KIER v. PRINE et al

Filing 6

ORDER dismissing case without prejudice. Ordered by U.S. District Judge HUGH LAWSON on 11/10/2014. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
ROBERT KIER, JR.,
Plaintiff,
VS.
SHERIFF CHRIS PRINE, et. al,
Defendants.
______________________________

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CIVIL No: 7:14-CV-0145-HL-TQL

ORDER
Plaintiff ROBERT KIER, JR, an inmate confined at the Coleman Low Federal
Correctional Institution in Coleman, Florida, filed this pro se civil rights action under 42 U.S.C. §
1983.1 After construing all allegations in the Complaint liberally and in the light most favorable
to Plaintiff, the Court finds that Plaintiff’s Complaint fails to state a claim upon which relief may
be granted. Plaintiff’s Complaint is accordingly DISMISSED without prejudice pursuant to 28
U.S.C. § 1915A(b)(1).
I.

STANDARD OF REVIEW
Under 28 U.S.C. § 1915A(a), the district court is required to conduct a preliminary review

of prisoner complaints. In so doing, the district court must accept all factual allegations in the
complaint as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Pro se pleadings
are also “held to a less stringent standard than pleadings drafted by attorneys” and will be
“liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). A
pro se prisoner’s pleading will, however, be dismissed prior to service if the court finds that the

1 Plaintiff paid his initial partial filing fee of $23.93 and is also required to pay the remaining $326.07 of the filing fee
under the payment plan set forth 28 U.S.C. § 1915(b)(1) and ordered herein.

complaint – when viewed liberally and in the light most favorable to the plaintiff – is frivolous or
malicious, seeks relief from an immune defendant, or otherwise fails to state a claim upon which
relief may be granted. See 28 U.S.C. § 1915A(b). See also, Brown v. Johnson, 387 F.3d 1344,
1347 (11th Cir. 2004); Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). If
allegations in the complaint plainly show that relief is barred by the applicable statute of
limitations, it fails to state an actionable a claim and thus is properly dismissed prior to service. See
Jones v. Bock, 549 U.S. 199, 215, 127 S. Ct. 910, 166 L.Ed.2d 798 (2007); 28 U.S.C. § 1915A.
II.

PLAINTIFF’S CLAIMS
In this Complaint, Plaintiff alleges that Defendants – Sheriff Chris Prine and various

detectives employed by the Lowndes County Sheriff’s Office – violated this Fourth Amendment
rights against unreasonable search and seizure. The Complaint states that “Detectives” conducted
a warrantless search of Plaintiff’s parents’ home (“the home of Robert L. Kier, Sr. and Ms. Mary
Ann Kier”) on November 12, 2010. Two days later, Plaintiff went to the Lowndes County Jail
and threatened to bring constitutional claims against “the Sheriff’s Department.” Detective
Alicia Brantley then arrested Plaintiff, and while in custody, Plaintiff was questioned about a
number of thefts in other counties. He states that the “Lowndes and Echols County Sheriff’s
Departments” then “coerced” officials in three other jurisdictions to issue warrants for Plaintiff’s
arrest “without probable cause,” which resulted in Plaintiff being “falsely imprisoned” from
“November 15, 2010 until May of 2011.” The other counties allegedly dismissed those charges
by December of 2012.
Defendants apparently continued to investigate Plaintiff in Lowndes County. Plaintiff
alleges that Detectives Winningham and Black placed a “tracking device on Plaintiff’s personal
truck without a warrant” on or about February 17, 2012. Detectives Winningham, Marion,

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Whitner, Priddy, Black and Prichett then allegedly conducted another “warrantless” search of his
parents’ home on February 22, 2012, which resulted in the seizure of a “gooseneck trailer.” Then,
a year later, on March 12, 2013, Detectives Winningham and Marion allegedly conducted yet
another warrantless search, this time at “the home of Flasha Boatman.” This search resulted in
Plaintiff’s arrest and the seizure of his truck. Plaintiff claims that while his truck was in the
custody of “Lowndes County Detectives,” money was stolen and his iPod was broken.
Plaintiff has now attempted to bring Fourth Amendment claims against Sheriff Chris Prine
and Detectives Winningham, Marion, Black, Whitner, Priddy, Prichett, and Brantley.2 The Court
also liberally construes Plaintiff’s allegations regarding his arrest on November 14, 2010, to be a
possible First Amendment retaliation claim and Plaintiff’s allegations about the loss of his
personal property to be a potential Fourteenth Amendment due process claim.3
A. Fourth Amendment Search and Seizure
Plaintiff attempts to bring Fourth Amendment claims based on four different “searches”:
two at his parents’ home, one at the home of Ms. Boatman, and one based on “tracking device”
placed on his truck. Plaintiff has no standing to bring a Fourth Amendment claim based on the
search of another person’s residence unless he can establish that he had a legitimate expectation of
privacy in that home. See Rawlings v. Kentucky, 448 U.S. 98, 104–05, 100 S.Ct. 2556, 65
L.Ed.2d 633 (1980) (ownership of property seized does not automatically confer standing to
challenge search). Plaintiff’s Complaint does not allege that he had any such expectation. He
has thus failed to state a Fourth Amendment claim based on those searches.

