the denial o f the petition for the writ of certiorari. Id.7 Rather than discussing this claim in detail here, th i s Court will address this specific claim in later sections. D. F o u r th Amendment T h e Halls also appear to assert a 1983 for malicious prosecution. While they never s p e c i f i c a l ly reference the Fourth Amendment, it is apparent from the substance of the The Halls frequently cite to the dissenting opinion as though it was an opinion of the Supreme Court. This is obviously not the case. Page 9 of 35 7 c o m p la in t, they assert a Fourth Amendment malicious prosecution claim. See Doc. 8, g e n e ra lly. "[P]ro se pleadings are held to a less strict standard than pleadings filed by lawyers a n d thus are construed liberally. Alba v. Montford, 517 F.3d 1249, 1251 (11th Cir. 2008), c e rt. denied, 129 S.Ct. 632 (2008). Further, the substance of the claim is what matters, not h o w the plaintiffs label it. Spruell v. Harper, 2009 WL 4041937, *2 (N.D. Ga 2009) (citation o m itted) (unpublished). Rather than discussing this claim in detail here, the Court will a d d re ss this specific claim in later sections as it applies to each defendant and legal theories p r e s e n te d in their respective motions to dismiss. V . STATUTE OF LIMITATIONS It is clear from the face of the Amended Complaint that many of the claims the Halls lo d g e rest on alleged events which occurred on or before April 15, 2007. See Doc. 8 g e n e ra lly. Meritorious or not, a claim must be brought prior to the expiration of the applicable s ta tu te of limitations for each claim. In federal causes of action where Congress has not specifically provided a statute of lim ita tio n s , the United States Supreme Court has established that a state's statute of lim ita tio n s applies. Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 1942, 85 L .E d .2 d 254 (1985); International Union, United Auto., Aerospace & Agr. Implement Workers o f America (UAW), AFL-CIO v. Hoosier Cardinal Corp., 383 U.S. 696, 703-04, 86 S.Ct. 1 1 0 7 , 1112, 16 L.Ed.2d 192 (1966). Thus, in 1983 claims, federal courts must look to state la w to determine, first, what statute of limitations is applicable, and second, whether that Page 10 of 35 lim ita tio n s period is tolled. See Whitson v. Baker, 755 F.2d 1406, 1409 (11th Cir. 1985); see a ls o City of Hialeah v. Rojas, 311 F.3d 1096, 1102 n. 2 (11th Cir. 2002) ("Section 1983 c la im s are governed by the forum state's residual personal injury statute of limitations."). The C o u rt looks to Alabama law for the guiding statute of limitations and finds that it is two years u n d e r the state's residual statute of limitations for personal injury actions. ALA. CODE 6-23 8 (l);8 see also Lufkin v. McCallum, 956 F.2d 1104, 1105-06 (11th Cir. 1992) (applying ALA. C ODE 6-2-38(l) and its two year statute of limitation in 1983 action). The same is true for t h e applicable statute of limitation for claims brought under the ADA. Everett v. Cobb v. C o b b County Sch. Dist., 138 F.3d 1407, 1409-10 (11th Cir. 1998); Smith v. McFarland, 2008 W L 606986, *2 (M.D. Ala. 2008) (unpublished) (citing Everett and applying ALA. CODE 6 -2 -3 8 (l) and its two year statute of limitation in ADA action). A. C la im s Brought pursuant to Americans with Disabilities Act T h e Halls filed their complaint on April 14, 2009, and therefore have no legal basis on w h ic h proceed with respect to any claims that accrued before April 14, 2007. A review of the a m e n d e d complaint shows that all the claims pertaining to the ADA all occurred in September 2 0 0 6 . As such, the ADA claims would have accrued by September 2008. The Halls did not f ile suit until April 15, 2009; therefore, the ADA claims are time-barred by the two year s ta tu te of limitations. The statute states: "All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years." Page 11 of 35 8 B. C la im s Brought pursuant to 42 U.S.C. 1983 A s discussed supra in Section IV, the Halls assert claims for Fourteenth Amendment d u e process violations (Brady) and Fourth Amendment malicious prosecution.9 The Court n o w turns to the statute of limitations as to these surviving 1983 claims. i. D u e Process Violations (Brady) T h e Court now looks to the Fourteenth Amendment 1983 for Brady/due process v io la tio n s . Based on the Amended Complaint, the alleged Brady violation first occurred b e tw e e n November 15, 2006 and January 25, 2007. The Halls allege the violations continued th ro u g h the appellate process and until August 14, 2008. "Federal law determines when the s ta tu te of limitations begins to run; generally, `the statute of limitations does not begin to run u n til the facts that would support a cause of action are apparent or should be apparent to a p e rs o n with a reasonably prudent regard for his rights.'" Porter v. Ray, 461 F.3d 1315, 1323 ( 1 1 th Cir. 2006) (quoting Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir.2003)). Thus, " S e c tio n 1983 actions do not accrue until the plaintiff knows or has reason to know that he h a s been injured.... Nor will a Section 1983 action accrue until the plaintiff is aware or should h a v e been aware who has inflicted the injury." Mullinax v. McElhenney, 817 F.2d 711, 716 (1 1 th Cir. 1987) (citation omitted); see also Eubank v. Leslie, 210 Fed. Appx 837, 841 (11th C ir. 2006) (per curiam) ("A cause of action accrues for purposes of determining when the s ta tu te of limitations period began to run when the plaintiff knew or should