Johnson v. Jefferson County, Alabama et al

Filing 65

MEMORANDUM OPINION. Signed by Judge R David Proctor on 8/4/2017. (JLC)

FILED
2017 Aug-04 PM 01:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MARY ANGELA JOHNSON,
Plaintiff,
v.
JEFFERSON COUNTY, ALABAMA, et
al.,

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Case No.: 2:16-cv-01459-RDP

Defendants.
MEMORANDUM OPINION
This matter is before the court on the following motions: Defendants Godwin and City of
Homewood’s Motion to Dismiss (Doc. # 33); Defendants Mike Hale and Dwight Sloan’s Motion
to Dismiss (Doc. # 36); Defendants Blackmon, Ferguson, Hampton, Newland, Ross, and
Shoupe’s Motion to Dismiss (Doc. # 51); and Defendants Mayes, Scott, and Therrell’s Motion to
Dismiss (Doc. # 52). The issues raised therein have been fully briefed by the parties (Docs. # 34,
26, 43, 44, 47, 60, 61, 63, 64), and are now ripe for decision.
I. Background1
Plaintiff’s Second Amended Complaint (Doc. # 29) asserts the following causes of
action: Count One2 -- “Violation of Civil Rights” (the court has construed Plaintiff’s complaint

1

In evaluating a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court
assumes the factual allegations in the complaint are true and gives the plaintiff the benefit of all reasonable factual
inferences. Hazelwood v. Found. Fin. Grp., LLC, 551 F.3d 1223, 1224 (11th Cir. 2008). A plaintiff’s allegations
may or may not be the “actual facts” in a case, but they are accepted as true for the purposes of evaluating a motion
to dismiss. Accordingly, the facts set out herein are taken from Plaintiff’s Second Amended Complaint (Doc. # 29),
and they are assumed true for the purposes of this Memorandum Opinion.
2

The court construes Count One of Plaintiff’s Second Amended Complaint to seek relief against all
Defendants. Plaintiff alleges that Defendants denied Plaintiff “the right to live peacefully in the community with
protection from abuse, equal protection under the law, and without harassment or embarrassment . . . obstruction of
justice . . . [and] retaliation.” (Doc. # 29 at 33).

liberally, and the addresses a number of potential constitutional violations below) (Id. at 32);
Count Two3 -- “Violation of Civil Rights Through State Policy and Practice” (Id. at 33); and
Count Three4 -- “Prayer for Injunctive Relief” (Id. at 34).
Plaintiff5 Mary Angela Johnson (“Plaintiff”) moved to Homewood, Alabama in July of
2012. (Id. at 3). Soon after, Plaintiff began dating Alex Hirschfield (“Hirschfield”). (Id.). In the
following weeks, Plaintiff’s vehicle was involved in a motor vehicle accident while being driven
by Hirschfield. (Id.). At Hirschfield’s request, Plaintiff sent her vehicle to “Chico’s Body Shop,”
which was owned by Hirschfield’s friend, Monty Klanaris (“Klanaris”). (Id.). Two weeks later,
upon learning that her insurance company had not received a claim from “Chico’s Body Shop,”
Plaintiff met Klanaris in Montgomery to retrieve her vehicle. (Id. at 3-4). When Plaintiff
received the vehicle, the repairs she requested were poorly done and there were additional repairs
made that she did not request. (Id. at 4, 27). Additionally, Plaintiff discovered items were

3

While Count Two of Plaintiff’s Second Amended Complaint purports to seek relief against all
Defendants, it asserts a claim based on state and/or municipal liability, and may only be brought against a state,
municipality, or policymaker (i.e., Defendants Jefferson County, City of Homewood, and Mike Hale). Plaintiff
alleges Defendants “maintain a policy or custom of failing to train its police officers adequately and reasonably
regarding rights of residents . . . refusing to educate its police officers regarding victim’s rights and retaliation . . .
failing to adequately investigate crimes . . . [and] refus[ing] equal protection and rights to women and minorities.”
(Id.).
4

Count Three of Plaintiff’s Second Amended Complaint can be construed to seek relief against all
Defendants. Plaintiff alleges that Defendants denied her “equal protection,” failed to protect “victim’s rights against
retaliation,” and subjected Plaintiff to harassment, abuse, illegal searches, and false arrests.” (Id. at 34-35).
5

Plaintiff originally brought this action as the only Plaintiff. However, in her subsequently amended
complaints, Plaintiff purportedly alleged claims made on behalf of her minor children. (See Docs. # 26, 29). It is
axiomatic that a pro se litigant may represent herself, but is not entitled to represent the causes or interests of others.
See Timson v. Sampson, 518 F.3d 870, 873 (11th Cir. 2008) (citing 28 U.S.C. § 1654); Palazzo v. Gulf Oil Corp.,
764 F.2d 1381, 1384 (11th Cir. 1985). Accordingly, the court does not address the claims and arguments
purportedly made on behalf of Plaintiff’s children, and refers to Mary Johnson as the lone Plaintiff in this action.
Moreover, even if the court were to consider the claims purportedly raised on behalf of Plaintiff’s children,
they are due to fail. As addressed below, much of the conduct complained of is barred by the statute of limitations.
Moreover, to the extent that Plaintiff asserts that her entire family was harmed by Defendants failure to investigate
her criminal complaints, such claims are due to be denied for the reasons detailed below.

