Cotterman v. Creel

DONALD JAMES COTTERMAN, Plaintiff, v. SHERIFF CHARLIE CREEL, et al., Defendants.

Case No. 4:14cv642-MW/CAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

November 19, 2015

AMENDED SECOND REPORT AND RECOMMENDATION¹

This case was initiated by Plaintiff Donald James Cotterman, proceeding pro se, on December 2, 2014. Doc. 1. Subsequently, Mr. Cotterman's Fifth Amended Complaint² was filed on May 7, 2015, doc. 38, and Defendants from the Wakulla County Sheriff's Office (Sheriff Creel, Deputy Morrison, Major Miller, Captain Martin, and Deputy Carroll) filed a Motion to Dismiss on May 19, 2015. Doc. 39. That motion is addressed in a separate Report and Recommendation. Defendant Brian Miller filed a motion to dismiss on July 22, 2015. Doc. 60. Mr. Cotterman was directed to respond to that motion, doc. 67, and his response, doc. 75, was timely filed.The Complaint, doc. 38

Mr. Cotterman alleges that on September 11, 2014, Mr. Miller conspired with four other Defendants (Sheriff Creel, Deputy Morrison, Major Miller and Captain Martin) at the Wakulla County Jail by having them go to Mr. Cotterman's confinement cell and take all his "legal material," all mail, and writing paper, and "go through it, make copies and give the copies to Prosecutor Miller." Doc. 38 at 10. Mr. Cotterman said that Mr. Miller ordered all of his property be placed in storage. Id. He claims that his property was taken without a warrant and confidential legal material was viewed outside his presence. Id. On September 15, 2014, Mr. Cotterman informed the judge of those actions. Id. He reports that Mr. Miller "admitted to it" and the judge "ordered Mr. Miller to return all [his] property." Id. Mr. Cotterman contends that his First, Fifth, Eighth, and Fourteenth Amendment rights were violated by Mr. Miller's actions. Id. at 11. The relief requested in this lawsuit is one million dollars in punitive damages, one million dollars in compensatory damages for "mental anguish," and injunctive relief including a letter of apology, and "anything else this court deems just . . . ." Id. at 14.

The Motion to Dismiss, doc. 60

Mr. Miller is a state prosecutor and was assigned to prosecute a case against Mr. Cotterman.³ Mr. Miller raises Eleventh Amendment immunity, doc. 60 at 1-2, as a defense and also asserts "absolute prosecutorial immunity," id. at 2, and "qualified immunity." Id. at 3. Mr. Miller also argues that the complaint fails to state a claim uponwhich relief may be granted because the complaint does not describe "any injury flowing from the alleged constitutional violations." Id. at 3-4. In addition, Mr. Miller contends that Mr. Cotterman has no protected Fourth Amendment right. Id. at 4-5.

Plaintiff's Response, doc. 75

Mr. Cotterman contends that because Mr. Miller acted in bad faith in taking all his legal material, he "does not qualify for immunity." Id. at 1. Mr. Cotterman further asserts that Mr. Miller is "not immune from prospective injuntive [sic] relief." Id. at 2. Moreover, he contends that Mr. Miller's actions were "outside the court room" and was an unreasonable search and seizure. Id. at 3-4. Mr. Cotterman argues that "guards have a right to search detainee's cells but not at the request of the prosecutor and never to make illegal copies of Plaintiff's confidential mail." Id. at 2. He points out that guards are still not permitted to "read legal mail" and must "open all legal mail in the presence of the inmate . . . ." Id. Mr. Cotterman said that "guards showed up, removed Plaintiff from his cell and hen Plaintiff was returned 'all' his property was gone, right in the middle of Plaintiff's trial." Id. He asserts that his complaint is sufficient to state a claim and the motion to dismiss should be denied. Id. at 3-5.

