Opinion
CIVIL ACTION NO. 1:07-CV-1930-ODE, PRISONER CIVIL RIGHTS 42 U.S.C. § 1983.
October 18, 2007
ORDER AND OPINION
Plaintiff, a Georgia pretrial detainee, has submitted the instant pro se civil rights action, pursuant to 42 U.S.C. § 1983, and has been granted in forma pauperis status. The matter is now before the Court for an initial screening.
I. Legal Framework
A. 28 U.S.C. § 1915A review
Pursuant to 28 U.S.C. § 1915A, a federal court is required to conduct an initial screening of a prisoner complaint seeking redress from a governmental entity, or an officer or employee thereof, to determine whether the action (1) is frivolous, malicious, or fails to state a claim on which relief may be granted, or (2) seeks monetary relief against a defendant who is immune from such relief. A claim is frivolous when it "has little or no chance of success," i.e., when it appears "from the face of the complaint that the factual allegations are clearly baseless or that the legal theories are indisputably meritless." Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint fails to state a claim when it does not include "enough factual matter (taken as true)" to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, _ U.S. _, _, 127 S. Ct. 1955, 1964-65 (2007) (noting that "[f]actual allegations must be enough to raise a right to relief above the speculative level," and complaint "must contain something more . . . than . . . statement of facts that merely creates a suspicion [of] a legally cognizable right of action"). See Oxford Asset Mgmt. v. Jaharis, 297 F.3d 1182, 1187-88 (11th Cir. 2002) (stating that "conclusory allegations, unwarranted deductions of facts[,] or legal conclusions masquerading as facts will not prevent dismissal").
B. 42 U.S.C. § 1983 cause of action
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that a defendant's act or omission under color of state law deprived him of a right, privilege, or immunity secured by the Constitution or laws of the United States. See Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir. 1995). If a plaintiff fails to satisfy these requirements or to provide factual allegations supporting a viable cause of action, the claim is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1283-84 (11th Cir. 2003) (affirming district court's dismissal of § 1983 complaint because plaintiffs' factual allegations were insufficient to support alleged constitutional violation).
II. Plaintiff's Allegations
Plaintiff sues the following Defendants: Deputy Matthew Munger of the Rockdale County Sheriff's Department; Jeff Wigington, the Rockdale County Sheriff; and the Rockdale County Sheriff's Department. [Compl. ¶ III.] Plaintiff sets forth the following allegations. On July 8, 2007, Deputy Munger "conducted an unlawful traffic stop" of a vehicle in which Plaintiff was a passenger. Plaintiff exited the vehicle upon instructions from Deputy Munger, who handcuffed Plaintiff and accused him of telling a lie two weeks previously, presumably about Plaintiff's marijuana use, to which Plaintiff readily admits "because it's a part of [his religious] beliefs." [Id. ¶ IV.]
Deputy Munger instructed Plaintiff to sit in his police vehicle and "started to drag [Plaintiff] by [his] wrist and arms." Plaintiff, whose wrist had once been broken, walked to Deputy Munger's vehicle, as instructed, but "struggled to keep [his] wrist from [Deputy Munger's] arm reach." Deputy Munger grabbed Plaintiff by his shirt; sprayed oleorsin capsicum (pepper spray) into his face; slammed him to the ground; and, while on top of Plaintiff, started punching him in the ribs and using racial epithets against him. Plaintiff was screaming in pain from the spray and the weight on his wrist. Deputy Munger picked Plaintiff off the ground and walked him to his police vehicle, where he "rammed [Plaintiff's] head into the door." Deputy Munger booked Plaintiff into the Rockdale County Jail "for a marijuana bag he found" and, on July 9, 2007, "wrote a false police report to cover his actions." [Id.]
Plaintiff seeks three million dollars in damages for his "pain and suffering, emotional distress, limitations of liberty, freedom of association, and freedom of movement by virtue of the terms of [his] bond, financial expense of [his] legal defense, reputational [sic] harm among the community, inability to transact business or obtain employment and inability to secure credit." [Id. ¶ V.] He also asks that Deputy Munger be suspended without pay until he receives counseling, better training, and classes in anger management. [Id.]