2

missing from her vehicle. (Id.). Plaintiff contacted Hirschfield with a new estimate for the cost of
repairs and accused him of “trying to scam her.” (Id.).
Following this encounter, Hirschfield began to harass Plaintiff, slashed the tires on her
vehicle, and poured acid into her vehicle’s gas tank. (Id.). Plaintiff filed a police report with the
Homewood Police Department (“HWPD”) which accused Hirschfield of attempting to destroy
evidence of the faulty car repairs and retaliating against Plaintiff. (Id.). The case was assigned to
Detective Shoupe. (Id.). Hirschfield continued to stalk and harass Plaintiff, and made further
attempts to damage her vehicle. (Id. at 4). Plaintiff reported these incidents of stalking and
harassment to the HWPD, Detective Shoupe, and the Homewood Magistrate. (Id. at 4-6, 27).
However, Detective Shoupe, the HWPD, and the Homewood Magistrate did not investigate the
claims or otherwise protect Plaintiff from the actions of Hirschfield. (Id. at 5-6, 27).
In 2012, Plaintiff was involved in a verbal altercation with an unknown male in the
parking lot of Publix Super Market in Homewood. (Id. at 5, 27). During the altercation, the man
produced a knife and threatened Plaintiff. (Id.). HWPD officers took a report of the incident and
allowed the man who had threatened Plaintiff to leave. (Id.). The officers instructed Plaintiff to
“see the Magistrate about it” and refused to investigate the matter. (Id.).
Plaintiff moved to another residence within the city of Homewood in November 2012.
(Id. at 6, 27). Hirschfield continued to harass and stalk Plaintiff at her new residence. (Id).
Plaintiff reported Hirschfield’s actions to the HWPD; however, the responding officer refused to
make a report. (Id.).
Soon after moving to her new residence, Plaintiff began contacting the City of
Homewood and the Mayor of Homewood regarding her neighbor’s retention wall, which had
collapsed onto her property. (Id. at 7, 27). The City (and Mayor) did not help to correct the

3

problem. (Id.). Following Plaintiff’s request, the City of Homewood began to harass her by
“trespassing on her property, confronting her in a threatening manner, leaving letters . . . refusing
to pick up trash, and ignoring subpoenas to appear in civil court.” (Id.).

When Plaintiff

attempted to correct the damage done to her property by the collapsed wall, her neighbors
accused her of trespassing on their property. (Id.). Homewood police officers responded to one
of Plaintiff’s neighbor’s calls by gathering in front of her home, which intimidated and
embarrassed Plaintiff. (Id.). Plaintiff continually reported her neighbors’ harassment to the
HWPD, including the construction of structures on her property. (Id. at 7-8, 27). HWPD did not
investigate this harassment. (Id.). Plaintiff has filed complaints with the HWPD against its
officers for refusing to make reports at Plaintiff’s request and threatening Plaintiff. (Id. at 8).
Plaintiff’s daughter suffered a brain injury on August 13, 2013. (Id. at 8, 28). As a result,
Plaintiff’s daughter was excused from participating in gym class by a doctor. (Id.). On August
27, 2013, Plaintiff was notified by her daughter’s gym teacher that Plaintiff’s daughter had been
allowed to participate in gym class, which gave her a headache. (Id.). The gym teacher did not
notify Plaintiff of her daughter’s headache, and did not send Plaintiff’s daughter to the school
nurse for care. (Id.). Plaintiff called the HWPD to report the gym teacher for aggravating her
daughter’s injury and refusing to provide her appropriate medical care. (Id.). An officer
responded but refused to take the report. (Id.). Plaintiff further contacted a HWPD supervisor,
Jefferson County DHR, and Jefferson County District Attorney Brandon Falls, but all refused to
investigate the incident. (Id.).
The next day, Plaintiff contacted the nurse at her daughter’s school regarding actions of
the gym teacher. (Id. at 9, 28). The nurse told Plaintiff that her daughter had been confined by
herself in the library during recess and gym class, which made her depressed. (Id. at 9-10, 28).

4

Plaintiff alleges that this was done to retaliate against her for reporting the gym teacher’s actions
to the police and DHR. (Id. at 9, 28).
On September 5, 2013, Plaintiff received a phone call from her daughter’s principal,
Abbie Freeman. (Id. at 10, 28). During the call, Plaintiff threatened Abbie Freeman with legal
action if the alleged abuse against Plaintiff’s daughter continued. (Id. at 10, 28-29). After the
phone call, Abbie Freeman retaliated against the Plaintiff by making a false police report to
Officer Blackman of HWPD, claiming Plaintiff had threatened her during the call. (Id.).
In November 2013, Plaintiff was arrested for felony animal cruelty. (Id. at 7, 11, 29).
While awaiting trial on the charges, the HWPD and Jefferson County Sherriff’s Office attempted
to manufacture false evidence against Plaintiff. (Id. at 11).
Following her arrest, Plaintiff’s neighbors, including the alleged victims of the felony
animal cruelty charge, continued to harass and threaten her. (Id. at 11, 29). Plaintiff’s property
was stolen and destroyed, she was threatened with physical harm both in person and via social
media, and access to her driveway was blocked on multiple occasions. (Id.). Plaintiff reported
these acts to the HWPD. (Id.). However, the HWPD refused to file a report, investigate the
allegations, and protect Plaintiff from the harassment and threats. (Id.).
On August 2, 2014, while Plaintiff was attempting to remove an illegal structure built on
her property, Plaintiff’s neighbor threw a ceramic tile at her, striking her in the arm. (Id. at 8, 29).
Officer Newland of the HWPD responded to the incident. (Id.). Officer Newland refused to make
a report or investigate the matter, and threatened Plaintiff with arrest if “he had to return.” (Id.).
Plaintiff was sexually assaulted in her home by Michael Ward (“Ward”) on July 21,
2015. (Id. at 11-12, 29). Plaintiff had no memory of any sexual encounter, but Ward confirmed,
via text message, that they had engaged in unprotected intercourse. (Id. at 12, 29). Plaintiff later

