Alcocer v. Bulloch County Sheriff's Office et al

Filing 60

ORDER dismissing Plaintiff's request for declaratory relief; granting Defendant's 30 Motion to Dismiss with respect to Plaintiff's request for declaratory and injunctive relief against Sheriff Anderson. Signed by Judge J. Randal Hall on 01/18/2017. (thb)

IN THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

JUDITH ALCOCER,
*

*

Plaintiff,
v.

*

BULLOCH COUNTY

SHERIFF'S

CV

615-94

*

OFFICE et al. ,

*

Defendants.

*

ORDER

Presently before the Court is Defendants'
Plaintiff's

Second

(Doc.

Plaintiff,

30.)

violated

multiple

Amended

Complaint

Judith Alcocer,

federal

laws

and

for

Motion to Dismiss

Damages,

alleges

that

constitutional

in

Part.

Defendants

provisions.

Defendants move to dismiss only a limited portion of Plaintiff's

complaint:
against
GRANTS

the

claims

for

injunctive

and

Sheriff Anderson in his official
Defendants'

declaratory

capacity.

relief

The Court

motion.
BACKGROUND

On January 30, 2014, Deputy Sheriff Randall Norman observed
Plaintiff

Georgia.
Plaintiff

driving

After
was

east

on U.S.

running

driving

the

through

Highway

license
the

80

in

plate

Georgia

Bulloch

County,

of

vehicle

Crime

the

Information

Center ("GCIC"), he discovered that the owner of the vehicle had

a

suspended

owner,

he

license.

stopped

Suspecting

Plaintiff

and

that

asked

she
for

was
her

the

identification.

After confirming that she was the vehicle's owner,
issued
license.

Plaintiff
He

then

a

citation

arrested

for

Plaintiff

driving
for

the

vehicle's

Deputy Norman

with

a

suspended

misdemeanor

offense

and transported her to the county jail for processing.
Plaintiff

remained in the county jail

seven hours.

despite
claims

awaiting
("ICE")

provided

the

for the next

twenty-

She alleges that Defendants refused to release her

fact

that

that

she

Defendants

notification

posted

ignored

from

bond.

her

In

bond

Immigration

and

with

a

copy

of

her

Plaintiff

because

Customs

on whether Plaintiff was here illegally,

Defendants

fact,

they

were

Enforcement

even though she

birth

certificate.

Defendant does not deny these accounts.

Following
Court.

this

incident,
current

Plaintiff

filed

suit

motion,

Plaintiff

in

alleges

this

Relevant

to

the

that

Sheriff Anderson

(1)

failed to formulate and implement a policy

or custom that protects against violations of the civil rights
of citizens,

(2)

established a custom,

policy,

or practice

making illegal traffic stops if someone looks Latino,
established

a

custom

and

protocol

of

automatically

arrested Latinos in anticipation of an ICE hold.

this Court to:

Latinos,

(1)

of

and (3)
detaining

Plaintiff asks

"[E]njoin Defendant's from assuming that all

like the Plaintiff are illegal aliens";

(2)

"[E]njoin

the Defendants from utilizing the policy, practice or custom of

routinely
appear

running

Latina,

like

for doing so.";
to Latinas,
part

of

license

(3)

"[E]njoin the

Defendants

country.";

(4)

to

without

Plaintiff,

she was

"[E]njoin
legal

the

stopping,

seizing Latinos for

Sheriff

from

Latinas

grounds

Federal

I.C.E.

Plaintiff

(5)

are

lacks

who

reason

was

Fifth,

26

so

and

because

Defendant

Fourth

detaining,

the
as

Amendments

searching

and 6)

and

anticipation
Defendants

request

by

"[E]njoin the

in

to

if

Sheriff

132-138.)

Ifl

this

Latinos

referred to I.C.E.