have known of 9 The Court already discussed the dismissal of the Fifth and Sixth Amendment Page 12 of 35 claims. h is injury and its cause."). The Halls knew about the violation at the latest by January 25, 2007 when Judge M c C o o e y dismissed the criminal charges against them for bad conduct by the state. As such, th e 1983 suit for the Fourteenth Amendment claims would be barred after January 25, 2009. T h e Complaint was filed on April 15, 2009, therefore those claims are time barred because the Halls knew about the facts and circumstances giving rise to those 1983 claims for more th a n two years before the filing of the instant suit. ii. M a lic io u s Prosecution T h e Court first considers the 1983 claim for malicious prosecution. A 1983 claim f o r malicious prosecution does not accrue until the criminal proceedings are resolved in p la in tif f 's favor. Heck v. Humphrey, 512 U.S. 477, 489, 114 S.Ct. 2364, 2374, 129 L.Ed.2d 3 8 3 (1994); see also Kelly v. Serna, 87 F.3d 1235, 1239 (11th Cir. 1996) (citing Heck); B u r g e st v. McAfee, 264 Fed. Appx. 850, 852-53 (11th Cir. 2008) (unpublished) (stating same). A s is required, when looking at the complaint in the light most favorable to the plaintiffs, the c a se was resolved in the Halls favor with the final dismissal on August 14, 2008. As such, a p p lyin g the two year statute of limitations, a 1983 malicious prosecution claims would have to be filed on or before August 14, 2010. As the complaint was filed on April 15, 2009, there is no question that it was timely filed and is not barred by the statute of limitations. This is th e sole remaining claim to address with regard to specific defendants. Page 13 of 35 V I . RELIEF REQUESTED B e f o r e turning to each specific defendant and the 1983 malicious prosecution claims, th e Court will also address certain relief requested which merits dismissal against all d e f e n d a n ts . A. C r im in a l Prosecution In the section on relief requested, the Halls request that the Defendants be brought to tria l to answer questions pertaining to the destruction of the videotape. It is unclear from the f a ce of the Amended Complaint whether the Halls are simply making their civil jury demand o r whether they request a criminal prosecution and sanctions. Out of an abundance of caution, th e court addresses the potential request for criminal prosecution and sanctions. A "private citizen lacks a judicially cognizable interest in the prosecution or nonp ro s e c u tio n of another." Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 767 n. 13, 1 2 5 S.Ct. 2796, 2809, 162 L.Ed.2d 658 (2005) (quoting Linda R. v. Richard D., 410 U.S. 614, 6 1 9 , 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973)); Leeke v. Timmerman, 454 U.S. 83, 85-86, 1 0 2 S.Ct. 69, 70, 70 L.Ed.2d 65 (1981); see also Davit v. Davit, 173 Fed. Appx. 515 (7th Cir. 2 0 0 6 ) (unpublished opinion) ( "A private individual does not have standing to demand the c rim in a l prosecution of another individual, let alone standing to prosecute the individual [ h e rs e lf ]." ). Thus, a damages claim for criminal prosecution is without legal merit and w a rra n ts dismissal. Page 14 of 35 B. E x p u n g em e n t of Records T h e Halls clearly request for the expungement of any records relating to the i n d i c tm e n ts , arrest records, and any other records pertaining to the criminal proceedings a g a in s t them. See Doc. 8 at p. 15-16. The Halls specifically complain that the information s h o w s up on background checks which is embarrassing and interferes with their finances and a b ility to get jobs. See Doc. 42 at p. 11-12. There is no specific constitutional or general statutory right to expungement. Sealed A p p e lla n t v. Sealed Appellee, 130 F.3d 695, 699-700 (5th Cir. 1997), cert. denied 523 U.S. 1 0 7 7 , 118 S.Ct. 1523, 140 L.Ed.2d 675 (1998). Unlike many state legislatures, Congress has n o t enacted legislation providing for the expungement of criminal records.1 0 In the absence o f Congressional guidance, the circuits have been divided as to whether a district court has ju ris d ic tio n to grant such relief. T h e Second, Tenth, and D.C. Circuits have determined that district courts have ju ris d ic tio n to grant expungement solely on equitable grounds. See, e.g., United States v. S c h n itz e r, 567 F.2d 536, 539 (2d Cir. 1977) ("[E]xpungement lies within the equitable d is c re tio n of the court, and relief usually is granted only in extreme circumstances." (internal q u o tatio n omitted)); United States v. Linn, 513 F.2d 925, 927 (10th Cir. 1975) (finding that See, e.g., ALA. CODE 41-9-646 (offering the remedy of expungement for criminal records found by the court "to be inaccurate, incomplete or misleading"); FLA. STAT. 943.0585 (2009) (allowing a court of competent jurisdiction to order the expunction of a criminal history record of a minor or adult who complies with the statutory procedural requirements and where the criminal history record does not relate to specific violations delineated by statute). Page 15 of 35 10 ex trem e or unusual cases "call for a `balancing' of the equities between the Government's n e e d to maintain extensive records in order to aid in general law enforcement and the in d iv id u a l's right to privacy"); Livingston v. U.S. Dep't of Justice, 759 F.2d 74, 78 (D.C. Cir. 1 9 8 5 ) (reiterating, as "well established," the rule "that courts have the inherent, equitable p o w e r to expunge arrest records" when necessary "to preserve