Harris v. Johnson's Giant Foods Inc et al

Filing 89

MEMORANDUM OPINION. Signed by Judge R David Proctor on 12/12/2017. (KAM, )

FILED
2017 Dec-12 AM 11:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

JOHNNIE WILL HARRIS, JR.,
Plaintiff,
v.
JOHNSON’S GIANT FOODS, INC., et al.,
Defendants.

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Case No.: 2:16-cv-01646-RDP

MEMORANDUM OPINION
This case is before the court on Defendant Johnson’s Giant Foods, Inc.’s (“Giant Foods”)
Motion to Dismiss and Memorandum of Law (Doc. # 71) and Defendant Clark Thompson’s
Second Motion to Dismiss (Doc. # 79). The motions have been fully briefed and are under
submission. (Docs. # 71, 80-81, 86-88). After careful review, and for the reasons explained
below, the court concludes that Defendants’ motions to dismiss are due to be granted, and all
claims are due to be dismissed without prejudice.
I.

Relevant Allegations in the Second Amended Complaint
Plaintiff alleges that Phyllis Minshew, a Giant Foods employee, filed a criminal

complaint against him with the District Court of Etowah County, Alabama, on November 18,
2014. (Doc. # 66 at ¶¶ 3-4). Minshew’s complaint charged Plaintiff with possessing or uttering
a forged instrument with intent to defraud. (Id. at ¶ 5). According to the criminal complaint and
an incident report allegedly prepared by Defendant Thompson, Plaintiff cashed a forged payroll
check -- purported to be issued by Frito Lay, Inc. -- on October 27, 2014. (Id. at ¶¶ 5-6).
Plaintiff denies that he ever entered Defendant Giant Foods’s Gadsden grocery store and denies

making or presenting a check to it from Frito Lay. (Id. at ¶ 8). Indeed, Plaintiff claims that he
was a victim of identity theft. (Id. at ¶ 22). Moreover, he alleges that Giant Foods obtained
fingerprints from the individual who cashed the check and took surveillance video of the
incident. (Id. at ¶ 10).
In the Second Amended Complaint, Plaintiff alleges, in the alternative, that either (1)
Defendant Thompson knew about the fingerprints and video evidence pertaining to the
fraudulent transaction, or (2) Giant Foods concealed or refused to provide such evidence to
Thompson during his investigation. (Id. at ¶¶ 11-12). Based on the former allegation, Plaintiff
claims that Thompson failed to consider the fingerprint or video evidence when investigating the
forged check. (Id. at ¶ 17). Likewise, he alleges that Defendant Giant Foods possessed “video
and fingerprint evidence which showed that the plaintiff was not the person who cashed the
check.” (Id. at ¶ 15). Nevertheless, he claims that Defendant Thompson “prepared a warrant”
for his arrest. (Id. at ¶ 7). He alleges that the forgery charges were instituted against him “to
illegally and improperly collect money.” (Id. at ¶ 18). To that end, on December 4, 2014,
Defendant Giant Foods filed a restitution affidavit seeking $1,244.46. (Id. at ¶ 19).
On December 18, 2014, Plaintiff was arrested in Hoover, Alabama, and held in Hoover’s
jail. (Id. at ¶ 1). Gadsden police transported him from Hoover to Gadsden and held him until he
posted an appearance bond. (Id.). Ultimately, a grand jury issued a no bill and the criminal
complaint against Plaintiff was dismissed. (Id. at ¶ 2).
Along with his motion to dismiss, Defendant Thompson sought leave to submit statecourt records to this court for review in conjunction with the motions to dismiss. (Doc. # 76).
Plaintiff did not object to this motion. (Id. at 1). According to these records, on November 18,
2014, Minshew submitted a criminal complaint to the Etowah County court that charged Plaintiff

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with possessing or uttering a forged instrument with intent to defraud, in violation of Alabama
Code § 13A-9-6. (Doc. # 76-1 at 2). The criminal complaint states that Defendant Thompson
and Minshew are witnesses for the state.

(Id.).

On November 18, 2014, a district court

magistrate signed an arrest warrant against Plaintiff premised on Minshew’s criminal complaint.
(Doc. # 76-2 at 2). Officers executed the arrest warrant on December 18, 2014, and Plaintiff was
placed in Etowah County Jail. (Id.). A district court judge bound the criminal case against
Plaintiff to a grand jury in May 2015. (Doc. # 76-3 at 2).
II.