III. Discussion
A. Excessive force during arrest
"The Fourth Amendment encompasses the right to be free from the use of excessive force during an arrest." Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir. 2004) (noting that "the `reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officer's actions are `objectively reasonable' in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation"). "[T]he application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment." Id. at 1335 (concluding that defendant's use of force against plaintiff "was not [so] severe in amount" as to violate Fourth Amendment, in part because "there is no evidence-as distinguished from bare allegations — that [defendant's] foot on [plaintiff's] face caused him any physical injury"). See also Nolin v. Isbell, 207 F.3d 1253, 1255, 1258 n. 4 (11th Cir. 2000) (holding that accusations that officer "grabbed [plaintiff] from behind by the shoulder and wrist, threw him against a van three or four feet away, kneed him in the back and pushed his head into the side of the van, . . . . bruising [plaintiff's] forehead, chest, and wrists" — which "bruises disappeared quickly" and did not require medical treatment — "fall well within the ambit of the de minimis force principle," and "sound little different from the minimal amount of force and injury involved in a typical arrest").The Eleventh Circuit has held that a police officer did not violate the Fourth Amendment by using pepper spray, without warning, on a person suspected of recently having committed a violent felony, whom the police officer "could have reasonably determined . . . still posed a threat of further violence."McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1245 (11th Cir. 2003). The court determined that the officer's use of pepper spray, "a nonlethal weapon that would impose no lasting injury[,] . . . was proportional to the threat posed by" the suspect. Id. On the other hand, the Eleventh Circuit reversed summary judgment in favor of a police officer who used pepper spray on someone "arrest[ed] for offenses of minor severity, handcuffed, secured in the back of a patrol car, and posing no threat to [the officer], herself or the public." Vinyard v. Wilson, 311 F.3d 1340, 1348-49 n. 9 (11th Cir. 2002) (noting, however, that under arresting officer's characterization of arrestee as "physically aggressive" even while handcuffed in back of his patrol car, his use of pepper spray "was clearly not excessive").
Given the fact-sensitive nature of the excessive-force inquiry, the Court cannot conclude at this time that Plaintiff's allegations — that Deputy Munger administered pepper spray, slammed him to the ground, and punched him in the ribs — are insufficient to state a Fourth Amendment claim, despite the apparent lack of physical consequences to Plaintiff, other than the pain he experienced during the arrest.
B. False arrest and/or false imprisonment
"A warrantless arrest without probable cause violates the Fourth Amendment and forms a basis for a section 1983 claim."Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996) (citation omitted). Moreover, when "a police officer lacks probable cause to make an arrest, the arrestee has a claim under section 1983 for false imprisonment based on a detention pursuant to that arrest." Id. at 1526. It appears that Plaintiff has attempted to set forth a false arrest or false imprisonment claim, or both, even though he has not designated any claim as such. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that allegations in pro se complaint are held to "less stringent standards than formal pleadings drafted by lawyers"). Because Plaintiff alleges that Deputy Munger "conducted an unlawful traffic stop" and "wrote a false police report" about the events of his arrest on July 8, 2007, he has set forth a viable claim or claims for false arrest and/or false imprisonment.
The Court notes that, to the extent that Plaintiff intends to raise a malicious prosecution claim based on the allegedly false police report and the criminal proceedings arising therefrom, he may not do so at this time, because such a claim would not accrue until the favorable termination of those criminal proceedings, via dismissal, acquittal, or the like. See Uboh v. Reno, 141 F.3d 1000, 1003-07 (11th Cir. 1998). See also Wallace, 127 S. Ct. at 1096 (noting that tort of false imprisonment, which "consists of detention without legal process, . . . ends once the victim becomes held pursuant to such process," at which point "unlawful detention forms part of the damages for the `entirely distinct' tort of malicious prosecution, which remedies detention accompanied, not by absence of legal process, but by wrongful institution of legal process").
"[A] § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, [accrues when] the claimant becomes detained pursuant to legal process." Wallace v. Kato, _ U.S. _, 127 S. Ct. 1091, 1100 (2007). However, "[i]f a plaintiff files a false arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended." Id. at 1098. The Clerk of the Superior Court of Rockland County has informed this Court that criminal proceedings arising from Plaintiff's arrest on July 8, 2007, are pending. Therefore, Plaintiff's claims of false arrest and/or false imprisonment will be stayed until those criminal proceedings have ended.
C. Defendants' amenability to suit
1. Sheriff Wigington
In performing his law enforcement duties, a Georgia Sheriff enjoys Eleventh Amendment immunity from a § 1983 claim for money damages or other retrospective relief brought against him in his official capacity. See Purcell v. Toombs County, 400 F.3d 1313, 1325 (11th Cir. 2005); Manders v. Lee, 338 F.3d 1304, 1312-13 (11th Cir. 2003) (en banc) (noting that "the office of sheriff is as old as the State of Georgia itself and carries with it the common law duties of sheriffs to enforce the laws and preserve the peace on behalf of the sovereign State"). Moreover, Plaintiff has not alleged that Sheriff Wigington personally violated his constitutional rights. Therefore, Plaintiff's complaint does not state a claim for relief against the Sheriff in his individual capacity. See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (stating that a supervisor is liable in his individual capacity under § 1983 only when he "personally participates in the alleged unconstitutional conduct or when there is a causal connection between [his] actions . . . and the alleged constitutional deprivation"). Accordingly, Sheriff Wigington is due to be dismissed from this action. 2. Rockdale County Sheriffs Department
Plaintiff has sued the Rockdale County Sheriff's Department in this action. However, "[s]heriff's departments and police departments are not usually considered legal entities subject to suit." Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). See also Shelby v. City of Atlanta, 578 F. Supp. 1368, 1370 (N.D. Ga. 1984) (holding that a department that is "merely the vehicle through which the [local] government fulfills its policing functions. . . . is not an entity subject to suit"). Legal capacity to be sued is determined according to state law, Dean, 951 F.2d at 1214, and, based on Georgia law, Plaintiff may not sue the Rockdale County Sheriff's Department herein.