basic legal rights"); see also U n ite d States v. Tyler, -- F.Supp.2d -- , -- , 2009 WL 4059156, *1 (M.D. Fla. 2009) (c o llec tin g the above cases). These cases base expungement on the idea that "district courts h a v e jurisdiction ancillary to and derivative of their original jurisdiction." Tyler, -- F .S u p p .2 d at -- , 2009 WL 4059156 at *1. In other words, if a court has original jurisdiction, it may use ancillary jurisdiction to deal with "other related matters which it could not consider w e re they independently presented." Id. (citing United States v. Dunegan, 251 F.3d 477, 4787 9 (3d Cir. 2001). The Court next looks to the Fifth and Seventh Circuits, which have permitted some in s ta n c e s of expungement, but with more limitations than the Second, Tenth, and D.C. C irc u its . The Seventh Circuit held that while courts do not have jurisdiction to expunge e x e cu tiv e records, criminal records held by the judicial branch may be expunged "if the d a n g e r s of unwarranted adverse consequences to the individual outweigh the public interest in maintenance of the records." United States v. Flowers, 389 F.3d 737, 739 (7th Cir. 2004) (q u o tin g United States v. Janik, 10 F.3d 470, 472 (7th Cir. 1993)). The Fifth Circuit has also re c o g n iz e d that courts have the power to order expungement of records, but emphasized that Page 16 of 35 s u c h action is permissible only in very limited circumstances. See, e.g., Sealed Appellant v. S e a le d Appellee, 130 F.3d at 698-99 ("In order to have standing to seek expungement, the p a rty seeking expungement against executive agencies must assert an affirmative rights v io latio n by the executive actors holding the records"); Rogers v. Slaughter, 469 F.2d 1084, 1 0 8 5 (5th Cir. 1972) (noting that the privilege of courts "to expunge matters of public record is one of exceedingly narrow scope" and vacating, on public policy grounds, portion of district co u rt order that related to expungement). H o w e v e r, as noted by the district court in Tyler, in 1994 the Supreme Court issued its o p in io n in Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L .E d .2 d 391 (1994) and explained the limited reach of ancillary jurisdiction.1 1 Tyler, -- F .S u p p .2 d at -- , 2009 WL 4059156 at *2. The Supreme Court stated that ancillary ju risd ictio n exists in two separate, but related, premises: "(1) to permit disposition by a single c o u rt of claims that are, in varying respects and degrees, factually interdependent; and (2) to e n a b le a court to function successfully, that is, to manage its proceedings, vindicate its a u th o rity, and effectuate its decrees." Id. at 379-80, 114 S.Ct. at 1676 (citations omitted). After the Kokkonen decision, a split among the circuits has developed with regard to w he th e r a federal district court has ancillary jurisdiction to determine matters of expungement. Specifically the Supreme Court determined that federal courts do not have jurisdiction to enforce settlement agreements reached in cases that they have dismissed unless they have retained jurisdiction to do so or "there is some independent basis for federal jurisdiction." Kokkonen, 511 U.S. at 381-82. 114 S.Ct. at 1677. The Court explicitly rejected the idea that ancillary jurisdiction gave the court authority to do so. Page 17 of 35 11 S e e United States v. Paxton, 2007 WL 2081483 (M.D. Ala. 2007) (unpublished). Several circu its, including the First, Third, Eighth, and Ninth, have concluded that, after Kokkonen, a request for expungement does not serve the limited purposes necessary for invocation of a n c illa ry jurisdiction and that equitable considerations standing alone are not sufficient to s u p p o rt jurisdiction over such a request. See United States v. Coloian, 480 F.3d 47, 52 (1st C ir. 2007); United States v. Meyer, 439 F.3d 855, 859-60 (8th Cir. 2006); United States v. D u n e g a n , 251 F.3d 477, 479-80 (3d Cir. 2001); United States v. Sumner, 226 F.3d 1005, 1 0 1 3 -15 (9th Cir. 2000) This Court has not found any Eleventh Circuit opinions on expungement in general s in c e the Kokkonen case. See also Tyler, -- F.Supp.2d at -- , 2009 WL 4059156 at *2 (n o tin g the lack of a post-Kokkonen opinion from the Eleventh Circuit); United States v. C a r s o n , 366 F.Supp.2d 1151, 1155 (M.D. Fla. 2004) (finding that the Eleventh Circuit has p u b l i s h e d no opinions on expungement in general outside the realm concerning the nowre p e a led "Youth Corrections Act"); Paxton, 2007 WL 2081483 at *1 (citing Carson and the p ro p o sitio n that the Eleventh Circuit has not addressed the issue). Absent statutory authority a n d a post-Kokkonen opinion from the Eleventh Circuit, this Court agrees with the analysis s e t forth by the First, Third, Eighth, and Ninth Circuits as well as the district courts in Tyler, C a r s o n , and Paxton. Kokkonen effectively narrowed the scope of ancillary jurisdiction. T h e re f o re , the court does not have ancillary jurisdiction to determine the issue of e x p u n g e m e n t. Page 18 of 35 A lte r n a tiv e l y, even if the court does have jurisdiction, the court still finds the request is due to be denied. Prior to the 1981 split, the Fifth Circuit held that "the Court's privilege to expunge matters of public record is one of exceedingly narrow scope." Rogers, 469 F.2d at 1085. The Halls primarily complain of embarrassment and the effect on Mr. Hall's career. U n d e r 1983 "allegations of injury to reputation alone do not support a section 