Crews v. Tuck et al

Filing 13

MEMORANDUM OPINION and ORDER granting 3 MOTION to Dismiss granting 2 MOTION to Dismiss; As stated within both Motions to Dismiss, 2 and 3 are GRANTED; All claims against Mayor Tuck, the Tarrant Police Department and the Officers are DI SMISSE WITH PREJUDICE; 120 days have passed since Crews filed this lawsuit and Crews has yet to serve the remaining Defendants in this case; the court will not exercise supplemental jurisdiction over Crews' state law claims against the Hatcher Defendants, Crews has until 1/30/2018 to show cause why the court should not dismiss his claims against theses Defendants without prejudice for failure to prosecute, or for lack of jurisdiction. Signed by Judge Abdul K Kallon on 1/26/2018. (KBB)

FILED
2018 Jan-26 PM 04:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KEVIN CREWS,
Plaintiff,

v.
CITY OF TARRANT MAYOR
LOXCIL B. TUCK, et al.

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Civil Action Number
2:17-cv-01663-AKK

Defendant.

MEMORANDUM OPINION AND ORDER
Kevin Crews brings this action asserting a claim under 42 U.S.C. § 1983 and
state law torts claims against Mayor Loxcil Tuck; Chief Dennis Reno, Lieutenant
Larry Rice, and Detective George Phillip (collectively “the Officers”); and Hatcher
Heavy Duty Services, Inc., Terry Hatcher, and Jessica Beech (collectively “the
Hatcher Defendants”). 1 Doc. 1. Before the court are Mayor Tuck’s motion to
dismiss, doc. 2, and the Officers’ motion to dismiss, doc. 3. Both motions are fully
briefed, docs. 2-1, 3-1, 6, 11, 12, and ripe for review. For the reasons explained
more fully below, both motions are due to be granted.

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Crews also states claims against the Tarrant Police Department, but concedes that it is not a
legal entity capable of being sued. Doc. 6 at 4. Accordingly, the claims against the Tarrant Police
Department are due to be dismissed.
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I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and conclusions”
or “a formulaic recitation of the elements of a cause of action” are insufficient.
Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). “Nor does
a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citing Bell Atl. Corp., 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be granted. “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678
(citations and internal quotation marks omitted). A complaint states a facially
plausible claim for relief “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted). The complaint must establish “more
than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Bell
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Atl. Corp., 550 U.S. at 555 (“Factual allegations must be enough to raise a right to
relief above the speculative level.”). Ultimately, this inquiry 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.
II. FACTS 2
On March 14, 2014, the Officers and the Hatcher Defendants searched a
trailer on Crews’ residence pursuant to an “alleged search warrant.” Doc. 1 at 4.
Subsequently, Lieutenant Rice and Detective George obtained additional “alleged
search warrants” for Crews’ entire residence, which the Officers and the Hatcher
Defendants searched over the course of four days. Id. The Officers and the Hatcher
Defendants seized various property belonging to Crews, most of which the
Defendants have not returned. Id. The property which the Defendants have
returned to Crews is damaged. Id. Crews filed this lawsuit on September 28, 2017.
Id. at 1-6.
III. ANALYSIS
Crews asserts a § 1983 claim for violation of the Fourth and Fourteenth
Amendments (Count I), a state law conversion claim (Count II), and a state law
theft claim (Count III) against all Defendants. Id. at 4-7. Mayor Tuck moves for
dismissal on the grounds that Crews’ § 1983 claim is barred by the statute of
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The court recites the facts as alleged in Crews’ Complaint. See Grossman v. Nationsbank, N.A.,
225 F.3d 1228, 1231 (11th Cir. 2000) (citation omitted).
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limitations, that he fails to allege any factual allegations concerning Mayor Tuck,
and that his claims are barred by his settlement in a previous civil forfeiture action.
Doc. 2-1. The Officers join in Mayor Tuck’s motion, and additionally move for
dismissal of the § 1983 claim against them on the basis of qualified immunity, and
dismissal of the state law claims against them on the grounds of state agent and
peace officer immunity. Doc. 3-1. The materials before the court support a finding
that Crews’ claims are barred by his settlement, which states that “[a]ll other
claims to and/or related to said property made by the Claimant or the parties
arising out of this action or that could have been asserted within this action, if any,
are forever barred.” 3 Doc. 2-5 at 6. Alternatively, the statute of limitations, failure
to allege facts, and immunity issues raised by the movants are sufficient to resolve
the motions.
A. Statute of Limitations
“Because section 1983 does not contain a statute of limitations, reference
must be made to the limitation periods prescribed by the state in which the
litigation arose.” Majette v. O’Connor, 811 F.2d 1416, 1419 (11th Cir. 1987).