Standard of Review
The Federal Rules of Civil Procedure require that a 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).
However, the complaint must include enough facts “to raise a right to relief above the
speculative level.” Bell Atl. 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. Id. 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 non-moving party. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir.
2007).
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

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“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.
In considering a motion to dismiss, a court should “1) eliminate any allegations in the
complaint that are merely legal conclusions; and 2) where there are well-pleaded factual
allegations, ‘assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136,
138 (11th Cir. 2011) (quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir.
2010)). 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.” Iqbal, 556 U.S. at 679. If the court determines that all of the wellpleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be
dismissed. Twombly, 550 U.S. at 570.
In most cases, a court may not consider anything beyond the face of a complaint and
documents that are attached to a complaint when reviewing whether a plaintiff has stated a claim
for relief. Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007).
There are limited exceptions to this rule. Among other exceptions, a court may “take judicial
notice of publicly filed documents, such as those in state court litigation, at the Rule 12(b)(6)
stage.” U.S. ex rel. Osheroff v. Humana, Inc., 776 F.3d 805, 811 n. 4 (11th Cir. 2015). The
state-court records filed by Defendant Thompson fall within the category of documents the court
may consider under Rule 12(b)(6). See id. And, in any event, Plaintiff has not objected to
Thompson’s request for the court to consider the documents. (See Docs. # 76 at 1; 87).

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Accordingly, the court will review and consider the criminal complaint, arrest warrant, and order
filed by Thompson in ruling on these motions to dismiss. (See Docs. # 76-1, 76-2, & 76-3).
III.

Analysis
The court begins its analysis by determining whether Plaintiff’s § 1983 claim is due to be

dismissed as to both Defendants. Then, it discusses whether Plaintiff has plausibly pled a
conspiracy under 42 U.S.C. §§ 1981, 1985, or § 1986. Finally, it addresses whether Plaintiff’s
state-law claims are due to go forward in this forum.
1.

Plaintiff Has Failed to Allege that Defendant Giant Foods Acted Under Color
of State Law

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(citations omitted). A deprivation of a plaintiff’s rights is fairly attributable to the state when
(1) it is “caused by the exercise of some right or privilege created by the State or by a rule of
conduct imposed by the State or by a person for whom the State is responsible,” and (2) where
the party charged with the deprivation is “a person who may fairly be said to be a state actor.”
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal citations and quotations
omitted).
In certain circumstances, a private party may be considered a state actor for purposes of §
1983. Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992); see also Lugar v. Edmondson
Oil Co., 457 U.S. 922, 938-39 (1982). The Eleventh Circuit has directed district courts to
determine whether one of three conditions is met for private parties, such as Defendant Giant
Foods, to be deemed state actors:

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(1) the State has coerced or at least significantly encouraged the action alleged to
violate the Constitution (“State compulsion test”); (2) the private parties
performed a public function that was traditionally the exclusive prerogative of the
State (“public function test”); or (3) “the State had so far insinuated itself into a
position of interdependence with the [private parties] that it was a joint participant
in the enterprise[ ]” (“nexus/joint action test”).
Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001) (quoting NBC, Inc. v.
Commc’ns Workers of Am., 860 F.2d 1022, 1026-27 (11th Cir. 1988)).
Here, Plaintiff presents two paragraphs of allegations to support his position that Giant
Foods acted under color of state law:
33.
Johnson’s Giant Foods, Inc. engaged in conduct chargeable to the state by
invoking court procedures, including the bad check laws, arrest and criminal
proceedings which constituted state action.
34.
Johnson’s Giant Foods, Inc. acted together with and obtained significant
aid from state officials, particularly Clark Thompson.
(Doc. # 66 at ¶¶ 33-34). From these allegations, Plaintiff argues that Giant Foods “acted together
with or obtained significant aid from state officials,” an argument that appears to rely on the joint
action test described in Rayburn. (Doc. # 81 at 3). After careful review, the court concludes that
Giant Foods’s conduct cannot be construed as state action.
First, the court finds that the mere filing of a police report or a criminal complaint cannot
be considered state action under these circumstances. “Absent allegations showing a conspiracy
between a private party and a state official to violate a person’s rights, actions such as filing a
police report or a criminal complaint do not transform a private party into a state actor.” Smith v.
Striblings, 2014 WL 2619099, at *4 (N.D. Ga. June 12, 2014). See also Johansson v. Emmons,
2010 WL 457335, at *8 (M.D. Fla. Feb. 4, 2010) (noting a lack of authority for classifying the
filing of a criminal complaint as state action); Artubel v. Colonial Bank Grp., Inc., 2008 WL
3411785, at *14 (M.D. Fla. Aug. 8, 2008) (dismissing a conspiracy claim against private