Latinos

standing

in

referring

"[E]njoin the

detaining
(Doc.

legal

illegal

doing

'driving while brown'";

hold."

other

from

for

intimidating,

illegally

drivers

because of an assumption on the

Defendants

Fourteenth,

no

of

Defendants from refusing bond

all

the

GCIC,

with

an American-borne woman,

from violating

that

that

an illegal alien.";

illegally

through

Plaintiff,

like the Plaintiff,

the

I.C.E.

the

plates

of

a

argue

injunctive

or

declaratory relief.
STANDARD OF REVIEW

"To survive

a motion to

sufficient factual matter,

to relief that

678

(2009)

556 U.S.

544,

570

(2007)).

plaintiff

rather

than

to

contain

'state a claim

is plausible on its face.'" Ashcroft v.

662,

the

a complaint must

accepted as true,

556 U.S.

two-part test.

dismiss,

See id.

has

mere

(quoting

legal

Atl.

Applying this

at 679.

stated

Bell

First,

specific

conclusions.

Corp.

v.

Iqbal,

Twombly,

standard requires a

the Court asks whether

facts
Id.

supporting
Second,

a
it

claim
asks

whether

those

relief.

Id.

The
plead

at

might

give

rise

to

a

right

to

680.

"factual

content

inference

misconduct

as

complaint,"
couched as

it
a

that

that

alleged."

accept

"true

must

the

all

not

factual

allegations"

the

doors

of

the

Court

U.S.

the

court

not

at

is

as

678.

true

Id.

allow

draw
for

While

a

the
the

the

Court

contained

legal

in

a

conclusion

Generalized conclusions

the

The

plaintiff

See

id.

the

"show"

to

liable

allegations

"accept

discovery."

that

556
of

will

the

defendant

allegation."

"bare

facts

allows

Iqbal,

and

specific

plausibly

first prong of the inquiry requires that the plaintiff

reasonable

must

facts

plaintiff

defendant's

to

"unlock

must

misconduct.

assert

Id.

at

679.

Once

separates

from mere legal conclusions,
and

"determine

entitlement to

whether

a

. . . [is]

whether

specific

factual

allegations

it must accept those facts as true

they

relief."

complaint

the

plausibly

Iqbal,

states

556 U.S.

a

give
at

plausible

rise

679.

claim

to

an

"Determining

for

relief

a context specific task that requires the reviewing

court to draw on its judicial experience and common sense."

Id.

Well-pleaded facts cannot be merely consistent with the alleged
misconduct;

they

must

allow

misconduct was plausible.

the

Court

Id. at 678.

to

Thus,

infer

that

such

facts which show

only the possibility of misconduct are not enough.

Id.

The

complaint must allege facts that push the claim "across the line
from conceivable to plausible."

Finally,

while

a

plaintiff

'specific

fact'

precision'

cover

complaint

'contain

does

each element of a claim,

respecting

to

Id. at 683.

either

all

the

recovery

under

some

Inc.

Stephens,

v.

every

viable
Inc.,

it

500

is

or

683

(11th Cir.

"allege

allege

a

'with

still necessary that a

necessary

allegations

to

Fin.

1276,

2007)(quoting Roe v. Aware Woman Ctr.
678,

or

theory.'"

F.3d

to

inferential

elements

legal

have

element

direct

material

not

sustain

Sec.

1282-83

for Choice,

a

Assur.,

(11th

Inc.,

Cir.

253 F.3d

2001)).
DISCUSSION

Before

delving

motion

to

dismiss,

about

the

status

(Doc.

13.)

motion

to

the
of

dismiss

that

that

the
Court

of

argues

of

needs

clarify

in

to

Defendants'

her

Plaintiff's

response
Second

prior

face,

some

motion

previous

"Plaintiff's

found plausible on its

first 12(b)(6)

substance

Defendants'

Plaintiff

states mostly

Court

into

to

current
confusion

to

dismiss.

the

Amended

pleadings

current

Complaint

which

denying Defendant's

the

(sic)

Motion to Dismiss Sheriff Lynn Anderson, in his

official capacity."
no such finding.

(Doc. 33 at 2.)

The Court, however, made

The Court declared Defendants' first motion to

dismiss moot,

because Plaintiff amended the complaint to which

it objected.

The Court did not deny Defendants' motion on the

merits

or

find

Plaintiff's prior

pleading

"plausible

on

its

face."

Having cleared up that misconception,

decide

whether

relief or

Plaintiff

(1)

has

the Court must now

standing to

request

injunctive

(2) has standing to request declaratory relief.

