Green v. City of Selma

• Decision Date: 01 August 2014
• Docket Number: Civil Action No. 13-00260-KD-N
• Parties: MICHAEL J. GREEN, Plaintiff, v. CITY OF SELMA, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

MICHAEL J. GREEN, Plaintiff, v. CITY OF SELMA, et al., Defendants.

Civil Action No. 13-00260-KD-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION

August 1, 2014

REPORT AND RECOMMENDATION

Plaintiff Michael J. Green ("Green"), proceeding pro se and in forma pauperis (see Doc. 12), initiated this action by filing a complaint under 42 U.S.C. §§ 1983 and 1985 (Doc. 1). Currently pending are the following matters:

1. the Answer (Doc. 15) and Special Report (Doc. 16) of Defendants Municipal Judge Valerie Chittom ("Judge Chittom") and the City of Selma, which have been converted to a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) (Doc. 17) by order of the undersigned (Doc. 18);

2. the Motion to Dismiss (Doc. 19) and brief in support (Doc. 24) filed by Defendant Michael W. Jackson ("District Attorney Jackson");

3. the Motion to Dismiss (Doc. 29) filed by Defendants the State of Alabama and Judge Marvin Wiggins ("Judge Wiggins"); and

4. the Special Report (Doc. 32) of Defendant Cheryl Price, former warden of Bibb County Correctional Facility ("Warden Price"), which has been

converted to a Rule 12(b)(6) Motion to Dismiss by order of the undersigned (Doc. 35).

Green has filed responses (Docs. 25, 27, 28, 33, 36) in opposition to the various motions to dismiss. Defendants the State of Alabama and Judge Wiggins have filed a reply (Doc. 34) to Green's response to their motion (though the reply simply restates, word-for-word, the arguments presented in their motion). The above-listed motions to dismiss are now under submission and are ripe for adjudication.

In addition to the defendants who have filed motions to dismiss, the Alabama Department of Corrections ("ADOC") was also ordered served with process in this action by the undersigned (see Doc. 12 at 4, ¶ 3.f), and a Notice of Lawsuit and Request for Waiver of Service of Summons was issued to ADOC along with the other Defendants (see Doc. 13). However, ADOC is the only entity ordered served who has not returned a waiver of service or otherwise appeared in this action. This appears to be an oversight on the part of assistant general counsel for the Alabama Department of Corrections, counsel of record for Warden Price in this action. While Warden Price's special report asserts that Warden Price is "the sole Correctional Defendant" in this action, the remainder of the special report asserts numerous arguments on behalf of "Defendants." (See Doc. 32). Moreover, Warden Price is being sued in both her individual and official capacities. "Suing individuals in their official capacities is 'another way of pleading an action against an entity of which an officer is an agent.' " Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1524 (11th Cir.1995) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Finally, as Green is proceeding in forma pauperis, the Court has a duty under 28 U.S.C. § 1915(e)(2) to dismiss this action if it determines, inter alia, that the action is frivolous, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Upon consideration, the undersigned will treat Warden Price's Special Report/Motion to Dismiss (Doc. 32) as also being filed on behalf of ADOC.

These matters have been referred to the undersigned United States Magistrate Judge for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b)(1), and SD ALA Local Rule 72.2(c)(4). Upon consideration, and for the reasons stated herein, it is RECOMMENDED that all four motions to dismiss (Docs. 17, 19, 29, 32) be GRANTED in their entirety.

I. Applicable Standards

The Defendants' respective motions move for dismissal under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." "In ruling on a 12(b)(6) motion, [a c]ourt accepts the factual allegations in the complaint as true and construes them in the light most favorable to the plaintiff." E.g., Speaker v. U.S. Dep't of Health & Human Servs. Centers for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (citing Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003)). " 'While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligationto provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.' " Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1288-89 (11th Cir. 2010) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, " '[f]actual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).' " Id. (quoting Twombly, 550 U.S. at 555). "[T]o survive a motion to dismiss, a complaint must now contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Id. (quoting Twombly, 550 U.S. at 570.

The Supreme Court has "held that 'the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.' " Id. at 1290 (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "The Court suggested that courts considering motions to dismiss adopt a 'two-pronged approach' in applying these principles: 1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, 'assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.' " Id. (quoting Iqbal, 129 S. Ct. at 1950)).

The Eleventh Circuit has explicitly held that the pleading standards of Twombley and Iqbal govern § 1983 claims. See Randall v. Scott, 610 F.3d 701, 708 n.2 (11th Cir. 2010). "A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standardsthan formal pleadings drafted by lawyers..." E.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation and quotations omitted). Nevertheless, "a court may not 'serve as de facto counsel for a party' or 'rewrite an otherwise deficient pleading in order to sustain an action.' " Muhammad v. Bethel, 430 F. App'x 750, 752 (11th Cir. 2011) (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds, see Randall, 610 F.3d at 709).

II. Relevant Background & Factual Allegations

This appears to be Green's latest federal action arising from his Alabama criminal proceedings. Green first challenged those proceedings with this Court in a habeas action under 28 U.S.C. § 2254, Michael J. Green v. Cheryl Price et al., S.D. Ala. Case No. 2:09-cv-105-KD-N. In that action, the Eleventh Circuit set forth the following facts and procedural history:

In September 2004, Green was convicted of felony first degree sexual abuse in the Dallas County, Alabama Circuit Court. Green received a ten-year suspended imprisonment sentence and a split sentence of three years' probation and eighteen months of weekend sanctions in the county jail.

On July 31, 2006, while Green was on probation for the 2004 sexual abuse conviction, City of Selma police officers responded to a report that Green was involved in an incident involving a child at a local service station. Green was questioned, but not arrested. The same day, the child's mother filed a criminal complaint in the Municipal Court of Selma charging Green with sexual misconduct in violation of Alabama Code § 13A-6-65. The complaint alleged that Green, while standing at the cash register, lifted the child's dress and "felt on her bottom."

On August 14, 2006, the state probation officer filed a delinquency report with the Dallas County Circuit Court recommending revocation of Green's probation and reinstatement of the original suspended ten-year sentence for the 2004 sexual abuse conviction. The recommendation was based on multiple alleged violations of the

conditions of Green's probation, including his recent sexual misconduct charge.

On August 18, 2006, Green was arrested on the new sexual misconduct charge and pled not guilty. On August 29, 2006, following a bench trial in Selma's Municipal Court, Green was convicted of misdemeanor sexual abuse in the second degree, in violation of Alabama Code § 13A-6-67(b) (the "misdemeanor conviction"). Green did not file a direct appeal of the misdemeanor conviction.

On September 21, 2006, the Dallas County Circuit Court held a probation revocation hearing on the 2004 felony sexual abuse conviction. The state argued primarily that Green's 2006 misdemeanor conviction violated the conditions of Green's felony probation. The state argued that this was Green's second sexual offense involving children, he "keeps molesting kids," and "[h]e needs to go to prison."

Green, through counsel, asserted that (1) the misdemeanor conviction resulted in a $300 fine that was satisfied by the ten days of time-served; (2) the misdemeanor conviction was improperly imposed because, inter alia, Green was not represented by counsel; and (3) Green had substantially complied with his probation conditions. The state responded that Green was not entitled to counsel because no jail time was imposed.

During the revocation hearing, Green submitted copies of pay stubs as proof of employment and documentation showing that he had paid court costs, registered as a sex offender and completed his 300 hours of community service. Green testified that (1) he missed one probation appointment, but served additional sanction jail time for that, and (2) he was slow to complete his community service hours because he maintained full-time employment and served jail time on the weekends. As to his misdemeanor conviction, Green testified that he was originally...