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defendants for bringing a “bogus criminal complaint” where the allegations presented a mere
conclusory allegation of a conspiracy between the private defendants and public officers); Moody
v. Farrell, 868 F.3d 348, 353 (5th Cir. 2017) (“[E]vidence that a private citizen reported criminal
activity or signed a criminal complaint does not suffice to show state action on the part of the
complainant in a false arrest case.”). Thus, Minshew’s filing of a criminal complaint and Giant
Foods’s filing of a restitution affidavit, standing by themselves, cannot be classified as state
action supporting a § 1983 claim.
Second, the court determines that the Second Amended Complaint lacks any detail to
support the conclusory allegation that Giant Foods acted in concert with any public employee or
entity. (See Doc. # 66 at 34). As in Harvey, Plaintiff’s complaint merely discusses the conduct
of the individual Defendants without explaining how they reached an understanding to violate
Plaintiff’s rights. See Harvey, 949 F.2d at 1133 (holding that a plaintiff failed to establish the
defendants’ state action through a conclusory allegation of a conspiracy). Plaintiff’s unsupported
allegation that Giant Foods and state officials acted together falls far short of showing that
Defendant Giant Foods jointly participated in state action. Therefore, Plaintiff’s § 1983 claims
against Giant Foods in Count One are due to be dismissed.
2.

Plaintiff Has Failed to Allege that Defendant Thompson Maliciously
Initiated the Criminal Prosecution Against Him

Plaintiff’s Second Amended Complaint also raises § 1983 false arrest and false
prosecution claims against Thompson for allegedly acting in concert with Giant Foods. (Doc. #
66 at ¶¶ 28, 31-32). Defendant Thompson does not contest that he acted under color of state law
in investigating Giant Foods’s complaint. Instead, he asserts the claim is due to be dismissed
based upon qualified immunity.

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Qualified immunity shields “government officials performing discretionary functions . . .
from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). While qualified immunity is typically addressed at
summary judgment, it may be “raised and considered on a motion to dismiss.” St. George v.
Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002). Indeed, the “driving force” behind the
creation of the qualified immunity doctrine was a desire to ensure that “‘insubstantial claims’
against government officials [will] be resolved prior to discovery.” Anderson v. Creighton, 483
U.S. 635, 640 n. 2 (1987). Accordingly, the Supreme Court “repeatedly ha[s] stressed the
importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v.
Bryant, 502 U.S. 224, 227 (1991) (per curiam).
Qualified immunity utilizes an “objective reasonableness standard, giving a government
agent the benefit of the doubt unless her actions were so obviously illegal in the light of thenexisting law that only an official who was incompetent or who knowingly was violating the law
would have committed them.” GJR Invs., Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1366
(11th Cir. 1998), overruled on other grounds by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010).
The Eleventh Circuit has cautioned that “courts should think long and hard before stripping
defendants of immunity.” Ray v. Foltz, 370 F.3d 1079, 1082 (11th Cir. 2004). “We generally
accord . . . official conduct a presumption of legitimacy.” U.S. Dep’t of State v. Ray, 502 U.S.
164, 179 (1991).
Whether a defendant is entitled to qualified immunity is determined by engaging in a
three-step analysis. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1136-37 (11th Cir. 2007).
The initial burden is on an official claiming qualified immunity to establish that he or she was

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acting within his or her discretionary authority.

Id.

