Bradley v. Tucker et al

Filing 25

ORDER granting 6 Motion to Dismiss. Signed by Judge B. Avant Edenfield on 1/5/15. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ALBERT BRADLEY,
Plaintiff,
4: 14-cv-165

V.

OFFICER CHRISTOPHER TUCKER
and JOHN & JANE DOES 1-20 in their
personal capacities as law enforcement
officers of the
state and federal governments,

running an errand to pick up an auto part.
Id. While en route, Plaintiffs dispatcher
radioed him to return. Id.
Upon Plaintiffs arrival at Tico an
unidentified, armed police officer asked
Plaintiff for identification.
Id. at 2-3.
Plaintiff provided the officer a photo ID and
the officer asked if Plaintiff owned a
particular vehicle parked in the Tico lot. Id.
at 3. Plaintiff stated that he did. IL, The
unidentified officer then asked if he could
search Plaintiffs vehicle 1- ild
Plaintiff
denied permission I
Ui

Defendants.
S] 1 I1
I. INTRODUCTION
Before the Court are Officer Christopher
Tucker's ("Defendant") Motion to Dismiss,
ECF No. 6, and the Magistrate Judge's
Report and Recommendation ("R & R")
recommending dismissal of Albert Bradley's
("Plaintiff') Complaint pursuant to Federal
Rule of Civil Procedure 41(b) and Local
Rule 41.1(b), ECF No. 21. Plaintiff has
filed a Response to Defendant's Motion to
Dismiss, ECF No. 10, and an objection to
the R & R, ECF No. 24.
For the reasons set forth below, the
Court declines to adopt the Magistrate
Judge's R & R, ECF No. 21, but GRANTS
Defendant's Motion to Dismiss, ECF No. 6.
II. BACKGROUND
Plaintiff works in the parts department at
Tico, Inc. ("Tico"), which is located at the
Georgia Ports Authority in Garden City,
Georgia. ECF No. 1 at 2. On August 20,
2013, Plaintiff was returning to Tico after

The unidentified offiriFii, told
Plaintiff to accompany him to Plain s car,
which was parked about ai quarter mile
away. Id. When the officei and Plaintiff
arrived at Plaintiffs cat, Defendant
approached Plaintiff and told him that his
dog had alerted on Plaintiffs car.
Id.
Plaintiff denied that there were drugs in his
car. Id Another unidentified officer then
told Plaintiff to "spread them" and frisked
Plaintiff.
Id.
During the frisk, the
unidentified officer removed Plaintiffs hat,
ran his fingers through Plaintiffs hair,
thoroughly patted down Plaintiffs person,
and had Plaintiff remove his boots so that
they could be searched. Id.
Finding no contraband on Plaintiffs
person, Defendant and other unidentified
officers searched Plaintiffs car. Id. at 4.
The search included the engine
compartment, passenger compartment, and
the trunk.
Id. This search, however,
produced no drugs or contraband.
Id.
Plaintiff alleges that law enforcement made
no police report of the incident, but the
officer in charge of the Savannah/Chatham

Metro K-9 unit confirmed that the unit sent
Defendant to the Georgia Ports Authority on
August 20, 2013, pursuant to a Customs and
Border request for a drug dog. Id. at 4-5.

Civil Procedure 41(b) and Local Rule
41.1(b). ECF No. 21 at 2-3.
III. STANDARD OF REVIEW
The matters before the Court are subject
to different standards of review. The
Magistrate Judge's R & R triggers scrutiny
under Federal Rule of Civil Procedure 41(b),
while Defendant's Motion to Dismiss
implicates Rule 12(b)(6) analysis.

On August 1, 2014, Plaintiff filed his
Complaint seeking relief under 42 U.S.C. §
1983, 1985(1)-(2), the Fourth and
Fourteenth Amendments to the United
States Constitution, Georgia state law, and
the Federal Torts Claims Act. ECF No. 1 at
1. On that same date, the Court issued a
General Order detailing the requirements of
Federal Rule of Civil Procedure 26(f). ECF
No. 3. Plaintiff did not serve Defendant
until September 12, 2014, see ECF No. 4,
and on October 30, 2014, Defendant moved
to dismiss Plaintiff's Complaint, ECF No. 6.

A. Rule 41(b)
Dismissal of a complaint pursuant to
Rule 41(b) "is an extreme sanction that may
be properly imposed only when: '(1) a party
engages in a clear pattern of delay or willful
contempt . . . ; and (2) the district court
specifically finds that lesser sanctions would
not suffice." Betty K Agencies, Ltd. v. M/V
Monada, 432 F.3d 1333, 1337-38 (11th Cir.
2005) (quoting World Thrust Films, Inc. v.
Int'l Family Entm't, Inc., 41 F.3d 1454,
1456 (11th Cir. 1995)).
The Eleventh
Circuit "rigidly require[s] the district courts
to make these findings precisely '[b]ecause
the sanction of dismissal with prejudice is so
unsparing' and [the Court of Appeals]
strive[s] to afford a litigant his or her day in
court, if possible."
Id. at 1339 (first
alteration in original) (quoting Mingo v.
Sugar Cane Growers Co-op. of Fla, 864
F.2d 101, 103 (llthCir. 1989)).