A. Request for Injunctive Relief
Before a

ensure

the

1199,

reviews

plaintiff

1204

plaintiff

court

(11th

must

has

Cir.

standing.
2006).

demonstrate

redressability."

decide the dispute.

Defendants

fails

Plaintiff's

claim

case,

injury

Basham,

establish

in

it must

first

471

standing,

fact,

F.3d
"the

causation,

and

If a plaintiff fails to meet any

the Court is without jurisdiction to

Id. at 1206.

claim

to

of a

Eland v.
To

Id. at 1205.

one of these requirements,

relief

the merits

that

satisfy

of

Plaintiff's

the

request

injury-in-fact

for

injunctive

element

injury is too speculative.

because

A plaintiff

suffers an injury in fact when he suffers a harm that is "(a)
concrete and

conjectural

particularized and

or

(b)

hypothetical."

Usually,

a plaintiff

alleging

a past

harm.

declaratory relief,

Eland,

satisfies
When

however,

actual

the

471

Healthcare

2014) .

fact

Sys. , Inc.,

F.3d

seeks

768

F.3d

at

not

1207.

element by

injunctive

seeks to regulate

future conduct by alleging a future injury.
Req'l

imminent,

injury-in-fact

a plaintiff
he

or

or

ongoing or

McCullum v. Orlando

1135,

1145

(11th Cir.

Thus, determining whether a plaintiff has an injury in

requires

a special

analysis.

A court

must

determine

whether the plaintiff has proven that "the threatened harm is
6

real

and

1145.

immediate,
the

In

the

manner

"each

and

conjectural

Eleventh

"imminent." Eland,

Because

not

Circuit,

or

hypothetical."

the

future

Id.
must

injury

at
be

471 F.3d at 1207.

element

degree

of

of

standing

evidence

must

be

required

supported

at

the

^with

successive

stages of the litigation,'" the reviewing court must conduct its

analysis
Church

in

v.

light

City

of

of

Thus,

the

Huntsville,

1994) (quoting Lujan v.
(1992)).

where

litigation
30

F.3d

sits

1332,

Defenders of Wildlife,

procedurally.

1336

(11th

504 U.S.

Cir.

555,

561

the burden of proof for standing at the motion-

to-dismiss stage differs from that at the summary-judgment stage
which differs from that at the trial stage.

561.

When

"general

standing

factual

is

challenged

allegations

of

on

a

injury

Lujan,

motion

504

to

U.S.

at

dismiss,

resulting

from

the

defendant's conduct may suffice, for on a motion to dismiss we

*presume[e]

that

facts that

factual

general

allegations

are necessary to support

allegations,

however,

embrace

those

the claim.'"

specific

Id.

must be viewed in light of the

Supreme Court's decisions in Twombly and Iqbal.

Therefore, the

allegations supporting standing,

while taken as true,

specific

and

factual

These

allegations

not

merely

must be

conclusory

statements.

1.

Plaintiff has not alleged an "imminent" injury in fact

Plaintiff has failed to prove that her future injury is

"imminent,"

first

and

foremost,

because

the

future

injury

alleged

is

too

speculative.

To

plaintiff must be at

a real risk of

she seeks to avoid.

Church,

whether

a

prospective

courts

assume

repeat

the

1337-38.

whether

that

she

if

will

injury

F.3d at

is

that
a

once

led

or

injunction,

a

When determining

"immediate"

abide

her

plaintiff's

again

1337.

"real"

to

an

suffering the future injury

the plaintiff will

misconduct
Thus,

30

obtain

by the

original

future

voluntarily

federal

law and not

injury.

break

at

depends

injury

Id.

on

the

law,

the

reoccurrence of her injury is much more speculative than if "for

reasons

beyond

the

plaintiff's

avoid repeating the

Court

had

O'Shea

v.

Id.

Littleton,

at

414

determined whether minority

standing

he

or

conduct that led to the

the hands of the defendant."

In

control

to pursue

an

she

is

unable

to

original injury at

1338.

U.S.

488

(1974),

citizens

injunction

the

Supreme

of

Cairo,

Illinois,

against

county

officials

for allegedly discriminatory conduct in their administration of
the

county

judicial

system.

