Nicholson v. Moates

• Decision Date: 08 February 2001
• Docket Number: No. CIV. A. 00-A-861-S.,CIV. A. 00-A-861-S.
• Citation: 135 F.Supp.2d 1185
• Parties: Carolyn NICHOLSON, Plaintiff, v. Ben MOATES, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

135 F.Supp.2d 1185

Carolyn NICHOLSON, Plaintiff, v. Ben MOATES, et al., Defendants.

No. CIV. A. 00-A-861-S.

United States District Court, M.D. Alabama, Southern Division.

February 8, 2001.

Daniel L. Feinstein, Chambless, Math, Moore, Brown & Carr, P.C., Montgomery, for Carolyn Nicholson, plaintiffs.

Daryl L. Masters, Kelly G. Davidson, Webb & Eley, P.C., Montgomery, Ben Moates, Coffee County Sheriff, New Brockton, Jackson W. Stokes, Stokes & Morrow, Robert Caswell, [PRO SE], c/o Elba Police Dept., Elba, for Ben Moates, Sheriff of Coffee County, Alabama, sued in his official and individual capacities, Rex Killingsworth, Deputy Sheriff of Coffee County, Alabama, sued in his official capacity, Claude R. Nicholson, Jack Herbert, Deputy Sheriff of Coffee County, Alabama, sued in his individual capacity, Henry Petty, Deputy Sheriff of Coffee County, Alabama, sued in his official capacity, Myron Williams, Chief Deputy Sheriff of Coffee County, Alabama, sued in his individual capacity, Robert Caswell, Police Officer of the City of Enterprise, Alabama, sued in his individual capacity, defendants.

MEMORANDUM OPINION AND ORDER

ALBRITTON, District Judge.

I. INTRODUCTION

This cause is before the court on a Motion for Partial Dismissal of Plaintiff's Second Amended Complaint (doc. # 37) filed by Defendants Ben Moates, Rex Killingsworth, Jack Herbert, Henry Petty, and Myron Williams (collectively, "County Defendants") on December 20, 2000.

Plaintiff Carolyn Nicholson ("Plaintiff") originally filed her Complaint against Defendant Claude Nicholson, Defendant Robert Caswell ("Caswell"), and the County Defendants on June 30, 2000. In the First Amended Complaint, she brought claims for violation of the Fourth and Fourteenth Amendments to the United States Constitution (Count I), for violation of the Equal Protection Clause of the United States Constitution (Count II), for conversion (Count III), and assault and battery (Count IV). Defendants, subsequently, filed Motions to Dismiss which the court granted in part and denied in part. The court dismissed Plaintiff's equal protection claim, procedural due process claim, and conversion claim as to the County Defendants. As a result, the case could proceed against the County Defendants on the Fourth Amendment claim, against Caswell on the Fourth Amendment claim and the conversion claim, and against Claude Nicholson on the Fourth Amendment claim, the conversion claim, and the assault and battery claim.

In its order addressing the Motions to Dismiss, the court also granted Plaintiff time to file an amendment which repleads the procedural due process claim. Subsequently, Plaintiff filed a Second Amended Complaint.¹ The County Defendants in turn filed this Motion for Partial Dismissal, seeking dismissal of the procedural due process claim.

II. MOTION TO DISMISS STANDARD

A court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations in the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); see also Wright v. Newsome, 795 F.2d 964, 967 (11th Cir.1986) ("[W]e may not ... [dismiss] unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims in the complaint that would entitle him or her to relief.") (citation omitted). The court will accept as true all well-pleaded factual allegations and will view them in a light most favorable to the nonmoving party. Hishon, 467 U.S. at 73, 104 S.Ct. 2229. Furthermore, the threshold is "exceedingly low" for a complaint to survive a motion to dismiss for failure to state a claim. Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir.1985).

III. FACTS

The allegations of the Plaintiff's Second Amended Complaint are as follows:

Plaintiff was, at the time relevant to the facts of this case, married to Defendant Claude Nicholson. Defendant Ben Moates ("Moates") is the Sheriff of Coffee County, Alabama and has been sued in his individual capacity. Defendant Rex Killingsworth ("Killingsworth"), Defendant Jack Herbert ("Herbert"), Defendant Henry Petty ("Petty"), and Defendant Myron Williams ("Williams") are Deputy Sheriffs of Coffee County, Alabama who have been sued in their individual capacities.

Plaintiff alleges that during her marriage to Claude Nicholson she sought intervention from law enforcement officials to provide physical protection from abuse or threats of abuse by Claude Nicholson. According to Plaintiff, she filed a Petition for Protection from Abuse in the Circuit Court of Coffee County, Alabama, and an order was issued excluding Claude Nicholson from Plaintiff's residence, enjoining him from communicating with Plaintiff, and awarding temporary possession of a 1995 Oldsmobile Aurora to Plaintiff. Second Amended Complaint at ¶ 15.