On November 10, 2014, Defendant filed
"his portion of" the required Rule 26(f)
Conference Report. ECF No. 9. But
Plaintiff's Counsel failed to cooperate in the
preparation of the Report. Id Therefore, on
November 13, 2014, the Magistrate Judge
ordered Plaintiff "to show cause . . . why his
case should not be dismissed for failure to
participate in the Rule 26(f) conference and
assist in the preparation of a proposed
discovery plan." ECF No. 11.
Plaintiff's Counsel responded to the
Magistrate Judge's Order, citing a lack of
experience in federal court and an
insufficient understanding of the Federal
Rules of Civil Procedure and this Court's
Local Rules as the cause for his failure to
cooperate in the preparation of the Rule
26(f) report. ECF No. 16. The Magistrate
Judge found that Plaintiff failed to show
cause and recommended dismissal of
Plaintiff's case pursuant to Federal Rule of

B. Rule 12(b)(6)
In considering a Federal Rule of Civil
Procedure 12(b)(6) motion, all facts in the
plaintiff's complaint "are to be accepted as
true and the court limits its consideration to
the pleadings and exhibits attached
thereto." GSW, Inc. v. Long Cnty., 999 F.2d
1508, 1510 (11th Cir. 1993). The Court,
0

I
11

Id.
"Second, only a
conclusions."
complaint that states a plausible claim for
relief survives a motion to dismiss." Id. at
679. Thus, Iqbal suggests a "two-pronged
approach" to assessing a defendant's Rule
12(b)(6) motion: "1) eliminate any
allegations in the complaint that are merely
legal conclusions; and 2) where there are
well-pleaded factual allegations, 'assume
their veracity and then determine whether
they plausibly give rise to an entitlement to
relief" Am. Dental Ass 'n v. Cigna Corp.,
605 F.3d 1283, 1290 (11th Cir. 2010)
(quoting Iqbal, 556 U.S. at 679)).
Importantly, however, the "plausibility
standard is not akin to a 'probability
requirement' at the pleading stage." Id. at
1289. Instead, it "simply calls for enough
fact to raise a reasonable expectation that
discovery will reveal evidence of the
necessary elements" of a plaintiff's claim for
relief. See McCray v. Potter, 263 F. App'x
771, 773 (11th Cir. 2008) (quoting
Twombly, 550 U.S. at 556).

however, is not limited to the four corners of
the pleadings, rather a proper review of a
motion to dismiss "requires the reviewing
court to draw on its judicial experience and
common sense." See Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).
A complaint will not be dismissed so
long as it contains factual allegations
sufficient "to raise a right to relief above the
speculative level." Bell Ad. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see
Iqbal, 556 U.S. at 678 (claim must have
"facial plausibility"); Edwards v. Prime,
Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
Yet, "a plaintiff's obligation to provide
'grounds' of his 'entitle[ment] to relief
requires more than labels and conclusions,
and a formulaic recitation of the elements of
a cause of action will not do." Twombly,
550 U.S. at 555 (alteration in original).
In Iqbal, the Court further explained the
required level of specificity:
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. The plausibility
standard is not akin to a probability
requirement, but it asks for more than a
sheer possibility that a defendant has
acted unlawfully.

IV. ANALYSIS

The Court will now take up the
substance of the Magistrate Judge's R & R
before turning to the merits of Defendant's
Motion to Dismiss.
A. The Magistrate Judge's R & R

The Court cannot adopt the Magistrate
Judge's R & R. As set forth above,
dismissal pursuant to Rule 41(b) requires
that the Court make specific findings that
lesser sanctions would not sufficiently
address a party's contempt. See Betty K
Agencies, Inc., 432 F.3d at 1338. Here, the
Magistrate Judge made no such findings
regarding the propriety of lesser sanctions.

556 U.S. at 678 (internal citation and
quotation omitted).
In order to assess the plausibility of a
complaint, a court must be mindful of two
principles. "First, the tenet that a court must
accept as true all of the allegations contained
in a complaint is inapplicable to legal
3

B. Defendant's Motion to Dismiss

Even if the Magistrate Judge had made such
findings, however, the Court still could not
adopt the recommendation that Plaintiff's
Complaint be dismissed pursuant to Rule
41(b).

The Court turns now to the merits of
Defendant's Motion to Dismiss. In his
Motion to Dismiss, Defendant argues that
there are no factual allegations that he
participated in the actions giving rise to the
alleged false arrest, the alleged unlawful
search of Plaintiffs person, the alleged
battery, the alleged sexual battery, the
alleged invasion of privacy, or the alleged
intentional infliction of emotional distress.
See ECF No. 6 at 2. Defendant also argues
that Plaintiff has failed to state a claim as to
Defendant's involvement in the allegedly
unlawful search of Plaintiffs automobile
and Defendant's involvement in the alleged
conspiracy to conceal the identities of the
John and Jane Does involved in the events
giving rise to Plaintiffs Complaint. Id. at 35.

