MCNEAL v. COLUMBUS POLICE DEPARTMENT et al

Filing 8

ORDER dismissing 1 Complaint filed by TOMMY MCNEAL. Ordered by US DISTRICT JUDGE CLAY D. LAND on 5/18/2018(tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
TOMMY MCNEAL,
Plaintiff,
v.
COLUMBUS POLICE
DEPARTMENT, et al.,

Defendants.
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No. 4:18-cv-00067-CDL-MSH

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ORDER
This case is currently before the Court for screening as required by the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(a). Plaintiff Tommy McNeal, an
inmate confined at the Muscogee County Jail, filed the above-captioned proceeding
seeking relief under 42 U.S.C. § 1983 and requested to proceed without the prepayment of
filing fees. For the following reasons, Plaintiff’s complaint is hereby DISMISSED
without prejudice.
I.

Motion to Proceed In Form Pauperis

Although Plaintiff was previously granted in forma pauperis status, Plaintiff is still
obligated to pay the full balance of the filing fee, in installments, as set forth in 28 U.S.C. §
1915(b) and explained below. It is thus requested that the CLERK forward a copy of this
ORDER to the business manager of the facility in which Plaintiff is incarcerated so that
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withdrawals from his account may commence as payment toward the filing fee.
A. Directions to Plaintiff’s Custodian
It is hereby ORDERED that the warden of the institution wherein Plaintiff is
incarcerated, or the Sheriff of any county wherein he is held in custody, and any successor
custodians, each month cause to be remitted to the Clerk of this court twenty percent (20%)
of the preceding month’s income credited to Plaintiff’s account at said institution until the
$350.00 filing fee ($328.88 remaining) has been paid in full. In accordance with the
provisions of the Prison Litigation Reform Act, Plaintiff’s custodian is hereby authorized
to forward payments from the prisoner’s account to the Clerk of Court each month until the
filing fee is paid in full, provided the amount in the account exceeds $10.00. It is further
ORDERED that collection of monthly payments from Plaintiff’s trust fund account shall
continue until the entire $350.00 has been collected, notwithstanding the dismissal of
Plaintiff’s lawsuit or the granting of judgment against him prior to the collection of the full
filing fee.
B. Plaintiff’s Obligations Upon Release
Pursuant to provisions of the Prison Litigation Reform Act, in the event Plaintiff is
hereafter released from the custody of the State of Georgia or any county thereof, he shall
remain obligated to pay any balance due on the filing fee in this proceeding until said
amount has been paid in full; Plaintiff shall continue to remit monthly payments as
required by the Prison Litigation Reform Act. Collection from Plaintiff of any balance due
on the filing fee by any means permitted by law is hereby authorized in the event Plaintiff
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is released from custody and fails to remit payments. Plaintiff’s complaint is subject to
dismissal if he has the ability to make monthly payments and fails to do so.
II.

Preliminary Review of Plaintiff’s Complaint

A. Standard for Preliminary Review
Because Plaintiff is a pretrial detainee proceeding under Section 1983 and seeks to
proceed in forma pauperis in this action, his complaint is subject to screening under 28
U.S.C. §§ 1915(e) & 1915A which require a district court to dismiss any complaint that is
frivolous, malicious, or fails to state a claim upon which relief may be granted. When
conducting a preliminary review, the district court must accept all factual allegations in the
complaint as true and make all reasonable inferences in the plaintiff’s favor. See Brown v.
Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004) (stating that allegations in the complaint
must be viewed as true). Pro se pleadings are also “held to a less stringent standard than
pleadings drafted by attorneys,” and a pro se complaint is thus “liberally construed.”
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam). The
district court, however, cannot allow a plaintiff to litigate frivolous, conclusory, or
speculative claims.

