Curry v. County of Clayton et al
Filing
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OPINION AND ORDER directing that Plaintiff file, on or before May 11, 2017, an amended complaint remedying the pleading deficiencies identified in this Order. Failure to file the required amended complaint, or otherwise to follow the Courts instructions in this Order, will result in dismissal of this action. Signed by Judge William S. Duffey, Jr on 4/28/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DEBRA DENISE CURRY,
Plaintiff,
v.
1:16-cv-4379-WSD
COUNTY OF CLAYTON, TERRY
BASKIN, TOMISHA SMITH,
OFFICER A. COWELL,
DANIELLE JONES, CHIEF
MICHAEL REGISTER,
DETECTIVE MCCART,
MICHAEL MURPHY, and
CHARLES REED,
Defendants.
OPINION AND ORDER
This matter is before the Court on the required frivolity review, under
28 U.S.C. § 1915(e)(2)(B), of Plaintiff Debra Denise Curry’s (“Plaintiff”)
Complaint [3].
I.
BACKGROUND
On November 28, 2016, Plaintiff filed her Application for Leave to Proceed
In Forma Pauperis (“IFP Application”) [1]. On December 1, 2016, Magistrate
Judge Catherine M. Salinas granted Plaintiff’s IFP Application and submitted
Plaintiff’s pro se Complaint [3] to this Court for a frivolity review. ([2]).
Plaintiff’s Complaint alleges that, on May 3, 2016, she drove to the Clayton
County Tag Office to renew her vehicle registration. (Compl. ¶¶13, 45).
Plaintiff’s daughter and a friend were passengers in the car. (Compl. ¶ 13). When
Plaintiff arrived, she spoke with the officer manager, Defendant Tamisha Smith
(“Smith”), who told her to contact the Clayton County Tax Commissioner’s Office.
(Compl. ¶ 13). Plaintiff called the Tax Commissioner’s Office and spoke with
Defendant Danielle Jones (“Jones”), who told her that Defendant Terry Baskin
(“Commission Baskin”), the Clayton County Tax Commissioner, was required to
authorize her registration renewal. (Compl. ¶¶ 9, 13). Jones explained that Baskin
was currently unavailable. (Compl. ¶ 13).
After her conversation with Jones, Plaintiff returned to the Tag Office to pay
the registration renewal fee. (Compl. ¶ 13). Smith would not allow Plaintiff to pay
the fee, and was “rude and obnoxious.” (Compl. ¶ 13). Plaintiff “tried to explain
that she couldn’t drive her car without her registration.” (Compl. ¶ 13). Defendant
Officer A. Cowell (“Officer Cowell”), a Clayton County police officer, told
Plaintiff “if you don’t leave this building I will throw you out.” (Compl. ¶¶ 10,
13). Plaintiff asked for Officer Cowell’s badge number and threatened to report
her to “Internal Affairs.” (Compl. ¶ 13). Plaintiff then returned to her vehicle and
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called the Office of the Clayton County Chief of Police (the “Chief of Police’s
Office”), Michael Register (“Chief Register”). (Compl. ¶¶ 8, 13).
While Plaintiff was on the phone with the Chief of Police’s Office, two
police cars arrived, apparently at the request of Officer Cowell. (Compl. ¶ 13).
Defendant Michael Murphy (“Officer Murphy”), a Morrow County police officer,
was in one of the cars. (Compl. ¶ 13). Plaintiff exited her vehicle and approached
Officer Murphy. (Compl. ¶ 13). “[B]efore [Plaintiff] knew what was happening
Officer Murphy grabbed the phone out of her hands, and slammed it down onto her
vehicle, and twirled her around, and forcefully put handcuffs on the defendant.”
(Compl. ¶ 13). Plaintiff alleges that Officer Murphy arrested her without probable
cause or a warrant, and that the handcuffs “stopped circulation in her wrists while
she sat screaming in pain.” (Compl. ¶¶ 3, 36).1 “Plaintiff asked her daughter to
take her phone and film everything, and she was told by the officer that if she
filmed it he would arrest her; she stopped temporarily but started up right after
[the officer] walked away.” (Compl. ¶ 13). Officer Cowell allegedly searched
Plaintiff’s vehicle, and unnamed officers obtained identification from Plaintiff and
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Plaintiff alleges that, as a result of her handcuffing during her arrest, she
suffered three months of numbness and a pinched nerve in her wrist, “so much so
that [she] could not properly care and attend for [her] daughter that was ill, and
since then died.” (Compl. ¶ 3).