Rule 41(b) requires a "clear record of
delay or willful conduct . . . ." See id. at
1339 (citing cases). Here, the ground on
which the Magistrate Judge's R & R relies
for dismissal is Plaintiffs Counsel's
apparent lack of competence and negligent
failure to abide by Court orders. See ECF
No. 21. However, lack of competence and
negligence simply cannot support a finding
of the kind of contemptuous conduct
necessary for dismissal under Rule 41(b).
See McKelvey v. AT&T Techs., Inc., 789
F.2d 1518, 1520 (11th Cir. 1986) ("A
finding of such extreme circumstances
necessary to support the sanction of
dismissal must, at a minimum, be based on
evidence of willful delay; simple negligence
does not warrant dismissal." (emphasis
added)). This is especially so where, as
here, the negligence leading to delay is
attributable to Plaintiff's Counsel, rather
than to Plaintiff. See Betty K Agencies, Ltd.,
432 F.3d at 1338 ("[T]he harsh sanction of
dismissal with prejudice is thought to be
more appropriate in a case where a party, as
distinct from counsel, is culpable."); see also
McKelvey, 789 F.2d at 1521 (finding that the
district court abused its discretion when it
dismissed a plaintiffs complaint after the
plaintiffs counsel negligently failed to
respond to the court's order to show cause).

Plaintiffs Response does not address
Defendant's arguments with regard to the
false arrest, the unlawful search of
Plaintiffs person, the battery, the sexual
battery, the invasion of privacy, or the
intentional infliction of emotional distress
counts, save for two conclusory allegations.
See ECF No. 10 at 1, 8.' An independent
One of Plaintiffs conclusory allegations reads: "It
is respectfully submitted there is more than sufficient
facts and evidence to show Defendant Tucker was
not only the direct and proximate cause of the rape of
Albert Bradley and that the defendant actually took
part in the physical search of Albert's automobile."
ECF No. 10 at 8 (emphasis added). The inclusion of
such an inflammatory charge in Plaintiffs Response
to Defendant's Motion to Dismiss is beyond curious.
Plaintiffs Complaint plainly alleges no facts tending
to show that Defendant or the unnamed John and
Jane Does raped Plaintiff But "[a]imost all
compositions contain words, which, taken in their
rigorous sense, would convey a meaning different
from that which is obviously intended." M'Culloch

Accordingly, the Court declines to adopt
the Magistrate Judge's R & R.

ru

review of Plaintiffs Complaint reveals that
the only factual allegations in the Complaint
relating to Defendant's alleged involvement
are: (1) that a drug dog "hit" on Plaintiff's
automobile and Defendant "was the K-9
handler," ECF No. 1 at 2; (2) that
Defendant told Plaintiff that the drug dog hit
on Plaintiffs car, Id. at 3, 6; (3) that
Defendant participated in the search of
Plaintiffs car, id. at 4, 7; and (4) that
Defendant was somehow involved in a
conspiracy to cover up the identities of the
officers involved in the search of Plaintiffs
automobile, see Id. at 8-9.
Therefore, the Court finds that only the
counts related to the search of Plaintiffs
automobile and the alleged conspiracy apply
to Defendant. The Court will now take up
the sufficiency of those counts, starting with
the automobile search before turning to the
alleged conspiracy.
1.

Counts V and VI: Unlawful
Search of Automobile

In response to Plaintiffs 42 U.S.C. §
1983 claims arising out of the allegedly
unlawful search of his automobile,
Defendants assert, however inartfully, that
qualified immunity applies, because the
v. Maryland, 17 U.S. 316, 414 (1819) (Marshall,

C.J.). "Such is the character of human language, that
no word conveys to the mind, in all situations, one
single definite idea; and nothing is more common
than to use words in a figurative sense." Id.
The Court does not believe that Plaintiff intended
to allege that the officers involved in the search of his
person and his automobile literally raped him, but
rather intended to use the word in a figurative sense.
Such incendiary word choice is unwise and Plaintiff
would do well to measure his words more carefully.
2
Plaintiff numbers these counts under Paragraphs 8A
and 813. ECF No. 1 at 6-7. For clarity's sake, the
Court will treat them as separate Counts.

search of Plaintiffs automobile "was
expressly permitted by law." ECF No. 6 at
3 (citing 33 C.F.R. §§ 6.04-7, -11). Plaintiff
responds, arguing that because Defendant
could have obtained a warrant and "the
search itself was conducted in an
unreasonable manner," Defendant violated
clearly established law. See ECF No. 10 at
43
With these general arguments in mind,
the Court turns to its own discussion of the
applicability of the qualified immunity test.
Under the doctrine of qualified immunity, an
official performing discretionary functions is
entitled to immunity "unless he both (1)
violates clearly established law and (2) was
aware or reasonably should have been aware
that he was doing it." Brannon v.
Finkelstein, 754 F.3d 1269, 1278 (11th Cir.
2014).
a.