The plaintiffs

alleged

that

the

State's Attorney and the Police Commissioner had engaged in a

"pattern and practice of intentional racial discrimination" and

they

provided

complaint.
magistrate

Id.

specific
at 491.

and judge set

examples

of

They also
unlawful

such

conduct

their

alleged that the county

bonds

for black citizens,

imposed harsher sentences on black citizens,
citizens to pay for jury trials.

in

Id. at 492.

and forced black
In determining

that the plaintiffs
injunction,

injuries were too speculative to

warrant an

the Court noted:

[T]he prospect of future injury rests on the likelihood
that respondents will again be arrested for and charged
with violations of the criminal law and will again be
subjected to bond proceedings, trial, or sentencing before
petitioners.
Important to this assessment is the absence
of allegations that any relevant criminal statute of the
State

of

Illinois

is

unconstitutional

on

its

face

or

as

applied
or
that
respondents
have
been
or
will
be
improperly charged with violating criminal law.
If the
statutes
that
might
possibly
be
enforced
against
respondents are valid laws, and if charges under these
statutes
are
not
improvidently
made
or
pressed,
the
question
becomes
whether
any
perceived
threat
to
respondents is sufficiently real and immediate to show an
existing
controversy
simply
because
they
anticipate
violating lawful criminal statutes and being tried for
their offenses,
in which event they may appear before
petitioners and,
if they do, will be affected by the

allegedly
illegal
conduct
charged.
Apparently,
the
proposition is that if respondents proceed to violate an
unchallenged law and if they are charged, held to answer,
and tried in any proceedings before petitioners, they will
be subjected to discriminatory practices that petitioners
are alleged to have followed.
But it seems to us that
attempting
to
anticipate
whether
and
when
these

respondents will be charged with crime and will be made to
appear before either petitioner takes us into the area of
speculation
and
conjecture.
. . . We
assume
that
respondents will conduct their activities within the law
and so
avoid prosecution
exposure to the challenged

and conviction
as
well
course of conduct said to

as
be

followed by petitioners.

Id.

at 496-97

Here,

(emphasis added).

Plaintiff's

defects

as

that

future

encounter

in

alleged

O'Shea:

with

it

the

injury

suffers

is

speculative.

too

police

of

the

from

type

the

same

First,

a

Plaintiff

previously experienced will not occur unless she decides to once

more engage in illegal conduct.

Although Plaintiff alleges that

Deputy

Norman

conducted

an

prohibited Deputy Norman
through
400,

the

402

GCIC
(Ga.

illegal

he

did

not.

from running Plaintiff's

system.
Ct.

stop,

See

App.

Humphreys

v.

2010) (upholding

Nothing

license plate

State,

696

traffic

S.E.

stop

2d

after

Officer checked a vehicle's tag through the GCIC and discovered

its
489,

owner had a suspended license);
491

(Ga.

Ct.

App.

Hill v.

State,

743

S.E.

2d

2013) (citing with approval Humphreys and

noting that "visual surveillance of vehicles in plain view does
not

constitute

an

unreasonable

search

for

Fourth

Amendment

purposes, even if surveillance is aided by an officer's use of a
license plate

tag

reader,

because a defendant

does

not

have

a

reasonable expectation of privacy in a plainly visible license

plate.");
Cir.

see also Eagle v.

1996) (noting

expectation

of privacy

state such as the

the

owner

that

of

the

Morgan,

persons

do

in criminal

NCIC) .

vehicle

And,

once

had

88

a

F.3d 620,

not

have

databases
the

627-28
a

(8th

reasonable

created

by the

GCIC alerted him that

suspended

reasonable suspicion to conduct the stop.

license,

he

had

See Humphreys,

696

S.E. 2d at 402; Hill v. State, 743 S.E. at 491-92.

Thus, it was

Plaintiff's voluntary decision to break the law that led to her

alleged injury.

Had Plaintiff not driven her car illegally, she

would never have even encountered Defendants.

But,

even if Plaintiff finds herself in a future encounter

with police through no fault of her own, any claims of a future

injury arising after her encounter are still speculative.
10

To

obtain

an

herself,
the

injunction,

Plaintiff must

credibly

Los Angeles

allegedly

v.