1983 claim f o r violation of due process, and therefore must be accompanied by a constitutionally re c o g n iz e d injury." Cypress Ins. Co. v. Clark, 144 F.3d 1435, 1436 (11th Cir. 1998) (citing P a u l v. Davis, 424 U.S. 693, 712, 96 S.Ct. 1155, 1165-66, 47 L.Ed.2d 405 (1976)). A p e rso n 's interest in reputation alone is not a protected liberty interest within the meaning of th e due process clause. Paul, 424 U.S. at 701, 96 S.Ct. at 1161. "This rule, labeled the `s t ig m a - p lu s ' standard, requires a plaintiff to show that the government official's conduct d e p r iv e d the plaintiff of a previously recognized property or liberty interest in addition to d a m a g in g the plaintiff's reputation." Cypress Ins. Co, 144 F.3d at 1436-37 (citing Paul, 424 a t 712, 96 S.Ct. at 1165-66). Therefore, embarrassment does not provide a sufficient basis f o r expungement even if the court has jurisdiction. As to economic and employment losses, United States v. Lopez, 704 F.Supp. 1055 (S .D . Fla 1988) and United States v. Singleton, 442 F.Supp. 722 (S.D. Tex. 1977) both illu s tra te that injury to reputation and economic loss are but factors which the Court may co n side r or disregard in determining whether to expunge a person's arrest record. In S in g le to n , several police officers were arrested for illegal wiretapping, but eventually Page 19 of 35 a c q u itte d of all charges. Singleton, 442 F.Supp. at 724. However, despite the acquittal, the c o u r t held that the expungement of such records was a matter for Congress and not the courts. Id .; accord Rogers, 469 F.2d at 1085; see also Lopez, 704 F.Supp. at 1057 (citing Singleton). T h e Fifth Circuit, addressing the question of expungement in an acquittal situation, s p e c if ic a lly held "[p]ublic policy requires here that the retention of records of the arrest and s u b s e q u e n t proceedings be left to the discretion of appropriate authorities. The judicial e d itin g of history is likely to produce a greater harm that is sought to be corrected." Rogers, 4 6 9 F.2d at 1085. The Lopez court went one step further when it stated "[a]n analogous, if n o t more substantial harm would be created if courts required record keeping agencies to e x p u n g e an individual's record each time an Assistant United States Attorney dismissed a c o m p la in t." Lopez, 704 F.Supp. at 1057. The situation with the Halls is similar to the one presented by the Lopez court. T h e re f o re , it is the opinion of this court that the Hall's request for expungement should be d e n ie d . C. P u b lic Apology T h is Court's powers to grant relief are limited and it lacks jurisdiction to order any of th e Defendants to apologize to the Plaintiffs. Therefore, the request for an apology should be d e n ied . Based on the above, all of the injunctive requests are due denial which leaves only m o n e ta ry damages as they relate to the Hall's 1983 malicious prosecution claims. Now the C o u rt turns to the specific defendants. Page 20 of 35 V I I . MONTGOMERY POLICE DEPARTMENT AND AUBURN POLICE DEPARTMENT P la in tif f s bring claims against the Montgomery Police Department ("MPD") and the A u b u rn Police Department ("APD"). Under Alabama law, the MPD and APD are not legal e n titie s subject to suit or liability. See Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). F o r this reason, all claims in Plaintiffs' Complaint against the MPD and APD merit dismissal. V I I I. STATE OF ALABAMA, STATE OF ALABAMA ATTORNEY GENERAL'S OFFICE, O FFICE OF THE ATTORNEY GENERAL - CRIMINAL APPEALS DIVISION, AND THE OFFICE OF THE DISTRICT ATTORNEY The Eleventh Amendment provides that "[t]he judicial power of the United States shall n o t be construed to extend to any suit in law or equity, commenced or prosecuted against one o f the United States by citizens of another state, or by citizens or subjects of any foreign s ta te ." U.S. CONST. AMEND. XI; see also Pennhurst State School & Hosp. v. Halderman, 465 U .S . 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (The Eleventh Amendment bars suit directly a g a in st a state or its agencies, regardless of the nature of relief sought); Toth v City of Dothan, A la ., 953 F. Supp. 1502, 1506 (M.D. Ala. 1996) (citing Eleventh Amendment). Specifically, a n unconsenting state is immune from lawsuits brought in federal court by the state's own c itiz e n s unless Congress has abrogated immunity or the state has waived its immunity. Id. (c itatio n s omitted). Neither the State of Alabama nor Congress has waived Eleventh A m e n d m e n t immunity under 1983. Carr v. City of Florence, Ala., 916 F.2d 1521, 1524-25 (1 1 th Cir. 1990)); see also Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3058, (1978) (f in d in g Article I, 14, of the Alabama Constitution prohibits Alabama from giving its Page 21 of 35 co n sen t and therefore the State of Alabama was entitled to Eleventh Amendment immunity); L a n c a ste r v. Monroe County, Ala., 116 F.3d 1419, 1429 (11th Cir. 1997) (holding Alabama h a s not waived its Eleventh Amendment immunity); Taylor v. Alabama, 95 F.Supp.2d 1297, 1 3 1 0 (citing Wright v. Butts, 953 F.Supp. 1352, 1358 (M.D. Ala. 1996)) (same). This im m u n ity extends to state agencies as well. Marous Bros. Constr., LLC v. Alabama State U n iv ., 533 F.Supp.2d 1199, 1201 (M.D. Ala. 2008) (citing Article I, 14 of the Alabama C o n s titu tio n and Phillips v. Thomas, 555 So.2d 81, 83 (Ala. 1989)). The State of Alabama Attorney General's Office, Office of