Hawk v. Klaetsch et al
ORDER denying 11 Motion to Dismiss; denying 14 Motion to Dismiss. Signed by Chief Judge William H. Steele on 5/14/2012. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MICHAEL GABRIEL HAWK,
SEAN KLAETSCH, et al.,
) CIVIL ACTION 12-0058-WS-B
This matter is before the Court on motions to dismiss filed by defendants Morrow
Company (“Morrow”) and Charlotte Pollard. (Docs. 11, 14). The parties have filed
briefs in support of their respective positions, (Docs. 12, 15, 24, 25, 28), and the motions
are ripe for resolution.
As relevant to the motions to dismiss, the complaint alleges that the plaintiff in
1988 had the legal name of Kenneth Wade Clark. In that year, he entered a plea of no
contest to a Florida charge of lewd and lascivious act in the presence of a child. The
charge ultimately was dismissed and, under Florida law at the time, these events did not
result in a conviction. Until 2005, Alabama law required only convicted sex offenders to
register. In 2005, the law was expanded to encompass no contest pleas, but the law was
not made retroactive to such pleas occurring before 2005. Therefore, the plaintiff did not
register in Alabama as a sex offender. In July 2010, the plaintiff legally changed his
name to Michael Gabriel Hawk.
The plaintiff resided at an apartment complex in Evergreen, Alabama owned by
Morrow and managed by Pollard. On or about October 20, 2010, the plaintiff requested
Pollard to have a maintenance crew clean up a large pile of broken glass. The plaintiff
noticed that Pollard had his file on her desk. He asked why, and she responded that she
hadn’t gotten around to filing it. The plaintiff continued to ask to have the glass cleaned
up, and Pollard repeatedly refused. The conversation escalated, and other residents
arrived and threatened the plaintiff. The plaintiff said he would take the matter to the
police, which he did.
At the police station, the plaintiff spoke with defendant Trent Robinson, a city
police officer, who seemed agitated and who rudely questioned the plaintiff.
Robinson went to the apartment complex the same day, where he refused to speak
to the plaintiff, threatened to taser him, and said he wanted to speak to Pollard. Later that
evening, Robinson approached the plaintiff at a gas station and told the plaintiff that he
knew all about him, called him a homosexual, shoved him, and asked him if he wanted to
go to jail.
On or about October 22, 2010, Robinson approached the plaintiff and announced
he had a warrant for the plaintiff’s arrest. Robinson thereupon arrested the plaintiff for
failing to register as a sex offender. The charges were dismissed in February 2011.
The complaint names nine defendants and asserts ten counts. Count Five (labeled
“Action under 42 U.S.C. 1983”) alleges that Pollard, Robinson and others “were part of a
conspiracy to have Plaintiff Hawk falsely arrested and falsely imprisoned.” (Doc. 1 at
12). Count Ten (labeled “False Arrest and Imprisonment”) re-alleges that Pollard was
part of this conspiracy and continues that she was working within the line and scope of
her authority and employment when she participated in the conspiracy, rendering Morrow
The movants advance a single argument: that the complaint fails to satisfy the
pleading requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009). In particular, they argue that the complaint “does
not allege a set of facts that would make it plausible that Pollard participated in a
conspiracy or that Morrow could be held liable as a result of the acts of Pollard as her
employer.” (Doc. 12 at 4; accord Doc. 15 at 4).1
To survive dismissal under Rule 12(b)(6), a complaint must first satisfy the
pleading requirements of Rule 8(a)(2). Twombly, 550 U.S. at 555. “A pleading that
states a claim for relief must contain … a short and plain statement of the claim showing
that the pleader is entitled to relief ….” Fed. R. Civ. P. 8(a)(2). Rule 8 establishes a
regime of “notice pleading.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 513-14
(2002). It does not, however, eliminate all pleading requirements.
First, the complaint must address all the elements that must be shown in order to
support recovery under one or more causes of action. “At a minimum, notice pleading
requires that a complaint contain inferential allegations from which we can identify each
of the material elements necessary to sustain a recovery under some viable legal theory.”
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 960 (11th Cir. 2009) (emphasis and
internal quotes omitted).
Pleading elements is necessary, but it is not enough to satisfy Rule 8(a)(2). The
rule “requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do” to satisfy that rule. Twombly, 550 U.S. at 555.