Discretionary Function

In order for qualified immunity to apply,
it must be established that Defendant was
performing discretionary functions. The
Eleventh Circuit has explained that courts
are to make this determination, not by
"focusing on whether the acts in question
involved the exercise of actual discretion,"
but rather by asking "whether [the acts in
question] are of a type that fell within the
The parties' briefing is, in a word, underwhelming.
Defendant's Motion to Dismiss, Plaintiff's Response,
and Defendant's Reply cover a total of seventeen
pages and cite to relevant authority only nine times.
See generally ECF Nos. 6, 10, 18. Indeed, neither
Defendants, nor Plaintiff, identify the doctrine of
qualified immunity by name, but rather raise
arguments sounding in qualified immunity.
Efficiency in argument is greatly helpful to the
Court. Efficiency at the expense of argument is
greatly unhelpful to the Court. The parties here have
chosen the latter option.

employee's job responsibilities." Holloman
ex rel. Holloman v. Harland, 370 F.3d 1252,
1265 (11th Cir. 2004). To answer this
question, the Court "ask[s] whether the
government employee was (a) performing a
legitimate job-related function (that is,
pursuing a job-related goal), (b) through
means that were within his power to utilize."
Id.

Motion to Dismiss only if "plaintiff's
allegations state a claim of violation of
clearly established law." See Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)
(concluding that absent such allegations, "a
defendant pleading qualified immunity is
entitled to dismissal before the
commencement of discovery"); see also
Lybrook v. Members of Farmington Mun.
Sch. Bd. of Educ., 232 F.3d 1334, 1337
(10th Cir. 2000) (stating that where qualified
immunity is raised at the motion to dismiss
stage, "the plaintiff must carry the burden of
establishing that the defendant violated
clearly established law"); Kyle K. v.
Chapman, 208 F.3d 940, 942 (11th Cir.
2000) ("Defendants are entitled to qualified
immunity in a Rule 12(b)(6) motion to
dismiss only if the complaint fails to allege
facts that would show a violation of a clearly
established constitutional right."). To
determine whether or not a right was clearly
established in this case, the Court looks to
the decisions of the Supreme Court, the
Eleventh Circuit, and the Supreme Court of
Georgia. See Saunders v. Duke, 766 F.3d
1262, 1266 (11th Cir. 2014).

"[T]
pass the first step of the
discretionary function test for qualified
immunity, the defendant must have been
performing a function that, but for the
alleged unconstitutional infirmity, would
have fallen with his legitimate job
description." Id. at 1266. To pass the
second step of the discretionary function
test, the defendant must have been executing
a "job-related function . . . in an authorized
manner"—i.e., the defendant must have
been exercising powers from his authorized
"arsenal." Id, at 1266-67.
It is clear that conducting a search for
contraband was within Defendant's
legitimate job function as a Savannah
Chatham Police Officer. Further, the means
by which he conducted the search fell
clearly within the "arsenal" granted to him
as a K-9 handler. Therefore, as "[a]n officer
conducting a search," Defendant "is entitled
to qualified immunity [unless] clearly
established law . . . show[s] that the search
violated the Fourth Amendment."
See
Pearson v. Callahan, 555 U.S. 223, 243-44
(2009).
b.

Plaintiffs Complaint falls far short of
alleging that Defendant violated clearly
established law. Plaintiffs allegations as to
Defendant are that: (1) Defendant's search
of Plaintiffs automobile was
unconstitutional because Defendant "had
time and opportunity to contact a magistrate
and obtain a search warrant"; and (2)
Defendant's search of Plaintiffs automobile
was unreasonable because Plaintiffs
automobile was "ransacked" when the
"search should have been limited to the
portion of the automobile where the K-9

Clearly Established Law

Having found that Defendant was acting
within his discretionary authority, Plaintiffs
Complaint can withstand Defendant's
rel

LI

allegedly alerted." ECF No. 1 at 6-7. Such
allegations betray Plaintiff's lack of
understanding of Fourth Amendment first
principles.

what has become known as the "automobile
exception." See Maryland v. Dyson, 527
U.S. 465, 466 (1999). 5 To be sure, "[t]he
exception recognized in Carroll is
unquestionably one that is specifically
established and well delineated." United
States v. Ross, 456 U.S. 798, 825 (1982)
(internal quotation marks omitted). This
exception provides that "[i]f a car is readily
mobile and probable cause exists to believe
it contains contraband, the Fourth
Amendment. . . permits police to search the
vehicle without more." Pennsylvania v.
Labron, 518 U.S. 938, 940 (1996).

Plaintiff generalizes that because "there
was more than sufficient time to obtain a
search warrant" and Plaintiffs automobile
was immobile, exigent circumstances did
not exist to support the warrantless search of
Plaintiff's vehicle. See ECF No. 10 at 4.
"But to generalize is to omit, and, in this
instance, to omit" fundamental Fourth
Amendment doctrines. See Donnell v.
Herring-Mall-Marvin Safe Co., 208 U.S.
267, 273 (1908) (Holmes, J.).