5

discovered that she had become pregnant as a result of the sexual assault. (Id. at 12). After
learning of the pregnancy, Ward began making threats toward Plaintiff, requesting she abort the
pregnancy and telling her not to seek child support. (Id.).
After a text conversation with Ward, which Plaintiff contends serves as proof of the
sexual assault, she reported the sexual assault to the Jefferson County Sherriff’s Office.6 (Id. at
13, 29). Deputies Therrall and Mayes of the Jefferson County Sherriff’s Office refused to review
evidence which Plaintiff provided or investigate the sexual assault. (Id.). Instead, they told
Plaintiff that she would need to file the report with the HWPD. (Id.).
Plaintiff subsequently reported the sexual assault to the HWPD, and the case was
assigned to Detective Godwin. (Id. at 13-14, 29). Detective Godwin did not view Plaintiff’s
evidence of the sexual assault, take Plaintiff’s statement, or interview Ward. (Id. at 14, 29).
Ward, along with his attorney Marcus Jones, provided false evidence, in the form of either text
messages or emails, to Detective Godwin to undermine Plaintiff’s sexual assault claim. (Id. at 15,
29). In July 2016, Detective Godwin closed Plaintiff’s sexual assault case due to lack of
evidence, Plaintiff’s delay in reporting the sexual assault, and the evidence (which Plaintiff
contends is false) provided by Ward and his attorney, Marcus Jones. (Id. at 15, 29-30). Ward
later filed charges against Plaintiff for harassing text messages. (Id. at 16, 30). Plaintiff alleges
these text messages included health updates on Ward’s unborn child as well as “fake” messages.
(Id.).
In August 2016, Deputy Sloan of the Jefferson County Sherriff’s Office served Plaintiff
with a search warrant for her vehicle. (Id.). The search warrant was related to an animal cruelty
investigation regarding the alleged poisoning of Ward’s dog in March 2016. (Id. at 16-17, 30).
6

On page 13 of Plaintiff’s Second Amended Complaint, Plaintiff states the report of sexual assault was
made to the Jefferson County Sherriff’s Office on September 21, 2015. (Id. at 13). However, Plaintiff subsequently
states the date the report occurred was in August 2015. (Id. at 13, 29).

6

Plaintiff alleges that Deputy Sloan, at the direction of Ward and his attorney Jones,
delayed serving the warrant until August to prevent “tip[ping] off” Plaintiff to the case being
built against her. (Id. at 17, 30). This allowed Ward and his attorney to build a stronger case
against her. (Id.). After discovering evidence which she believed indicated that the steering
column of her vehicle had been tampered with, Plaintiff reported that vehicle to the HWPD that
her vehicle had been stolen. (Id. at 18-19, 31).
On August 19, 2016, Plaintiff returned home from vacation to discover her home had
been invaded using a spare key that she kept inside her daughter’s treehouse. (Id.). Plaintiff later
discovered that paperwork containing information she had gathered on Ward was missing from
her home. (Id. at 18, 30). Plaintiff’s home was invaded a second time on September 18, 2016.
(Id. at 19-20, 31). This lead Plaintiff to discover that the locks on her home had been tampered
with. (Id. at 20, 31). Plaintiff reported this tampering to Officer Kidd of the HWPD. (Id.).
In December 2016, when reviewing video on her surveillance system, Plaintiff
discovered recorded footage of the suspected home invasions and footage from the night of the
vehicle theft. (Id. at 21, 32). The footage showed that the intruder “put anti-freeze in Plaintiff’s
coffee creamer” and left the residence with the missing paperwork which contained information
on Ward. (Id. at 21, 30, 32). Plaintiff turned over a copy of the video to the HWPD, along with a
photo of Ward wearing clothing similar to those worn by the suspect in the video. (Id. at 21, 32).
The case was assigned to Detective Godwin. (Id. at 21).
In January 2017, Plaintiff spoke to Detective Hampton of the HWPD requesting the home
invasion case be reassigned to another detective due to Plaintiff’s negative history with Detective
Godwin. (Id. at 21, 32). Plaintiff further requested that Detective Hampton reopen her sexual

7

assault case against Ward in light of Detective Godwin’s mishandling of the investigation. (Id.)
Detective Hampton refused both requests. (Id.).
Plaintiff’s home invasion case was assigned to Detective Furgeson of the HWPD. (Id. at
21). Detective Furgeson contacted Plaintiff and informed her that a warrant could not be served
against Ward because the suspect in the video could not be identified; however, Furgeson stated
that the district attorney had requested more video footage of the nights of the home invasions.
(Id. at 22, 32). Plaintiff asked Detective Ferguson to contact her attorney to gather more evidence
and assist in discovering the identity of a man who had messaged Plaintiff on a dating website on
the night of the first home invasion. (Id. at 20, 22, 32). Detective Ferguson later contacted
Plaintiff to inform her that he had not investigated the dating website and would close the case
without additional evidence. (Id. at 22, 32).
II.

Standard of Review
The Federal Rules of Civil Procedure require only that the complaint provide “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Still, the complaint must include enough facts “to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that
contain nothing more than “a formulaic recitation of the elements of a cause of action” do not
meet Rule 8 standards, nor do pleadings suffice that are based merely upon “labels and
conclusions” or “naked assertion[s]” without supporting factual allegations. Twombly, 550 U.S.
at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the
complaint in the light most favorable to the nonmoving party. Watts v. Fla. Int’l Univ., 495 F.3d
1289, 1295 (11th Cir. 2007).

8

To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible
on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he
plausibility standard is not akin to a ‘probability requirement,’ ” the complaint must demonstrate
“more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for
relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550 U.S. at 556. After Iqbal, which applied the
Twombly pleading standard in a civil rights/qualified immunity context, “there is no longer a
‘heightened pleading’ standard in ‘cases governed by Rule 8(a)(2), including civil rights [cases]’
under § 1983.” Saunders v. Duke, 766 F.3d 1262, 1266 (11th Cir. 2014) (quoting Randall v.
Scott, 610 F.3d 701, 710 (11th Cir. 2010)). The Supreme Court has recently identified “two
working principles” for a district court to use in applying the facial plausibility standard. First, in
evaluating motions to dismiss, the court must assume the veracity of well-pleaded factual
allegations; however, the court does not have to accept as true legal conclusions when they are
“couched as . . . factual allegation[s].” Iqbal, 556 U.S. at 678. Second, “only a complaint that
states a plausible claim for relief survives a motion to dismiss.” Id. at 679.
Application of the facial plausibility standard involves two steps. Under prong one, the
court must determine the scope and nature of the factual allegations that are well-pleaded and
assume their veracity; and under prong two, the court must proceed to determine the claim’s
plausibility given the well-pleaded facts. That task is context specific and, to survive the motion,
the allegations must permit the court based on its “judicial experience and common sense . . . to
infer more than the mere possibility of misconduct.” Id. If the court determines that well-

9

pleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be
dismissed. Id.
Nevertheless, “pro se pleadings are held to a less stringent standard than pleadings
drafted by attorneys, and will, therefore, be liberally construed.” Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003). Therefore, “wildly implausible allegations in the complaint should not be
taken to be true, but the court ought not penalize the litigant for linguistic imprecision in the
more plausible allegations.” Miller v. Donald, 541 F.3d 1091 (11th Cir. 2008).
III.