Standard of Review

The issue on whether a complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief can be granted is whether the plaintiff has alleged enough plausible facts to support the claim stated. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (retiring the standard from Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). "Tosurvive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).⁴ "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." Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 556); see also Speaker v. U.S. Dep't of Health, 623 F.3d 1371, 1380 (11th Cir. 2010). "The plausibility standard" is not the same as a "probability requirement," and "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 677 (quoting Twombly, 550 U.S. at 556). A complaint that "pleads facts that are 'merely consistent with' a defendant's liability," falls "short of the line between possibility and plausibility." Iqbal, 129 556 U.S. at 677 (quoting Twombly, 550 U.S. at 557).

The pleading standard is not heightened, but flexible, in line with Rule 8's command to simply give fair notice to the defendant of the plaintiff's claim and the grounds upon which it rests. Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) ("Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions."). Pro se complaints are held to less stringent standards than those drafted by an attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986) (citing Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 596, 30L.Ed.2d 652 (1972)). Nevertheless, a complaint must provide sufficient notice of the claim and the grounds upon which it rests so that a "largely groundless claim" does not proceed through discovery and "take up the time of a number of other people . . . ." Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) (quoted in Twombly, 550 U.S. at 558). The requirements of Rule 8 do "not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 678-79, 129 S.Ct. at 1949. A complaint does not need detailed factual allegations to survive a motion to dismiss, but Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." 556 U.S. at 678, 129 S.Ct. at 1949. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' " Id. (quoting Twombly, 550 U.S. at 555). Thus, "conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal." Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).

Analysis

a. Eleventh Amendment Immunity

Mr. Cotterman did not state whether he was suing any of the named Defendants in their official or individual capacities. Doc. 38. Mr. Miller's motion to dismiss assumes that he is sued in both his official and individual capacities. Mr. Cotterman offers little clarification on that issue in his response. See doc. 75 at 2, 4.

In Young Apartments, Inc. v. Town of Jupiter, Florida, 529 F.3d 1027, 1046-48 (11th Cir. 2008), the Court explained that '[w]hen it is not clear in which capacity thedefendants are sued, the course of proceedings typically indicates the nature of the liability sought to be imposed." Young Apartments, 529 F.3d at 1047 (quoting Jackson v. Georgia Dep't of Trans., 16 F.3d 1573, 1575 (11th Cir. 1994)). A defendant should receive sufficient notice of the capacity in which he is sued and, in general, a plaintiff has "a duty to 'make plain who they are suing and to do so well before trial.' " Colvin v. McDougall, 62 F.3d 1316, 1318 (11th Cir. 1995) (quoted in Young Apartments, 529 F.3d at 1047). "However, plaintiffs are not required to designate with specific words in the pleadings that they are bringing a claim against defendants in their individual or official capacities, or both." 529 F.3d at 1047 (citing Hobbs v. Roberts, 999 F.2d 1526, 1529-30 (11th Cir. 1993)). "Thus, while it is 'clearly preferable' that a plaintiff state explicitly in what capacity defendants are being sued, 'failure to do so is not fatal if the course of proceedings otherwise indicates that the defendant received sufficient notice.'" Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (quoted in Young Apartments, 529 F.3d at 1047); see also Harris v. Ostrout, 65 F.3d 912, 915 (11th Cir. 1995)(noting that a pro se complaint is construed "more liberally than ... the complaint of a represented party").

Here, the complaint seeks compensatory damages and punitive damages from each Defendant. "In a § 1983 action, punitive damages are only available from government officials when they are sued in their individual capacities." Adams v. Franklin, 111 F. Supp. 2d 1255, 1262 (M.D. Ala. 2000) (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 26-70, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); see also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (observing that plaintiff's"request for punitive damages suggests an intent to sue the officers in their individual capacities"). Additionally, a claim for compensatory monetary damages is also barred by the Eleventh Amendment.⁵ Board of Trs. of the Univ. of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 962 (2001) (citing Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 l.Ed.2d 522 (2000)).

Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. . . . As such, it is no different from a suit

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