"Readily mobile" under the automobile
exception, however, is a broad term.
Indeed, a vehicle need not be readily mobile
in fact to justify a warrantless search
supported by probable cause. Rather, the
"automobile exception" is founded on a
vehicle's "inherent mobility." See Ross, 456
U.S. at 830 (concluding that "the inherent
mobility of the vehicle . . . is the principal
basis for the Court's automobile exception
to the warrant requirement"). Thus, "[i]t is
clear that the justification to conduct such
a warrantless search does not vanish once
the car has been immobilized; nor does it
depend upon a reviewing court's assessment
of the likelihood in each particular case that
the car would have been driven away
during the period required for the police to
obtain a warrant." See Michigan v. Thomas,
458 U.S. 259, 261 (1982); see also United
States v. Watts, 329 F.3d 1282, 1286 (11th

In 1925, the Supreme Court held that if a
warrantless search is "made upon probable
cause . . . that an automobile or other
vehicle contains that which by law is subject
to seizure and destruction, the search and
seizure are valid," Carroll v. United States,
267 U.S. 132, 149 (1925), thus establishing
" Plaintiff does not appear to take issue with the dog
sniff itself. Rather, Plaintiffs focus is on the
subsequent search of his automobile. "A 'search'
occurs when an expectation of privacy that society is
prepared to consider reasonable is infringed." United
States v. Jacobsen, 466 U.S. 109, 113(1984). To the
extent that Plaintiff's Complaint can be read as
challenging the constitutionality of the dog sniff, "the
use of a well-trained narcotics-detection dog—one
that 'does not expose noncontraband items that
otherwise would remain hidden from public view—.
generally, does not implicate legitimate privacy
interests." See Illinois v. Caballes, 543 U.S. 405, 409
(2005) (citation omitted) (quoting United States v.
Place, 462 U.S. 696, 707 (1983)). Though Plaintiff
does allege that the search of his car produced no
contraband, Plaintiff "does not suggest that an
erroneous alert, in and of itself, reveals any legitimate
private information." Id Thus, the dog sniff did "not
'compromise any legitimate interest in privacy' and
[was] not a search subject to the Fourth
Amendment." Id. at 408 (quoting Jacobsen, 466 U.S.
at 123).

The "automobile exception" is not really an
exception to the warrant requirement at all. Rather, it
is a term of art used to denote the "constitutional
difference between houses and cars . . . that may in
some cases justify a warrantless search." See South
Dakota v. Opperman, 428 U.S. 364, 382 (1976).

7

Cir. 2003) ("All that is necessary to satisfy
[the readily mobile] element is that the
automobile is operational.").
Plaintiff's arguments that Defendant
should still have obtained a warrant miss the
mark. First, despite Plaintiff's contention
otherwise, under the Supreme Court's
"established precedent, the 'automobile
exception' has no separate exigency
requirement." Dyson, 527 U.S. at 466.
Second, Plaintiff's reliance on the Supreme
Court's decision in Arizona v. Gant, 556
U.S. 332 (2009) is both incorrect and
inapposite. Plaintiff's reliance on Gant is
inapposite, because Gant dealt not with the
"automobile exception" to the warrant
requirement, but with searches of
automobiles incident to lawful arrests. 556
U.S. at 335, 351. Plaintiff's reliance on
Gant is incorrect, because the Court in Gant
did not, as Plaintiff contends, invariably
require a warrant to search an automobile
after its driver had been secured. Rather,
under Gant, the police may search a vehicle
incident to lawful arrest when "the arrestee
is within reaching distance of the passenger
compartment at the time of the search or it is
reasonable to believe the vehicle contains
evidence of the offense of arrest." Id. at 351
(emphasis added). Thus, contrary to
Plaintiff's assertion that Gant "expanded the
rights of owners of automobiles by requiring
police to get a search warrant to search an
auto after the driver of the auto had been
removed from the auto and secured," ECF
No. 10 at 4, the decision does not call into
doubt the continued vitality of the
"automobile exception" to the warrant
requirement.

Applying the "automobile exception" to
Defendant's search of Plaintiff's
automobile, the warrant requirement was
excused if (1) Defendant had probable cause
to search Plaintiff's automobile and (2) if
Plaintiff's automobile was readily mobilei.e., if Plaintiff's automobile was
operational. There is no allegation that
Plaintiff's automobile was not operational at
the time of the allegedly unlawful search.
All that is alleged is that the vehicle was
immobile in that Plaintiff was not going to
drive the automobile anywhere at the time of
the search, see ECF No. 1 at 6, which is
irrelevant to the Court's Fourth Amendment
inquiry. Accordingly, so long as
Defendant's search of Plaintiff's vehicle was
based on probable cause, the search of
Plaintiff's vehicle did not violate clearly
established law.
The Eleventh Circuit has "long
recognized that 'probable cause arises when
a drug-trained canine alerts to drugs."
United States v. Tamari, 454 F.3d 1259,
1265 (11th Cir. 2006) (quoting United States
v. Banks, 3 F.3d 399, 402 (11th Cir. 1993)).
Georgia courts have found the same. See,
e.g., Prado v. State, 701 S.E.2d 871, 880
(Ga. Ct. App. 2010) ("A trained and
certified drug detection dog's alert on a
vehicle provides probable cause to believe
that contraband is present therein.").
Probable cause based on a dog alert still
requires sufficient indicia of reliability, but
"training of a dog alone is sufficient proof of
reliability." See United States v. Sentovich,
677 F.2d 834, 838 n.8 (11th Cir. 1982); see
also Florida v. Harris, 133 S. Ct. 1050,
1058 (2013) ("The question—similar to
every inquiry into probable cause—is