Analysis
The court will address Plaintiff’s claims against each Defendant, in turn.
A.

Count One

Count One of Plaintiff’s Amended Complaint is styled generally as claim for “violation
of civil rights.” After careful review, the court concludes that Count One could best be construed
as seeking relief under the Equal Protection Clause, Fourth Amendment, and Due Process
theories.
1.

Defendant Sheriffs Cannot be Sued in their Official Capacity

Count One of Plaintiff’s Amended Complaint seeks monetary damages7 against all
Defendants. However, Plaintiff brings this action against Defendants Therrell, Mayes, Sloan,
Scott, and Hale only in their official capacities as Deputy Sheriffs and Sheriff.
The Eleventh Amendment to the United States Constitution insulates a state from suit in
federal court unless the state either consents to suit or waives its Eleventh Amendment
immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984).

7

Count One of Plaintiff’s Second Amended Complaint alleges that the purported violation of her
constitutional rights resulted in monetary damages, “and otherwise.” (Doc. # 29 at 33). Because Count Three of her
Second Amended Complaint specifically seeks injunctive relief based on the alleged deprivation of her rights, the
court construes Count One of Plaintiff’s Second Amend Complaint as one seeking monetary damages.

10

“Lawsuits against a state official in his or her official capacity are suits against the state when
‘the state is the real, substantial party in interest.’” Carr, 916 F.2d at 1524 (quoting Halderman,
465 U.S. at 101). Thus, “[a] state official may not be sued in his official capacity unless the state
has waived its Eleventh Amendment immunity . . . or Congress has abrogated the state’s
immunity.” Lancaster v. Monroe Cty., Ala., 116 F.3d 1419, 1429 (11th Cir. 1997) (internal
citations omitted). “Alabama has not waived its Eleventh Amendment immunity . . . and
Congress has not abrogated Alabama's immunity.” Id. (internal citations omitted). In Alabama,
“a sheriff is an executive officer of the state of Alabama, and thus is immune from lawsuits under
the state constitution, except for [certain] injunctive actions . . . .” Carr, 916 F.2d at 1525 (citing
Parker v. Amerson, 519 So. 2d 442, 443 (Ala. 1987)). Because a deputy is a general agent of the
sheriff and considered a legal extension of the sheriff, Alabama deputies also enjoy this
immunity. Carr, 916 F.2d at 1526. As an Alabama sheriff and deputies, Defendants have
sovereign immunity under the Eleventh Amendment with respect to money damages claims
brought against them in their official capacities. See id.
2.

The Statute of Limitations Precludes Plaintiff from Recovering Relief
for Claims which Accrued More than Two Years Prior to the
Initiation of this Action

Plaintiff initiated this action by filing her original complaint on September 6, 2016. To
the extent that Plaintiff complains that actions which occurred more than two years prior to that
date violated her constitutional rights, those claims are barred by the statute of limitations. The
proper statute of limitations for a § 1983 action is the forum state’s general or residual statute of
limitations for personal injury. See Owens v. Okure, 488 U.S. 235, 236, 249-50 (1989). The
residual statute of limitations for personal injury in Alabama is two (2) years. Ala. Code § 6-238(1) (1975).

11

Again, Plaintiff has alleged a wide array of facts which she contends support her claim
that she has suffered a number of violations to her constitutional rights. However, the two year
statute of limitations bars claims which purportedly arose prior to September 6, 2014.
Accordingly, to the extent Plaintiff’s claims rely on the investigations involving Klanaris and
Hirschfield, the knife threat at Publix, her collapsed retaining wall, her daughter’s injury, her
November 2013 animal cruelty arrest, and the “illegal structure” she found on her property, they
are barred by the statute of limitations. Only the investigations related to the alleged sexual
assault of Plaintiff, Ward’s charges against Plaintiff, and the alleged invasion of Plaintiff’s home
involve conduct which occurred within the two year limitations period.
3.

Plaintiff has no Independent Constitutional Right to Police
Investigation of Her Complaints

Construed liberally, Plaintiff’s Second Amended Complaint alleges a variety of ills which
befell her, and seeks relief from various officials for failing to investigate or otherwise properly
respond to her complaints.

However, law enforcement officers have no affirmative

constitutional duty to investigate an incident. Royster v. Brown, 2007 WL 433089, at *3 (N.D.
Fla. Feb. 5, 2007) (collecting cases).8 “The [Supreme] Court's… decisions consistently hold that

8

The Royster court cited the following authority in support of the premise that law enforcement officers
have no affirmative constitutional duty to investigate complaints:
Andrews v. Fowler, 98 F.3d 1069, 1078-79 (8th Cir. 1996) (dismissing civil rights claim against
police chief for failing to investigate plaintiff's rape; holding that failure to investigate “did not rise
to the level of a separate constitutional violation of [the plaintiff's] rights.”); Gomez v. Whitney,
757 F.2d 1005, 1006 (9th Cir. 1985) (stating “we can find no instance where the courts have
recognized inadequate investigation as sufficient to state a civil rights claim unless there was
another recognized constitutional right involved.”); Beard v. O'Neal, 728 F.2d 894, 899 (7th Cir.
1984); Fulson v. Columbus, 801 F.Supp. 1, 6 (S.D. Ohio 1992); Doe v. Pocomoke City, 745 F.
Supp. 1137, 1139 (D. Md. 1990); Moses v. Kennedy, 219 F.Supp. 762 (D.D.C. 1963) (holding that
a private citizen does not have a constitutional right to have his claim investigated and prosecuted
by the FBI), aff'd sub nom., Moses v. Katzenbach, 342 F.2d 931 (D.C. Cir. 1965); Lovoi v. F.B.I.,
No. 99-3563, 2000 WL 33671769, at *2 n. 4 (E.D. La. 2000) (“Citizens do not enjoy a
constitutional right to have their claims investigated by federal or local executive officials.”).
Royster, 2007 WL 433089, at *3.