As part of the preliminary screening, the court shall dismiss a

complaint, or any part thereof, prior to service, if it is apparent that the plaintiff’s claims are
frivolous or if his allegations fail to state a claim upon which relief may be granted – i.e.,
that the plaintiff is not entitled to relief based on the facts alleged. See 28 U.S.C. § 1915(e);
28 U.S.C. § 1915A.
To state a viable claim, the complaint must include “enough factual matter” to “give
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the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). There must also be “enough facts to raise a
reasonable expectation that discovery will reveal evidence” to prove the claim. Id. at 556.
The claims cannot be speculative or based solely on beliefs or suspicions; each must be
supported by allegations of relevant and discoverable fact. Id. Thus, neither legal
conclusions nor a recitation of legally relevant terms, standing alone, is sufficient to
survive preliminary review. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of
action will not do.’”) (quoting Twombly, 550 U.S. at 555). Claims without an arguable
basis in law or fact will be dismissed as frivolous. See Neitzke v. Williams, 490 U.S. 319,
325 (1989); accord Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (noting that
claims are frivolous if “clearly baseless” or based upon “indisputably meritless” legal
theories).
B. Plaintiff’s Claims
The events underlying Plaintiff’s complaint occurred “on or about” January 4, 2018.
Compl. 5, ECF No. 1. According to Plaintiff, on that date the members of the Columbus
Police Department arrested Plaintiff and transferred him to Midtown Medical Center
where medical staff treated Plaintiff’s “serious illness.” Id. Although Plaintiff arrived at
the medical center fully clothed, Plaintiff realized his pants, belt, shoes, and underwear
were missing when he “finally was aware of [his] surroundings.” Id. The medical staff
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told Plaintiff that he changed into a pair of medical pants when he arrived, they placed his
belongings in a property bag bearing Plaintiff’s name, and staff would inform the
Columbus Police Department that Plaintiff’s belongings could be retrieved at the time of
his discharge. Id.
Plaintiff continues that when he discharged from the medical center and arrived at
the jail, he realized that the transporting officer did not bring Plaintiff’s property with them.
The officer told Plaintiff that “he knew nothing about any property.” Id. at 6. Plaintiff
states that his wallet was inside his pants and contained his driver’s license, money, social
security card, Medicaid card, and insurance card, and Plaintiff now fears that he will be a
victim of identity theft. Id. Plaintiff seeks the return of his personal property, and
$39,000 damages for distress, pain, suffering, replacement value of his property, and to
offset future risk of identity theft.
i.

Defendant Police Department and Medical Center

“To have a cause of action pursuant to § 1983, the plaintiff must allege that a person
deprived him of a federal or constitutional right and that the person was acting under color
of state law.” Edwards v. Wallace Cmty. College, 49 F.3d 1517, 1522 (11th Cir. 1995)
(citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)). Whether an entity has the capacity to
be sued in a Section 1983 action “is determined by the law of the state in which the district
court sits.” Falkner v. Monroe Cty. Sheriff’s Dept., 523 F. App’x 696, 700 (11th Cir.
2013) (per curiam) (citing Dean v. Barber, 951 F.2d 1210, 1214-15 (11th Cir. 1992));
Robinson v. Hogansville Police Dept., 159 F. App’x 137, 138 (11th Cir. 2005) (per curiam)
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(“Under Federal Rule of Civil Procedure 17(b), the capacity to sue or be sued [is] be
determined by the law of the state in which the district court is held.”). Because the events
underlying this action occurred in Georgia, Georgia law determines the capacity to be sued.
Georgia recognizes only three classes as legal entities, namely: (1) natural persons; (2) an
artificial person (a corporation); and (3) such quasi-artificial persons as the law recognizes
as being capable to sue.” Lovelace v. Dekalb Cent. Probation, 144 F. App’x 793, 795 (11th
Cir. 2005) (per curiam) (quoting Georgia Insurers Insolvency Pool v. Elbert Cty., 258 Ga.
317 (1988)).
Plaintiff has named two Defendants in this action, one of which is the Columbus
Police Department.