the Attorney General C rim in a l Appeals Division, and the Office of the District Attorney are all state agencies. Thus th e State of Alabama, State of Alabama Attorney General's Office, Office of the Attorney G e n e ra l - Criminal Appeals Division, and the Office of the District Attorney are immune from s u it. This jurisdictional bar applies regardless of the nature of the relief sought - i.e. whether th e suit seeks damages or injunctive relief. Halderman, 465 U.S. at 100-02, 104 S.Ct. 908-09. F u rth e r, the 1983 claims also merit dismissal because the Supreme Court has clearly e s ta b lis h e d that a state does not qualify as a "person" under 1983. Hafer v. Melo, 502 U.S. 2 1 , 22-23, 112 S.Ct. 358, 360-61, 116 L.Ed.2d 301 (1991); Will v. Michigan Dept. of State P o lic e , 491 U.S. 58, 63-70, 109 S.Ct. 2304, 2308-2312, 105 L.Ed.2d 45 (1989)). IX. DISTRICT ATTORNEYS ELLEN BROOKS AND WILL VINES P la in tif f s asserts 1983 claims against District Attorney Ellen Brooks ("Brooks") and D e p u ty District Attorney Will Vines ("Vines"). Plaintiffs assert those claims against Brooks Page 22 of 35 a n d Vines in their official and individual capacities. See Doc. 8 at p. 1. On September 3, 2 0 0 9 , Brooks and Vines filed their Rule 12(b)(6) motion to dismiss asserting Eleventh A m e n d m e n t Immunity, absolute prosecutorial immunity, statute of limitations, and failure to sta te a claim because Brooks and Vines in their official capacities are not "persons" within th e meaning of 1983. See Doc. 36. In their response, the Halls simply re-assert their a lle g a tio n s against Brooks and Vines. See Doc. 42. A. O ffic ia l Capacity Claims F o r liability purposes, a suit against a public official in his official capacity is c o n s id e re d a suit against the local government entity he represents. Kentucky v. Graham, 473 U .S . 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). The allegations asserted against B ro o k s and Vines arise out of the district attorney's exercise of discretion in the prosecution o f state offenses, a state-created power. See Owens v. Fulton County, 877 F.2d 947, 952 (11th C ir. 1989); Jefferson County v. Swindle, 361 So.2d 116, 118 (Ala. 1978) ("district attorneys h a v e specifically been declared state officers and not county officers."). Therefore, a suit a g a in s t them in their official capacities is in reality a suit against the state of Alabama. As s u c h , Plaintiffs' 1983 claims against Brooks and Vines in their official capacities are barred b y the Eleventh Amendment as previously discussed in more detail in Section VIII. The claims are also barred because state officials "acting in their official capacities" i.e . a claim against the state itself - are outside the class of "persons" subject to liability under 1983. See Hafer, 502 U.S. at 22-23, 112 S.Ct. at 360-61; Will, 491 U.S. at 63-70, 109 S.Ct. Page 23 of 35 a t 2308-2312. Based on the foregoing authorities, the Court finds Brooks and Vines, in their o f f ic ia l capacities, are not a "persons" which may be sued under 1983. Therefore, claims a g a in st Brookes and Vines in their official capacities are due dismissal. B. I n d iv id u a l Capacity Claims P r o s e c u to rs are entitled to "the same absolute immunity that the prosecutor enjoys at c o m m o n law." Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 993, 47 L.Ed.2d 128 (1 9 7 6 ). However, a prosecutor is not absolutely immune simply because he is a prosecutor n o r are all of his actions covered. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 2 6 1 5 , 125 L.Ed.2d 209 (1993). Absolute immunity applies to "acts undertaken by a p ro s e c u to r in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State." Id.; Rivera v. Leal, 359 F.3d 1350, 1 3 5 3 (11th Cir. 2004) ("A prosecutor is entitled to absolute immunity for all actions he takes w h ile performing his function as an advocate for the government."); see also Van De Kamp v . Goldstein, -- U.S. -- , -- ,129 S.Ct. 855, 857, 172 L.Ed.2d 706 (2009) ("Prosecutors are ab so lutely immune from liability in 1983 suits brought against prosecutorial actions that are intim ately associated with the judicial phase of the criminal process.") (citation omitted). " T h o s e acts must include the professional evaluation of the evidence assembled by the police a n d appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made." Buckley, 509 U.S. at 273, 113 S.Ct. at 2615. Absolute im m u n ity would not apply when a prosecutor is acting outside judicial proceedings, such as Page 24 of 35 w h e n a prosecutor gives advice to police during a criminal investigation, when the prosecutor m ak es statements to the press, or when a prosecutor acts as a complaining witness in support o f a warrant application. See Van De Kamp, -- U.S. at -- ,129 S.Ct. at 861 (internal citations o m i tt e d ) . F u rth e r, absolute immunity only applies to claims for monetary relief. Bolin v. Story, 2 2 5 F.3d 1234, 1242 (11th Cir. 2000). Prosecutors do not enjoy absolute immunity from d e c la ra to ry and injunctive relief claims. Id. (quoting Tarter v. Hury, 646 F.2d 1010, 1012 (5th C ir. 1981)); see also Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. 