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a citizen lacks standing to contest the policies of the prosecuting authority when he himself is
neither prosecuted nor threatened with prosecution.” Linda R.S. v. Richard D., 410 U.S. 614,
619 (1973).

The court will examine whether Plaintiff has alleged any violation of an

independently recognized constitutional violation below. However, to be clear, allegations of
“inadequate investigations” alone do not raise any constitutional right to relief.
4.

Count One of Plaintiff’s Second Amended Complaint Does Not State a
Claim for Relief Under the Due Process Clause

Count One of Plaintiff’s Second Amended Complaint can be construed to seek relief for
alleged due process violations. (Doc. # 29 at 33). The Due Process Clause of the Fourteenth
Amendment prohibits state action that deprives “any person of life, liberty, or property, without
due process of law.” U.S. Const. Amend. XIV. To establish a due process violation, a plaintiff
must show that she was deprived of an interest cognizable under the Due Process Clause, and
that the procedures attendant upon that deprivation were not constitutionally sufficient. Kentucky
v. Dep't of Corrections v. Thompson, 490 U.S. 454 (1989); Board of Regents v. Roth, 408 U.S.
564, 571 (1972).
The Due Process Clause encompasses two components: a substantive component and a
procedural component. The substantive component of the Due Process Clause protects only
“fundamental” rights. See McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (citing Palko
v. Connecticut, 302 U.S. 319, 325 (1937)). Fundamental rights “are protected against certain
government actions regardless of the fairness of the procedures used to implement them.”
McKinney, 20 F.3d at 1556. By contrast, “areas in which substantive rights are created only by
state law ... are not subject to substantive due process protection ... because substantive due
process rights are created only by the Constitution.” Id. Such state law-based rights can be
rescinded “so long as the elements of procedural—not substantive—due process are observed.”
13

Id. Property interests are created and defined by state law rather than the Constitution. See
Greenbriar Vill., L.L.C. v. Mountain Brook City, 345 F.3d 1258, 1262 (11th Cir. 2003) (citing
Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). “[N]on-legislative deprivations of statecreated rights... cannot support a substantive due process claim, not even if the plaintiff alleges
that the government acted arbitrar[il]y and irrationally.” Greenbriar Vill., 345 F.3d at 1263. State
created rights are not fundamental rights, and thus are not entitled to substantive due process
protection. See id. at 1262–63 (“[N]on-legislative deprivations of state-created rights... cannot
support a substantive due process claim.”); see also Regents of Univ. of Mich. v. Ewing, 474 U.S.
214, 229 (1985) (Powell, J., concurring) (“While property interests are protected by procedural
due process even though the interest is derived from state law rather than the
Constitution...substantive due process rights are created only by the Constitution.”).
With respect to the procedural component of the Due Process Clause, “no procedural due
process claim exists until a sufficiently certain property right under state law is first shown.”
Greenbriar Vill., 345 F.3d at 1265. Moreover, the Supreme Court has unequivocally held that an
unauthorized intentional deprivation of property by a state actor does not constitute a violation of
the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a
meaningful post-deprivation remedy for the loss is available. See Hudson v. Palmer, 468 U.S.
517, 533 (1984).
The Supreme Court has refused to recognize a substantive due process right to
governmental aid or protection, except in certain limited circumstances. Harder v. Hunter, 572
F. App'x 904, 906 (11th Cir. 2014) (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
489 U.S. 189, 201-02 (1989)). The rare exceptions in which such a substantive due process right
exists typically involve instances where the government has control over the individual who has

14

the right. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (finding the government has an
affirmative responsibility under the Eighth Amendment to provide adequate medical care to
incarcerated prisoners); Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (finding the government
has an affirmative duty under the Fourteenth Amendment to ensure the safety of involuntarily
committed mental patients). Plaintiff has clearly failed to allege such a situation here, and her
Second Amended Complaint does not assert a viable substantive due process claim.
Of course, a claimant may nonetheless assert a procedural due process claim if she has
pled that the state failed to protect her liberty or property interests. Here, Plaintiff has not. In a
similar case, this Circuit has held that individuals do not have a cognizable property interest to
have law enforcement investigate their allegations under Florida law. Harder, 572 F. App’x at
907. The court reasoned that there is a “tradition of police discretion” under state law, and a
benefit “is not a protected entitlement if government officials may grant or deny it in their
discretion.” Id. (quoting Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 748, 756, 759,
761 (2005)). Plaintiff has not pointed to, and the court has not found, any Alabama law which
runs counter to this reasoning. In fact, to the contrary, law enforcement officers in Alabama
have the discretion to investigate cases and determine whether (or not) to make arrests. State v.
Johnson, 682 So. 2d 385, 387 (Ala. 1996). Cf. Town of Castle Rock, Colo., 545 U.S. at 760-62
(finding that even “seemingly mandatory legislative commands” did not create a cognizable
property interest due to the deep-rooted nature of law-enforcement discretion). Because law
enforcement officials have such discretion in Alabama, Plaintiff does not have a constitutionally
protected property or liberty interest at stake, and she has failed to state a due process claim
under § 1983.

15

5.

