Conner v. Shreveport et al

Filing 15

REPORT AND RECOMMENDATION re 1 Complaint and 14 Amended Complaint filed by Albertus Conner, Jr: IT IS RECOMMENDED that the complaint be dismissed with prejudice for failure to state a claim upon which relief may granted. Objections to R&R due by 4/3/2009. Signed by Magistrate Judge Mark Hornsby on 3/17/09. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION

A L B E R T U S CONNER, JR. VERSUS P O L IC E DEPT. OF SHREVEPORT, ET AL

C I V I L ACTION NO. 08-cv-1405 J U D G E STAGG M A G I S T R A T E JUDGE HORNSBY

R E P O RT AND RECOMMENDATION A l b e r t u s Conner, Jr. filed this civil action, without representation by an attorney, a g a i n s t Shreveport Mayor Glover, former City CAO Tom Dark, Police Officer Babers, and C e n t r a l Storage. Mr. Conner's original complaint makes a reference to his truck being seized in connection with criminal charges. The pleading also alleges that Mr. Dark has been w a i t i n g for an assistant chief to review some film. The original complaint does not, however, a l l eg e particular facts against any named defendant that would state a claim under federal l aw . T h e court granted Mr. Conner an opportunity to file an amended complaint and a t t em p t to set forth facts that he believes support a legal claim against the defendants. Mr. Conner was warned that if the amended complaint did not state a legal claim against any defe ndan t, the case would be subject to dismissal without further notice. The court has now r e v i e w e d the amended complaint and does not find facts that plead an actionable claim under 4 2 U.S.C. § 1983 against any defendant, so it is recommended that this civil action be d i s m i ss e d .

T h e amended complaint is a bit difficult to understand, but it appears to allege that an O f f i c e r Babers was involved in an arrest of Plaintiff and the impound of a truck. Plaintiff a l l eg e s that Babers told him he would see the truck at auction and buy it. (There is no a l l eg a t i o n that Babers actually did so.) There are allegations that the truck was kept by C e n t r a l Storage. Plaintiff alleges some sort of conspiratorial auto theft ring involving the p o l i c e and the storage facility, and he complains that proper notice of the auction was not s e n t to a lienholder. Mr. Conner generally alleges that Mayor Glover, former

C A O Tom Dark, and Officer Babers are guilty of malfeasance in office. Plaintiff asks for d a m a g e s associated with the loss of his truck, which he says he used to haul scrap and earn an income. The court has the authority to screen complaints that are filed in forma pauperis. It a l s o has the authority to dismiss any complaint for failure to state a claim so long as the procedu re employed is fair. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). This procedu re is fair, because this Report and Recommendation provides Plaintiff with sufficient n o t i c e of and opportunity to respond to the possible dismissal of his case. See Magouirk v. P h i l li p s, 144 F.3d 348, 359 (5th Cir. 1998) (sua sponte invocation of defense in Report and Reco mm en d atio n satisfied due process). In assessing whether a complaint states a cause of action, the court must accept as true all well pleaded facts in the complaint and view those facts in a light most favorable to the plain tiff. In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). The

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c o m p l a i n t does not need detailed factual allegations, but it must provide enough facts to raise a right to relief above the speculative level and present a claim that is at least plausible on its f a c e . Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007), citing Bell Atlantic Corp. v. Tw om bly, 127 S.Ct. 1955, 1964-65 (2007). Furthermore, "conclusory allegations or legal c o n c l u s io n s masquerading as factual conclusions" do not plead facts sufficient to state a claim on which relief may be granted. Fernandez-Montes v. Allied Pilots Association, 987 F.2d 278, 284 (5th Cir. 1993). Plain tiff's complaint, as amended, does not allege adequate facts to present a plausible claim against any defendant. There are legal conclusions, such as assertions of a criminal co ns pi ra cy, malfeasance by public officials, and the like, but Mr. Conner does not set forth a n y simple, straightforward facts that would plausibly support those conclusions. Mr. Conner is obviously unhappy with a seizure and auction of his truck, but more than u n h a p p i n e s s must be alleged before the complaint states a constitutional violation that is action able under Section 1983. Absent the statement of even an arguably plausible claim, there is no need to hale into court the several defendants and require the taxpayers to bear the bur den and expense of defending them from the complaint. Accordingly; I T IS RECOMMENDED that the complaint be dismissed with prejudice for failure to state a claim upon which relief may granted.

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O b j e c t io n s U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this report and r e c om m e n d a t i o n to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objections within ten (10) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n set forth above, within 10 days after being served with a copy, shall bar that pa rty, except upon grounds of plain error, from attacking on appeal the unobjected-to p r o p o s e d factual findings and legal conclusions accepted by the district court. See Douglass v . U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). THUS DONE AND SIGNED in Shreveport, Louisiana, this 17th day of March, 2009.

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