Plaintiff further alleges that on or about October 20, 1997, Claude Nicholson and an unnamed female claiming to be Plaintiff appeared in state circuit court and filed a motion to obtain certain personal property of the Plaintiff, with the express or implied representation that Plaintiff consented to an ex parte order granting Claude Nicholson leave to obtain the property. Id. at ¶ 16. Plaintiff subsequently filed a motion in state court asking for the October order awarding Claude Nicholson certain personal property to be set aside, which was granted in November of 1997. In October of 1997, Claude Nicholson also filed a Divorce Petition in the Circuit Court of Coffee County, Alabama.

Plaintiff states that in June of 1998, Claude Nicholson filed a motion requesting to obtain the personal property which had been granted to him in the order which was set aside in November. Id. at ¶ 23. On June 23, 1998, a state circuit court judge entered an order which states that "Claude Nicholson is allowed to enter the marital residence and recover specified items of personalty .... [Defendant Nicholson's] attorney is to contact [Plaintiff's] attorney and determine a date within the next five calendar days when this order may be executed." Id. at ¶ 25. Plaintiff states that she had no notice of this hearing and was not given an opportunity to be heard. Id.

On July 2, 1998, Claude Nicholson entered Plaintiff's premises and removed personal property of Plaintiff, including a 1995 Oldsmobile, furniture, and a personal computer. Id. at ¶ 27. Plaintiff alleges that Moates knew of Claude Nicholson's intended conduct, and that he dispatched Killingsworth, Herbert, Williams, and Petty to Plaintiff's residence with instructions to effectuate the removal of the personal property. Id. at ¶ 28. Plaintiff further alleges that the June 23, 1997 order by the state circuit court upon which the Defendants relied had been altered by one or more of the Defendants.

Plaintiff states that she refused to allow the Defendants into her residence and called Coffee County Constable Michael Nowicki ("Nowicki") and two of Plaintiff's co-workers who then came to the residence. Plaintiff alleges that when Nowicki came into the residence, Killingsworth forcibly entered the premises by pulling the door from Nowicki and pushing Nowicki aside. Id. at ¶ 29. Plaintiff further states that Killingsworth allowed Claude Nicholson to enter the residence, followed by Herbert, Williams, and Petty. According to the Plaintiff, these Defendants threatened, harassed and attempted to intimate Plaintiff and her friends, and Killingsworth physically removed her friends from the residence. Id. at ¶ 30. Plaintiff alleges that Killingsworth, Petty, and Claude Nicholson remained on the premises for approximately three and a half hours removing personalty, ransacking personal belongings, and rummaging through legal papers in violation of her constitutional rights.

IV. DISCUSSION

As stated above, the County Defendants have filed a Motion for Partial Dismissal of Plaintiff's Second Amended Complaint, seeking dismissal of Plaintiff's procedural due process claim. To succeed on a procedural due process claim, as sought under section 1983, a plaintiff must establish: "(1) a constitutionally protected interest in life, liberty or property; (2) governmental deprivation of that interest; and (3) the constitutional inadequacy of procedures accompanying the deprivation." Bank of Jackson County v. Cherry, 980 F.2d 1354, 1357 (11th Cir.1992). The County Defendants assert that Plaintiff has failed to allege the third prong — the constitutional inadequacy of procedures accompanying the deprivation.² Tinney v Shores, 77 F.3d 378, 382 (11th Cir.1996) (holding in a section 1983 action that plaintiffs failed to state a valid procedural due process claim because they did not allege that Alabama law provided them with an inadequate post-deprivation remedy).

In her Seconded Amended Complaint, Plaintiff alleges that the County Defendants deprived her of procedural due process by unlawfully seizing her personal property. As to the adequacy of the state post-deprivation procedures, Plaintiff alleges that:

Plaintiff has attempted to avail herself of any and all state law avenues for relief; however, said post-deprivation remedies have proven to be wholly inadequate. Specifically, despite state court order or orders to the contrary, the wrongfully seized property, including the vehicle, has not been returned to Plaintiff. Further, upon information and belief, one or more of the Defendants have taken affirmative steps to prevent Plaintiff's recovery of her property and have damaged same.

Seconded Amended Complaint at ¶ 46. Although the court must take all the factual allegations in the complaint as true for the purposes of this motion to dismiss, the court is not bound to accept as true a legal conclusion couched as a factual allegation. Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Plaintiff's allegation that the state post-deprivation remedies...