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the passengers in Plaintiff’s car. (Compl. ¶¶ 36, 30-32, 36, 70).
Over the next six days, after Plaintiff “was released and forced to pay a
bail,” Commissioner Baskin prohibited Plaintiff from coming into the office to pay
her registration renewal fee. (Compl. ¶ 15). In July 2016, Plaintiff was tried in
state court on unnamed charges arising out of the incident for which she was
arrested by Officer Murphy. (Compl. ¶¶ 3, 13). Plaintiff alleges that
Commissioner Baskin, Smith, Jones, and Officer Cowell committed perjury at the
trial. (Compl. ¶¶ 3, 13, 17). The jury found Plaintiff “not guilty on every charge.”
(Compl. ¶ 13).
Plaintiff asserts claims, under 42 U.S.C. § 1983, for (i) excessive force and
unlawful search and seizure in violation of the Fourth and Fourteenth Amendments
(Count 1), and (ii) “unconstitutional denial and suppression of the right of free
speech and the right to question the conduct of police officers, and conduct every
day rights of services,” in violation of the First and Fourteenth Amendments
(Count 3). (Compl. at 8, 12). Plaintiff also asserts state law claims for excessive
force and unlawful search and seizure (Count 2), “unconstitutional denial and
suppression of the right of free speech and the right to question the conduct of
police officers” (Count 4), false imprisonment (Count 5), assault (Count 6), battery
(Count 7), trespass and damage to property (Count 8), and obstruction of justice
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(Count 9). Plaintiff seeks damages, declaratory relief, attorney’s fees, and
“delet[ion] and expunge[ment] from any and all police records or databases any
information about Plaintiff obtained at the Clayton County Tag office and court
records.” (Compl., Prayer for Relief).
II.
DISCUSSION
A.
Legal Standard
A court must dismiss a complaint filed in forma pauperis if at any time the
court determines the action is frivolous or malicious or that it fails to state a claim
on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). “Failure to state
a claim under § 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for
failure to state a claim under Fed. R. Civ. P. 12(b)(6).” Wilkerson v. H&S, Inc.,
366 F. App’x 49, 51 (11th Cir. 2010) (citing Mitchell v. Farcass, 112 F.3d 1483,
1490 (11th Cir. 1997)). Under this standard, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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 (citing Twombly, 550 U.S. at 556).
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Review for frivolousness, on the other hand, “accords judges not only the
authority to dismiss a claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.”
See Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (quoting
Neitzke v. Williams, 490 U.S. 319, 327 (1989)). A claim is frivolous when it “has
little or no chance of success,” that is, when it appears “from the face of the
complaint that the factual allegations are ‘clearly baseless’ or that the legal theories
are ‘indisputably meritless.’” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)
(quoting Neitzke, 490 U.S. at 327). “[I]f the district court sees that an affirmative
defense would defeat the action, a [dismissal on the grounds of frivolity] is
allowed.” Clark v. State of Ga. Pardons & Paroles Bd., 915 F.2d 636, 640 (11th
Cir. 1990).
Complaints filed pro se must be construed liberally and are “held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)
(internal quotation marks omitted)). Nevertheless, a pro se complaint must comply
with the threshold requirements of the Federal Rules of Civil Procedure, and must
properly state a claim upon which relief can be granted. See Beckwith v. Bellsouth
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Telecomms. Inc., 146 F. App’x 368, 371 (11th Cir. 2005); Grigsby v. Thomas, 506
F. Supp. 2d 26, 28 (D.D.C. 2007). “[A] district court does not have license to
rewrite a deficient pleading.” Osahar v. U.S. Postal Serv., 297 F. App’x 863, 864
(11th Cir. 2008).
B.
Analysis
Plaintiff’s Complaint constitutes a shotgun pleading. A shotgun pleading is
defined by “the failure to identify claims with sufficient clarity to enable the
defendant to frame a responsive pleading.” Beckwith v. Bellsouth Telecomms.,
Inc., 146 F. App’x 368, 371 (11th Cir. 2005). “The typical shotgun complaint
contains several counts, each one incorporating by reference the allegations of its
predecessors, leading to a situation where most of the counts . . . contain irrelevant
factual allegations and legal conclusions.” Strategic Income Fund, L.L.C. v. Spear,
Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002); see also
Ferrell v. Durbin, 311 F. App’x 253, 259 (11th Cir. 2009). Shotgun pleadings
often include conclusory or vague allegations, fail to specify which defendant is
responsible for each act alleged, or contain counts that present more than one
discrete claim for relief. See Silverthorne v. Yeaman, 668 F. App’x 354, 355
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(11th Cir. 2016); Beckwith, 146 F. App’x at 372.2 As a result, the district court,
faced with a crowded docket and “whose time is constrained by the press of other
business, is unable to squeeze the case down to its essentials.” PVC Windoors,
Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 806 n.4 (11th Cir. 2010).
