Littleton v. Miller et al
MEMORANDUM OPINION. Signed by Judge R David Proctor on 1/19/2017. (AVC)
2017 Jan-19 AM 11:03
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MICHAEL MILLER, et al.,
Case No.: 5:15-cv-01076-RDP-HGD
On December 19, 2016, the Magistrate Judge entered a Report and Recommendation
(Doc. # 16), recommending that Plaintiff’s Amended Complaint (Doc. # 12-1) be dismissed in
part without prejudice. The Magistrate Judge provided Plaintiff fourteen (14) days in which to
object to the Report; no objections were filed. This action arises out of Plaintiff’s arrest on the
night of October 26, 2013, the medical care (or lack thereof) he received following that arrest,
and the collection of a urine sample from him at the Russellville Hospital.
Standard of Review
When reviewing a Magistrate Judge’s report and recommendation, the court reviews
those portions that are not specifically objected to under the “clearly erroneous” standard. See
Liberty Am. Ins. Grp., Inc. v. WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D.
After careful consideration of the record in this case and the Magistrate Judge’s Report
and Recommendation, the court concludes that the Magistrate Judge’s Report is due to be
adopted in part and overruled in part. Additionally, the court defers its consideration of one
section of the Report pending a response from Defendant Michael Miller. Below, the court
explains its rulings.
Adopted Portions of the Report
The court concurs with the Magistrate Judge’s conclusions that: (1) Defendant Miller
should be directed to respond to Plaintiff’s excessive force claim in Count VIII;1 (2) Defendant
Miller should be directed to respond to Plaintiff’s deliberate indifference claim in Count I;
(3) Plaintiff’s Fourteenth Amendment claims against Defendants Miller, Peggy Williams, and
Kellon White are due to be dismissed without prejudice for failure to state a claim; (4) Plaintiff’s
claims against Defendant Miller in his official capacity are due to be dismissed as redundant; and
(5) Plaintiff’s claims against Defendant City of Russellville are due to be dismissed without
prejudice because Plaintiff has failed to plead a 42 U.S.C. § 1983 claim based on a custom or
policy of the City. Thus, Sections III(A)(1), III(A)(2), III(A)(4), and III(B) of the Magistrate
Judge’s Report are due to be adopted.
Analysis of Plaintiff’s Fourth Amendment Unreasonable-Seizure Claims
One of Plaintiff’s Section 1983 claims warrants further discussion. In Count VII of the
Amended Complaint, Plaintiff has alleged that Defendants Miller, Williams, and White violated
his Fourth Amendment rights by performing an unreasonable search or seizure. (Doc. # 12-1 at
7-8). After Plaintiff was transported to the Russellville Hospital, Defendant Miller allegedly
directed or ordered Defendants Williams and White to obtain bodily fluids or urine from
Plaintiff. (Id. at 7). Thereafter, Williams and White instructed Plaintiff to urinate in a jar. (Id.).
The court notes that Plaintiff’s excessive-force claim should be analyzed under the Fourth Amendment,
not the Eighth Amendment. (Doc. # 16 at 6-7). To be clear, the court liberally construes Count VIII of the
Amended Complaint to present a Fourth Amendment claim, as opposed to an Eighth or Fourteenth Amendment
According to Plaintiff, Williams and White threatened to obtain a urine sample by forcefully
inserting a catheter if he did not voluntarily provide a sample. (Id.).
In the Report, the Magistrate Judge concluded that Plaintiff had stated a viable Fourth
Amendment claim against Defendants Miller, Williams, and White. First, the Magistrate Judge
determined that Plaintiff had raised a viable unlawful-seizure claim against Defendant Miller
because his Amended Complaint indicated that the seizure of his urine did not fall within an
established exception to the Fourth Amendment’s warrant requirement. (Doc. # 16 at 11-15
(addressing whether the seizure fell under the consent exception or the exigent circumstances
exception to the Fourth Amendment’s warrant requirement)). Second, the Magistrate Judge
concluded that Defendants Williams and White could be classified as state actors under Section
1983 because their involvement in procuring the urine sample met the State compulsion test.
(See id. at 15-16). This latter conclusion is clear error. Moreover, the court finds it appropriate
to defer review of the former conclusion until Defendant Miller has a chance to respond to the
Plaintiff has Not Plausibly Alleged that Williams and White were
“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
In certain circumstances, a private party may be considered a state actor for purposes of
Section 1983. Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992); see also Lugar v.
Edmonson 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 Defendants
Williams and White, to be deemed state actors:
(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.
Communications Workers of Am., 860 F.2d 1022, 1026-27 (11th Cir. 1988)).
compulsion test is only met when a state “exercise[s] such coercive power or provide[s] such
significant encouragement, either overt or covert, that in law the choice of the private actor is
deemed to be that of the state.” Wilcher v. City of Akron, 498 F.3d 516, 519 (6th Cir. 2007)
(quoting Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992)).
The Magistrate Judge
determined that the incident at the Russellville Hospital met the State compulsion test. (Doc. #
16 at 16). The court disagrees.
