Fuqua v. Turner et al
Filing
48
MEMORANDUM OPINION AND ORDER that Plaintiff's 46 MOTION for Leave to Amend Complaint is DENIED and Defendants 40 MOTION to Dismiss is GRANTED; All Claims against Nesmith and Turner are DISMISSED WITHOUT PREJUDICE. Signed by Judge Abdul K Kallon on 04/20/18. (SPT )
FILED
2018 Apr-20 AM 11:10
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
DOUGLAS FUQUA,
Plaintiff,
v.
BRETT TURNER, et al.,
Defendants.
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Civil Action Number
3:17-cv-1911-UJH-AKK
MEMORANDUM OPINION AND ORDER
Douglas Fuqua brings this action against the Defendants asserting claims
under 42 U.S.C. §§ 1983 and 1985 and state law claims of unlawful entry and
search, false arrest, and false imprisonment. Doc. 1. Before the court are Fuqua’s
Motion for Leave to Amend Complaint, doc. 46, and Adam Nesmith and Brett
Turner’s motion to dismiss, doc. 40, both of which are fully briefed, docs. 44, 45,
and ripe for review. For the reasons stated more fully below, the motion to dismiss
is due to be granted.
I. FUQUA’S MOTION FOR LEAVE TO AMEND COMPLAINT
Fuqua’s proposed Amended Complaint incorporates his original Complaint,
and adds a state law claim of malicious prosecution against all Defendants. See
doc. 46-1. The motion for leave to amend is due to be denied as futile. See Foman
v. Davis, 371 U.S. 178, 182 (1962). The elements of a malicious prosecution action
are (1) that the defendant initiated a judicial proceeding against the plaintiff, (2)
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that the judicial proceeding was instituted without probable cause, (3) that the
defendant instituted the proceedings maliciously, (4) that the judicial proceeding
had been terminated in favor of the plaintiff, and (5) that the plaintiff suffered
damage as a proximate result of the judicial proceeding. Eidson v. Olin Corp., 527
So. 2d 1283, 1284 (Ala. 1988) (citing Smith v. Wendy’s of the South, Inc., 503
So.2d 843, 844 (Ala. 1987)).
Fuqua does not plead any facts to support his conclusory allegation that the
Defendants lacked probable cause to believe he was a felon in possession of a
firearm. See doc. 42-1 at 2; see also Ex parte Harris, 216 So. 3d 1201, 1215 n.2
(Ala. 2016) (“Probable cause for a malicious-prosecution claim is not determined
at the time of the arrest but when the defendant (usually the arresting officer)
initiates the prosecution by filing a report with the prosecutor, submitting an
affidavit, or giving grand-jury testimony”) (citation omitted). As such, he has
failed to plead facts to support a claim of malicious prosecution. In addition, while
“[m]alicious-prosecution actions are not disallowed against arresting police
officers simply because they are not the individuals who ultimately decide to
institute a criminal proceeding,” Ex parte Harris, 216 So. 3d at 1215 n.2 (citation
omitted), Fuqua’s proposed Amended Complaint alleges that only Nesmith and
Turner arrested him, and is silent on whether the officers took any additional
actions beyond the arrest, see doc. 1 at 6. His malicious prosecution claim against
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Sheriff Williamson and Jimmy Collier fails also for that reason. Accordingly,
Fuqua’s proposed Amended Complaint is futile, and, as such, his motion to amend
is due to be denied.
II. MOTION TO DISMISS1
Fuqua brings § 1983 claims 2 for conspiracy to violate the Fourth and
Fourteenth Amendments and unreasonable search in violation of the Fourth
Amendment, a § 1985 claim for conspiracy to deprive Fuqua of his equal
protection rights, and state law claims of unlawful entry and search, false arrest,
and false imprisonment against all Defendants in their individual and official
capacities. Id. at 2-3, 6-10. Presently before the court is Nesmith and Turner’s
motion to dismiss, doc. 40.
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.” Ashcroft v. Iqbal, 556
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The court will skip the standard summary of the facts because it included such a summary in an
earlier order. See doc. 29 at 3.
