Dorsey v. Wallace

134 F.Supp.2d 1364

Corey James DORSEY and William Lee, Plaintiffs, v. Derreck WALLACE, Officer A.M. Wright, in his individual and official capacities, Officer C.A. Smith, in his individual and official capacities, Jamal Freer, Kelleita Thurman, in her individual and official capacities, City of Atlanta, Pepper Boys, Inc. d/b/a Club Chili Pepper, Eric Levin, individually and d/b/a the Chili Pepper, Andrew Yackman, individually and d/b/a the Chili Pepper, Jerell Allen, individually and d/b/a Midnight Marauders, John Doe 1, John Doe 2, John Doe 3, John Doe 4, John Doe 5, John Doe 6, John Doe 7, John Doe 8, John Doe 9, and John Doe 10, Defendants.

No. CIV.A.1:00CV691CAP.

United States District Court, N.D. Georgia, Atlanta Division.

October 17, 2000.

COPYRIGHT MATERIAL OMITTED

Neal Henry Howard, Neal H. Howard & Associates, Atlanta, GA, for plaintiffs.

Walter Lewis Fortson, Fortson & Associates, Decatur, GA, pro se.

Richard Arnold Grossman, Susan Pease Langford, Risa B. Lischkoff, William H. McLean, IV, Tuwanda Rush Williams, Office of Atlanta City Attorney, Law Department, Mohammed Kasim Reed, William K. Whitner, Paul Hastings Janofsky & Walker, Cary Stephen Wiggins, Steven M. Youngelson, Office of Steven M. Youngelson, Joann Brown Williams, Neal H. Howard & Associates, Atlanta, GA, for defendants.

Derreck Wallace, New Orleans, LA, pro se.

ORDER

PANNELL, District Judge.

This matter is currently before the court on the City of Atlanta's ("Atlanta"), Officers A.M. Wright, Kellita Thurman, and C.A. Smith's (the "defendants")¹ motion to dismiss. The plaintiffs brought the instant action, pursuant to 42 U.S.C. § 1983, alleging that the defendants by their actions and/or omissions harmed them.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

The defendants, pursuant to 28 U.S.C. §§ 1441 and 1446, and Fed.R.Civ.P. 81(c), removed the action to this court from the State Court of Fulton County, Georgia. By its previous order, dated June 15, 2000, the court granted in part and denied in part the defendants' initial motion to dismiss, by dismissing the plaintiffs Eighth Amendment claim and ordering them to amend their Complaint to conform to the Eleventh Circuit's heightened pleading requirements for Section 1983 claims. They complied by filing their First Amended Complaint on July 17, 2000. The defendants instant motion to dismiss argues that the plaintiffs have failed to articulate facts sufficient to allege a constitutional violation and thus fail to meet pleading requirements of a Section 1983 claim.

The plaintiffs brought the action in tort, alleging negligence, violation of Section 1983, false arrest, false imprisonment, and malicious prosecution. The complaint alleges that on July 14, 1999, the plaintiffs were involved in an altercation with the defendant, Derreck Wallace, at the Club Chili Pepper (the "Club") in Atlanta, Georgia. Both the plaintiffs were shot by non-Atlanta personnel on or near the Club's premises. Upon discovering the plaintiffs, Atlanta employees called for emergency medical services to transport them to Grady Hospital. While there, two of the defendants, Officers Wright and Smith cited and arrested the plaintiffs for simple battery, pursuant to O.C.G.A. § 16-5-23. The officers handcuffed Mr. Dorsey to his bed rail and then, transported him from Grady Hospital to the Fulton County Jail, allegedly before certain bullet fragments could be removed from his thigh. The charges against both plaintiffs were subsequently dismissed.

The plaintiffs allege that all of the defendants, who were employed by the Atlanta Police Department, violated their ministerial duties when they left the scene of an earlier altercation and failed to make an arrest, protect them from harm and secure the Club area. Further, the plaintiffs allege that they were arrested by officers without personal knowledge of the events giving rise to their citations and were deprived of necessary medical attention. As a result, the plaintiffs argue that the defendants deprived them of their fundamental rights under the Fourth and Fourteenth Amendments in violation of Section 1983. Further, the plaintiffs allege several state law negligence claims, including false arrest, false imprisonment, and malicious prosecution.

