Black v. Read et al

Filing 69

REPORT AND RECOMMENDATION: The undersigned recommends that Defendants' motion to dismiss be denied. Signed by Magistrate Judge John S. Bryant on 9/2/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh) Modified on 9/2/2015 (eh).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JOHN BLACK,

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Plaintiff
v.
ADAM READ, et al.,
Defendants
TO:

No. 3:14-1181
Judge Campbell/Bryant
Jury Demand

THE HONORABLE TODD J. CAMPBELL
REPORT AND RECOMMENDATION
Defendants Adam Read, Steven Jenkins, Buddy Rhett, Scott

Cothran and Michael Donaldson (“Defendants”) have filed their
motion to dismiss the amended complaint for failure to state a
claim upon which relief can be granted (Docket Entry 44). Plaintiff
Black, a prisoner proceeding pro se and in forma pauperis, has not
filed a response in opposition.
For the reasons stated below, the undersigned Magistrate
Judge recommends that Defendants’ motion to dismiss be DENIED.
STATEMENT OF THE CASE
Plaintiff

Black

has

filed

this

civil

rights

action

pursuant to 42 U.S.C. § 1983 alleging that on April 17, 2013, the
Defendant officers of the Metropolitan Nashville Police Department
stopped the car in which he was riding, searched the car and
Plaintiff’s person, and arrested Plaintiff, all without probable
cause

in

violation

Plaintiff’s

rights

under

the

Fourth

and

Fourteenth Amendments to the United States Constitution. Plaintiff
also claims that Defendant Read wrongfully subjected Plaintiff’s
1990 Chevrolet Caprice and $91 in cash to wrongful forfeiture
(Docket Entry No. 42). Defendant Read has filed an answer denying
liability (Docket Entry No. 49), and all above-named Defendants
have filed their motion to dismiss.
STANDARD OF REVIEW
In deciding a Rule 12(b)(6) motion to dismiss for failure
to state a claim upon which relief can be granted, the court must
view the complaint in the light most favorable to the plaintiff,
accepting all well-pleaded factual allegations as true. Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949-50 (2009).

This requirement of

accepting the truth of the complaint’s factual allegations does not
apply to legal conclusions, however, even where such conclusions
are couched as factual allegations. Id.
Civil

Procedure

8(a)(2)

requires

Although Federal Rules of

merely

“a

short

and

plain

statement of the claim,” the plaintiff must allege enough facts to
make the claim plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 556 (2007). He must plead well enough so that his complaint is
more than “a formulaic recitation of the elements of a cause of
action.” Id. at 555. “The factual allegations, assumed to be true,
must do more than create speculation or suspicion of a legally
cognizable cause of action; they must show entitlement to relief.”
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League of United Latin American Citizens v. Bredesen, 500 F.3d 523,
527 (6th Cir. 2007).
While a pro se complaint is “to be liberally construed”
and “must be 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)), “basic
pleading essentials” still apply. See Wells v. Brown, 891 F.2d 591,
594 (6th Cir. 1990). Moreover, “[d]istrict courts are not required
to conjure up questions never squarely presented to them or to
construct full blown claims from sentence fragments.

To do so

would ‘require . . . [the courts] to explore exhaustively all
potential claims of a pro se plaintiff, . . . [and] would . . .
transform the district court from its legitimate advisory role to
the improper role of advocate seeking out the strongest arguments
and most successful strategies for a party.’” Dixie v. Ohio, 2008
WL 2185487, at *1 (N.D. Ohio May 23, 2008) (quoting Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)).
ANALYSIS
A

district

court

cannot

grant

a

motion

to

dismiss

pursuant to Rule 12(b)(6) in favor of a movant simply because the
adverse party has not responded. The court is required, at a
minimum, to examine the movant’s motion to ensure that he has

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discharged his burden. Carver v. Bunch, 946 F.2d 451, 455 (6th Cir.
1991).
The undersigned Magistrate Judge notes at the outset that
the Court upon a preliminary review required by 28 U.S.C. § 1915A
has found that the Plaintiff’s complaint states a colorable claim
for false arrest/false imprisonment under 42 U.S.C. § 1983 against
the moving Defendants. It appears that the Plaintiff has included
the operative allegations from his original complaint in his
amended complaint. In particular, Plaintiff alleges that each of
these moving Defendants participated in the allegedly unlawful
arrest of Plaintiff by physically taking him into custody without
probable cause. In addition, Plaintiff alleges that Defendant
Jenkins physically searched Plaintiff’s person without probable
cause to do so. Although Defendants argue that these allegations
are

merely

conclusory

and

therefore

insufficient

to

state

a

plausible cause of action under the authority of Ashcroft v. Iqbal,
556 U.S. 662 (2009), the undersigned Magistrate Judge disagrees.
The

undersigned

finds

that,

under

the

liberal

standard

of

construction applicable to pro se pleadings, Plaintiff’s amended
complaint does state a Fourth Amendment claim against the Defendant
officers.
Defendants next argue that Plaintiff’s due process claim
under the Fourteenth Amendment should be dismissed as indistin4

guishable from his Fourth Amendment claim. It does appear in
Plaintiff’s amended complaint that he alleges that Defendants’
search and seizure of Plaintiff’s person and property without
probable cause violates Plaintiff’s rights under both the Fourth
and Fourteenth Amendments (Docket Entry No. 42). Plaintiff fails to
explain how the rights afforded under these respective amendments
differ from each other. As Defendants point out, the Supreme Court
has held that if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendments,
the claim must be analyzed under the standard appropriate to that
specific provision, not under the rubric of substantive due process
guaranteed by the Fourteenth Amendment. United States v. Lanier,
520 U.S. 259, 272 n.7 (1997). Therefore, the undersigned finds that
Plaintiff’s claims against these Defendants should be analyzed
under the Fourth Amendment authority and not that of the Fourteenth
Amendment. Nevertheless, as stated above, the undersigned finds
that, at least upon a motion to dismiss, Plaintiff’s claims
survive.
For the reasons stated above, the undersigned Magistrate
Judge finds that Defendants’ motion to dismiss (Docket Entry No.
44) should be denied.

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RECOMMENDATION
For the reasons stated above, the undersigned recommends
that Defendants’ motion to dismiss be denied.
Under

Rule

72(b)

of

the

Federal

Rules

of

Civil

Procedure, any party has 14 days from receipt of this Report and
Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 2nd day of September, 2015.
/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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