In his Amended Complaint, Plaintiff has asserted that Defendants Williams and White
directed him to provide a urine sample, without a warrant, so that it could be examined by
officers. (Doc. # 12-1 at 7-8). Plaintiff has not asserted, though, that Defendant Miller coerced
these nurses to act on his behalf and obtain the sample. Cf. Wilcher, 498 F.3d at 519. Although
Plaintiff has alleged that Miller ordered Williams and White to get a urine sample from Plaintiff,
this conclusory allegation of coercion, unsupported by any details of what orders were given by
Miller, is insufficient to allege plausibly that Williams and White were state actors. See Randall
v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010) (“A district court considering a motion to dismiss
shall begin by identifying conclusory allegations that are not entitled to an assumption of truth –
legal conclusions must be supported by factual allegations.”). Most importantly, Plaintiff has
presented no allegations from which the court could find that Defendants Williams and White
lacked discretion to deny assistance to Defendant Miller.2 And because Plaintiff’s Amended
Complaint has failed to demonstrate that Defendants Williams and White were coerced into
acting without discretion, the court cannot attribute their conduct to the state. Cf. Jarvis v.
Village Gun Shop, Inc., 805 F.3d 1, 12-13 (1st Cir. 2015) (“Given that . . . the private storage
companies have unfettered freedom of choice with respect to their participation in the statutory
scheme, a finding of state compulsion will not lie.”).
Accordingly, the court overrules the Magistrate Judge’s conclusion in Section
III(A)(3)(b) of the Report that Plaintiff has alleged a viable Section 1983 claim against
Defendants Williams and White. Count VII of the Amended Complaint is thus due to be
dismissed for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1).3
Defendant Miller will be Granted an Opportunity Address Whether
Plaintiff’s Fourth Amendment Unreasonable-Seizure Claim is Due to
The Magistrate Judge concluded in his Report that that the warrantless seizure of
Plaintiff’s urine sample did not fall within an established exception to the Fourth Amendment’s
This conclusion is consistent with the Eleventh Circuit’s holding in Harvey that “private persons . . . who
act pursuant to state statutes to commit the mentally ill cannot be held liable under section 1983.” 949 F.2d at 1133.
In Harvey, the Eleventh Circuit affirmed the dismissal of a complaint that contained Section 1983 claims against
two private doctors. See id. at 1129.
The court notes that it already has granted Plaintiff an opportunity to amend the complaint. (Doc. # 13).
requirement to obtain a warrant. (See Doc. # 16 at 12-15). The court agrees with the Magistrate
Judge that Plaintiff’s Amended Complaint has plausibly indicated that he did not grant voluntary
consent. But the court is unsure whether the seizure described in the Amended Complaint was
conducted under exigent circumstances, even after accounting for the alleged delay in
transporting Plaintiff to a hospital for treatment.
The Supreme Court has instructed courts to look at the totality of the circumstances to
determine whether an officer’s warrantless search or seizure was justified by exigent
Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 1559 (2013).
Magistrate Judge’s Report has addressed the factors the Supreme Court relied on in Schmerber v.
California, 384 U.S. 757 (1966), to uphold a warrantless seizure of a blood sample from a
suspected drunk driver. The Report also distinguished the present case from Schmerber. (Doc. #
16 at 13-15). But the Amended Complaint has provided no indication of whether Defendant
Miller sought a warrant or was able to obtain a warrant at the time that the seizure occurred. The
Supreme Court recognized in McNeely that “exigent circumstances justifying a warrantless blood
sample may arise in the regular course of law enforcement due to delays from the warrant
application process.” McNeely, 569 U.S. at ___, 133 S. Ct. at 1563. At this point, the court is
not certain that information about the availability of a magistrate or the warrant process can be
produced by Defendant Miller or whether the court can consider such information under Federal
Rule of Civil Procedure 12(b)(6). However, as Defendant Miller will be served with Plaintiff’s
Amended Complaint regardless, the court finds it more appropriate to allow him to respond to
Plaintiff’s unreasonable-seizure claim before deciding whether to adopt the Magistrate Judge’s
recommendation on that claim.
Thus, the court directs Defendant Miller to respond to Plaintiff’s unreasonable-seizure
claim within thirty (30) days of service. In particular, Defendant Miller shall address whether
the court should adopt Section III(A)(3)(a) of the Magistrate Judge’s Report and whether
Plaintiff has stated an adequate Section 1983 claim against him for unlawful search and seizure. 4
Plaintiff may file a response, if any, within ten (10) days of Defendant Miller’s response.
For the reasons stated above, the Magistrate Judge’s Report (Doc. # 16) is due to be
ADOPTED IN PART and OVERRULED IN PART as follows:
Counts II, III, IV, V, VI, VII, IX, and X of Plaintiff’s Amended Complaint (Doc.
# 12-1) are DISMISSED WITHOUT PREJUDICE for failure to state a claim.
Defendants Williams, White, and City of Russellville are DISMISSED from this
Defendant Miller will be served with a copy of Plaintiff’s Amended Complaint,
the Magistrate Judge’s Report, this Memorandum Opinion, and the accompanying
Order. Within thirty (30) days of service, Defendant Miller SHALL file a
response to the Magistrate Judge’s Report addressing whether Plaintiff has stated
an adequate Section 1983 claim for seizing a urine sample in violation of the
Fourth Amendment. Plaintiff MAY file a reply, if any, within ten (10) days of
Defendant’s response. Thereafter, the court will determine whether to adopt
Section III(A)(3)(a) of the Magistrate Judge’s Report and refer the remaining
claims in this action to the Magistrate Judge for further proceedings.
DONE and ORDERED this January 19, 2017.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
Defendant Miller does not need to submit a special report regarding this claim. The court is only
considering whether the unreasonable-seizure claim should be dismissed for failure to state a claim based on the
Rule 12(b)(6) standard, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
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