Fullman v. Graddick, No. 83-7205

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before RONEY and HENDERSON, Circuit Judges, and DYER; RONEY
• Citation: 739 F.2d 553
• Parties: Thomas B. FULLMAN, Plaintiff-Appellant, v. Charles GRADDICK, et al., Defendants-Appellees.
• Docket Number: No. 83-7205
• Decision Date: 20 August 1984

Page 553

739 F.2d 553 Thomas B. FULLMAN, Plaintiff-Appellant,
v.
Charles GRADDICK, et al., Defendants-Appellees. No. 83-7205. United States Court of Appeals,
Eleventh Circuit. Aug. 20, 1984.

Page 555

David H. Thomas, Birmingham, Ala., for plaintiff-appellant.

Hillard R. Reddick, Jr., Edward L. Hardin, Jr., Birmingham, Ala., Algert S. Agricola, Jr., Montgomery, Ala., for Charles Graddick.

Furner, Boyce & Nave, Dick D. Nave, Bessemer, Ala., for Douglas Acker, J.R. Pace, Carl Potera, George Barron and City of Bessemer.

C. Michael Crenshaw, Birmingham, Ala., for Rick Jones.

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Robert Parsons, William G. Gantt, Birmingham, Ala., for Birmingham trust.

J. Fred Wood, Jr., Ezra B. Perry, Jr., Birmingham, Ala., for Melvin Bailey and Fred House.

J. Scott Vowell, Birmingham, Ala., for Ronald D. Morgan.

James S. Ward, Birmingham, Ala., for Aubrey Garrett.

Frank S. James, III, Jr., Asst. U.S. Atty., Birmingham, Ala., for John B. Stuart.

Roger Lee, Birmingham, Ala., for Carter Roberts.

Robert Emmett Paden, Bessemer, Ala., for William A. Short.

Appeal from the United States District Court for the Northern District of Alabama.

Before RONEY and HENDERSON, Circuit Judges, and DYER, Senior Circuit Judge.

RONEY, Circuit Judge:

Thomas B. Fullman was charged with capital murder, mayhem, and assault in connection with a May, 1979, bombing of the City Hall at Bessemer, Alabama. After a mistrial due to a hung jury, Fullman was acquitted of all charges in a second trial. He then brought a civil suit for damages under 42 U.S.C.A. Sec. 1983 against fifteen public officials, witnesses and a bank based on the investigation, arrest, interrogation, indictment, and trial. ¹ All of his claims were dismissed by the district court pursuant to motions to dismiss for failure to state a cause of action or motions for summary judgment. Plaintiff appeals. We affirm.

Because plaintiff's claims are so numerous and varied, we will address the case against each defendant individually. A general issue, however, which arises repeatedly throughout this action is the effect of plaintiff's failure in many instances to provide any support for conclusory allegations set forth in his complaints, even after amendment, and his responses to summary judgment motions. The Federal Rules of Civil Procedure require that a complaint contain a " 'short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). Even under the so-called notice rules of pleading, the complaint must state a cause of action sufficient to affirmatively show the plaintiff is entitled to relief, for

[i]t is not enough, to indicate merely that the plaintiff has a grievance but sufficient detail must be given so that the defendant, and the Court, can obtain a fair idea of what the plaintiff is complaining, and can see that there is some legal basis for recovery.

2A J. Moore & J. Lucas, Moore's Federal Practice p 8.13 at 8-118 (2 ed. 1984) (citations omitted).

In civil rights and conspiracy actions, courts have recognized that more than mere conclusory notice pleading is required. In civil rights actions, it has been held that a complaint will be dismissed

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as insufficient where the allegations it contains are vague and conclusory. See, e.g., Burnett v. Short, 441 F.2d 405 (5th Cir.1971); Guedry v. Ford, 431 F.2d 660 (5th Cir.1970); Granville v. Hunt, 411 F.2d 9 (5th Cir.1969). In conspiracy cases, a defendant must be informed of the nature of the conspiracy which is alleged. It is not enough to simply aver in the complaint that a conspiracy existed. See Ostrer v. Aronwald, 567 F.2d 551 (2d Cir.1977); United States Ex Rel. Simmons v. Zibilich, 542 F.2d 259 (5th Cir.1976). See also Black v. United States, 534 F.2d 524 (2d Cir.1976); Fine v. City of New York, 529 F.2d 70 (2d Cir.1975). A complaint may justifiably be dismissed because of the conclusory, vague and general nature of the allegations of conspiracy. 2A J. Moore & J. Lucas, Moore's Federal Practice p 8.17 at 8-180, 181 (2 ed. 1984). Similarly, mere verification of a party's own conclusory allegations is not sufficient to oppose a motion for summary judgment for

