Marx v. Forsyth County Sheriff's Office et al

Filing 6

ORDER for Plaintiff to file a Second Amended Complaint that incorporates all the causes of action against all the Defendants that Plaintiff wishes to pursue at this time within thirty days of the date of this Order. The Court will then review the Se cond Amended Complaint for frivolity and determine at that time which claims shall proceed. Plaintiff is ORDERED to comply with federal pleading standards in his Second Amended Complaint. Failure to do so will result in dismissal of this action pursuant to Local Rule 15.6 for failure to obey a court order. Signed by Judge Richard W. Story on 09/20/13. (sk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
DENNIS MARX,
Plaintiff,
v.
FORSYTH COUNTY SHERIFF’S
OFFICE, et al.,
Defendants.

:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO.
2:13-CV-175-RWS

ORDER
Plaintiff, acting pro se, filed this action on August 2, 2013. The case is
now before the Court on a frivolity determination. Having carefully considered
the record, the Court enters the following Order.
Background
Plaintiff’s Amended Complaint [4]1 asserts numerous constitutional
claims pursuant to 42 U.S.C. § 1983 against many Defendants in both their
individual and official capacities, including the Forsyth County Sheriff’s Office
(“FCSO”) and multiple FCSO officers. The allegations generally pertain to
1

The Court notes that Plaintiff has submitted documentation in support of his
Amended Complaint. (See Dkt. [5].) On a frivolity determination, however, the
Court considers only the face of the complaint. See Neitzke v. Williams, 490 U.S.
319, 327 (1989).

AO 72A
(Rev.8/82)

patterns and practices of the FCSO that have resulted in Defendants’ use of
excessive force and in unconstitutional searches and seizures. (See, e.g., Am.
Compl., Dkt. [4] ¶ 18-23.)
Discussion
Pursuant to 28 U.S.C. § 1915(e)(2)(B), “the court shall dismiss the case
at any time if the court determines that . . . the action or appeal (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” A claim
is frivolous when it appears from the face of the complaint that the factual
allegations are “clearly baseless” or that the legal theories are “indisputably
meritless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carrol v. Gross, 984
F.2d 393, 393 (11th Cir. 1993).
Federal Rule of Civil Procedure 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,” “labels and conclusions” or “a formulaic recitation of the elements
of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

2

AO 72A
(Rev.8/82)

Because Plaintiff is proceeding pro se, his “pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998). “This leniency, however, does not require or allow courts to rewrite
an otherwise deficient pleading in order to sustain an action.” Thomas v.
Pentagon Fed. Credit Union, 393 F. App’x 635, 637 (11th Cir. 2010).
Given the current state of Plaintiff’s Amended Complaint, the Court is
unable to conduct a frivolity review at this time. Plaintiff’s Amended
Complaint is deficient in several respects. Plaintiff alleges many
unconstitutional policies and practices resulting from Defendants’ failure to
train and supervise without pointing to particular instances of either. For
example, Plaintiff sweepingly alleges that “FCSO officers also routinely
execute search warrants even when knowing that pertinent information on the
warrant, such as the address and identity of the individual, is incorrect.” (Dkt.
[4] ¶ 22.) Yet he does not allege a specific example to support this claim or any
of his other claims. Furthermore, it is unclear from the face of the Amended
Complaint whether the alleged wrongful acts were committed against Plaintiff
personally, or if some acts were committed against other individuals. Finally,

3

AO 72A
(Rev.8/82)

Plaintiff sets forth a long list of Defendants but does not tie specific Defendants
to specific asserted claims. As such, Plaintiff has failed to comply with federal
pleading standards.
In addition to his Section 1983 claims, Plaintiff also asserts a claim under
42 U.S.C. § 14141. (Dkt. [4] ¶ 11.) This provision, though, authorizes the
Attorney General of the United States to “obtain appropriate equitable and
declaratory relief to eliminate [unlawful patterns or practices by law
enforcement officers.]” 42 U.S.C. § 14141(b). Because Section 14141 did not
create an individual cause of action, Plaintiff has no cause of action under this
statute.
Conclusion
In accordance with the foregoing, Plaintiff is ORDERED to file a
Second Amended Complaint that incorporates all the causes of action against
all the Defendants that Plaintiff wishes to pursue at this time within thirty days
of the date of this Order. The Court will then review the Second Amended
Complaint for frivolity and determine at that time which claims shall proceed.
Plaintiff is ORDERED to comply with federal pleading standards in his Second

4

AO 72A
(Rev.8/82)

Amended Complaint. Failure to do so will result in dismissal of this action
pursuant to Local Rule 15.6 for failure to obey a court order.
SO ORDERED, this 20th day of September, 2012.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

5

AO 72A
(Rev.8/82)