Shepherd v. Wilson

• Decision Date: 21 December 2015
• Docket Number: CIVIL ACTION NO. 15-00373-KD-N
• Parties: MICKEL SHEPHERD, Plaintiff, v. STAN WILSON, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

MICKEL SHEPHERD, Plaintiff, v. STAN WILSON, et al., Defendants.

CIVIL ACTION NO. 15-00373-KD-N

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

December 21, 2015

REPORT AND RECOMMENDATION

This action is before the Court on the Motions to Dismiss under Federal Rule of Civil Procedure 12(b)(6) and supporting memoranda (Docs. 7, 18, 26, 27) filed by Defendants Stan Wilson, Richard Stringer, Aaron Carpenter, and Clarke-Washington Electric Cooperative (hereinafter, "the Cooperative"). Plaintiff Mickel Shepherd has filed an omnibus response (Doc. 32) and affidavit (Doc. 35) in opposition to the motions, to which the Defendants have filed replies (Docs. 40, 41, 43). Defendant Richard Stringer has also filed a motion to strike Shepherd's response affidavit (Doc. 42), and Shepherd has filed a motion for leave to amend his complaint (Doc. 47).

Under S.D. Ala. GenLR 72(b), the motions to dismiss and related matters have been referred to the undersigned Magistrate Judge for entry of a report and recommendation as to the appropriate disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b)(1), and S.D. Ala. GenLR 72(a)(2)(S). Upon consideration, and for the reasons stated herein, the undersigned RECOMMENDS that the motion to strike (Doc. 42) and the motion for leave to amend (Doc. 47) be DENIED, that the motions to dismiss under Rule 12(b)(6) (Docs. 7, 18, 26) be GRANTED as to Shepherd's federal claims, that Shepherd be DENIED further leave to amend his Complaint or to engage in discovery, and that Shepherd's state law claims be sua sponte DISMISSED without prejudice.

I. Legal Standards

In deciding a motion to dismiss under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted," the Court must construe the complaint in the light most favorable to the plaintiff, "accepting all well-pleaded facts that are alleged therein to be true." Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th Cir. 2013) (citing Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1328 (11th Cir. 2006)). However, " 'the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.' " Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

To withstand Rule 12(b)(6) scrutiny and satisfy Rule 8(a), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face," so as to "nudge[ ][its] claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U .S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citation omitted). "This necessarily requires that a plaintiff include factual allegations for each essential element of his or her claim." GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1254 (11th Cir. 2012). Thus, minimum pleading standards "require [ ] more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. As the Eleventh Circuit has explained, Twombly/Iqbal principles require that a complaint's allegations be "enough to raise a right to relief above the speculative level." Speaker v. U.S. Dep't of Health and Human Services Centers for Disease Control and Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010) (citations omitted). "To survive a 12(b)(6) motion to dismiss, the complaint does not need detailed factual allegations, ... but must give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010) (citations and internal quotation marks omitted).

Cochran v. Southern Co., Civil Action No. 14-0569-WS-N, 2015 WL 3508018, at *1 (S.D. Ala. June 3, 2015). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 556 U.S. at 678 (citation and quotations omitted). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]' — 'that the pleader is entitled to relief.' " Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (citations omitted). The Court looks to the pleading as a whole in determining whether the "plausibility standard" has been satisfied. See Speaker, 623 F.3d at 1382 ("Reading Speaker's Amended Complaint as a whole, we conclude that it both alleges the requisite statutory elements and marshals 'enough facts to state a claim to relief that is plausible on its face.' Twombly, 550 U.S. at 570, 127 S. Ct. at 1974."); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1252 n.11 (11th Cir. 2005) (per curiam) (stating that, in a Rule 12(b)(6) context, "[w]e read the complaint as a whole").

II. Procedural Background and Well-Pleaded Factual Allegations

On July 27, 2015, Shepherd, a member and former employee of the Cooperative, initiated this action by filing a Complaint with this Court alleging various causes of action against the Defendants under 42 U.S.C. § 1983, state law, and local law. (Doc.1). Per the well-pleaded allegations in the Complaint, Shepherd's claims arise out of an incident occurring "on or about" September 13, 2011, at the Washington County High School football field in Chatom, Alabama, during the Cooperative's annual meeting. Shepherd was "reported to the Washington County Sheriff" (Defendant Richard Stringer)¹ and was "severely beaten" and arrested at the meeting, all "for simply desiring to speak and contest the minutes..." Criminal prosecution arising from this incident was subsequently brought against Shepherd by the Town of Chatom, which appears to have concluded on September 2, 2014, when Shepherd's appeal of an adverse decision by the Chatom Municipal Court was "DISMISSED or NOLLE PROSSED" by the Circuit Court of Washington County on motion of the Town. Shepherd alleges his arrest and prosecution were sought primarily by Defendant Stan Wilson, the Cooperative's "Executor Director," because Shepherd has consistently run for a position on the Cooperative's board but has been unsuccessful because of Wilson's "inappropriate conduct" and "unfair campaign and posting tactics."²

Counts 1, 2 and 3 the Complaint assert various causes of action under § 1983 for deprivation of federal constitutional rights. Count 1 alleges "abuse of governmentalpower by the wrongful arrest of the Plaintiff and the excessive use of force without just cause." (Doc. 1 at 6). Count 2 alleges violations of due process, claiming that the Defendants have interfered with and denied Shepherd his "right to run for and be elected to the [Cooperative's] Board without interference, thereby resulting in the 'taking' of a constitutional right ... without due process of law[,]" as well as denying him "his constitutional rights f [sic] Free Speech and Free Association and caused him to be falsely arrested..." (Id. at 7). Count 3 alleges that the Defendants unlawfully retaliated against Shepherd in violation of "his First Amendment rights" for his "vocal criticism of the Defendant(s), along with impeding his Freedom of Association." (Id. at 8).

In addition to Shepherd's federal claims, Counts 1, 2, and 3 are sprinkled with references to deprivations of rights under Alabama and Washington County law, as well as allegations that the Cooperative has failed to follow its own standard practices and by-laws. (See id. at 6 - 8). Finally, Count 4 alleges a myriad of "state court torts": assault/excessive use of force in arrest; false arrest; defamation of character; harassment; slander; libel; wrongful personal restraint/false imprisonment; abuse of governmental power; mental anguish; intentional infliction of emotional distress; fraud; outrage; and "[p]erhaps, other municipal, state or federal law torts that []Shepherd is unaware of at this time that shall be added as necessary ... as the Discovery process progresses." (Id. at 9 - 10). Shepherd seeks monetary damages in excess of one million dollars, as well as attorneys' fees and court costs.

III. Analysis

A. Federal Claims

1. Aaron Carpenter

Defendant Aaron Carpenter moves for dismissal of all federal claims against him under § 1983 because "Shepherd makes no factual allegations at all about Carpenter, and certainly none which show an affirmative causal connection between any action by Carpenter and the alleged constitutional deprivations suffered by Plaintiff." (Doc. 27 at 8). Carpenter is correct. Shepherd's Complaint merely lists Carpenter as a defendant in the style (see Doc. 1 at 1) and alleges that he and the other individual defendants "work for governmental-type entities and [the Cooperative]." (Id. at 4, ¶ 4). The Complaint is devoid of any factual allegations indicating how Carpenter was involved in any of the constitutional deprivations alleged. Neither Shepherd's response brief (Doc. 32) nor his affidavit (Doc. 35) attempts to enlighten the Court as to Carpenter's involvement in the events underlying this action.

To the extent Carpenter is being sued in his official capacity, Shepherd has failed to identify what that capacity is, or even make...