7 1 9 , 736-38, 100 S.Ct. 1967, 1976-78, 64 L.Ed.2d 641 (1980) (prosecutors do not enjoy a b s o lu te immunity from claims for equitable relief). Plaintiffs contend that the Brooks and Vines misled the Hall's criminal defense counsel a n d misrepresented to the Court a number of times about getting a video to the Hall's attorney. S e e Doc. 8 generally. This case is analogous to the situation in Imbler, 424 U.S. 409, 96 S.Ct. 9 8 4 . In Imbler, the plaintiff alleged that the district attorney had "knowingly used false te s tim o n y and suppressed material evidence" at trial. Imbler, 424 U.S. at 413, 96 S.Ct. at 987. T h e Supreme Court still held that a state prosecuting attorney acting within the scope of his d u ties in initiating and pursuing a criminal prosecution and in presenting the state's case, is ab so lutely immune from civil suit for damages for alleged deprivations of the accused's c o n stitu tio n a l rights in a 1983 action even though such immunity leaves a wronged party w ith o u t civil redress against the prosecutor. Id. at 427, 96 S.Ct. at 993; see also Van De Kamp Page 25 of 35 v . Goldstein, -- U.S. -- , 129 S.Ct. 855 (2009) (Supreme Court upholds prosecutor's absolute im m u n ity in all circumstances intimately associated with the judicial phase of the criminal p ro c e ss even when falsity is alleged). More recently the Eleventh Circuit reiterated that " [ p ]ro s e c u to rs have absolute immunity when filing an information without investigation, f ilin g charges without jurisdiction, filing a baseless detainer, offering perjured testimony, s u p p re s s in g exculpatory evidence, refusing to investigate complaints about the prison system, a n d threatening further criminal prosecutions." Hart v. Hodges, 587 F.3d 1288, 1295 (11th C ir. 2009) (internal modifications and citation omitted). Thus, despite the asserted Brady v io la tio n s , the district attorneys are still entitled to absolute immunity for the 1983 federal c la im s against them in their individual capacities where monetary damages are sought. See id .; see also Porter v. White, 483 F.3d 1294, 1305 n. 8 (11th Cir. 2007) ("Injury flowing from a procedural due process violation . . . that results from a prosecutor's failure to comply with th e Brady rule cannot be redressed by a civil damages action against the prosecutor under 1 9 8 3 because the prosecutor is absolutely immune from such liability."). However, as p re v io u s ly discussed, absolute immunity does not extend to claims for equitable relief which P la in tif f s have requested. See Doc. 8 at p. 15-17 (for equitable relief claims); Bolin v. Story, 2 2 5 F.3d at 1242. Therefore, prosecutorial immunity only applies to Plaintiffs' claim for $ 2 0 ,0 0 0 ,0 0 0 .0 0 . While "prosecutors do not enjoy absolute immunity from [declaratory and injunctive re lie f ] claims," see Tarter v. Hury, 646 F.2d 1010, 1012 (5th Cir.1981), in order to receive Page 26 of 35 d ec laratory or injunctive relief, Plaintiff must establish that there was a violation, that "there is a serious risk of continuing irreparable injury if the relief is not granted, and the absence o f an adequate remedy at law." See Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000) (c itin g Newman v. Alabama, 683 F.2d 1312 (11th Cir. 1982)). As already discussed p re v io u s ly, the Halls' requests for injunctive relief do not stand and therefore, all the claims a g a in st Defendants Brooks and Vines merit dismissal. X . TROY KING T h e Halls name Troy King ("King") as a defendant in this cause of action. It appears f ro m the complaint that they seek to hold King responsible for actions undertaken by the o f f ic e of the Attorney General in pursuing the appeal relating to the dismissal of the criminal a c tio n against the Halls. For the reasons outlined below, these claims entitle the Halls to no re lie f in this cause of action. A. O ffic ia l Capacity A g a in , for liability purposes, a suit against a public official in his official capacity is c o n s id e re d a suit against the local government entity he represents. Graham, 473 U.S. at 166, 1 0 5 S.Ct. at 3105. The allegations asserted against King arise out of the appellate process re latin g to the prosecution of state offenses. Like Brooks and Vine, a suit against King in his o f f ic ia l capacity is in reality a suit against the state of Alabama. As such, Plaintiffs' 1983 c la im s against King in his official capacity are barred by the Eleventh Amendment and b e c au s e he is not a "person" under 1983. Page 27 of 35 B. In d ivid u a l Capacity A s with Brooks and Vines, "[a] prosecutor is entitled to absolute immunity for all a c tio n s he takes while performing his function as an advocate for the government." Rowe v. F o rt Lauderdale, 279 F.3d 1271, 1279 (11th Cir. 2002) (citing Buckley v. Fitzsimmons, 509 U .S . 259, 273, 113 S.Ct. 2606, 2615-16, 125 L.Ed.2d 209 (1993)). Therefore, King is entitled t o prosecutorial immunity for any claims for damages. Further, since the injunctive relief re q u e ste d cannot survive, all claims against King warrant dismissal. X I . H.B. POWE, J.W. HALL, UNIT 320 LIEDL #1487, CORPORAL JOHNSON, R.L. ENJ, AND JASON JENKINS1 2 T h e Halls brought suit against Defendants H.B. Powe ("Powe"), J.W. Hall ("Corporal H a ll" )1 3 Unit 320 Liedl #1487 ("Liedl"), Corporal Johnson ("Johnson"), R.L. Enj ("Enj"), and J a so n Jenkins ("Jenkins") in their official and individual capacities. From the amended c o m p lain t, the claims against Powe, Corporal Hall, Liedl, Johnson, and Enj appear to relate s o le ly to the alleged violations of the ADA. The ADA claims are barred by the two year s ta tu te of limitations. However, as the complaint is, at times, convoluted and confusing, the In the Motion to Dismiss (Doc. 28), the motion