2 The Complaint states the Defendants also violated Plaintiff’s Eighth Amendment rights. The Eighth Amendment
has no application in the pre-conviction context, see Hamm v. DeKalb Cnty., 774 F.2d 1567, 1571–72 (11th Cir.
1985), and Plaintiff does not allege any facts to support an Eighth Amendment claim. The Court will thus presume
that the Eighth Amendment was cited in error. Plaintiff’s “False Imprisonment” claims fall under Fourth Amendment.
3 The district court is “obligated, as part of its screening protocol, to seek out and identify any and all cognizable
claims of the plaintiff.” O'Berry v. State Attny’s Office, 241 F. App’x 654, 657 (11th Cir. 2007).

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Plaintiff’s claims arising out of the searches of his parents’ home on November 12, 2010,
and February 22, 2012, and for the warrantless tracking of his truck on February 17, 2012, are also
plainly time-barred. In the State of Georgia, the statute of limitations for bringing a § 1983 claim
is two-years. See Owens v. Okure, 488 U.S. 235, 236, 109 S. Ct. 573, 574, 102 L.Ed.2d 594
(1989), O.C.G.A. § 9-3-33. This limitations period begins to run when “the plaintiff knows or has
reason to know (1) that he was injured, and (2) who inflicted the injury.” Johnson v. Greaves, 366
F. App’x 976, 978 (11th Cir. 2010) (citing Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir. 1996).
The time for filing Plaintiff’s claims thus expired on or before February 22, 2014. Plaintiff’s
Complaint was mailed to this Court on or about September 8, 2014,4 well after the expiration of
the limitations period; and nothing in the Complaint suggests that the statute of limitations could
be equitably tolled. Plaintiff has therefore failed to state a claim. See Hughes v. Lott, 350 F.3d
1157, 1163 (11th Cir. 2003); Jones, 549 U.S. at 215.
Plaintiff’s Fourth Amendment claims for unlawful search and seizure are accordingly
DISMISSED. See 28 U.S.C. § 1915A(b)(1).
B. Fourth Amendment False Imprisonment
Plaintiff next asserts that the “Lowndes and Echols County Sheriff’s Department(s)
coerced” three other jurisdictions to issue warrants for Plaintiff’s arrest and thereby caused him to
be “falsely imprisoned” from November 15, 2010 until May of 2011.
This claim was also filed outside the applicable two-year statute of limitations; the time for
bringing this claim expired in May of 2013. Even if the Court were to presume, however, that the
statute of limitations for bringing this claim could have potentially been tolled until the last of the
charges against him had been dropped on December 7, 2012, see Heck v. Humphrey, 512 U.S.
4 A prisoner’s complaint is generally deemed filed on the date he signs the document and delivers it to prison officials
for mailing. See Garvey v. Vaughn, 993 F.2d 776, 783 (11th Cir. 1993).

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477, 114 S. Ct. 2364, 129 L.Ed.2d 383 (1994), the statute of limitations would still bar his claims
unless Plaintiff showed that “he diligently attempted to file his action within the statutory period,
or that he filed his action as soon as he could.” Johnson v. Greaves, 366 F. App’x 976, 976 (11th
Cir. 2010). Equitable tolling is indeed “an extraordinary remedy” which is typically applied only
if the “the claimant ‘actively pursued his judicial remedies by filing a defective pleading during the
statutory period,’ or if his adversary induced or tricked him into filing after the deadline.’” It does
not apply “if the [plaintiff’s] late filing is a result of his ‘failure to exercise due diligence in
preserving his legal rights.’” Id. (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111
S.Ct. 453, 457, 112 L.Ed.2d 435 (1990)).
Nothing in Plaintiff’s Complaint suggests either that he pursued his judicial remedies by
filing a defective pleading during the statutory period, or that Defendants somehow induced or
tricked him into filing after the deadline. Nor does the Complaint show that Plaintiff exercised
due diligence in preserving his legal rights. The present action was not filed until almost two
years after the last of the charges were dismissed.
Furthermore, even if this claim was timely, the vague and conclusory allegations in the
Complaint are not sufficient to state a valid Fourth Amendment claim. Plaintiff fails to link any
named defendant with the alleged constitutional violation. The ““Lowndes and Echols County
Sheriff’s Departments[s]” are neither named defendants in this action nor parties that may be sued
under § 1983. See Presnell v. Paulding County, Ga., 454 F. App’x 763, 768 (11th Cir. 2011).
Plaintiff’s allegation that other jurisdictions were somehow “coerced” into issuing arrest warrants
“without probable cause” is also no more than a self-serving, un-supported legal conclusion.
“[U]nwarranted deductions of facts or legal conclusions masquerading as facts will not prevent
dismissal.” Oxford Asset Mgmt., Ltd., 297 F.3d 1182, 1188 (11th Cir. 2002).