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The court may take judicial notice of the records of state court proceedings without converting
the motion to dismiss to a motion for summary judgment. Odion v. Google Inc., 628 F. App’x
635, 638 (11th Cir. 2015) (citing Fed. R. Evid. 201(b); SFM Holdings, Ltd. v. Banc of Am. Sec.,
LLC, 600 F.3d 1334, 1337 (11th Cir. 2010); Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265,
1268 (11th Cir. 2002); Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1280 (11th Cir. 1999)); ITT
Rayonier Inc. v. United States, 651 F.2d 343, 345 n.2 (5th Cir. 1981) (“Such notice [of the
records of inferior courts] is particularly appropriate if it is of a settlement which may moot a
case”) (citations omitted).
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“[T]he most appropriate statute of limitations for all section 1983 actions is the
personal injury statute of limitations of the state whose law is to be applied.” Id.;
see Wilson v. Garcia, 471 U.S. 261 (1985); Burnett v. Grattan, 468 U.S. 42 (1984).
Federal courts in Alabama apply the state’s two-year statute of limitations. See
Lufkin v. McCallum, 956 F.2d 1104, 1105 (11th Cir. 1992); ALA. CODE § 6-238(1). “Under the discovery accrual rule, the discovery of the injury, not discovery
of the other elements of a claim, is what starts the clock.” Rotella v. Wood, 528
U.S. 549, 555 (2000); see Rasheed v. McNamara, 2008 WL 594763, at *3 (N.D.
Ga. 2008) (applying discovery accrual rule to § 1983 claim).
Mayor Tuck contends that the statute of limitations on Crews’ § 1983 claim
began to run on March 17, 2014, the date the Officers completed the search in
question. Doc. 2-1 at 10. Crews contends that the statute began to run on
September 26, 2016, the date of the final order in the civil forfeiture action,
arguing that he could not have known his property was damaged or missing until
after this date. Doc. 6 at 4 (citing doc. 2-5). However, his § 1983 claim is premised
on the alleged violation of the Fourth and Fourteenth Amendments related to the
search. Doc. 1 at 4-5. To state a claim, he must show that the search at issue
violated his Fourth Amendment right to be free from unreasonable searches and
seizures. Skop v. City of Atlanta, GA, 485 F.3d 1130, 1137 (11th Cir. 2007).
Alleged damage to his property sustained during the search is not an issue covered
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by the Constitution, and one he can seek relief for on other grounds. Moreover,
Crews’ Complaint makes no reference to the civil forfeiture action, instead
premising the § 1983 claim solely on the March 2014 search. See doc. 1. Thus, by
his own pleadings, Crews knew or should have known of his injury no later than
March 17, 2014, the date the search was completed. Accordingly, the § 1983 claim
is barred by the statute of limitations and due to be dismissed against Mayor Tuck
and the Officers.
B. The Lack of Factual Allegations against Mayor Tuck
Crews’ complaint contains no factual allegations regarding Mayor Tuck. See
doc. 1. Nevertheless, he contends that the court should not dismiss his claims
against her because she “is the Commander in Chief, and is responsible for the
actions of the Police Department,” and because he “needs discovery to determine
what role the Mayor played in formulating the actions against [him].” Doc. 6 at 4.
However, “[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted).
Where, as here, a plaintiff makes no factual allegations whatsoever regarding a
defendant, there can be no plausible claim for relief against that defendant.
Accordingly, all claims against Mayor Tuck are due to be dismissed.