Count One of Plaintiff’s Second Amended Complaint Fails to State a
Claim for Violations of the Fourth Amendment

Count One of Plaintiff’s Second Amended Complaint alleges that Defendants violated
Plaintiff’s “right to be free from unreasonable seizures,” and that they conducted an “unlawful
arrest and prosecution without probable cause.” (Doc. # 29 at 33). It is axiomatic that an arrest
without probable cause may form the basis of a § 1983 claim. Marx v. Gumbinner, 905 F.2d
1503, 1505 (11th Cir. 1990). Similarly, a Fourth Amendment “search” must be supported by
probable cause. See Steagald v. United States, 451 U.S. 204, 206 (1981).
Again, the two year statute of limitations precludes Plaintiff from seeking relief for much
of the alleged misconduct which could be construed to support her Fourth Amendment based
claims.9 Moreover, it is difficult to discern the exact nature of the conduct which Plaintiff alleges
occurred within the applicable statute of limitations. However, liberally construed, Plaintiff’s
Second Amended Complaint alleges that Homewood swore out a warrant10 against her which
was supported, in part, by fabricated evidence which Ward had supplied. (Doc. # 29 at 16).
Moreover, while officers could have executed the warrant in March (presumably by arresting
Plaintiff or searching her vehicle), Deputy Sloan did not search Plaintiff’s vehicle until August
18, 2016, because Ward had asked for more time to “build a case” against Plaintiff. (Id.).
However, even if these facts are taken as true, they do not plausibly plead a violation of
the Fourth Amendment which would be actionable under § 1983. While Plaintiff contends that
an official associated with Homewood11 swore out a warrant against her based on false evidence

9

For example, Plaintiff’s allegations regarding her November 2013 arrest, including the investigation
leading up to that arrest, detail events which occurred more than two years prior to the filing of this complaint.
10

Plaintiff alternates between referring to the warrant as an arrest warrant and a search warrant. (See Doc.
# 29 at 17). This distinction is largely without a difference here, however, as a showing of probable cause must be
made to secure either type of warrant.
11

Plaintiff does not name the individual Defendant who was responsible for procuring the warrant.

16

provided by Ward, the Fourth Amendment does not protect against instances where an official
reasonably relies on false information provided by a witness in support of the probable cause
determination.12 Joseph v. Kimple, 343 F. Supp. 2d 1196, 1202 (S.D. Ga.), aff'd, 391 F.3d 1276
(11th Cir. 2004). While Plaintiff contends that she would have stopped certain communications
with Ward had she known that Ward was attempting to build a case against her for “harassing
communications,” the law simply does not impose an affirmative duty on law enforcement to
swear out an arrest or search warrant as soon as possible after probable cause first arises.13
Finally, Plaintiff contends that she was unlawfully arrested and prosecuted. (Doc. # 29).
However, besides this conclusory allegation, she offers no plausibly pled basis to support her
claims.

Again, her November 2013 arrest occurred outside of the applicable statute of

limitations period, and thus cannot serve as the basis of a § 1983 false arrest claim. Plaintiff has
not alleged that she has been arrested as a result of the August 2016 search of her car; and, even
if she had, she has alleged that the search was supported by evidence provided by Ward (which
she contends was fabricated).
Moreover, Plaintiff’s allegations regarding the August 2016 search of Plaintiff’s car
simply do not support a constitutional claim for malicious prosecution.

12

An exception to this rule exists. A police official who knowingly or recklessly uses false or misleading
statements to support a warrant or probable cause showing may be liable for Fourth Amendment violations, and
further may lose immunity from suit. Garmon v. Lumpkin County, Georgia, 878 F.2d 1406, 1410-11 (11th Cir.
1989); Kelly v. Curtis, 21 F.3d 1544, 1554 (11th Cir. 1994). Plaintiff has made no such allegations here. She has
not alleged any plausible basis to suggest that Defendant Sloan, or any other Defendant, knew that Ward’s
statements were false and relied on them anyway.
13

To be sure, a search warrant based on stale information does not create probable cause, and the
government “must reveal facts that make it likely that the items being sought are in that place when the warrant
issues.” United States v. Harris, 20 F.3d 445, 450 (11th Cir. 1994) (quoting United States v. Domme, 753 F.2d 950,
953 (11th Cir.1985). However, Plaintiff has not pled any facts which would demonstrate the existence of a staleness
issue here. To the contrary, she alleges that Sloan searched her car on August 18, 2016 – months after Ward
provided a false basis to support such a search. Her Second Amended Complaint provides no reason to believe that
her car would not be at her home in August 2016, or that the August 2016 warrant was based on potentially stale
information about her car that was obtained months before.

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To establish a federal malicious prosecution claim under § 1983, the plaintiff
must prove a violation of his Fourth Amendment right to be free from
unreasonable seizures in addition to the elements of the common law tort of
malicious prosecution…. As to the constituent elements of the common law tort
of malicious prosecution, this Court has looked to both federal and state law and
determined how those elements have historically developed.
Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003) (emphasis in original) (citations omitted). In
Alabama, the elements of the common law tort of malicious prosecution are as follows: (1) a
prior judicial proceeding was instituted by the present defendant, (2) in the prior proceeding the
present defendant acted without probable cause and with malice, (3) the prior proceeding ended
in favor of the present plaintiff, and (4) the present plaintiff was damaged as a result of the prior
proceeding. Delchamps, Inc. v. Bryant, 738 So. 2d 824, 831–32 (Ala. 1999).
Plaintiff’s Second Amended Complaint fails to allege a number of these elements. At the
outset, Plaintiff’s complaint is (at best) unclear regarding whether any of the Defendants have
instituted a formal prosecution against her as a result of her issues with Ward and the August
2016 search which she contends amounts to a Fourth Amendment seizure. Moreover, Plaintiff
has failed to plausibly plead that any prosecution against her was instituted without probable
cause and with malice. And, Plaintiff has not alleged that any prosecution which might have
occurred has been ended in her favor. Accordingly, to the extent Plaintiff’s Second Amended
Complaint can be construed to raise Fourth Amendment claims, those claims are due to be
dismissed.
6.