whether all the facts surrounding a dog's
alert, viewed through the lens of common
sense, would make a reasonably prudent
person think that a search would reveal
contraband or evidence of a crime."). Thus,
even where a dog alerts to the presence of
contraband, the determination of probable
cause "is not reducible to 'precise definition
or quantification," but depends on "the
totality of the circumstances." Harris, 133
S. Ct. at 1055 (quoting Maryland v. Pringle,
540 U.S. 366, 371 (2003)).
But at the motion to dismiss stage, once
a defendant raises the issue of qualified
immunity, the burden is on the plaintiff to
marshal facts sufficient to show a plausible
violation of clearly established law. See
Forsyth, 472 U.S. at 526; Chapman, 208
F.3d at 942. Plaintiff's Complaint, however,
does not allege facts to call into question the
reliability of Defendant's dog's alert.
Plaintiff does not allege that Defendant's
drug dog was inadequately trained or that
other circumstances negated the reliability
of the dog's alert. See Harris, 133 S. Ct. at
1057-58 ("[E]ven assuming a dog is
generally reliable, circumstances
surrounding a particular alert may
undermine the case for probable cause—if,
say, the officer cued the dog (consciously or
not), or if the team was working under
unfamiliar conditions."). In his Response to
Defendant's Motion to Dismiss, however,
Plaintiff appears to allege that the fact that
Defendant's search turned up no drugs
"indicates at least negligence in training of.
[Defendant's] K-9." See ECF No. 10 at 2.
But the "Court's review on a motion to
dismiss is 'limited to the four corners of the
complaint." Wilchombe v. TeeVee Toons,

Inc., 555 F.3d 949, 959 (11th Cir. 2009)
(quoting St. George v. Pinellas Cnty., 285
F.3d 1334, 1337 (llthCir. 2002)). Further,
even assuming arguendo that Defendant's
drug dog was negligently trained, the
Court's qualified immunity analysis would
be unchanged. This is because Defendant
"need not have actual probable cause, but
only 'arguable' probable cause" for
qualified immunity to apply. Brown v. City
of Huntsville, Ala., 608 F.3d 724, 734 (11th
Cir. 2010). "The standard for arguable
probable cause is whether a reasonable
officer in the same circumstances and
possessing the same knowledge as the
officer in question could have reasonably
believed that probable cause existed in the
light of well-established law." Eubanks v.
Gerwen, 40 F.3d 1157, 1160 (11th Cir.
1994). This standard permits law
enforcement officers to make reasonable
mistakes with regard to the existence of
probable cause without being held
personally liable. See Von Stein v. Brescher,
904 F.2d 572, 579 (11th Cir. 1990).
A review of the entire record before the
Court reveals no allegation that, if
Defendant's drug dog was negligently
trained, Defendant knew of the dog's
unreliability. Thus, even viewing all of
Plaintiff's allegations in a light most
favorable to his case, the Court still can only
assume that Defendant believed his drug dog
was reliable. "After all, law enforcement
units have their own strong incentive to use
effective training and certification programs,
because only accurate drug-detection dogs
enable officers to locate contraband without
incurring unnecessary risk or wasting
limited time and resources." See Harris,

133 S. Ct. 1057.
The Court therefore
concludes that Plaintiff has failed to
sufficiently allege that Defendant did not
have at least arguable probable cause to
conduct a search of Plaintiff's automobile.
Accordingly, Defendant is entitled to
qualified immunity as to Count V of
Plaintiffs Complaint.

does not require a warrantless search of an
automobile to be so limited. 6
The dog alert provided Defendant with
probable cause to search Plaintiffs
automobile for drugs. The scope of that
search "is defined by the object of the search
and the places in which there is probable
cause to believe it may be found." Ross,
456 U.S. at 824. Though prior to the alert,
Plaintiff certainly had an interest in not
having law enforcement officers "ransack[]"
his car, see ECF No. 1 at 4, that "interest[]
must yield to the authority of a search
which—in light of Carroll—does not itself
require the prior approval of a magistrate."
See Ross, 456 U.S. at 823.

Moving on to Count VI, which alleges
that because the search of Plaintiffs
automobile exceeded the scope of the dog
alert, the search was unreasonable in
violation of the Fourth Amendment. See
ECF No. 1 at 7. Having found that
Defendant had at least arguable probable
cause to search Plaintiff's vehicle for drugs,
disposal of Plaintiffs allegations regarding
the reasonableness of the search is a simple
exercise.

Accordingly, because Defendant had at
least probable cause to search Plaintiffs
automobile for drugs, he was permitted to
thoroughly search the entire automobile and
any area or container which could contain
the object of his search. See Ross, 456 U.S.
at 825 ("If probable cause justifies the
search of a lawfully stopped vehicle, it
justifies the search of every part of the
vehicle and its contents that may conceal the
object of the search.") Defendant is
therefore entitled to qualified immunity as to
Count VI of Plaintiffs Complaint.