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A § 1983 claim is available only against actors who violate a plaintiff’s federal rights under
color of state, not federal, law. See Butler v. Sheriff of Palm Beach County, 685 F.3d 1261, 1265
(11th Cir. 2012). The analogous action against a federal officer is a Bivens claim, and “courts
generally apply § 1983 law to Bivens cases.” Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir.
1995). The court is not convinced that it must construe Fuqua’s § 1983 claims as Bivens claims,
as Fuqua is represented by counsel. However, because Nesmith and Turner do not contend that
these claims should be dismissed because of this defect, and because the analysis of a Bivens
claim is largely identical to that of a § 1983 claim, the court will construe Fuqua’s § 1983 claims
against Nesmith and Turner as Bivens claims.
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U.S. 662, 678 (2009) (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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“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.
Turning now to the specifics here, Nesmith and Turner move to dismiss all
claims against them on various grounds. Doc. 40. As two of these are dispositive—
improper service and qualified immunity—the court does not reach the other
grounds raised.
A. Improper Service of Process
“Service of process is a jurisdictional requirement: a court lacks jurisdiction
over the person of a defendant when that defendant has not been served.” Pardazi
v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990). When defendants are
not properly served, it is improper for the court to reach the merits of the case;
rather, the court should dismiss it without prejudice. See, e.g., Kabbaj v. Obama,
568 F. App’x 875, 881 (11th Cir. 2014) (citing Pardazi, 896 F.2d at 1317);
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Jackson v. Warden, FCC Coleman-USP, 259 F. App’x 181, 183 (11th Cir. 2007)
(citing Pardazi, 896 F.2d at 1317); Davis v. Chase Bank, No. 1:17-CV-4206-WSD,
2018 WL 338956, at *3 (N.D. Ga. Jan. 9, 2018) (citing Posner v. Essex Ins. Co.,
178 F.3d 1209, 1214 n.6 (11th Cir. 1999); Pardazi, 896 F.2d at 1317; Read v.
Ulmer, 308 F.2d 915, 917 (5th Cir. 1962)). The plaintiff bears the burden of
proving proper service. Hyundai Merch. Marine Co. v. Grand China Shipping
(Hong Kong) Co., 878 F. Supp. 2d, 1252, 1263 (S.D. Ala. 2012) (citing Cornwall
v. Miami-Dade Cty. Corr. & Rehab. Dep’t, No. 10-23561-CIV, 2011 WL 3878352,
at *2 (S.D. Fla. Aug. 31, 2011)).
Nesmith and Turner contend that Fuqua has failed to properly serve them.
Doc. 40 at 7-12. To serve a United States officer sued in his official capacity, “a
party must serve the United States and also serve the officer or employee under
Rule 4(e), (f), or (g).” Fed. R. Civ. P. 4(i)(3).
To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the complaint to the United
States attorney for the district where the action is brought—or to an assistant
United States attorney or clerical employee whom the United States attorney
designates in a writing filed with the court clerk—or
(ii) send a copy of each by registered or certified mail to the civil-process
clerk at the United States attorney’s office;
(B) send a copy of each by registered or certified mail to the Attorney
General of the United States at Washington, D.C.; and
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(C) if the action challenges an order of a nonparty agency or officer of the
United States, send a copy of each by registered or certified mail to the
agency or officer.
Fed. R. Civ. P. 4(i)(1). While Fuqua sent copies of the summons and complaint to
U.S. Attorney Jay Town and U.S. Attorney General Jeff Sessions, see doc. 3 at 1-2,
the return of service card for Attorney General Sessions was returned unsigned, see
doc. 23 at 5. Fuqua disputes this, contending that “there is a faint signature” on the
return of service card, doc. 27, but the court, having examined Fuqua’s filing of the
card at enhanced magnification, concludes that this is not the case.
Moreover, the return of service cards for Nesmith and Turner appear not to
be signed by the defendants themselves, but by the mail room of the ATF
Huntsville Satellite Office. See doc. 23 at 2-3. The court put Fuqua on notice of
these defects when it denied his motion for entry of default judgment. See doc. 24.
Despite the court’s order, Fuqua did not remedy the defects within the time
provided for service of process or request an extension of the service deadline.