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For these reasons, Plaintiff’s false imprisonment claims for are also DISMISSED. See 28
U.S.C. § 1915A(b)(1).
C. First Amendment Retaliation
The Court liberally construes Plaintiff’s allegations against Detective Alicia Brantley to be
a First Amendment retaliation claim. The Complaint states that Plaintiff was told, when visiting
the jail on November 14, 2010, that he was not under arrest. Shortly thereafter, Plaintiff allegedly
told officers that he intended to speak to an attorney about “the Sheriff’s Department’s
unprofessional and unlawful tactics.” Plaintiff was then arrested by Detective Brantley on
charges of “theft by receiving stolen property.”5
For those reasons discussed above, this claim is also time-barred; the time for bringing this
claim expired on November 14, 2012. The Court also finds that there are insufficient allegations
to support a claim for retaliation. The Complaint does not allege the requisite causal connection
between Plaintiff’s threat to file suit and his subsequent arrest. See Smith v. Mosley, 532 F.3d
1270, 1276 (11th Cir. 2008). Plaintiff did not make the alleged statement to Brantley; nor did he
allege facts to show that she was aware of the statement when he was arrested.
Thus, in the event that Plaintiff brought a First Amendment claim, that claim is
DISMISSED.
D. Fourteenth Amendment Due Process
Plaintiff’s final claim is that “$5,000 in U.S. currency” was stolen and his I-pod was broken
while his truck was in the custody of “Lowndes County Detectives” in March of 2013. Plaintiff
also alleges that Detectives Winningham and Marion “stole numerous items” from him. The
Court construes this as an attempted Fourteenth Amendment due process claim.
5 Plaintiff does not allege an absence of probable cause for the arrest. However, any Fourth Amendment claim
would also be time-barred.

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The Fourteenth Amendment does protect Plaintiff from being deprived of his property
without due process of law. U.S. Const. amend. XIV, § 1. However, the Due Process Clause is
not offended – even if Defendants intentionally deprived Plaintiff of his property – so long as the
State makes available a meaningful post-deprivation remedy. See Hudson v. Palmer, 468 U.S.
517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Georgia law provides Plaintiff with an adequate
post deprivation remedy for the loss of his property. See O.C.G.A. § 51-10-1; Lindsey v. Storey,
936 F.2d 554, 561 (11th Cir. 1991) (finding no procedural due process violation because Georgia
“has provided an adequate post deprivation remedy” in O.C.G.A. § 51-10-1); Byrd v. Stewart, 811
F.2d 554, 555 n. 1 (11th Cir.1987) (“The State of Georgia has created a civil cause of action for the
wrongful deprivation of property.”). Therefore, the taking or destruction of Plaintiff’s property,
even if intentional, would not support a due process claim.
Any Fourteenth Amendment claim is accordingly DISMISSED.
III.

CONCLUSION
For these reasons, the Court finds that Plaintiff has failed to state a claim for relief under §

1983. The Complaint is accordingly DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).
As Plaintiff was previously advised, the dismissal of his Complaint does not relieve his
obligation to pay the Court’s filing fee. Plaintiff is still obligated to pay the full $350.00 filing
fee, using the installment payment plan described in 28 U.S.C. § 1915(b).

Therefore, in

accordance with the Prison Litigation Reform Act, it is now ORDERED that Plaintiff’s custodian
remit to the Clerk of this Court each month twenty percent (20%) of the preceding month’s income
credited to Plaintiff’s inmate account until the $350.00 filing fee has been paid in full, provided the
amount in the account exceeds $10.00. Transfers from Plaintiff’s account shall continue until the
entire filing fee has been collected, notwithstanding the earlier dismissal of Plaintiff’s lawsuit. In

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the event Plaintiff is transferred to another institution, his present custodian shall forward a copy of
this directive, and all financial information concerning payment of the filing fee and costs in this
case, to Plaintiff’s new custodian, who shall then continue to collect funds from his account until
the full filing fee has been paid. If Plaintiff is released from custody, he remains obligated to pay
any remaining balance due and shall continue to remit monthly payments as required by the Prison
Litigation Reform Act. If Plaintiff fails to remit payments, the balance may be collected by any
means permitted by law.
The Clerk is accordingly DIRECTED to mail a copy of this Order to the warden and/or
business manager of the facility in which Plaintiff is currently confined.
SO ORDERED this 10th day of November, 2014.

s/ Hugh Lawson
Hugh Lawson, Judge
UNITED STATES DISTRICT COURT
jlr

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