Under Supreme Court precedent, the
automobile exception "merely relaxed the
requirements for a warrant on grounds of
practicability[;] [i]t neither broadened nor
limited the scope of a lawful search based on
probable cause." Ross, 456 U.S. at 820. "A
lawful search of fixed premises generally
extends to the entire area in which the object
of the search may be found and is not
limited by the possibility that separate acts
of entry or opening may be required to
complete the search." Id. at 820-21.

Had the dog alerted to a specific container in
Plaintiff's car, the scope of the search would be
limited to that container. See California v. Acevedo,
500 U.S. 565, 580 (1991) ("The facts in the record
reveal that the police did not have probable cause to
believe that contraband was hidden in any other part
of the automobile and a search of the entire vehicle
would have been without probable cause and
unreasonable under the Fourth Amendment."). But
Plaintiff does not allege that the dog alerted to a
specific container.

Plaintiff, however, alleges, with no
support, "that the search should have been
limited to the portion of the automobile
where the K-9 allegedly alerted." See ECF
No. 1 at 7. The Fourth Amendment simply

10

2.

Count IX: Conspiracy 7

Nevertheless, it is unnecessary to consider
the merits of those alleged underlying claims
because Plaintiff's Complaint fails to
properly allege the existence of a
conspiracy.

In Count IX of his Complaint, Plaintiff
alleges a conspiracy aimed at preventing
him from exercising his rights to justice and
his right to prosecute this action in court.
See ECF No. I at 8. The Court construes
this inartfully pleaded count as alleging a
conspiracy to interfere with civil rights
under 42 U.S.C. § 1985 . 8 Under 42 U.S.C. §
1985(2) "interference with the right of court
access by state agents who intentionally
conceal true facts about a crime may be
actionable as a deprivation of constitutional
rights . . . ." Chappell v. Rich, 340 F.3d
1279, 1283 (11th Cir. 2003). However, "the
constitutional right of access to courts . . . is
ancillary to the underlying claim, without
which a plaintiff cannot have suffered injury
by being shut out of court." Christopher v.
Harbury, 536 U.S. 403, 415 (2002). "[T]he
underlying cause of action. . . is an element
that must be described in the complaint, just
as much as allegations must describe the
official acts frustrating the litigation." Id.
Thus, in order to allege that Defendant and
other unnamed parties conspired to deny
him access to the Court, Plaintiff "must
identify within his complaint, a
'nonfrivolous, arguable underlying claim."
Barbour v. Haley, 471 F.3d 1222, 1226
(11th Cir. 2006) (quoting Harbury, 536 U.S.
at 415) (internal quotation marks omitted).
It is doubtful that Plaintiff's Complaint
alleges any nonfrivolous underlying claims.

An allegation of a conspiracy is
necessary to sustain a cause of action under
42 U.S.C. § 1985(2). United States ex rd.
Simmons v. Zibilich, 542 F.2d 259, 261 (5th
Cir. 1976) (stating that proof of "a
conspiracy" is "an essential element" of a
Section 1985 action). A conspiracy
"requires the combination of two or more
persons acting in concert" and "[a] plaintiff
must allege, either by direct or
circumstantial evidence, a meeting of the
minds or agreement among the defendants."
See Brever v. Rockwell Int'l Corp., 40 F.3d
1119, 1126 (10th Cir. 1994) (quotations
omitted). Indeed, "the linchpin for
conspiracy is agreement, which presupposes
communication." See Bailey v. Rd. of Cnty.
Comm 'rs of Alachua Cnty., Fla., 956 F.2d
1112, 1122 (11th Cir. 1992). "[M]ore than
mere conclusory notice pleading is required"
in civil rights conspiracy cases and "a
complaint will be dismissed as insufficient
where the allegations it contains are vague
and conclusory." See Fullman v. Graddick,
739 F.2d 553, 556-57 (11th Cir. 1984); see
also Bush v. Butler, 521 F. Supp. 2d 63, 68
(D.D.C. 2007) ("To survive a motion to
dismiss a Section 1985 claim, plaintiff must
set forth more than conclusory allegations of
an agreement. To state sufficient facts to
support an agreement plaintiff should allege
the existence of any events, conversations,
or documents indicating there was an
agreement between the defendants to violate
his rights." (citations omitted)).

Plaintiffs Conspiracy cause of action is set forth
under Paragraph 11 of his Complaint. See ECF No. I
at 8. For continued clarity, the Court will identify the
Conspiracy cause of action as Count VIII.
Plaintiff styles his Complaint as seeking recovery
under both 42 U.S.C. § 1983 and 42 U.S.C. §
1985(l)-(2). ECF No. 1 at!.