Count One of Plaintiff’s Second Amended Complaint Fails to State a
Claim for Violations of the Equal Protection Clause

To state a claim under the Equal Protection clause of the Fourteenth Amendment, a
plaintiff typically must plead that (1) she is similarly situated to other persons who received more
favorable treatment, and (2) her discriminatory treatment was based on a constitutionally

18

protected interest such as race or gender. Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001).
A plaintiff must also allege that the defendant acted with the intent to discriminate against her,
and conclusory allegations of personal belief of disparate treatment are insufficient to state a
claim. Ardis v. Danheisser, 2014 WL 103232, at *6 (N.D. Fla. Jan. 10, 2014) (citing McClesky
v. Kemp, 481 U.S. 279, 292 (1987); E & T Realty v. Strickland, 830 F.2d 1107, 1113 (11th Cir.
1987); GJR Inv., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1367–68 (11th Cir. 1998);
Coon v. Ga. Pac. Corp., 829 F.2d 1563, 1569 (11th Cir. 1987)).
Here, Plaintiff has failed to allege that she was treated differently than a similarly situated
individual, let alone that any such mistreatment occurred as the result of a constitutionally
protected interest. While Plaintiff alleges generally that Jefferson County and Homewood have
policies which “abuse women” and “refuse equal protection to women and minorities” in count
two of her complaint, she fails to allege that she personally was treated differently based on a
constitutionally protected interest. To be sure, Plaintiff’s complaint contains a host of allegations
that she reported various incidents to Defendants, but Defendants did not investigate the
incidents.

What Plaintiff’s complaint does not allege, however, is any fact which would

plausibly suggest that Defendant’s determination not to investigate the various occurrences was
based on Plaintiff’s race or gender.14 Moreover, Plaintiff fails to allege the existence of any
similarly situated comparator.15

Accordingly, to the extent Plaintiff’s Second Amended

14

To the contrary, when Plaintiff’s complaint includes explanations for why her various “cases were
closed,” even those explanations (i.e., the reasons recited by Plaintiff) do not suggest that she was intentionally
treated differently based on a constitutionally protected interest. (See Doc. # 29 at 15 (Detective Godwin closed
rape case based on lack of drugs in Plaintiff’s system, her delay in reporting, and text messages regarding Plaintiff’s
relationship with Ward); Id. at 22 (Detective Furgeson warned that he would close the investigation related to the
man emailing Plaintiff if there was not additional evidence supporting Plaintiff’s allegations)).
15

The Equal Protection Clause is also implicated in “class of one” claims. In a class of one claim, a
plaintiff “alleges that she has been intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Griffin Industries, Inc. v. Irvin, 496 F.3d 1189, 1202 (11th Cir. 2007)
(quoting Robert C. Farrell, Classes, Persons, Equal Protection, and Village of Willowbrook v. Olech, 78 Wash.

19

Complaint can be construed to raise equal protection claims, those claims are due to be
dismissed.
B.

Count Two

In Count Two of her Second Amended Complaint, Plaintiff alleges her rights were
violated by a state policy or practice. Plaintiff’s Second Amended Complaint does not identify
which of the Defendants Plaintiff seeks relief against in this count. However, such a claim could
only be asserted against a municipality, state entity, or its policymakers.
Plaintiff contends she is due money damages based on what she alleges are
unconstitutional policies of the City of Homewood and Jefferson County. (Doc. # 29). That
claim is without merit. “The Supreme Court has placed strict limitations on municipal liability
under section 1983.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). As
explained in Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978),
“a municipality may be held liable for the actions of a police officer only when municipal
‘official policy’ causes a constitutional violation.” Id. (citing Monell, 436 U.S. at 694-95). So,
to hold a municipality liable, Plaintiff “must show: (1) that his constitutional rights were
violated; (2) that the municipality had a custom or policy that constituted deliberate indifference
to that constitutional right; and (3) that the policy or custom caused the violation.” McDowell v.
Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citing City of Canton v. Harris, 489 U.S. 378, 388
(1989)). A policy is defined as a “decision that is officially adopted by the municipality. . . .”
Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997) (citing Brown v. City of
Fort Lauderdale, 923 F.2d 1474, 1479-80 (11th Cir. 1991)). A custom is defined as a “practice
L.Rev. 367, 394 (2003)). Plaintiff’s complaint does not include any indication that she intends to pursue a class of
one claim. In any event, even if she did intend to pursue such a claim, the same “similarly situated” standard
applies. Id. at 1204-05. Because Plaintiff’s complaint does not identify a similarly situated individual who received
more favorable treatment, any attempt to bring a class of equal protection claim would fail as well.

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that is so settled and permanent that it takes on the force of law.” Id. (citing Monell, 438 U.S. at
690-94).
Count Two of Plaintiff’s complaint fails to get out of the gate. In order to hold a
policymaker liable for a policy or practice, Plaintiff must first allege that her constitutional rights
were violated. McDowell, 392 F.3d at 1289. As addressed above, Plaintiff’s Second Amended
Complaint fails to do so. Put differently, Plaintiff cannot sue the City of Homewood or Jefferson
County based solely based on a purported discriminatory practice. Instead, she must show that
she was actually injured as a result of some improper policy or practice. Plaintiff has not
plausibly pled that any of her constitutional rights were violated, and as such, she is not entitled
to seek damages based on any alleged unconstitutional state policies or practices.
Finally, to the extent Plaintiff seeks to hold Sheriff Hale liable based on his role as a
supervisor, that assertion misses the mark. “It is well established in this Circuit that supervisory
officials are not liable under [section] 1983 for the unconstitutional acts of their subordinates on
the basis of respondeat superior or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360
(11th Cir. 2003) (quoting Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)). Of course,
supervisory liability under section 1983 may occur “‘when the supervisor personally participates
in the alleged constitutional violation or when there is a causal connection between the actions of
the supervising official and the alleged deprivation.’” Valdes v. Crosby, 450 F.3d 1231, 1236
(11th Cir.2006) (quoting Miller v. King, 384 F.3d 1248, 1261 (11th Cir. 2004)). But again,
Plaintiff has not plausibly pled that she personally suffered a violation of her constitutional
rights. Accordingly, to the extent that count two of Plaintiff’s Second Amended Complaint
attempts to state a claim against Sheriff Hale, it is due to be denied.

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C.