Instead, he challenged the court’s ruling, arguing that Nesmith and Turner were
“given collateral notice about this court action at least several times,” and that this
constituted sufficient service. See doc. 27. While Fuqua is free to disagree with the
court, he does so at his own peril when he ignores the deficiencies in his service of
process. Accordingly, in light of Fuqua’s failure to properly serve Nesmith and
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Turner in either their official or their individual capacities, the court lacks personal
jurisdiction over them.
Fuqua appears to contend alternatively that any defects in his service were
remedied by the receipt of his complaint and summons by the Huntsville ATF
office, and that the Defendants thus had actual notice of the service: “[t]he
questioned documents (summons and Complaints, [sic]) more than likely, they
were in the possession of the satellite office of the ATF agency where they have
been all the time.” Doc. 44 at 4. This argument is unavailing, as “[a] defendant’s
actual notice is not sufficient to cure defectively executed service.” Albra v. Advan,
Inc., 490 F.3d 826, 829 (11th Cir. 2007) (citing Schnabel v. Wells, 922 F.2d 726,
728 (11th Cir. 1991)); see Abele v. City of Brooksville, FL, 273 F. App’x 809, 811
(11th Cir. 2008) (“[S]ervice of process that is not in ‘substantial compliance’ with
the requirements of the Federal Rules is ineffective to confer personal jurisdiction
over the defendant, even when a defendant has actual notice of the filing of the
suit”) (citing Prewitt Enter., Inc. v. OPEC, 353 F.3d 916, 925 (11th Cir. 2003)).
Accordingly, all claims against Nesmith and Turner are due to be dismissed
without prejudice.
B. Qualified Immunity
Although it is improper generally to reach the merits of a case when the
court finds the plaintiff has failed to properly serve the defendants, see Pardazi,
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896 F.2d at 1317, because Fuqua insists that this court’s finding on this issue is in
error, the court will also address Nesmith and Turner’s qualified immunity
argument. 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
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governmental official that (1) ‘were undertaken pursuant to the performance of his
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).
If the defendant acted within the scope of her discretionary authority, “‘the
burden shifts to the plaintiff 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.
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Fuqua does not contend that Nesmith and Turner acted beyond the scope of
their discretionary authority. See doc. 44. Thus, the question becomes whether
Nesmith and Turner violated Fuqua’s Fourth and Fourteenth Amendment rights,
and, if so, whether those rights were clearly established. Fuqua asserts that
Nesmith and Turner violated his Fourth Amendment rights by obtaining and
executing a search warrant based on evidence obtained by Collier’s allegedly
unlawful search. Id. Fuqua appears to rely, for the first time in this case, on the
criminal trial court’s grant of his motion to suppress evidence retrieved by
Collier’s search to establish that the search violated his Fourth Amendment rights.3
Id. at 6-7, 11-12; see doc. 37 in United States of America v. Douglas Fuqua, No.
3:16-cr-00083-VEH-TMP (N.D. Ala. Aug. 8, 2016). However, even assuming that
Collier violated Fuqua’s constitutional rights, Fuqua does not make any substantive
argument as to why Nesmith and Turner’s involvement in the search violated a
clearly established right beyond the fact that the criminal trial court ultimately
suppressed the evidence resulting from the search, nor does he cite any case law
that would have put Nesmith and Turner on notice that their conduct violated a
3
“Typically, the court cannot consider extrinsic documents at this stage of the proceedings
without converting a motion to dismiss into a motion for summary judgment.” SFM Holdings,
Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010). However, the court may
“consider judicially noticed documents” at the motion to dismiss stage. United States ex rel.
Osheroff v. Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015). Judicially noticeable documents
include “publicly filed documents” which may be considered “for the limited purpose of
determining which statements the documents contain (but not for determining the truth of those
statements).” Id. at 811 n.4. Accordingly, the court takes judicial notice of all filings in United
States v. Fuqua.
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clearly established right. See doc. 44. Accordingly, based on the allegations in the
complaint and proposed amendment, Nesmith and Turner are entitled to qualified
immunity, and the claims against them in their individual capacities are due to be
dismissed also for this reason.
III. CONCLUSION
For the reasons stated above, Nesmith and Turner’s Motion to Dismiss, doc.
40, is GRANTED. All claims against Nesmith and Turner are DISMISSED
WITHOUT PREJUDICE. Fuqua’s Motion for Leave to Amend Complaint, doc.
46, is DENIED.
DONE the 20th day of April, 2018.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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