Specifically, the plaintiffs allege that the officers deprived them of their Fourth Amendment guarantee against unreasonable seizures when Officers Wright and Smith failed to obtain a timely judicial determination of probable cause before citing and arresting them. Mr. Dorsey also alleges that the officers did not have personal knowledge of the events sufficient to cite him. The plaintiffs also allege that the officers violated their Fourteenth Amendment due process rights. These alleged violations are identical to the alleged Fourth Amendment violations. The plaintiffs also allege that Atlanta is liable under Section 1983, because it has a custom or policy "of depriving individuals of causing individuals to be arrested upon citation," which "violates the Fourth Amendment's requirement of a timely judicial determination of probable cause." Further, the plaintiffs argue that "by causing individuals to be arrested upon citation," Atlanta created and condoned a policy of depriving individuals of due process of law in violation of the Fourteenth Amendment and violated the Fourth Amendment's guarantee against unreasonable seizures.

II. LEGAL DISCUSSION

A. Rule 12(b)(6) Dismissal Standard

Pursuant to Fed.R.Civ.P. 12(b)(6), the defendants have filed another motion to dismiss for failure to state a claim upon which relief can be granted. A Rule 12(b)(6) motion questions the legal sufficiency of a complaint; therefore, in assessing the merits of a Rule 12(b)(6) motion, the court must assume that all the factual allegations set forth in the complaint are true. See United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). Moreover, in determining whether to grant a Rule 12(b)(6) motion, the court only considers the allegations in the complaint, which it liberally construes in the light most favorable to the plaintiffs. See Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989); and see Burch v. Apalachee Community Mental Health Servs. Inc., 840 F.2d 797 (11th Cir.1988) (en banc), aff'd. sub nom., Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990).

Generally, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." In re Johannessen, 76 F.3d 347, 349 (11th Cir.1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Thus, a motion to dismiss will be denied unless it appears beyond all doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. See Luckey v. Harris, 860 F.2d 1012, 1016 (11th Cir.1988); see also Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). Therefore, the court is authorized to dismiss the complaint "on the basis of a dispositive issue of law." Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989).

In its previous order the court noted that in Section 1983 actions where government officials sued in their individual capacities raise the defense of qualified immunity, the Eleventh Circuit has "tightened" the pleading requirements. See GJR Investments, Inc. v. County of Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998). In Oladeinde v. City of Birmingham, the Eleventh Circuit held that in cases where qualified immunity is implicated, "some factual detail is necessary, especially if [for the court] to be able to see that the allegedly violated right was clearly established when the allegedly wrongful acts occurred." 963 F.2d 1481, 1485 (11th Cir.1992). Numerous district courts within the Eleventh Circuit have consistently applied this heightened standard. See generally Taylor v. Alabama, 95 F.Supp.2d 1297, 1305 (M.D.Ala.2000); Sims v. Glover, 84 F.Supp.2d 1273, 1277 (M.D.Ala.1999). Having carefully reviewed the most recent case law, however, the court finds that the Eleventh Circuit, in Marsh v. Butler County, has unambiguously rejected the heightened pleading requirement. 225 F.3d 1243, 1245 (11th Cir.2000). In Marsh the court reiterates the Supreme Court's holding in Conley, 355 U.S. at 47, 78 S.Ct. 99, 2 L.Ed.2d 80 noting that courts "may not apply a `heightened pleading standard' over and above the dictates of [Fed.R.Civ.P.] 8(a) to claims under Section 1983." Id. (citing Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993)). Accordingly, this court applies the tradition pleading requirement of Fed.R.Civ.P. 8(a) to the instant motion to dismiss, requiring only "`a short and plaint statement of the claim' that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. 99, 2 L.Ed.2d 80.

B. Claims Against Officer Thurman

Initially, with respect to Officer Thurman and the plaintiffs' claim for a failure to make arrests and restore the peace, the court notes that the plaintiffs essentially make no factual nor legal allegations against Officer Thurman. The defendants' motion to dismiss with respect to Officer Thurman as to the state claims is completely unrebutted. Further, the court finds that the plaintiffs have failed to allege any facts that demonstrate the plaintiff was acting under the color of law, as opposed to her role as a security guard at the night club. The plaintiffs did not allege that she made any arrests or otherwise acted within the scope of her authority as a police officer. The court finds that the plaintiffs have failed to plead any...