“Thus, shotgun pleadings impede the orderly, efficient, and economic disposition
of disputes as well as the Court’s overall ability to administer justice.”
Guthrie v. Wells Fargo Home Mortg. NA, No. 1:13-cv-4226-RWS, 2014 WL
3749305, at *7 (N.D. Ga. July 28, 2014).
The Eleventh Circuit has specifically instructed district courts to prohibit
shotgun pleadings as fatally defective. Id. (citing B.L.E. ex rel. Jefferson v.
Georgia, 335 F. App’x 962, 963 (11th Cir. 2009)). To allow these pleadings would
place an unjustifiable burden on the Court to take on the virtually impossible task
of “ascertain[ing] what factual allegations correspond with each claim and which
claim is directed at which defendant.” Beckwith, 146 F. App’x at 373. The
Eleventh Circuit does not require the district court, or the defendants, to “sift
through the facts presented and decide for [itself] which were material to the
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With a shotgun pleading, it is often difficult to know which allegations of
fact are intended to support which claims for relief. Beckwith, 146 F. App’x at
372; Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366
(11th Cir. 1996).
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particular cause of action asserted.” Strategic Income Fund, 305 F.3d at 1296 n.9.
This is true even where the plaintiff is pro se. Pro se plaintiffs “must comply with
the procedural rules that govern pleadings,” including the rule against shotgun
pleadings. Beckwith, 146 F. App’x at 371.
These rules work together ‘to require the pleader to present his claims
discretely and succinctly, so that his adversary can discern what he is
claiming and frame a responsive pleading, the court can determine
which facts support which claims and whether the plaintiff has stated
any claims upon which relief can be granted, and, at trial, the court
can determine that evidence which is relevant and that which is not.’
Fikes v. City of Daphne, 79 F.3d 1079, 1082 (11th Cir. 1996) (quoting
T.D.S. v. Shelby Mut. Ins. Co.,760 F.2d 1520, 1543 n. 14 (11th Cir. 1985)).
Plaintiff’s Complaint contains nine counts and names nine defendants. Each
count incorporates all prior paragraphs in the Complaint. Plaintiff asserts, in a
single count, multiple claims based on distinct theories and factual allegations.
(See Compl. at 9-11 (Count 3 asserting claims for unlawful arrest, unlawful search,
and excessive force); cf. Fed. R. Civ. P. 10 (b) (“[E]ach claim founded on a
separate transaction or occurrence—and each defense other than a denial—must be
stated in a separate count or defense.”). Some of the Counts baldly assert
constitutional violations after “repeat[ing] and realleg[ing] each and every
allegation in the foregoing paragraphs” and offering no particularized factual
allegations. (See, e.g., Compl. 38-40 (Count 2 states: “Plaintiff repeat and reallege
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[sic] each and every allegation in the foregoing paragraphs as if fully set forth
herein. The individual Defendants, by foregoing actions, committed unreasonable
conduct through search and seizure, excessive force, etc., in violation of Georgia
Constitution, Art, Sec. 1, ¶¶ XIII, and XVII. Plaintiffs’ [sic] are entitled to
damages, declaratory relief and injunctive relief as set forth herein.”)). The
Complaint contains many other vague or conclusory allegations. (See, e.g., “[T]he
police officers deliberately falsified reports, blatantly lied on reports, and then went
before the State judicial Courts and committed perjury, and with this knowledge
refused to expose this to the law.”).3
The Complaint lacks any specific, meaningful allegations against several
Defendants, including Charles Reed, Chief Michael Register, and Detective
McCart. The Complaint frequently asserts generalized allegations against “the
Defendants,” “the Individual Defendants,” “the Officers,” or “the Officer,” without
identifying how or which allegations apply to which Defendant. (See, e.g., Compl.
¶¶ 24, 35, 38-40, 42-45, 49, 52-55, 67). Plaintiff asserts her federal claims “against
all defendants,” (Compl. at 8, 12), and fails to identify the specific Defendants
3
For example, Plaintiff alleges, without explanation or elaboration, that
Defendants “searched her vehicle” and, possibly, her person. (Compl. ¶¶ 21,
30-32, 63-64). Plaintiff appears to offer contradictory allegations on whether the
alleged vehicle search was conducted pursuant to a warrant. (Compare Compl.