Lyons,

racially biased policies.

461

U.S.

95,

106 n.7

demonstrate

Sheriff's

release

that

Office,

after

she

would

but

that

posting

not
she

bond,

anticipation of an ICE hold.

the

she,

assumption

that

City

when taken as true,

be

stopped

would

be

arrested,

and

of

This means

only

detained

again

by

denied

illegally

in

Id.

Any allegations of this type, however,

upon

See

(1983).

that she must make factual allegations that,

the

that

faces a realistic threat from the future application of

Sheriff's

would

allege

Plaintiff will

again rest entirely

once

more

engage

in

illegal activity that exposes her to potentially discriminatory
conduct.

Plaintiff does

not deny

that

she was

driving with a

suspended license, nor does she allege that the law prohibiting

driving

without

a

license

violates

the

Constitution.

She

alleges only that Defendants never should have discovered she
was driving without a license and that they violated her rights

by actions taken after they arrested her.

Any threat of future

injury to Plaintiff, then, cannot be separated from her illegal
conduct.

Given

the

fact

that

Plaintiff's

threat

of

future

injury turns so squarely on the proposition that Plaintiff will
once more engage

Court

presumes

in illegal

Plaintiff

activity,

will

not

and the fact

engage

in

future

that the

illegal

conduct, the Court finds Plaintiff claim of future injury to be
mere conjecture.

11

2.

Plaintiff has not sufficiently pled an injury in fact
In addition to

not

actually

the

fact that plaintiff's

imminent,

Plaintiff

also

future

fails

allege that her future injury is imminent.

to

injury is

sufficiently

Plaintiff makes only

conclusory allegations that the Sheriff sanctioned a "custom and
practice"

of

racial

allegations

to

make

personal tales of

of

alleged

allegations

does

she

bias,

such

and

a

she

claim

provides

no

plausible.

specific

She

factual

provides

no

the alleged bias other than a single instance

mistreatment,

and

she

provides

that others were also victims

provide

specific

Sheriff pushed this policy,

factual

of

no

specific

racial bias.

allegations

indicating

Nor

the

such as alleged statements he made,

alleged documents indicating such a policy, or alleged testimony
of

former

proof

of

officers.

such

While

allegations,

Plaintiff

need

she must

not

provide

provide

concrete

enough

factual

specificity to allow this Court to deem such a claim plausible.
Mere conclusory allegations will not do.

Although

one

or

violated Plaintiff's

case,

more

Defendants

constitutional or

might

very

well

statutory rights

have

in this

this one instance of misconduct does nothing to provide

sufficient

factual

allegations

that

the

Sheriff

sanctioned

a

practice of discrimination so pervasive that it constitutes a
credible and

herself.

imminent threat of future injury to the

See Lyons,

of individual

Plaintiff

461 U.S. at 108 (noting that the existence

episodes

of unfortunate
12

police

encounters

does

not,

in

and

Without

of

itself,

sufficient

establish

factually

a

specific

likely

future

allegations

injury) .

to

make

it

plausible that law-enforcement officials engage in a practice of
racial

bias,

the

Court

allegations

that

eye toward,

racial bias.

of racial bias,

imminent

alleged

threat

illegal

the

cannot

Sheriff

accept

condoned,

And,

Plaintiff's
or

even

conclusory

turned

a

blind

without accepting the allegations

the Court cannot declare that Plaintiff faces an

of

once

stop,

more

suffering

illegal

arrest,

the

and

indignity

illegal

of

an

detention

because of her Latina complexion.

3.

Plaintiff's future injury is not redressible
Plaintiff

proposed

also

injunction

future injury.

fails

to

establish

standing

because

her

does not provide a remedy for her alleged

To establish standing,

"it must

be likely, as

opposed to merely speculative, that the injury will be redressed

by a favorable decision."

generality

of

impossible

for

the
the

Lujan,

Plaintiff's
Court

504 U.S.at 561.

injunctive

to

redress

Here,

requests
any

makes

future

the

it

injury.

Plaintiff's injunctions are essentially requests that Defendants

obey the law.

