Colvard v. May et al
Filing
25
ORDER granting 7 Defendants' Motion to Dismiss. Denying 12 Motion to Transfer Case. Denying 21 Motion for Reconsideration. Denying as moot 24 Motion for Order. Clerk is directed to close the case. Signed by Judge Richard W. Story on 6/18/2014. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MURRAY M. COLVARD,
Plaintiff,
v.
LEE MAY, Interim Chief
Executive Officer Dekalb County,
and JUDGE BERRYL
ANDERSON,
:
:
:
:
:
:
:
:
:
:
CIVIL ACTION NO.
1:13-CV-3422-RWS
Defendants.
ORDER
This case is before the Court on Defendants’ Motion to Dismiss [7],
Plaintiff’s Motion to Transfer [12], Plaintiff’s Motion for Reconsideration [21],
and Plaintiff’s Motion for Order [24]. After reviewing the record and the
Parties’ submissions, the Court enters the following Order.
Background1
Plaintiff was evicted from his home at 2035 Memorial Drive, Apartment
1801, Atlanta, Georgia (“Property”), on August 22, 2013. Magistrate Judge
Anderson signed a writ of possession on that date commanding the marshal to
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The facts are taken from Plaintiff’s Complaint [2].
evict Plaintiff and his belongings from the Property. (Writ of possession, [2] at
3 of 6.) Plaintiff alleges that Defendants “worked together” to unlawfully evict
him in violation of 42 U.S.C. § 1983, and that Dekalb County continuously
harassed him by putting out an unlawful “BOLO” out on him, tracking his
phone, and placing video devices inside his apartment. Plaintiff asserts § 1983
claims for: false imprisonment, harassment, due process violations, human
rights violations, and other civil rights violations. Plaintiff seeks damages in
the amount of $25,000,000.
Defendants now move under Federal Rule of Civil Procedure (“Rule”)
12(b)(6) to dismiss all claims against them. Plaintiff has not responded to
Defendants’ motion. Therefore, the motion is deemed unopposed. N.D. Ga.
L.R. 7.1B.
Discussion
I.
Motion to Dismiss Legal Standard
Rule 8(a)(2) requires that a pleading contain a “short and plain statement
of the claim showing that the pleader is entitled to relief.” While this pleading
standard does not require “detailed factual allegations,” mere labels and
conclusions or “a formulaic recitation of the elements of a cause of action will
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not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). In order to withstand 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.’” Id. (quoting Twombly, 550
U.S. at 570). A complaint is plausible on its face when the plaintiff pleads
factual content necessary for the court to draw the reasonable inference that the
defendant is liable for the conduct alleged. Id.
“At the motion to dismiss stage, all well-pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most
favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273
n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions set
forth in the complaint. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
(11th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. Furthermore, the court does not “accept as
true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at
555.
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“The district court generally must convert a motion to dismiss into a
motion for summary judgment if it considers materials outside the complaint.”
D.L. Day v. Taylor, 400 F.3d 1272, 1275-76 (11th Cir. 2005); see also Fed. R.
Civ. P. 12(d). However, documents attached to a complaint are considered part
of the complaint. Fed. R. Civ. P. 10(c). Documents “need not be physically
attached to a pleading to be incorporated by reference into it; if the document’s
contents are alleged in a complaint and no party questions those contents, [the
court] may consider such a document,” provided it is central to the plaintiff’s
claim. D.L. Day, 400 F.3d at 1276. At the motion to dismiss phase, the Court
may also consider “a document attached to a motion to dismiss . . . if the
attached document is (1) central to the plaintiff’s claim and (2) undisputed.” Id.
(citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). “‘Undisputed’
means that the authenticity of the document is not challenged.” Id.
II.