There must in addition be a pleading of facts. Though they need not be detailed,
“[f]actual allegations must be enough to raise a right to relief above the speculative level
....” Id. That is, the complaint must allege “enough facts to state a claim for relief that is
plausible on its face.” Id. 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.” Iqbal, 556 U.S. at 678. “The plausibility
standard … asks for more than a sheer possibility that the defendant has acted
Morrow’s argument is only that, because its liability is alleged to be derivative of
Pollard’s, inadequate pleading as to Pollard is necessarily inadequate pleading as to Morrow as
well. Thus, the briefs and this order address only the allegations relative to Pollard.
unlawfully,” and “[w]here a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Id. (internal quotes omitted). A complaint lacking “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face” will
not “survive a motion to dismiss.” Id. But so long as the plausibility standard is met, the
complaint “may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556
(internal quotes omitted).
The movants identify the elements of a civil conspiracy claim “under Alabama
law” as: (1) a purpose to cause damage to the plaintiff; (2) concerted action; and (3)
overt acts. (Doc. 12 at 2; Doc. 15 at 2 (citing Snyder v. Faget, 326 So. 2d 113 (Ala.
1976)). They do not explain the relevance of Alabama conspiracy law to the plaintiff’s
federal cause of action, and the plaintiff’s federal claim cannot be dismissed for failure to
plead elements of a state claim he has not raised.
The movants argue that the complaint fails to address every element of the claim
because it “contains no allegations, stated or inferred, that relate to Pollard’s involvement
in the alleged conspiracy.” (Doc. 28 at 3). Specifically, they argue the complaint “does
not contain any allegations that Pollard had any communications or contact with any
other Defendant or participant in the alleged conspiracy.” (Doc. 28 at 2). Actually, it
does. As noted, the complaint alleges that Robinson (another defendant and an alleged
participant in the conspiracy) came to the apartment complex for the express purpose of
speaking with Pollard. This on its face is an “inferential allegation” of communication or
contact between Pollard and Robinson.
The movants then modify their approach, saying the complaint contains “no
allegation that Pollard and Defendant Robinson in anyway [sic] communicated about a
plan to have Plaintiff arrested and imprisoned or that Defendant Robinson acted at
Pollard’s behest in arresting Plaintiff.” (Doc. 28 at 2-3). Defendants rarely enter
conspiracies openly and in the presence or hearing of the plaintiff, and agreement is
routinely demonstrated circumstantially.2 Here, the complaint alleges that Pollard had
the plaintiff’s file on her desk for no good reason and that she and the plaintiff had a
heated exchange. Shortly thereafter but on the same day, Robinson arrived at the
apartment complex in order to follow up on the plaintiff’s complaint against Pollard and
announced his intention to speak with Pollard. Shortly thereafter but on the same day,
Robinson told the plaintiff he knew he was a homosexual and asked the plaintiff if he
wanted to go to jail. Taken together, these allegations render it plausible that Pollard
shared information with Robinson about the plaintiff’s former name and/or his criminal
history and agreed with Robinson to have the plaintiff arrested.3
The movants object that the complaint’s allegations leave it as likely that Pollard
merely provided information in response to Robinson’s questions as that she agreed with
Robinson to have the plaintiff arrested. (Doc. 28 at 3). That might be so had Pollard
been uninvolved before Robinson arrived but, according to the complaint, she was not.
Instead, she was prying into the plaintiff’s file and having a heated argument with him.
And when Robinson arrived shortly thereafter, she learned that the plaintiff had
complained to the police about her. These allegations tip the balance towards the
reasonable inference that Pollard had an axe to grind against the plaintiff and took
advantage of the opportunity provided by Robinson’s arrival to agree with him to have
the plaintiff arrested.
For the reasons set forth above, the motions to dismiss filed by Morrow and
Pollard are denied.
“[C]onspiracies are secretive by nature ….” United States v. White, 663 F.3d 1207,
1214 (11th Cir. 2011) (internal quotes omitted). Thus, “[t]he existence of such a conspiracy
[under Section 1983] may be proved by circumstantial evidence.” American Federation of
Labor and Congress of Industrial Organizations v. City of Miami, 637 F.3d 1178, 1191 (11th Cir.
It is of course unnecessary to the plaintiff’s claim that Robinson have acted at the
“behest” (i.e., order or command) of Pollard, and the Court construes the movants’ use of the
term as colorful but irrelevant flourish.
DONE and ORDERED this 14th day of May, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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