IV. Conclusions
For the foregoing reasons, IT IS ORDERED that Sheriff Wigington and the Rockdale County Sheriff's Department are DISMISSED from this action. However, pursuant to 28 U.S.C. § 1915A, Plaintiff has alleged viable causes of action against Deputy Munger for false arrest and/or false imprisonment and for the use of excessive force, arising from Plaintiff's arrest on July 8, 2007. It does not appear beyond doubt that Plaintiff could prove no set of facts that would entitle him to relief. Accordingly, in light of the allegations presented, and in deference to Plaintiff's pro se status, IT IS FURTHER ORDERED that his excessive force claim is allowed to PROCEED as in any other civil action. Plaintiff's claims of false arrest and/or false imprisonment are STAYED until the termination of the criminal proceedings arising from his July 8, 2007, arrest.
V. Service of Process and Related Matters
The Clerk is hereby DIRECTED to send Plaintiff a USM 285 form and summons for Deputy Munger, the sole remaining Defendant in this action, along with an initial disclosures form. Plaintiff is DIRECTED to complete a USM 285 form and summons for Defendant, complete the initial disclosures form, and return all of the forms to the Clerk of Court within twenty (20) days of the entry date of this Order. Plaintiff is warned that failure to comply in a timely manner could result in the dismissal of this civil action. The Clerk is DIRECTED to resubmit this action to the undersigned if Plaintiff fails to comply.
Upon receipt of the forms, the Clerk is DIRECTED to prepare a service waiver package for Defendant. The service waiver package must include two (2) Notice of Lawsuit and Request for Waiver of Service of Summons forms (prepared by the Clerk), two (2) Waiver of Service of Summons forms (prepared by the Clerk), an envelope addressed to the Clerk of Court with adequate first class postage for use by Defendant for return of the waiver form, one (1) copy of the complaint, one (1) copy of the initial disclosures form, and one (1) copy of this Order. The Clerk shall retain the USM 285 form and summons.
Upon completion of a service waiver package for Defendant, the Clerk is DIRECTED to complete the lower portion of the Notice of Lawsuit and Request for Waiver form and to mail a service waiver package to Defendant. Defendant has a duty to avoid unnecessary costs of serving the summons. If he fails to comply with the request for waiver of service, he must bear the costs of personal service unless good cause can be shown for failure to return the Waiver of Service form.
In the event Defendant does not return an executed Waiver of Service form to the Clerk of Court within thirty-five (35) days following the date the service waiver package is mailed, the Clerk is DIRECTED to prepare and transmit to the U.S. Marshal's Service a service package for him. The service package must include the USM 285 form, the summons, and one (1) copy of the complaint. Upon receipt of the service package(s), the U.S. Marshal's Service is DIRECTED to personally serve Defendant. The executed waiver form or the completed USM 285 form shall be filed with the Clerk.
Plaintiff is DIRECTED to serve upon each Defendant or each Defendant's counsel a copy of every additional pleading or other document that is filed with the Clerk of Court. Each pleading or other document filed with the Clerk shall include a certificate stating the date on which an accurate copy of that paper was mailed to each Defendant or each Defendant's counsel. This Court shall disregard any submitted papers which have not been properly filed with the Clerk or which do not include a certificate of service.
Plaintiff is also REQUIRED to KEEP the Court and each Defendant advised of his current address at all times during the pendency of this action. Plaintiff is admonished that the failure to do so may result in the dismissal of this action.
This case SHALL PROCEED on a four (4) month discovery track, beginning thirty (30) days after the first appearance of a Defendant by answer to the complaint, subject to extension by motion filed prior to the expiration of the discovery period. See N.D. Ga., LR 26.2.A., LR 26.2.B.
Plaintiff has filed a motion for the appointment of counsel. [Doc. 4.] "Appointment of counsel in civil cases is, [however], a privilege justified only by exceptional circumstances, such as the presence of facts and legal issues . . . so novel or complex as to require the assistance of a trained practitioner. The key is whether the pro se litigant needs help in presenting the essential merits of his or her position to the court." Kilgo v. Ricks, 983 F.2d 189,193 (11th Cir. 1993) (citation and internal quotations omitted). There being no exceptional circumstances involved in this case, it does not appear to the Court that Plaintiff requires assistance in presenting his claims. Accordingly, Plaintiff's motion for appointment of counsel [Doc. 4] is DENIED.