11

Plaintiff alleges that the object of the
alleged conspiracy was "to conceal the
identities of the[] policemen and their
agencies to prevent [Plaintiff] access to the
courts so that he may bring an action to seek
redress for the wrongs that he has sustained.
• • ." ECF No. 1 at 9. But Plaintiff's
Complaint fails to even set forth a
conclusory allegation that Defendant entered
into an agreement with any other defendant
aimed at achieving the alleged conspiracy's
illicit end. There also is no allegation that
Defendant ever communicated with the
other defendants for the purpose of
concealing the identity of the officers
involved. Indeed, there is no allegation that
any of the other, unidentified defendants
entered into agreements or communicated
with each other in order to conceal the
identity of the officers.

consistent with lawful behavior—e.g., lack
of knowledge—as they are with an unlawful
conspiracy. Plaintiff's Complaint even
gives reasons to explain why the officers
involved could not be identified: "[T]here
was no police report made of this incident."
ECF No. 1 at 4. He does not allege,
however, that failure to make a police report
was an act in furtherance of, or otherwise
evidence of, a conspiracy to conceal the
identities of those officers involved. Thus,
absent specific allegations of a preceding
agreement, Plaintiff has not "nudged [his
civil rights conspiracy] claim[] across the
line from conceivable to plausible." See
Twombly, 550 U.S. at 557, 570 (considering
a conspiracy claim under Section 1 of the
Sherman Act and concluding that "when
allegations of parallel conduct are set out in
order to make a § 1 claim, they must be
placed in a context that raises a suggestion
of a preceding agreement, not merely
parallel conduct that could just as well be
independent action"); Jabary v. City of
Allen, 547 F. App'x 600, 610 (5th Cir. 2013)
(considering a Section 1983 conspiracy
claim and concluding that plaintiff's "facts,
when 'placed in a context . . . [must raise] a
suggestion of a preceding agreement, not
merely parallel conduct that could just as
well be independent action" (alterations in
original) (quoting Twombly, 550 U.S. at
557)).

To be sure, Plaintiff may rely entirely on
circumstantial evidence to prove the
existence of an agreement and Defendant's
participation in the alleged conspiracy. See
United States v. Houser, 754 F.3d 1335,
1349 (11th Cir. 2014) (reviewing a criminal
conviction); see also Grider v. City of
Auburn, Ala., 618 F.3d 1240, 1260 (11th
Cir. 2010) ("Factual proof of the existence
of a § 1983 conspiracy may be based on
circumstantial evidence.");
Palmer v.
Morris, 316 F.2d 649, 650 (5th Cir. 1963)
("It is common knowledge that a conspiracy
is rarely established by direct evidence.
Rather it is usually proved by indirect or
circumstantial evidence . . . ."). But the
facts on which Plaintiff relies for his
inference of conspiracy—i.e., failure to
identify the officers involved when
responding to requests to do so—are just as

As such, the Court finds that Plaintiff
has failed to plead sufficient facts from
which the Court could reasonably infer that
Defendant conspired with law enforcement
agencies to conceal the identities of the
other officers involved so as to deny
Plaintiff access to court. Count IX of
12

L
Plaintiff's Complaint, therefore, fails to state
a claim for a civil rights conspiracy.

Because no defendant has been called to
answer to Plaintiff's remaining claims, the
Court will DISMISS Plaintiff's Complaint,
ECF No. 1, as to the unidentified defendants
WITHOUT PREJUDICE.
However, as
presently drafted, Plaintiff's Complaint
exhibits a lack of understanding of
elementary principles of search and seizure
law and the requirements for recovery under
42 U.S.C. § 1983. Thus, Plaintiff's Counsel
should carefully consider the facts giving
rise to Plaintiff's lawsuit and whether those
facts entitle Plaintiff to relief before refiling
in this Court.

V. CONCLUSION
The Court has declined to adopt the
Magistrate Judge's R & R, ECF No. 21. In
considering Defendant's motion to dismiss,
the Court has found that Plaintiff's
Complaint advanced claims against
Defendant under only Counts V, VI, and IX.
The Court concluded that those Counts fail
to state a claim against Defendant. Plaintiff
has failed to plead facts sufficient to
overcome Defendant's invocation of
qualified immunity on Counts V and VI.
And, as to Count IX, Plaintiff has failed to
sufficiently plead the existence of a civil
rights conspiracy. Therefore, the Court
GRANTS Defendant's Motion to Dismiss,
ECF No. 6,

Thi.4 day of January 2015.

UNITED STATES DIS
SOUTHERN DISTRIC

This Order leaves Plaintiff's lawsuit
with no identified defendants. Having found
that the search at issue in Counts V and VI
was supported by at least arguable probable
cause and was conducted in a manner
reasonable under the Fourth Amendment,
those Counts cannot survive as to any of the
unnamed defendants. Further, having found
that Plaintiff failed to sufficiently allege the
existence of an agreement to sustain a civil
rights conspiracy cause of action, Count IX,
as pleaded, simply cannot survive as to the
unnamed defendants. What is left then, are
claims for false arrest, unlawful search of
Plaintiff's person, battery, sexual battery,
invasion of privacy, and intentional
infliction of emotional distress. Though the
sufficiency of those claims was not at issue
in this Order, the Court cannot ignore the
near frivolity of the claims.
13