Mortazavi v. Samford University et al

Filing 18

MEMORANDUM OPINION and ORDER re 9 Motion to Dismiss; The defendants have moved to dismiss, See 9 ; Based on a review of the pleadings and the law, the motion is due to be granted; For reasons stated within the motion to dismiss, 9 , is GRANTED and this matter is DISMISSED WITHOUT PREJUDICE. Signed by Judge Abdul K Kallon on 07/20/2017. (KBB)

FILED
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MASSOUD MORTAZAVI,
Plaintiff,

vs.
SAMFORD UNIVERSITY, et al.,
Defendants.

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2017 Jul-20 AM 10:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

Civil Action Number
2:17-cv-559-AKK

MEMORANDUM OPINION AND ORDER
Massoud Mortazavi brings this action against Samford University, Andrew
Westmoreland, Wayne Pittman, and John Does 1–3,1 alleging violations of his
Constitutional rights. Doc. 1. The events that form this lawsuit arise out of an
incident between Mortazavi and an unknown campus security officer. Doc. 1. In a
nutshell, while Mortazavi was practicing the piano in the music department at
Samford University, an unnamed campus security officer initiated a confrontation
with Mortazavi. Id. at 8. During this confrontation, the security officer ordered
Mortazavi to leave the room using threatening, derogatory, and offensive language.
Also, the officer took Mortazavi’s driver’s license and made Mortazavi wait for
approximately thirty minutes for the dispatch to confirm Mortazavi’s information.

1

Generally, there is no fictitious party practice in federal court unless a plaintiff is able to
specifically describe or identify the defendant. See Richardson v. Johnson, 598 F.3d 734, 738
(11th Cir. 2010); New v. Sports & Recreation, Inc., 114 F.3d 1092, 1094 n.1 (11th Cir. 1997).
Therefore, in light of Mortazavi’s failure to specifically describe or identify the fictitious
defendants, the claims against these John Does are due to be dismissed.
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Id. at 8–9. During this incident, Mortazavi felt detained, unable to question the
officer to ascertain why the officer confronted him, and threatened by the officer’s
discussion of terrorism and terrorists. Id.
The defendants have moved to dismiss. See doc. 9. Based on a review of the
pleadings and the law, the motion is due to be granted.
I.

ANALYSIS

The court must construe Mortazavi’s pleadings liberally because he is
proceeding without an attorney. See Alba v. Montford, 517 F.3d 1249, 1252 (11th
Cir. 2008). However, contrary to Mortazavi’s contention, doc. 17 at 4, the court is
not at liberty “to serve as de facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.” GJR Invs. v. Cnty. of Escambia
Fla. 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Randall
v. Scott, 610 F.3d 701 (11th Cir. 2010). As such, consistent with Federal Rule of
Civil Procedure 8(a)(2), Mortazavi’s complaint must contain “a short and plain
statement of the claim showing that [Mortazavi] is entitled to relief.” While notice
pleading is not intended to require Mortazavi to specifically plead every element of
a cause of action, “it is still necessary that a complaint contain either direct or
inferential allegations respecting all the material elements necessary to sustain
recovery under some viable legal theory.” Roe v. Aware Woman Center for Choice,
Inc., 253 F.3d 678, 683 (11th Cir. 2001) (internal citations omitted); see also
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (“[T]he pleading standard Rule 8 announces
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does not require ‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.”). To survive a
motion to dismiss, Mortazavi’s complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007)). A claim is plausible where it “pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Dismissal for failure to state a claim, then, is appropriate
where the plaintiff fails to state a claim that is “plausible on its face.” Id. This is a
“context specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
A. Fourth Amendment Claims
Defendants have moved to dismiss, in part, based on their contention that
Samford University, a private institution, is not subject to liability under Section
1983. Doc. 17 at 5. However, Mortazavi is correct that Samford’s status as a
private institution does not mean that it is incapable of “acting under color of state
law” for purposes of section 1983. In fact, a private party can act under color of
state law where it is performing a public function that is “traditionally the
exclusive prerogative of the state.” Focus on the Family v. Pinellas Suncoast
Transit Auth., 344 F.3d 1263, 1277 (11th Cir. 2003). Relevant here, pursuant to
section 16-22-1 of the Alabama Code, Samford University may appoint and
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employ persons to act as police officers “to keep off intruders and prevent trespass
upon and damage to the property of the college or university or of the institute.
These persons shall be charged with all the duties and invested with all the powers
of police officers.” Ala. Code § 16-22-1(a). In their role as campus security
officers, these individuals are “certified by the Alabama Peace Officers’ Standards
and Training Commission and have full authority to carry out enforcement of the
laws of Alabama on a campus throughout the state.” In re Hon. Bobby Humphreys,
Ala. Op. Atty. Gen. No.2002-215. As such, when campus security officers stop an
individual, they are performing a public function that is traditionally the exclusive
prerogative of the state, making their actions state actions. See Griffin v. State of
Md., 378 U.S. 130, 135 (1964) (“If an individual is possessed of state authority and
purports to act under that authority, his action is state action.”); Myers v. Bowman,
713 F.3d 1319, 1329–30 (11th Cir. 2013) (“A person acts under color of state law
when . . . the manner of his conduct makes clear that he was asserting the authority
granted him and not acting in the role of a private person.”). Accordingly, when the
campus officer detained Mortazavi, he was acting under color of state law. See
Griffin, 378 U.S. at 135.
However, the fact that Mortazavi is correct that Samford’s campus security
officers are statutorily state actors does not save his claims. Based on the
Complaint, it seems Mortazavi seeks to sue Westmoreland, Pittman, and Samford
University under a theory of respondeat superior or vicarious liability. Those
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claims fail, however, because there is no supervisory liability under § 1983. Monell
v. Department of Social Servs., 436 U.S. 658, 691, 710 (1978). Instead, supervisory
liability only attaches where an “official policy” causes the alleged constitutional
violation. Id. at 694–95. Stated differently, to succeed, Mortazavi must identify a
“municipal ‘policy’ or ‘custom’ that caused [his] injury.” Board of Cty Com’rs of
Bryan Cty, Okl. v. Brown, 520 U.S. 397, 404 (1997). Critically, “it is not enough
for [Mortazavi] merely to identify conduct properly attributable to the [University].
[Mortazavi] must also demonstrate that, through its deliberate conduct, the
[University was] the ‘moving force’ behind the injury alleged.” Id. (emphasis
original). Here, however, construing the pleadings liberally, 2 Mortazavi has made
no such showing or presented any facts from which the court could infer that a
policy or custom of the University caused his injury such that the University or
Westmoreland or Pittman could be held liable for his injuries. Therefore, his
Fourth Amendment claims fail.
B. Conspiracy Claims
Mortazavi also appears to allege a claim for a conspiracy to violate his rights
under 42 U.S.C. § 1983 and 1985. As Mortazavi puts it, there is a “premeditated
conspiracy whose nature eludes Plaintiff but was intended to terrorize and frighten
Plaintiff for reasons unknown.” Doc. 1 at 9. As evidence of this conspiracy,
2