is also filed on behalf of Montgomery Police Chief Art Baylor. Art Baylor was named as a defendant in the original complaint (Doc. 1 at p. 5). However, Art Baylor was not re-named in the Amended Complaint (Doc. 8) nor is he referenced in Plaintiffs' response to the motions to dismiss (Doc. 42). As such, he was dropped from the lawsuit with the Amended Complaint. However, the analysis would still apply to him, even if he was a defendant. The Court will call this defendant Corporal Hall so as not to confuse him with the Plaintiffs. The Motion to Dismiss does not provide this officer's rank, but the Amended Complaint identifies him as Corporal J.W. Hall, therefore the Court will adopt that title. Page 28 of 35 13 12 C o u rt also considers the malicious prosecution 1983 claim for damages. As to Defendant J e n k in s , other than listing him as a defendant, there is no specific reference to him by name. It can, however, be construed that he is the officer referenced on p. 46 and 48 of Doc. 8-2. T h e only officer who is specifically referenced by name is Corporal Hall. A s previously discussed, " 1983 is not itself a source of substantive rights, but merely p ro v id e s a method for vindicating federal rights elsewhere conferred." Graham v. Conner, 4 9 0 U.S. 386, 393-94, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989) (internal quotes o m itte d ); Cummings v. DeKalb County, 24 F.3d 1349, 1355 (11th Cir. 1994). A. O ffic ia l Capacity Claims A g a i n , a claim against a governmental official in his official capacity is a suit against th e official's office itself. Graham, 473 U.S. at 165-66, 105 S.Ct. at 3105; see also Busby v. C ity of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) ("[S]uits against municipal officers are th e re f o re , in actuality, suits directly against the city that the officer represents."); Thornton v. C ity of Montgomery, 78 F.Supp.2d 1218, 1231 (M.D. Ala. 1999) (quoting Graham). T h e re f o re , claims against Powe, Corporal Hall, Liedl, Johnson, and Enj are claims against the C ity of Montgomery while a claim against Jenkins is a claim against the City of Auburn. It is well established that there can be no respondeat superior for 1983 claims. M o n e ll v. Dep't. of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 ( 1 9 7 8 ); Holloman ex. rel. Holloman v. Harland, 370 F.3d 1252, 1290 (11th Cir. 2004). T h e re f o re the named defendant in a 1983 suit may only be held liable for its own Page 29 of 35 u n c o n s titu tio n a l conduct and not that of subordinates or employees. Monell, 436 U.S. at 694, 9 8 S.Ct. at 2037-38. A g ain , for an official capacity claim, the question is whether the City of Montgomery o r the City of Auburn themselves violated the Hall's constitutional rights. A municipality may b e found liable under 1983 only if the violation of the plaintiff's rights is attributable to a m u n ic ip a l policy or custom. Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38; Williams v. Town o f White Hall, Ala., 450 F.Supp.2d 1300, 1303 (M.D. Ala. 2006). Therefore, for their 1983 m aliciou s prosecution claim, the Halls must show (1) their Fourth Amendment rights were v io la te d and (2) the violation was attributable to a policy or custom of the City of M o n tg o m e ry or City of Auburn. See Collins v. City of Harker Heights, 503 U.S. 115, 120, 1 1 2 S.Ct. 1061, 1065, L.Ed.2d 261 (1992); Wyke v. Polk County Sch. Bd., 129 F.3d 560, 568 (1 1 th Cir. 1997). Normally, for this type of claim the Court would have to consider evidence more p ro p e rly addressed in a summary judgment scenario. However, the complaint does not re f e re n c e at any point a policy or custom by the City of Montgomery or City of Auburn to s u p p o rt a malicious prosecution claim. The Supreme Court has made it clear that courts may n o t impose a heightened pleading requirement for claims pursuant to 42 U.S.C. 1983 against m u n ic ip a l entities. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination U n it, 507 U.S. 163, 167-68, 113 S.Ct. 1160, 1162-63, 122 L.Ed.2d 517 (1993). However, this C o u rt does not attempt to impose any kind of "heightened" requirement, but rather the basic Page 30 of 35 p lea d in g requirements of Fed. R. Civ. P. 8. The Court issued two orders to the Halls to file a n amended complaint which "describes in simple language who did what to them as well as w h e re , when, and why these actions give rise to their claims." A careful review of the a m e n d e d complaint and its numerous attachments fail to show Plaintiffs made a claim that a p o lic y or custom of the City of Montgomery or City of Auburn to support their malicious p r o s e c u t io n claim. Rather, with regard to the 1983 claims, Plaintiffs make claims against v a rio u s individuals, most specifically the prosecutors involved in the underlying criminal case. A s already discussed, prosecutorial immunity bars those claims against the district attorneys e v e n though it may leave the Plaintiffs without a remedy for prosecutorial misconduct. P la in tif f s were also warned by the Court that failure to comply with the orders to amend may re s u lt in the dismissal of their claims. See Docs. 5 and 7. "Although pro se pleadings are held to a less strict standard than pleadings filed by lawyers and thus are construed liberally, this lib e r a l construction does not give a court license to serve as de facto counsel for a party or to w rite an otherwise deficient pleading in order to sustain an action." Giles