United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
WIILIAM E. CASSADY, Magistrate Judge.
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action was referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that this action be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). It is further recommended that the dismissal of this action be counted as a strike under 28 U.S.C. § 1915(g).
I. Amended Complaint (Doc. 5).
Plaintiff filed this § 1983 action on March 18, 2013 (Doc. 1),  as well as an Amended Complaint on September 18, 2013, alleging Eighth and Fourteenth Amendment constitutional violations that occurred while jailed at Fairhope City Jail and Baldwin County Corrections Center. (Doc. 5). Plaintiff has named Joe Petise, a City of Fairhope Police Captain, Lieutenant Sledge, a City of Fairhope Police Lieutenant, the "Chief of Police" of the City of Fairhope Police Department, a "Nurse of Contact for Fairhope City Jail, " Judge Langford Floyd, a state court judge, and Arthur L. Byrne, "Sheriff, Baldwin County, " as defendants. ( Id. at 5).
While Plaintiff's claims arose during confinements in 2011 and 2012, the allegations of the complaint have their bases in a prior arrest occurring in 2003. In January 2003, Plaintiff was arrested by Defendant Petise of the Fairhope Police Department for driving a vehicle with a suspended license, without a tag, without insurance, and for attempting to elude police. ( Id. at 6). Plaintiff states he appealed these municipal charges to the Circuit Court of Baldwin County a month after the arrest ( id. at 6), but in August 2011, Plaintiff was arrested for burglary, receipt of stolen property, and the aforementioned 2003 traffic misdemeanors. ( Id. ).
Upon the August 2011 arrest, he was taken to Fairhope City Jail and transferred the following day to Baldwin County Corrections Center ("BCCC"). ( Id. ). He was appointed counsel to aid in the defense of the two felony charges, burglary and receipt of stolen property, but not for the misdemeanor traffic charges stemming from 2003. ( Id. ). While confined at BCCC, Plaintiff wrote the Baldwin County Clerk of Court inquiring about the 2003 traffic charges and was informed
that [he] had appealed the Municipal charges to the Baldwin County Circuit Court back in February 19, 2003[, and he] could spend 1 day in jail for $25 of fines owed if [he] was found guilty.
( Id. ). After being held at BCCC for 62 days, Plaintiff received notice that he had served the required time for his municipal charges and was bonded out of BCCC. ( Id. at 6-7). Thereafter, Plaintiff remained free on bond until he was convicted on December 6, 2011, for one of the August 2011 felony charges; however, the state court granted him an appeal bond in February 2012. ( Id. at 7).
While out on his appeal bond, Plaintiff was rearrested for public intoxication and was taken to Fairhope City Jail where he remained for 14 days. ( Id. ). Plaintiff alleges he was detained for 14 days due to erroneous jail records which indicated that outstanding warrants existed for his arrest on the 2003 municipal traffic violations. ( Id. ). Plaintiff notified Defendant Sledge, the head jailer, that he had previously served time for the misdemeanor traffic charges, and he was being wrongly and illegally held. ( Id. ). Plaintiff subsequently received a hearing regarding his release from jail and, although the hearing judge never addressed whether or not the municipal charges had in fact been dropped, Plaintiff was released on bond.
Thereafter, Plaintiff filed this suit under § 1983 claiming the 62-days spent in jail in 2011 was without a trial, court appearance, or representation of legal counsel in violation of the Fourteenth Amendment and that he was wrongly imprisoned when jailed for 14 days in 2012. ( Id. at 6-7). He contends Defendant Petise and Defendant Judge Langford Floyd conspired to convict him, to deny him defense counsel, and that they purposefully failed to remove the issued warrants for the misdemeanor charges and are, therefore, liable for his wrongful imprisonment. ( Id. at 7-8). Additionally, Plaintiff alleges unconstitutional conditions and treatment while confined at Fairhope City Jail and BCCC. ( Id. at 8). Plaintiff is suing each defendant in his or her official and individual capacity and requests $76, 000 ($1, 000 per day wrongly imprisoned) as well as punitive damages and declaratory relief. ( Id. at 5, 12).
II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).
Because Plaintiff is proceeding in forma pauperis, the Court is reviewing his complaint (Doc. 1) under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, or the claim seeks to enforce a right that clearly does not exist. Id.
Moreover, a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). To avoid dismissal for failure to state a claim upon which relief can be granted, the allegations must show plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 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, 1949, 173 L.Ed.2d 868 (2009). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level" and must be a "plain statement' possess[ing] enough heft to sho[w] that the pleader is entitled to relief.'" Twombly, 550 U.S. at 555, 557, 127 S.Ct. at 1965, 1966 (second brackets in original). But "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. Furthermore, when a successful affirmative defense, such as a statute of limitations, appears on the face of a complaint, dismissal for failure to state a claim is also warranted. Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 920-21, 166 L.Ed.2d 798 (2007).
When considering a pro se litigant's allegations, a court gives them a liberal construction holding them to a more lenient standard than those of an attorney. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972). The court, however, does not have "license... to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an action." GJR Investments v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010) (relying on Iqbal, 556 U.S. 662, 129 S.Ct. 1937). Furthermore, the court treats as true factual allegations, but it does not treat as true conclusory assertions or a recitation of a cause of action's elements. Iqbal, 566 U.S. at 681, 129 S.Ct. at 1951. In ...