A court,

however,

cannot

issue

an injunction

"demanding that a party do nothing more specific than 'obey the
law.'"

be

Eland,

capable

of

471 F.3d at 1209.

enforcement

Such an injunction would not

and would

violate

the

requirement of Federal Rule of Civil Procedure 65.

specificity

Id. at 1210.

If Defendants are already violating the law, for which they face
13

pre-existing
ordering

penalties,

Defendants

specificity,

would

requested must

and

that

None

of

it

to

be

have

will

injunction

obey

the

remedy

requested

Plaintiff's

and

futile.

claim

that

the

the

any

additional

injunction

can

alleged

injunctions

for

it

by

Any

without

specificity

actually

issued

law,

meaningless

enough

Plaintiff's

Therefore,

an

be

injunctive

enforced

future

satisfy

Court

injury.

this

relief

test.

will

not

redress her injury.
B. Request for Declaratory Relief

In addition to her request for injunctive relief,

also requests declaratory relief.

Plaintiff

Plaintiff requests that this

Court:

1.

Declare the defendants' practice of assuming that all
Latinas,
like
the
Plaintiff,
are
illegal
aliens,
unconstitutional.

2.

3.

Declare the practice of running the license plate of
people who appear Latina through GCIC without having a
legal reason to do so in (sic) unconstitutional.
Declare that refusing to post bond to a Latina without
the
benefit
of
seeing
a
judge
and
because
the
Defendant's assume that a Latina
country, is unconstitutional.

4.

(Doc.
assert

is

illegally

in

the

Declare that referring all Latinos to I.C.E.,
legal grounds to do so, unconstitutional.

without

26,

Defendants

Second

that

Amended

Plaintiff's

Complaint,
cannot

Tflf

properly

164-167.)
allege

a

claim

for

declaratory relief because the parties do not have a substantial
continuing controversy.

The Court agrees that Plaintiff cannot

ask for declaratory relief.

14

Plaintiff
does

not

have

injunctive

for

cannot
standing

relief,

prospective

likelihood
conduct

Cty,

727

City

of

do

declaratory
so.

prospective

relief.

a

plaintiff

be

affected

will

future.'"

1322,

Casselberry,

by

v.

(11th

392

Cri.

F.3d

To

the

because

relief

show

a

Gen,

of

2013) (quoting

1305

(11th

she
like

standing

sufficient

allegedly

Solicitor

1302,

is,

establish

"*must

McGee

1325

relief

Declaratory

he

the

F.3d

to

for

relief,

that

in

ask

unlawful
Richmond

Koziara

Cir.

v.

2004)).

"The plaintiff must allege facts from which the continuation of

the dispute may be reasonably inferred."
F.2d 1547,

1552

(11th Cir.

may not be conjectural,
real

and

immediate,

1985).

create

speculative threat of future injury."

Plaintiff's

requests

for

or continent;
a

definite,

than

Id.

declaratory

relief

For the same

relief,

she also lacks standing to obtain declaratory relief:

harm.

to

almost

that

not

standing

are

reasons

Plaintiff has

lacked

756

it must be
rather

identical to her request for injunctive relief.
Plaintiff

Peeler,

"[T]he continuing controversy

hypothetical,
and

Emory v.

obtain

injunctive

shown a real and immediate threat of

Therefore,

the Court DISMISSES

Plaintiff's

future

request

for

challenge

her

declaratory relief.
CONCLUSION

While

Plaintiff

certainly

has standing to

alleged past harms at this stage of the litigation, the Court
finds

that

any

future

injury

to
15

Plaintiff

is

not

real

or

immediate

enough

to

establish

the

injury-in-fact

element

necessary for standing to pursue the injunctive and declaratory
relief

Plaintiff

requests.

Defendants'

motion

request

declaratory

for

Anderson.

(Doc.

ORDER
January,

to

Therefore,

dismiss

and

with

injunctive

the

respect

relief

Court
to

GRANTS

Plaintiff's

against

Sheriff

30.)

ENTERED

at

Augusta,

Georgia,

this

/<r^ day

2017.

HALL

^STATES DISTRICT JUDGE
*RN DISTRICT OF GEORGIA

16

of