In a motion to dismiss, the factual allegations in the plaintiff’s complaint are taken as true and
“the court limits its consideration to the pleadings and exhibits attached thereto.” Grossman v.
Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000); South Florida Water Mgmt Dis. v.
Montalvo, 84 F.3d 402, 406 (1996).
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Mortazavi claims that the unknown security officer “[h]ad to have been authorized
and abetted by and was in some secret understanding and collusion with Defendant
Andrew Westmoreland and Defendant Pittman . . .” Doc. 1 at 9. As an initial
matter, this claim fails because all the individuals in the conspiracy are Samford
University employees. “[T]he intracorporate conspiracy doctrine holds that acts of
corporate agents are attributed to the corporation itself, thereby negating the
multiplicity of actors necessary for the formation of a conspiracy.” Grider v. City
of Auburn, Ala., 618 F.3d 1240, 1261 (11th Cir. 2003). As such, “a corporation
cannot conspire with its employees, and its employees, when acting in the scope of
their employment, cannot conspire among themselves.” Id. See also Rehberg v.
Paulk, 611 F.3d 828, 854 (11th Cir. 2010); Dickerson v. Alachua Cnty. Comm’n,
200 F.3d 761, 767–68 (11th Cir. 2000).
Moreover, a conspiracy claim in a civil rights action requires “more than
mere conclusory notice pleading [. . .]. A complaint may justifiably be dismissed
because of the conclusory, vague, and general nature of allegations of conspiracy.”
Fullman v. Graddick, 739 F.2d 553, 556-7 (11th Cir. 1984) (internal citations
omitted). Here, Mortazavi simply pleaded a vague existence of some kind of
conspiracy, 3 stating that there exists a “premeditated conspiracy whose nature
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The court is not persuaded by Mortazavi’s contention that discovery would enable him to flesh
out his claims, it is well settled that “[f]acial challenges to the legal sufficiency of a claim or
defense, such as a motion to dismiss based on the failure to state a claim for relief, should . . . be
resolved before discovery begins.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367
(11th Cir. 1997). Here, with respect to the constitutional claims, Mortazavi has failed to state a
cognizable claim against the defendants that would enable him to survive a motion to dismiss. As
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eludes Plaintiff but was intended to terrorize and frighten Plaintiff for reasons
unknown.” Doc. 1 at 9. Such an allegation is insufficient to survive a motion to
dismiss.
CONCLUSION
Accordingly, the motion to dismiss, doc. 9, is GRANTED and this matter is
DISMISSED WITHOUT PREJUDICE.
DONE the 20th day of July, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

a result, because “Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions,” Iqbal, 556 U.S. at 678–79, he is not entitled to engage in
discovery to find facts to prove his case. See also Carter v. DeKalb Cty., Ga., 521 F. App’x 725,
728 (11th Cir. 2013) (“discovery follows the filing of a well-pleaded complaint. It is not a device
to enable the plaintiff to make a case when his complaint has failed to state a claim.”) (emphasis
original, quotations omitted).
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