Count Three

Count Three of Plaintiff’s Second Amended Complaint does not identify which
Defendant(s) she seeks injunctive relief against. However, construed liberally (and considering
Count Three as one pled against all Defendants), Plaintiff’s complaint seeks entry of an
injunction prohibiting Defendants from performing illegal searches and seizures, and requiring
Defendants to create a training program to teach law enforcement officers about victims’ rights.
“It goes without saying that those who seek to invoke the jurisdiction over the federal
courts must satisfy the threshold requirement imposed by Article III of the Constitution by
alleging an actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).
To demonstrate the existence of Article III standing, a plaintiff must meet three elements:
First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) “actual or
imminent, not ‘conjectural’ or ‘hypothetical[.]’” Second, there must be a causal
connection between the injury and the conduct complained of—the injury has to
be “fairly . . . trace[able] to the challenged action of the defendant, and not . . .
th[e] result [of] the independent action of some third party not before the court.”
Third, it must be “likely,” as opposed to merely “speculative,” that the injury will
be “redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations omitted).
Here, Plaintiff has not plausibly alleged that there is an “actual or imminent” injury she
may suffer that would allow for declaratory and injunctive relief. Lujan, 504 U.S. at 560
(quoting Whitmore v. Arkansas, 495 U.S. 49, 155 (1990)). Indeed, as addressed above, while
Plaintiff’s complaint details her various grievances against Defendants, it does not plausibly
plead a single constitutional violation. And even if her complaint did allege constitutional
violations (and plainly it does not) it would merely detail individual incidents of past conduct.
The Supreme Court has held that “[p]ast exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing,
22

present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974). As the court has
noted, “past wrongs are evidence bearing on whether there is a real and immediate threat of
repeated injury. But here the prospect of future injury rests on the likelihood that [Plaintiff] will
again be arrested for and charged with violations of the criminal law and will again be subjected
to . . . proceedings, trial, or sentencing” by Defendants. Id. at 496. No case or controversy exists
simply because Plaintiff anticipates Defendants will commit unlawful searches, seizures, and
detentions. See Lyons, 461 U.S. at 103. To the contrary, the court “assume[s] that [Defendants]
will conduct their activities within the law” and the Constitution. O’Shea, 414 U.S. at 497.
Plaintiff’s conclusory allegations of the existence of a City policy or ratification of police
officers’ conduct by the City are simply not enough to establish an actual case or controversy
that would allow for declaratory or injunctive relief.

See Lyons, 461 U.S. at 106-07.

Accordingly, Plaintiff lacks standing to seek an injunction related to purported unconstitutional
policies, and Count Three of the Complaint is due to be dismissed.
D.

Plaintiff’s Claims Against Jefferson County are Due to be Dismissed

Plaintiff is proceeding in this action pro se. (See Doc. # 4). With the assistance of the
U.S. Marshals service, Plaintiff has served each Defendant except Jefferson County. However,
the court need not wait until Plaintiff has served Jefferson County to dismiss this action. In
actions where a plaintiff has been granted in forma pauperis status, the court is obligated to
dismiss the action if it is frivolous, malicious, or fails to state a claim for relief. 28 U.S.C.
§ 1915(e)(2)(B)(i) & (ii).

The court conducts the review required by 28 U.S.C. §

1915(e)(2)(B)(ii) using the standards applied to motions under Federal Rule of Civil Procedure
12(b)(6). Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).

23

As addressed above, Plaintiff’s Second Amended Complaint fails to state a claim against
any of the named Defendants. She has not plausibly pled the existence of a constitutional
violation and lacks standing to pursue her claim for injunctive relief. Accordingly, this action is
due to be dismissed against all Defendants, including Jefferson County.
E.

Any Attempt by Plaintiff to Amend the Pleadings Would be Futile

While Plaintiff has not sought leave to amend her complaint, there are certain instances
where it is appropriate to offer a plaintiff (particularly one proceeding pro se) an opportunity to
amend her complaint sua sponte. “Where a more carefully drafted complaint might state a claim,
a plaintiff must be given at least one chance to amend the complaint before the district judge
dismisses the action with prejudice.” Cornelius v. Bank of Am., NA, 585 F. App'x 996, 1000
(11th Cir. 2014) (citing Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991)). However, this
matter is before the court on Plaintiff’s Second Amended Complaint. Plaintiff filed her initial
complaint on September 6, 2016. (Doc. # 1). A number of Defendants filed motions to dismiss
which raised many of the issues now before the court. (See Docs. # 13, 14, 15). When this
action was reassigned to the undersigned, the court entered an order denying the motions to
dismiss without prejudice, identifying the pleading errors contained in Plaintiff’s complaint, and
directing Plaintiff to amend her complaint.16 (Doc. # 23). When Plaintiff filed her Amended
Complaint, which was missing pages and unsigned, the court again directed Plaintiff to amend
her complaint. The court has granted Plaintiff the opportunity to amend her complaint to state a
claim upon which relief may be granted, but to no avail.
Finally, even if Plaintiff were entitled to another opportunity to amend her complaint,
“[w]hile a pro se litigant generally must be given at least one opportunity to amend his
16

The court’s order warned Plaintiff that “[f]ailure to file an Amended Complaint as directed may result in
this action being dismissed for failure to state a cause of action upon which relief can be granted or for lack of
prosecution.” (Doc. # 23 at 3).

24

complaint, a district judge need not allow an amendment where amendment would be futile.” Id.
(citing Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (per curiam)). Here, any further
amendment of Plaintiffs’ complaint would be futile, and her complaint is due to be dismissed
without leave to further amend. See Cockrell v. Sparks, 510 F.3d at 1310 (“Leave to amend a
complaint is futile when the complaint as amended would still be properly dismissed or be
immediately subject to summary judgment for the defendant.”).

Simply put, Plaintiff’s

complaint does not allege constitutional deficiencies – the defects in her complaint are not issues
of form, but of substance. Plaintiff alleges that a variety of private actors harmed her, but seeks
to hold various law enforcement officials liable for not doing more to protect her. As pled,
Plaintiff’s claims do not raise a right to relief, and no amount of re-pleading will address the
fundamental flaws of Plaintiff’s allegations.
IV.

Conclusion
For the reasons stated above, Defendants’ motions to dismiss are due to be granted, and

this action is due to be dismissed. A separate order will be entered.
DONE and ORDERED this August 4, 2017.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

25