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C. Qualified Immunity
The defense of qualified immunity reflects both “the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Accordingly,
“government officials performing discretionary functions are immune not just from
liability, but from suit, unless the conduct which is the basis for [the] suit violates
clearly established federal statutory or constitutional rights of which a reasonable
person would have known.” Sanders v. Howze, 177 F.3d 1245, 1249 (11th Cir.
1999). “‘[A]ll but the plainly incompetent or one who is knowingly violating the
federal law’” are entitled to the protection of qualified immunity. Lee v. Ferraro,
284 F.3d 1188, 1194 (11th Cir. 2002) (quoting Willingham v. Loughnan, 261 F.3d
1178, 1187 (11th Cir. 2001)). Qualified immunity, however, “does not extend to
one who knew or reasonably should have known that his or her actions would
violate the plaintiff’s federal rights.” Gaines v. Wardynski, 871 F.3d 1203, 1207
(11th Cir. 2017).
As a threshold matter, a public official must have acted within the scope of
her discretionary authority to invoke qualified immunity. Jones v. Fransen, 857
F.3d 843, 851 (11th Cir. 2017). Discretionary authority includes “all actions of a
governmental official that (1) ‘were undertaken pursuant to the performance of his
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duties,’ and (2) were ‘within the scope of his authority.’” Jordan v. Doe, 38 F.3d
1559, 1566 (11th Cir. 1994) (quoting Rich v. Dollar, 841 F.2d 1558, 1564 (11th
Cir. 1988)). When conducting this inquiry, the court must put aside “the fact that
[the act] may have been committed for an unconstitutional purpose, in an
unconstitutional manner, to an unconstitutional extent, or under constitutionally
inappropriate circumstances.” Holloman ex rel. Holloman v. Harland, 370 F.3d
1252, 1266 (11th Cir. 2004).
Crews concedes that the Officers were acting within the scope of their
discretionary authority as law enforcement officers. Doc 6 at 4. Thus, “‘the burden
shifts to [Crews] to show that qualified immunity is not appropriate.’” Vinyard v.
Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Lee, 284 F.3d at 1194). To
make this showing, “the plaintiff must demonstrate . . . the following two things:
(1) that the defendant violated her constitutional rights, and (2) that, at the time of
the violation, those rights were ‘clearly established . . . in light of the specific
context of the case, not as a broad general proposition.’” Gaines, 871 F.3d at 1208
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled, in part, on other
grounds by Pearson v. Callahan, 555 U.S. 223 (2009)). The court “may decide
these issues in either order, but, to survive a qualified-immunity defense, [the
plaintiff] must satisfy both showings.” Jones, 857 F.3d at 851. Crews contends he
has a clearly established right to have his seized property properly cared for by law
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enforcement and to have any property that is not forfeited returned undamaged, but
cites no case law to show that this right is clearly established in support of his
contention. See doc. 6 at 4-5. Additionally, Crews’ claim fails because his
Complaint does not allege that the Officers caused the damage to his property. See
doc. 1. Accordingly, Crews’ § 1983 claim against the Officers is also due to be
dismissed on qualified immunity grounds.
D. State Agent and Peace Officer Immunity
Under Alabama law, “[e]very peace officer . . . shall have immunity from
tort liability arising out of his or her conduct in performance of any discretionary
function within the line and scope of his or her law enforcement duties.” Ala. Code
§ 6-5-338(a). However, “a State agent shall not be immune from civil liability in
his or her personal capacity . . . when the State agent acts willfully, maliciously,
fraudulently, in bad faith, beyond his or her authority, or under a mistaken
interpretation of the law.” Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000).
Crews does not dispute that the Officers were acting within the scope of
their discretionary authority as law enforcement officers, but contends that the
Officers are not entitled to state agent immunity because they did not have a valid
or legally obtained search warrant, a right to damage his property, or a right to
deprive him of his property without his consent. Doc. 6 at 4-5. The warrants at
issue describe the specific property to be searched and evidence to be seized, find
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probable caused based on the supporting affidavit of a detective, and are signed by
a circuit judge of the county in which the search and seizure were executed.4 Docs.
2-2, 2-3. Accordingly, the warrants are facially valid. Fleming v. Barber, 383 F.
App’x 894, 897 (11th Cir. 2010). Crews has plead no facts, other than conclusory
assertions that the warrants were invalid and obtained illegally, which could
support an inference that the Officers acted maliciously or in bad faith by searching
Crews’ property. See docs. 1 at 4-5; 6 at 5. Nor has Crews plead any factual
allegations giving rise to an inference that the Officers maliciously damaged his
property or deprived him of his property. See doc. 1. Accordingly, Crews’s state
law claims against the Officers are due to be dismissed.
IV. CONCLUSION
For the reasons stated above, both motions to dismiss, docs. 2 and 3, are
GRANTED. All claims against Mayor Tuck, the Tarrant Police Department and
the Officers are DISMISSED WITH PREJUDICE.
120 days have passed since Crews filed this lawsuit and Crews has yet to
serve the remaining Defendants in this case. In light of this fact, the court’s finding

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The court may consider these warrants because they are referenced in Crews’ complaint and
central to his § 1983 claim. Brooks v. Blue Cross & Blue Shield of Florida, No. 95-405-CIVMARCUS, 1995 WL 931702, at *5 (S.D. Fla. Sept. 22, 1995), aff’d sub nom. Brooks v. Blue
Cross & Blue Shield of Florida, Inc., 116 F.3d 1364 (11th Cir. 1997) (“[W]here the plaintiff
refers to certain documents in the complaint and those documents are central to the plaintiff’s
claim, then the Court may consider the documents part of the pleadings for purposes of Rule
12(b)(6) dismissal, and the defendant’s attaching such documents to the motion to dismiss will
not require conversion of the motion into a motion for summary judgment”) (citations omitted).
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that the § 1983 claim accrued in March 2014, and the fact that the court will not
exercise supplemental jurisdiction over Crews’ state law claims against the
Hatcher Defendants, Crews has until January 30, 2018 to show cause why the court
should not dismiss his claims against these Defendants without prejudice for
failure to prosecute, see FRCP 4(m), or for lack of jurisdiction.
DONE the 26th day of January, 2018.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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