¶ 21, with Compl. ¶ 31).
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against whom several of her state law claims are asserted. Count 6, for example,
asserts an assault claim against “[a]ll of the Officers as well as Defendants that is
considered accomplishers combined and conspired to accomplish the unlawful
objective of assaulting the individual Plaintiff by unlawful means.” (Compl. ¶ 59).
Count 7 contains similar generalized allegations. (See Compl ¶ 66). Count 9
appears to asset a claim against “Judicial System” and “Internal Affairs,” neither of
which are named defendants. (Compl. at 18). Plaintiff also appears to assert
claims on behalf of the passengers in her vehicle, who are not parties in this action.
(See, e.g., ¶¶29, 32, 40, 56, 63-64).
Plaintiff’s Complaint constitutes a shotgun pleading. Plaintiff is required to
file, on or before May 11, 2017, an amended complaint remedying the pleading
deficiencies identified in this Order. Plaintiff is advised that the amended
complaint, once filed, will supersede and replace her current Complaint. Plaintiff’s
amended complaint must (1) assert each claim in a separate numbered count,
(2) clearly identify the specific defendant(s) against whom each claim is asserted,
(3) clearly explain the factual allegations supporting each claim and their
application to each defendant against whom the claim is asserted, and (4) avoid
vague, generalized, conclusory, contradictory or irrelevant assertions. Plaintiff’s
allegations and claims should be presented “with such clarity and precision that
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[each] defendant will be able to discern what the plaintiff is claiming [against him
specifically] and to frame a responsive pleading.” Anderson v. Dist. Bd. of
Trustees of Cent. Florida Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). Plaintiff
also shall identify the specific offenses for which she was arrested and tried, so the
Court may determine whether there was probable cause for her arrest. Failure to
file the required amended complaint, or otherwise to follow the Court’s
instructions in this Order, will result in dismissal of this action. See LR
41.3(A)(2), NDGA.4
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Although Plaintiff purports to proceed pro se, she signs her Complaint “[b]y
and through counsel on Contingency fees when case go to trial,” and provides
contact information for “Attorney Lisa Lenn P.A. Law Firm.” (See Compl.
at 21-22). Neither Lisa Lenn nor any other attorney has filed a notice of
appearance in this action. Absent a formal notice of appearance filed by counsel,
attorneys should not be involved in this case and Plaintiff’s filings must be her own
work. See, e.g., Duran v. Carris, 238 F.3d 1268, 1272 (10th Cir. 2001) (holding
that “ghost writing” constituted a misrepresentation to the Court by the allegedly
pro se litigant and the unidentified counsel); Fitzhugh v. Topetzes, No. 1:04-cv3258, 2006 WL 2557921, at *1 n.1 (N.D. Ga. Sept. 1, 2006) (“condemn[ing] the
practice” of preparation, by an undisclosed attorney, of pro se filings); Somerset
Pharm., Inc. v. Kimball, 168 F.R.D. 69, 72 (M.D. Fla. 1996) (“[T]he practice of
filing pro se pleadings which are actually prepared by a legal advocate does taint
the legal process and create disparity between the parties”).
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III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff shall file, on or before
May 11, 2017, an amended complaint remedying the pleading deficiencies
identified in this Order. Plaintiff is advised that the amended complaint, once
filed, will supersede and replace her current Complaint. Plaintiff’s amended
complaint must (1) assert each claim in a separate numbered count, (2) clearly
identify the specific defendant(s) against whom each claim is asserted, (3) clearly
explain the factual allegations supporting each claim and their application to each
defendant against whom the claim is asserted, and (4) avoid vague, generalized,
conclusory, contradictory or irrelevant assertions. Plaintiff’s allegations and
claims should be presented “with such clarity and precision that [each] defendant
will be able to discern what the plaintiff is claiming [against him specifically] and
to frame a responsive pleading.” Anderson v. Dist. Bd. of Trustees of Cent.
Florida Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). Plaintiff also shall identify
the specific offenses for which she was arrested and tried, so the Court may
determine whether there was probable cause for her arrest. Failure to file the
required amended complaint, or otherwise to follow the Court’s instructions in this
Order, will result in dismissal of this action. See LR 41.3(A)(2), NDGA.
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SO ORDERED this 28th day of April, 2017.
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