“Sheriff’s Departments and police departments are not usually

considered legal entities subject to suit.” Dean, 951 F.2d at 1214. Indeed, the Columbus
Police Department is not a natural person, an artificial person, or a quasi-artificial person
recognized as being capable to sue. Under Georgia law, the Columbus Police Department
thus lacks the capacity to be sued. Consequently, Plaintiff has failed to state a claim against
the Columbus Police Department.
Plaintiff also cannot proceed against Defendant Midtown Medical Center. As
discussed above, in order to state a claim under § 1983, Plaintiff must allege that his
constitutional rights were violated by a person acting under color of state law. Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982) (“The party charged with the
deprivation must be a person who may fairly be said to be a state actor.”); Griffin v. City of
Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001) (“In order to prevail on a civil rights
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action under § 1983, a plaintiff must show that he or she was deprived of a federal right by
a person acting under color of state law.”).
Plaintiff complains that Midtown Medical Center personnel failed to return his
property. Based on his allegations, however, it is clear that Defendant Midtown Medical
Center is a private entity not acting under color of state lawe, and it cannot be held liable in
a Section 1983 suit unless its actions amount to state action. The actions of private parties
may amount to state action when one of three tests is met: the “(1) public function test; (2)
the state compulsion test; and (3) the nexus/joint action test.” Willis v. Uni. Health
Services, Inc., 993 F.2d 837, 840 (11th Cir. 1993) (citing Nat’l Broadcasting Co., Inc. v.
Com. Workers of America, AFL-CIO, 860 F.2d 1022, 1026 (11th Cir. 1988)). Only in
“rare circumstances” will one of these tests be satisfied by a private party. Harvey v.
Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). Plaintiff’s complaint is devoid of
allegations that would plausibly suggest that Midtown Medical Center satisfies one of
these tests or that its actions amounted to state action. Plaintiff has failed to state a claim
against Defendant Midtown Medical as it is not a “state actor” for purposes of Section
1983.
ii.

Fourteenth Amendment Property Deprivation

Even if Plaintiff had named a competent defendant in his complaint, he still would
not be able to proceed with his claim.

Because Plaintiff complains that the Defendants

allegedly lost his personal property, it appears that he seeks to raise a Fourteenth
Amendment due process claim based on that deprivation. “To successfully assert a
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Fourteenth Amendment procedural due process claim under § 1983, a plaintiff must
establish that (1) the defendant deprived him of a liberty or property interest protected by
the Constitution; (2) the deprivation occurred under color of state law, and (3) he was not
provided with constitutionally adequate process to redress the harm.” Mines v. Barber,
610 F. App’x 838, 840 (11th Cir. 2015) (per curiam) (citing Grayden v. Rhodes, 345 F.3d
1225, 1232 (11th Cir. 2003)). “[A]n unauthorized intentional deprivation of property by a
state employee does not constitute a violation of the procedural requirements of the Due
Process Clause of the Fourteenth Amendment if a meaningful post deprivation remedy for
the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984).

And “a random and

unauthorized deprivation does not violate procedural due process if the state provides an
adequate post-deprivation remedy.” Mines, 610 F. App’x at 840 (quoting Carcamo v.
Miami-Dade Cty., 375 F.3d 1104, 1105 (11th Cir. 2004)).

The Eleventh Circuit

recognizes several state law remedies available to Georgia detainees complaining of
property deprivations, including the institution’s administrative grievance system and a
civil cause of action for wrongful conversion. Mines, 610 F. App’x at 840; see also
Moore v. McLaughlin, 569 F. App’x 656, 658 (11th Cir. 2014) (per curiam); Stickels v.
Chief Police, Gwinnett Cty. Police Dept., 279 F. App’x 790, 791 (11th Cir. 2008) (per
curiam) (state law civil action for wrongful conversion was adequate state post-deprivation
remedy for failure of state officials to return property).
Here, Plaintiff states that the Defendants failed to ensure that Plaintiff received his
property when they transferred him from the medical center to the jail. Liberally construed,
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Plaintiff is alleging that he was deprived of his property without due process of law.
Plaintiff, however, cannot plausibly state a due process claim as Georgia law provides an
adequate post-deprivation remedy. See Mines, 610 F. App’x at 838. Georgia law provides
an action in tort for the wrongful deprivation of personal property, and there is nothing to
suggest that Plaintiff could not pursue a state law tort claim.

Plaintiff thus has a

post-deprivation remedy under Georgia law, and he does not allege that it is inadequate to
redress the harm he suffered. Accordingly, Plaintiff has failed to state a due process
claim.
III.

CONCLUSION

Pursuant to the above, Plaintiff’s complaint is DISMISSED without prejudice for
failure to state a federal claim upon which relief may be granted. To the extent that
Plaintiff’s allegations could be construed as an attempt to assert a state law conversion
claim, the Court declines to exercise supplemental jurisdiction over such a claim given the
dismissal of Plaintiff’s federal claims.
SO ORDERED, this 18th day of May, 2018
_S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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