Here, Plaintiff has not disputed that

Thompson acted within his discretionary authority when investigating the criminal complaint
against Plaintiff. (See Docs. # 80 at 23, 87 at 17-19). Because that showing has been made, the
burden shifts to Plaintiff to show that the “defendant’s conduct violated a statutory or
constitutional right.” Skop, 485 F.3d at 1137. Finally, “the plaintiff must show that the violation
was ‘clearly established.’” Id.; Snider v. Jefferson State Cmty. Coll., 344 F.3d 1325, 1328 (11th
Cir. 2003) (“When case law is needed to ‘clearly establish’ the law applicable to the pertinent
circumstances, we look to decisions of the U.S. Supreme Court, the United States Court of
Appeals for the Eleventh Circuit, and the highest court of the pertinent state.” (citing Marsh v.
Butler Cty., Ala., 268 F.3d 1014, 1032-33 n. 10 (11th Cir. 2001) (en banc))). “There are three
ways in which [a plaintiff] may show that the right violated was clearly established: ‘(1) case law
with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of
principle within the Constitution, statute, or case law that clearly establishes a constitutional
right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total
absence of case law.’” Perez v. Suszcynski, 809 F.3d 1213, 1222 (11th Cir. 2016) (quoting Lewis
v. City of W. Palm Beach, 561 F.3d 1288, 1291-92 (11th Cir. 2009)). If a defendant can establish
that he is entitled to qualified immunity, then the federal, individual capacity claims will be
dismissed. See Randall, 610 F.3d at 714.
Because Plaintiff’s arrest occurred pursuant to an arrest warrant, Plaintiff’s only available
§ 1983 claim against Thompson is a malicious prosecution claim. Carter v. Gore, 557 F. App’x
904, 906 (11th Cir. 2014). “The issuance of a warrant—even an invalid one as [Plaintiff] alleges
was issued here—constitutes legal process, and thus, where an individual has been arrested
pursuant to a warrant, his claim is for malicious prosecution rather than false arrest.” Id.

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“To establish a federal malicious prosecution claim under § 1983, a plaintiff must prove
(1) the elements of the common law tort of malicious prosecution, and (2) a violation of her
Fourth Amendment right to be free from unreasonable seizures.” Kingsland v. City of Miami,
382 F.3d 1220, 1234 (11th Cir. 2004). The elements for a malicious prosecution claim include:
(1) “a criminal prosecution instituted or continued by the present defendant”; (2) “with malice
and without probable cause”; (3) “that terminated in the plaintiff accused’s favor”; and (4)
“caused damage to the plaintiff accused.” Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003).
“In Malley v. Briggs, the Supreme Court established that even if a magistrate approves an arrest
warrant, the officer who applied for the warrant may be liable for violating the Constitution if the
evidence presented to the magistrate was insufficient to establish probable cause.” Carter, 557
F. App’x at 908 (citing Malley v. Briggs, 475 U.S. 335, 345 (1986)). For example, an officer
may be held liable for violating the Fourth Amendment if he or she proffers an affidavit for a
warrant that lacks a basis for a belief that the suspect violated the law or an affirmative statement
that the officer has personal knowledge of the circumstances of the alleged crime. Id. at 908-09
(discussing Kelly v. Curtis, 21 F.3d 1544, 1555 (11th Cir. 1994), and Garmon v. Lumpkin Cty.,
878 F.2d 1406, 1408-09 (11th Cir. 1989)).
As stated above, a plaintiff must allege that a defendant instituted a criminal proceeding
with malice in order to state a § 1983 malicious prosecution claim. Wood, 323 F.3d at 882.
Under Alabama law, “[a]ny other motive than a bona fide purpose to bring the accused to
punishment as a violator of the criminal law or another purpose associated with such bona fide
purpose is malicious.” Nat’l Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d 133, 140 (Ala. 1983).
See also Ennis v. Beason, 537 So. 2d 17, 20 (Ala. 1988) (affirming a directed defense judgment
on a malicious prosecution claim where the undisputed evidence showed that a school principal

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instituted legal proceedings against a parent in order to ensure that a suspension against her child
was enforced).

“Malice may be inferred from the want of probable cause, or from [a]

