Garner v. City of Memphis, et al.
Filing
34
ORDER granting in part and denying in part Motion to Dismiss for Failure to State a Claim and Order to Show Cause. Signed by Judge Samuel H. Mays, Jr on 07/23/2013.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
WINSTON GARNER,
Plaintiff,
v.
CITY OF MEMPHIS, et al.,
Defendants.
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No. 12-2152
ORDER GRANTING IN PART DEFENDANT’S MOTION TO DISMISS AND ORDER
TO SHOW CAUSE
Plaintiff Winston Garner (“Garner”) brings suit under 42
U.S.C. § 1983 against the City of Memphis (the “City”), the City
of Memphis Police Division, and John Does 1-10 (the “Unnamed
Officers”), individually and in their official capacity.
Before
the Court is the City’s January 22, 2013 Motion to Dismiss for
Failure to State a Claim or, in the alternative, Motion for
Summary Judgment.
ECF No. 17-1.)
The City has attached a statement of undisputed
material facts.
No. 17-2.)
(City’s Motion, ECF No. 17); (City’s Mem.,
(Statement of Undisputed Material Facts, ECF
Garner responded on February 8, 2013.
Resp., ECF No. 21); (Garner’s Mem., ECF No. 21-1.)
attached a statement of undisputed material facts.
Statement of Material Facts, ECF No. 21-2.)
that
Garner
fails
to
allege
a
(Garner’s
Garner has
(Garner’s
The City contends
constitutional
deprivation
pursuant
to
a
custom
or
policy.
On
behalf
of
its
unnamed
officers, the City asserts the defense of qualified immunity.
For
the following
reasons,
the
City’s
Motion
failure to state a claim is GRANTED IN PART.
to
Dismiss
for
The Court does not
reach the merits of the City’s Motion as to Garner’s claims
against the Unnamed Officers in their individual capacity.
I.
Background
Unless otherwise stated, the following facts are taken from
Garner’s Complaint.
On February 26, 2011, police in Memphis,
Tennessee,
Garner
detained
and
attempted murder of a prostitute.
questioned
him
about
(Compl. ¶ 5, ECF No. 1.)
(Id. ¶ 6.)
Garner’s business card was found on the prostitute.
Police
told
Garner
he
was
the
believed
to
be
a
serial
responsible for killing many Memphis prostitutes.
killer
(Id. ¶ 7.)
Garner was arrested and detained for nearly two weeks on charges
of
aggravated
robbery
of
another
prostitute,
Eva
Eldridge
(“Eldridge”).
(Id. ¶¶ 5, 8); (Aff. of Hall ¶ 3, ECF No. 21-1
(“Mr.
was
Garner
allegedly
arrested
because
involving a prostitute named Eva Eldridge.”).)
of
a
robbery
Garner alleges
that the police did not have probable cause for his arrest.
(Compl.
¶
15.)
He
fabricated information.
alleges
that
his
arrest
was
based
on
(Id. ¶¶ 11, 13); (Aff. of Hall ¶ 11.)
Garner’s family and acquaintances were questioned by police and
told that he had HIV and was a serial killer.
2
(Compl. ¶ 9.)
II.
Jurisdiction
The Court has subject matter jurisdiction under 28 U.S.C. §
1331 because Garner’s Complaint raises a federal question under
42 U.S.C. § 1983.
III. Standard of Review
The City has filed the affidavit of Officer Robert Wilkie
(“Wilkie”) with a statement of material facts.
ECF No. 17-2.)
(Aff. of Wilkie,
Garner has attached the affidavit of his former
attorney, Scott Hall (“Hall”), to his Memorandum in Opposition
to the City’s Motion.
(Aff. of Hall, ECF No. 21-1.)
Relying on
“matters outside the pleadings” on a motion under Rule 12 of the
Federal Rules of Civil Procedure ordinarily converts a motion to
dismiss into a motion for summary judgment.
Fed. R. Civ. P.
12(d) (“If, on a motion under . . . [Fed. R. Civ. P. 12(b)] . .
.
matters
outside
the
pleadings
are
presented
to
and
not
excluded by the court, the motion must be treated as one for
summary
judgment
Airlines,
Inc.,
under
718
F.
Rule
Supp.
56.”);
2d
Swanigan
917,
922
v.
(W.D.
Northwest
Tenn.
2010)
(converting a motion under Rule 12 into one under Rule 56, in
part, because a party had filed an affidavit in support).
Sixth
Circuit,
matters
fall
12(b)(6).”
2001).
however,
within
“[has]
the
taken
a
pleadings
liberal
for
view
purposes
of
of
The
what
Rule
Armengau v. Cline, 7 F. App’x 336, 344 (6th Cir.
“When
affidavits
do
‘nothing
3
more
than
verify
the
complaint,’ and when they ‘add [] nothing new, but, in effect,
reiterate [] the contents of the complaint itself,’ they are not
truly
‘materials
.
.
.
outside
the
pleading.’”
Yeary
v.
Goodwill Indus.-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir.
1997) (citing Song v. City of Elyria, 985 F.2d 840, 842 (6th
Cir.
1993)).
Because
the
affidavits
of
Wilkie
and
Hall
do
little more than reiterate the contents of the Complaint, the
City’s Motion will be treated as one to dismiss for failure to
state a claim.
In addressing a motion to dismiss for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6), the court
must construe the complaint in the light most favorable to the
plaintiff and accept all well-pled factual allegations as true.
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523,
527
(6th
Cir.
2007).