v. Wal-Mart D is tr ib u tio n Center, 2009 WL 5064351, *2 (11th Cir. 2009) (unpublished) (internal q u o tatio n s and citations omitted). Therefore, as to Defendants Powe, Corporal Hall, Liedl, J o h n s o n , Enj, and Jenkins in their official capacities, the claims are due dismissal without p re ju d ic e . B. I n d iv id u a l Capacity Claims E ig h te e n years ago, the Eleventh Circuit Court of Appeals required plaintiffs bringing Page 31 of 35 c la im s pursuant to 42 U.S.C. 1983 to satisfy a heightened pleading standard. See, e.g., O la d e in d e v. City of Birmingham, 963 F.2d 1481 (11th Cir. 1992), cert. denied, 507 U.S. 987, 1 1 3 S.Ct. 1586, 123 L.Ed.2d 153 (1993). To satisfy this heightened pleading standard, a p la in tif f must plead his claims with some factual detail. Id. at 1485. Despite an apparent tre n d against heightened pleading requirements, the Eleventh Circuit reiterated this re q u ire m e n t in civil rights cases to the extent they are brought against individual defendants w h o might raise a qualified immunity defense. See, e.g., Swann v. Southern Health Partners, In c ., 388 F.3d 834, 838 (11th Cir.2004); Dalrymple v. Reno, 334 F.3d 991, 996 (11th C ir.2 0 0 3 ); Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003).1 4 As this court is bound b y decisions from the Eleventh Circuit, a heightened pleading standard will be applied against th e individual defendants in their official capacities. However, even without the heightened p le a d in g standard, as with the defendants in their official capacities, there is no link w h a ts o e v e r between Powe, Corporal Hall, Liedl, Johnson, Enj, and Jenkins and the 1983 c la i m s asserted by the Halls. The only specific reference in the Amended Complaint is the A D A complaint against Corporal Hall. See Doc. 8 at p. 3 As such, they merit dismissal w ith o u t prejudice. X I I . FORMER MAYOR BOBBY BRIGHT D e f e n d a n t Bobby Bright, the former mayor of the City of Montgomery, is sued in his The First, Second, Third, Sixth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits have rejected heightened pleading. See Kirkland v. County Comm'r of Elmore County, Alabama, 2009 WL 773205, *4 (M.D. Ala. 2009) (Fuller, CJ) (discussion on heightened pleading in Eleventh Circuit and collecting cases from other circuits. Page 32 of 35 14 in d iv id u a l capacity, though the complaint makes no reference to him other than in the listing o f the defendants. Like the officers in their individual capacities, the claims against former M a yo r Bobby Bright in his individual capacity merit dismissal without prejudice. XIII. FORMER DEPUTY SOLICITOR GENERAL STEPHANIE MORMAN It does not appear that Defendant Stephanie Morman ("Morman") has been properly s e rv e d especially since she no longer works for the Office of Attorney General. Under normal c irc u m sta n c e s , this court would issue an order for the plaintiffs to show cause why the claims s h o u ld not be dismissed for failure to perfect service. However, in this case, it is unnecessary. T h e Halls proceed in forma pauperis, thus the Court has a duty under 28 U.S.C. 1 9 1 5 (e )(2 )(B )1 5 to dismiss any claims which fail to state a claim on which relief may be g r a n te d or seek monetary relief against a defendant who is immune from such relief. 28 U .S .C . 1915(e)(2)(B)(ii)-(iii). From the Amended Complaint, it is clear that the claims brought against Morman stem f r o m her participation in the appeal of the dismissal of the underlying criminal charges against th e Halls. See Doc. 8-3 at p. 1-47. As with Brooks and Vines, Plaintiffs' 1983 claims a g a i n s t Morman in her official capacity are barred by the Eleventh Amendment and because in her official capacity she is not a "person" which may be sued under 1983. As for the c la im s against her in her individual capacity, prosecutorial absolute immunity applies. The statute provides, in pertinent part: "[T]he court shall dismiss the case at any time if the court determines that . . . the action or appeal (i) is frivolous or malicious, (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. 1915(e)(2)(B). Page 33 of 35 15 T h e re f o re , all claims against Morman are due dismissal without prejudice pursuant to 28 U .S .C . 1915(e)(2)(B). X I V . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that (1) (2 ) (3 ) T h e motions to dismiss (Docs. 28, 35, and 36) be GRANTED. T h e motion to dismiss (Doc. 34) be DENIED as moot. D e f e n d a n t s Powe, Corporal Hall, Liedl, Johnson, Enj, Jenkins, and former M a yo r Bright be dismissed without prejudice. (4 ) D e f e n d a n t Morman be dismissed without prejudice pursuant to 28 U.S.C. 1 9 1 5 (e)(2)(B ). (5 ) (6 ) A ll other defendants be dismissed with prejudice. A n y other outstanding motions be DENIED as moot. 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 February 2, 2010. Any objections filed must specifically i d e n t if y the findings in the Magistrate Judge's Recommendation to which the party is o b je c tin g . Frivolous, conclusive or general objections will not be considered by the District C o u rt. The parties are advised that this Recommendation is not a final order of the court and, th e re f o re , 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 Page 34 of 35 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 19th day of January, 2010. /s / Terry F. Moorer T E R R Y F. MOORER U N IT E D STATES MAGISTRATE JUDGE Page 35 of 35

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