defendant’s conduct, where such conduct will admit of no other reasonable construction.” Willis
v. Parker, 814 So. 2d 857, 864 (Ala. 2001) (quoting Dillon v. Nix, 318 So. 2d 308, 310 (Ala. Civ.
App. 1975)).
Here, Plaintiff noticeably has failed to allege that Thompson instituted the criminal
proceedings with malice against him. (Doc. # 66 at ¶¶ 27-34). While a plaintiff only needs to
allege a defendant’s malice generally, see Fed. R. Civ. P. 9(b), the court declines to infer an
allegation that Thompson acted with malice against Plaintiff when no such statement (or even
one remotely like it) appears in the complaint. See Indy Lube Invs., L.L.C. v. Wal-Mart Stores,
Inc., 199 F. Supp. 2d 1114, 1120 (D. Kan. 2002) (noting a party’s failure to plead fraudulent
intent in the complaint and refusing to infer fraudulent intent from the facts pled). Moreover, the
Second Amended Complaint cannot be construed to support an inference that Thompson acted
with malice, rather than a good faith purpose to punish the actual forger. While the Second
Amended Complaint summarily alleges that Thompson knew Plaintiff was not the person who
cashed the check (Doc. # 66 at ¶ 28), the complaint contradicts this summary allegation that
Thompson knew of Plaintiff’s innocence by averring that Thompson “failed to use” the video
and fingerprint evidence that exonerated Plaintiff. (Id. at ¶¶ 15, 17). To be sure, the Second
Amended Complaint identifies Giant Foods’s ulterior motive in pursuing the prosecution: to
obtain compensation for the forged check from Plaintiff through the criminal restitution process.
(See id. at ¶¶ 18-19). Nothing suggests, though, that Thompson shared Giant Foods’s ulterior
financial interest.

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Plaintiff analogizes this case to Carter, where the Eleventh Circuit held that the plaintiff
stated a viable malicious prosecution claim predicated on securing an arrest warrant without
probable cause. 557 F. App’x at 906-07. But, the court finds this case distinct from Carter in at
least one vital respect. Unlike the plaintiff in Carter, Plaintiff has not alleged that Thompson
filed an affidavit in support of the arrest warrant, nor has he claimed that the magistrate relied on
Thompson’s testimony or beliefs to issue an arrest warrant. (See Doc. # 66 at ¶ 7) (stating that
Thompson “prepared a warrant”). See also Carter, 557 F. App’x at 908-09, 910-11 (concluding
that the plaintiff asserted a violation of clearly established law where the officer submitted an
affidavit in support of an arrest warrant without explaining the evidence supporting his belief that
the plaintiff had committed a crime or confirming that his affidavit was based on personal
knowledge). The Second Amended Complaint and the submitted state-court records reveal that
Thompson “prepared a warrant” and was listed as a witness for the state, but they do not allege
that Thompson applied for the arrest warrant. (Docs. # 66 at ¶ 7; 76-1 at 2). Because the Second
Amended Complaint fails to allege facts from which the court can plausibly infer Defendant
Thompson’s malice in initiating any prosecution, Plaintiff’s § 1983 claim against Thompson
must be dismissed.1
3.

The Second Amended Complaint Fails to Plead an Actionable
Conspiracy under §§ 1981, 1985(3), or 1986

The court agrees with Defendants that Plaintiff pleads no facts to support a claim or
inference that Defendants engaged in intentional race discrimination, as is necessary to support a
§ 1981 claim. “To state a claim of race discrimination under § 1981, plaintiffs must allege facts
To be clear, Plaintiff has not alleged a § 1983 claim premised on Defendant Thompson’s failure to
conduct a reasonable investigation into the evidence presented to him. Cf. Kingsland, 382 F.3d at 1228-31
(describing a false arrest claim premised on the officers’ failure to investigate evidence that another officer caused
the accident at issue and that the plaintiff’s condition was caused by the accident, rather than her purported
intoxication). The court offers no ruling on whether Plaintiff could state a plausible § 1983 claim under that
unasserted theory.
1

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establishing: (1) that the plaintiff is a member of a racial minority; (2) that the defendant
intended to discriminate on the basis of race; and (3) that the discrimination concerned one or
more of the activities enumerated in the statute.” Jackson v. BellSouth Telecomms., 372 F.3d
1250, 1270 (11th Cir. 2004). Although Plaintiff alleges that Defendants’ conduct deprived him
of the equal benefit of the law (Doc. # 66 at ¶ 37), he has provided no allegation whatsoever that
indicates Defendants intended to discriminate against him because of his race or that they
considered his race at all. Therefore, Plaintiff’s § 1981 claim against Defendants in Count Two
is due to be dismissed.
Likewise, because Plaintiff has not pled facts to support a claim or inference that
Defendants engaged in intentional race discrimination, his § 1985(3) claim must be dismissed.
The elements of a § 1985(3) claim are: (1) a conspiracy; (2) for the purpose of depriving, either
directly or indirectly, any person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; and
(4) an injury to a person, an injury to his or her property, or a deprivation of his or her rights and
privileges as a citizen of the United States. Trawinski v. United Techs., 313 F.3d 1295, 1299
(11th Cir. 2002). “The purpose of § 1985 was to stifle the serious class-based deprivation of
constitutional rights by private parties, not to serve as a general federal tort law, and, as such, a
claim under § 1985(3) requires the proof of invidious discriminatory intent as well as the
violation of a serious constitutional right protected not just from official, but also from private
encroachment.”