A
plaintiff
can
support
a
claim
“by
showing any set of facts consistent with the allegations in the
complaint.”
(2007).
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563
This standard requires more than bare assertions of
legal conclusions.
Bovee v. Coopers & Lybrand C.P.A., 272 F.3d
356, 361 (6th Cir. 2001).
“[A] formulaic recitation of the
elements of a cause of action will not do.”
at 555.
Twombly, 550 U.S.
Any claim for relief must contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
Erickson
v.
Pardus,
4
551
U.S.
89,
93
(2007)
(per
curiam).
“Specific facts are not necessary; the statement need
only ‘give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.’”
Id. (quoting Twombly,
550 U.S. at 555).
Nonetheless, a complaint must contain sufficient facts “to
‘state a claim to relief that is plausible on its face’” to
Ashcroft v. Iqbal, 129 S. Ct.
survive a motion to dismiss.
1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570).
plausibility
standard
is
not
akin
to
a
“The
‘probability
requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.”
U.S. at 556).
of
action,
Id. (citing Twombly, 550
“Threadbare recitals of the elements of a cause
supported
by
mere
conclusory
statements,
do
not
suffice.”
Id. at 1949 (citation omitted).
A plaintiff with no
facts
“armed
conclusions”
and
with
nothing
more
“unlock the doors of discovery.”
IV.
than
cannot
Id. at 1950.
Analysis
A. City of Memphis 1
“A
municipality
[]
is
liable
under
§
1983
only
when
execution of [its] policy or custom . . . inflicts the injury.”
Smith
v.
Patterson,
430
F.
App’x
1
438,
440
(6th
Cir.
2011)
This section applies equally to Garner’s claims against the Unnamed Officers
in their official capacity.
Claims against a government official in his
official capacity are not claims against the official, but the government
itself. Barachkov v. 41B Dist. Court, 311 F. App’x 863, 867 (6th Cir. 2009)
(citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989)).
5
(quoting
Monell
v.
Dep’t
of
Soc.
Servs.,
(1978)) (internal quotation marks omitted).
436
U.S.
658,
694
Garner alleges that
Memphis police arrested him without probable cause, fabricated
evidence against him, and defamed his good reputation in the
course
of
prostitutes.
their
investigation
into
crimes
against
local
(Id. ¶¶ 9, 11, 13, 15); (Aff. of Hall ¶ 11.)
Garner does not allege that any of the purported illegal acts
were authorized by City custom or policy or that any execution
of a City custom or policy inflicted the injury.
Garner does
not state a § 1983 claim against the City.
B. City of Memphis Police Division
The City of Memphis Police Division is a department of the
City.
A police department is not a suable entity.
Phebus v.
City of Memphis, 340 F. Supp. 2d 874, 878 (W.D. Tenn. 2004)
(citing Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994)).
Garner does not state a § 1983 claim against the City of Memphis
Police Division.
C. John Does 1-10
Garner sues John Does 1-10, unnamed officers of the Memphis
Police Division, in their individual capacity.
In seeking to
dismiss those claims, the City relies on qualified immunity and
good faith defenses.
The Court need not reach those issues,
however,
Unnamed
because
identified.
The
the
Sixth
Officers
Circuit
6
has
have
not
been
timely
decided
that
the
service
requirement of Rule 4(m) of the Federal Rules of Civil Procedure
applies to
Cnty.
of
the
naming
Franklin,
of
Ohio,
unidentified
478
F.3d
defendants.
341,
345
(6th
Petty
Cir.
v.
2007)
(“[Plaintiff] has yet to identify John Does # 1 and # 2, and
thus has yet to serve them, clearly in violation of the 120–day
window provided by Rule 4(m).”).
Rule 4(m) provides:
If a defendant is not served within 120 days after the
complaint is filed, the court-on motion or on its own
after notice to the plaintiff-must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time. But if the
plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.
Fed. R. Civ. P. 4(m).
Where
a
plaintiff
has
not
timely
identified
an
unnamed
party, and the defendant does not move for dismissal based on
improper service, a court should order the plaintiff to show
good cause why claims against the unnamed party should not be
dismissed.
Reynosa v. Schultz, 282 F. App’x 386, 391-93 (6th
Cir. 2008) (remanding dismissal of plaintiff’s claims because,
although
John
and
Jane
Doe
healthcare
providers
remained
unidentified for more than 120 days, the Court did not order
plaintiff
to
show
good
cause
for
delay
before
dismissing
claims).
Garner commenced this action on February 24, 2012.
He was
required to name and serve the unnamed defendants no later than
7
June 25, 2012.
Fed. R. Civ. P. 4(m).
remain unidentified.
The unnamed defendants
Although Garner apparently deposed several
individuals during June, 2013, he has yet to identify any of the
unnamed defendants.
29.)
(Notices to Take Deposition, ECF Nos. 26-
Garner has had sufficient opportunity to determine the
identities of John Does 1-10.
In accordance with Rule 4(m) of
the Federal Rules of Civil Procedure, the Court ORDERS Garner to
show good cause for his failure to identify parties.
V.
Conclusion
For the foregoing reasons, the City’s Motion to Dismiss for
failure
to
state
a
claim
is
GRANTED
as
to
Garner’s
claims
against the City, the City of Memphis Police Division, and John
Does 1-10 in their official capacity.
As to his claims against
John Does 1-10 in their individual capacity, Garner is ORDERED
within fourteen (14) days of this order to show good cause why
those claims should not be dismissed.
So ordered this 23d day of July, 2013.
s/ Samuel H. Mays, Jr._______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
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