[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Fed.R.Civ.P. 56(e). See also Gossett v. Du-Ra-Kel Corp., 569 F.2d 869, 872 (5th Cir.1978). This is consistent with one of the purposes of the summary judgment mechanism, that is, to unmask frivolous claims and put a swift end to meritless litigation, see Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir.1980), which is especially pertinent where, as here, plaintiff employs a "shotgun" approach to litigation, leaving the court with the cumbersome task of sifting through myriad claims, many of which are foreclosed by governmental immunities, statutes of limitations and similar defenses. In such cases, the "mere possibility that a factual dispute may exist, without more, is not sufficient to overcome a convincing presentation by the moving party." Quinn, 613 F.2d at 445.

A second issue which recurs throughout this action concerns the propriety of the district court's dismissal of the majority of plaintiff's conspiracy claims on statute of limitations grounds. The court applied Ala.Code Sec. 6-2-39(a)(5) (1977), which provides for a one-year limitations period for "[a]ctions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section," to dismiss these and other of plaintiff's claims. There is no question that this is the applicable statute with reference to conspiracy claims in Alabama, and that it is correctly applied in a Sec. 1983 action such as this one. Beard v. Stephens, 372 F.2d 685, 688 (5th Cir.1967). In such cases, where Congress has not prescribed a period for enforcement of a federal right, "[t]he federal courts borrow the limitations period prescribed by the state where the court sits." Id. at 688.

Plaintiff challenges the dismissal of his conspiracy claims under Sec. 6-2-39(a)(5) on three grounds. First, he argues that the statute was tolled under Ala.Code Sec. 6-2-8(a) due to his incarceration pending trial. Second, he contends the statute was tolled due to fraudulent concealment which presumably precluded his discovery of the conspiracy involving Aubrey Garrett within the statutory period, Ala.Code Sec. 6-2-3. Third, he asserts that his claims are grounded on malicious prosecution and that, therefore, the limitations period should not begin to run until the termination of the criminal proceedings in his favor.

We note that this Court has recently certified to the Alabama Supreme Court, see Whitson v. Baker, 732 F.2d 856 (11th Cir.1984), the question of whether Ala.Code Sec. 6-2-8(a) applies to pre-trial detainees, as that court has never ruled on the effect of this tolling provision on an action initiated by a plaintiff who was a pretrial detainee at the time his cause of action arose. Because there are other grounds which support

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the dismissal of claims which the district court held barred by the statute of limitations, we affirm the judgment for defendants without deciding whether the statute of limitations would also bar the asserted causes of action.

1. Charles Graddick, Attorney General of the State of Alabama

Plaintiff alleges that Charles Graddick, the Alabama Attorney General, was a party to conspiracies in connection with the issuance of the search warrants authorizing a search of plaintiff's automobile and premises; a May 9, 1979 interrogation of plaintiff; the signing of the arrest warrant; the withholding of material evidence Graddick knew would aid plaintiff's defense; and two press conferences at which false information was allegedly "leaked" to the media. He further asserts that Graddick conspired to create and proffer perjured testimony, and participated in the wrongful taking and search of plaintiff's trash when the search warrants were executed. ²

The district court dismissed all but the latter two claims on a motion to dismiss, and subsequently dismissed those claims on a motion for summary judgment. We affirm on the ground that most of Graddick's activities were within the ambit of those protected by absolute prosecutorial immunity, and the alleged facts do not support the claim as to the others.

The doctrine of absolute prosecutorial immunity from civil damages suits under Sec. 1983 for actions "intimately associated with the judicial phase of the criminal process" was expressly recognized in Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 994, 47 L.Ed.2d 128 (1976). The more difficult question arises in a situation where functions performed by a prosecutor "cast him in the role of an administrator or investigative officer rather than that of advocate," Id. at 430-431, 96 S.Ct. at 995. In such cases, a qualified good-faith immunity applies rather than the absolute immunity associated with the judicial process. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Marrero v. City of Hialeah, 625 F.2d 499, 506 (5th Cir.1980).

In Imbler, absolute prosecutorial immunity was extended to allegations that a prosecutor knowingly used false testimony and suppressed material evidence at trial. 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33. In Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir.1979), this Court held that allegations of filing an information without an

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investigation, filing charges without jurisdiction, filing a...