Defendants’ Motion to Dismiss
Defendants argue that Judge Anderson, who was acting in her official
capacity, has absolute immunity from civil liability under § 1983. The Court
agrees. “Judges are absolutely immune from civil liability under section 1983
for acts performed in their judicial capacity, provided such acts are not done in
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the clear absence of jurisdiction.” Roland v. Phillips, 19 F.3d 552, 555 (11th
Cir. 1994) (internal quotations and citation omitted). The only allegation in
Plaintiff’s Complaint pertaining to Judge Anderson is that she signed the writ of
possession ordering Plaintiff’s eviction. In Georgia, magistrate judges have
jurisdiction over the issuance of writs in dispossessory proceedings. O.C.G.A.
§ 15-10-2(6). Therefore, Judge Anderson’s official act was not in the clear
absence of jurisdiction and she is entitled to immunity. Accordingly, Plaintiff’s
claims against Judge Anderson are DISMISSED.
It is difficult to ascertain from the Complaint the specific allegations
against Defendant May. Plaintiff does not appear to allege that Defendant May,
in his role as Chief Executive Officer (“CEO”) of Dekalb County, carried out
the “unlawful” eviction. Instead, Plaintiff refers to a larger pattern of
“continuos harassment” by Dekalb County, suggesting a supervisory theory of
liability.
As Defendants argue, “a municipality cannot be held liable under § 1983
on a respondeat superior theory.” Monell v. Dept. of Soc. Serv.s, 436 U.S.
658, 691 (1978). Only when a government entity’s policy or custom causes the
injury can the government entity be held responsible under § 1983. Id. at 694.
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Plaintiff’s Complaint is devoid of allegations that would establish liability on
the part of Mr. May or Dekalb County. Therefore, Plaintiff’s claims against
Defendant May are DISMISSED.2
III.
Plaintiff’s Motions
Plaintiff moves to transfer this case because, he alleges, the Court has
“personally harassed” him and has allowed defendants in three other cases to
harass him. (Motion to Transfer, [12].) Further, he alleges, the Court has
signed unlawful orders and violated court procedures. (Id.) Plaintiff provides
no factual basis for these assertions and cites no legal authority to suggest that
transfer is proper. Therefore, Plaintiff’s Motion to Transfer [12] is DENIED.
Plaintiff also moves for reconsideration of the Court’s Order dated
January 9, 2014 [13]. The Order denied Plaintiff’s motion for default judgment
because, the Court found, Defendants filed a timely motion to dismiss and
therefore were not in default. (Order, [13] at 1 of 2.) Under the local rules of
this Court, “[m]otions for reconsideration shall not be filed as a matter of
routine practice.” L.R. N.D.Ga. 7.2E. Rather, motions for reconsideration are
2
To the extent Plaintiff attempts to assert direct claims for constitutional
violations against Mr. May in his individual capacity, the Complaint clearly does not
satisfy Rule 8's pleading standard.
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proper only when: (1) there is newly discovered evidence; (2) there has been an
intervening development or change in controlling law; or (3) there is a need to
correct a clear error of law or fact. Bryan v. Murphy, 246 F. Supp. 2d 1256,
1258-59 (N.D. Ga. 2003). Plaintiff has not identified or relied upon any of
these bases for reconsideration. Instead, he advances the same argument he put
forth in support of his motion for default judgment: Defendants failed to file an
answer to his Complaint.
Plaintiff’s recycled argument does not alter the Court’s finding that
Defendants filed a timely pre-answer motion to dismiss and were thus not in
default. Therefore, Plaintiff’s Motion for Reconsideration [21] is DENIED.
Plaintiff’s final motion, labeled “Request for Order” [24], seeks an Order on
Plaintiff’s Motion for Reconsideration. The Court has now addressed the
motion for reconsideration and therefore, the Motion for Order [24] is DENIED
as moot.
Conclusion
Based on the foregoing, Defendants’ Motion to Dismiss [7] is
GRANTED; Plaintiff’s Motion to Transfer [12] is DENIED; Plaintiff’s Motion
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for Reconsideration [21] is DENIED; and Plaintiff’s Motion for Order [24] is
DENIED as moot. The Clerk is directed to close the case.
SO ORDERED, this 18th day of June, 2014.
________________________________
RICHARD W. STORY
United States District Judge
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