Id.

Here, the Second Amended Complaint wholly fails to allege that

Defendants intended to deprive him of equal privileges of law based on his race or his
membership in any other cognizable group. (See Doc. # 66 at ¶ 39) (alleging, in a conclusory

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fashion, that Defendants conspired to deprive Plaintiff of equal privileges under the law).
Therefore, Plaintiff’s § 1985(3) claim against Defendants in Count Three is due to be dismissed.2
The inadequacies of Plaintiff’s § 1985(3) claim lead the court to conclude that his § 1986
claim also must be dismissed. Because Plaintiff must show that a § 1985(3) conspiracy existed
in order to pursue a § 1986 claim, his § 1986 claim in Count Four premised on Defendants’
knowledge of the alleged § 1985(3) conspiracy described in Count Three fails as well because
Plaintiff has not plausibly pled that a § 1985(3) conspiracy existed. Park v. City of Atlanta, 120
F.3d 1157, 1159 (11th Cir. 1997) (explaining that “[t]he text of § 1986 requires the existence of a
§ 1985 conspiracy” and “that § 1986 only provides a cause of action in the existence of a §
1985(3) conspiracy”).
4.

The Court Declines to Exercise Supplemental Jurisdiction Over the
Remaining State-Law Claims

Counts Five through Eight of the Second Amended Complaint present state-law false
imprisonment, malicious prosecution, abuse of process, and negligence claims against
Defendants. (Doc. # 66 at ¶¶ 42-61). Plaintiff appears to rely on supplemental jurisdiction to
support the court’s subject-matter jurisdiction over these state-law claims. (See Doc. # 66 at 1)
(premising the court’s subject-matter jurisdiction on federal question jurisdiction, civil rights
jurisdiction, and supplemental jurisdiction). Because the § 1981, § 1983, § 1985(3), and § 1986
claims are due to be dismissed for failure to state a claim, no federal-law claim remains in this
action. Moreover, diversity jurisdiction appears to be inapplicable because, at a minimum,

Alternatively, Plaintiff’s § 1985(3) claim is due to be dismissed because he has not specified which right
or privilege Defendants conspired to violate. See Trawinski, 313 F.3d at 1299. (See also Doc. # 66 at ¶ 39). To the
extent Plaintiff’s conclusory allegations can be construed to allege that Defendants conspired to violate his Fourth
Amendment rights, the Supreme Court has not recognized an individual’s Fourth Amendment rights to be protected
from purely private conspiracies. See Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 278 (1993)
(explaining that the only recognized rights protected from private conspiracies are the right to be free from
involuntary servitude and the right of interstate travel and stating, in an example, that “[a] burglar does not violate
the Fourth Amendment”).
2

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Plaintiff and Defendant Thompson appear to both be Alabama citizens. (See id. at ¶¶ 1, 6)
(alleging that the plaintiff resided in Hoover, Alabama in December 2014 and that Thompson is
an officer with the Gadsden, Alabama Police Department).
Under 28 U.S.C. § 1367(c)(3), this court has discretion to retain jurisdiction over or
dismiss state-law claims once all federal claims are decided. However, the Eleventh Circuit has
“encouraged district courts to dismiss any remaining state claims when . . . the federal claims
have been dismissed prior to trial.” Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir.
2004). This court finds no reason to retain jurisdiction over the state-law claims, and, thus,
dismisses them without prejudice. Pursuant to 28 U.S.C. § 1367(d), Plaintiff has thirty days
from this date to re-file his state-law claims in Alabama state court. See Weinrib v. Duncan, 962
So. 2d 167, 169 (Ala. 2007).
IV.

Conclusion
For the reasons explained above, Defendants’ Motions to Dismiss (Docs. # 71, 79) are

due to be granted. An Order consistent with this Memorandum Opinion will be entered.
DONE and ORDERED this December 12, 2017.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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