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Powell v. Holloway

United States District Court, N.D. Alabama, Western Division

November 21, 2017

JAMES POWELL, Plaintiff,
JEFFERY HOLLOWAY, et al., Defendants.



         This case is before the court on Defendant Jeffery Holloway's Motion to Dismiss (Doc. # 7) and Defendant Jon Mills' Motion to Dismiss (Doc. # 12). The motions have been fully briefed. (Docs. # 7, 10, 18, 20, 21). After careful review, and for the reasons explained below, Plaintiff's claims are due to be dismissed with prejudice.

         I. Background[1]

         On July 14, 2015, Defendant Tuscaloosa County Deputy Sherriff Jeffery Holloway (“Holloway”) returned to an apartment complex to conduct a follow-up narcotics investigation. (Doc. # 1 at p. 1). Holloway, Plaintiff, and Plaintiff's unnamed cousin had a conversation about Holloway searching the apartment of Plaintiff's cousin. (Id. at p. 2). Plaintiff's cousin refused to allow Holloway search her home without a search warrant. (Id.). Plaintiff alleges that, after Holloway became “irate” at Plaintiff, Plaintiff rode his bicycle away from the apartment complex. (Id.).

         According to Plaintiff, while he was riding his bicycle, an unmarked SUV driven by the West Alabama Narcotics Force drove dangerously close to Plaintiff. (Id. at p. 3). Plaintiff claims that Defendant Agent Jon Mills (“Mills”), a law enforcement officer with the West Alabama Narcotics Task Force, opened a door of the SUV onto Plaintiff, causing Plaintiff to fall and sustain injuries. (Id.). Following Plaintiff's fall, Plaintiff alleges that Holloway tased Plaintiff. (Id.).

         On July 18, 2017, Plaintiff filed a Complaint against Defendants Holloway and Mills alleging claims under 42 U.S.C. § 1983. (Doc. # 1). Plaintiff served Defendants on August 21, 2017.[2] (Docs. # 8, 9). On August 23, 2017, Defendant Holloway filed a Motion to Dismiss, alleging that (1) Plaintiff's Complaint is time-barred, (2) Defendant Holloway is absolutely immune, and (3) Defendant Holloway is entitled to qualified immunity. (Doc. # 7). On September 8, 2017, Defendant Mills filed a Motion to Dismiss, alleging that (1) Plaintiff's Complaint is time-barred and (2) Defendant Mills is entitled to qualified immunity. (Doc. # 12). Both Motions to Dismiss are based on Federal Rules of Civil Procedure 12(b)(1)[3] and 12(b)(6). (Docs. # 7, 12).

         On September 22, 2017, Plaintiff filed a Response to Defendants' Motions to Dismiss, claiming that Plaintiff's counsel was precluded from timely filing the Complaint because he experienced issues with the filing system. (Doc. # 18 at p. 3-5). Specifically, Plaintiff's counsel alleges that at 9:50 p.m. on Friday, July 14, 2017, he attempted to file the Complaint through the CM/ECF filing system; however, he could not successfully upload the Complaint. (Doc. # 18-1 at p. 2). After additional attempts to upload the pleading, Plaintiff's counsel asked a friend to upload the Complaint; however, she also was unsuccessful in doing so. (Id.). Plaintiff's counsel continued to have technical difficulties filing the Complaint throughout the weekend and, although he called the Clerk of Court throughout the weekend, Plaintiff's counsel was not able to contact the Clerk until Monday, July 17, 2017. (Id. at p. 2-3). Despite his conversation with the Clerk on Monday, July 17, 2017, Plaintiff's counsel's attempts to upload the Complaint electronically that day were ineffective.[4] Plaintiff's counsel did not file the Complaint until Tuesday, July 18, 2017. (Id. at 3). This filing was done electronically. (Doc. # 1).

         In his Response to the Motions to Dismiss, Plaintiff contends that Defendant Holloway was on notice of Plaintiff's Complaint before the statute of limitations elapsed because (1) Plaintiff's counsel told Defendant Holloway he intended to sue him after Plaintiff's acquittal of related criminal charges in June 2017 and (2) Plaintiff's counsel contacted Holloway's counsel on July 14, 2017 to notify him that he was filing suit against Holloway. (Doc. # 18 at p. 6). At a hearing held on November 15, 2017, Plaintiff conceded that, unlike Defendant Holloway, Plaintiff did not put Defendant Mills on notice of Plaintiff's intent to file suit.[5] Plaintiff has also indicated his intent to amend the Complaint to include a malicious prosecution claim, [6] asserts Defendants are not entitled to immunity, and contends the Complaint gives Defendants sufficient notice of Plaintiff's claims. (Doc. # 18).

         Defendant Holloway and Defendant Mills separately responded on September 28, 2017 and September 29, 2017, respectively. (Docs. # 20, 21). Upon Plaintiff's request (Docs. # 23, 24), the court held a hearing on Defendants' Motions to Dismiss (Docs. # 7, 12) and allowed Plaintiff to further explain why this action is not time-barred.

         II. Standard of Review

         The Federal Rules of Civil Procedure require only that the complaint provide “a short and plain statement of the claim showing that the pleaser is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, the complaint must include enough facts “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked assertion[s]” without supporting factual allegations. Twombly, 550 U.S. at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light most favorable to the non-moving party. Watts v. Fla. Int'l. Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).

         To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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 (2009). Although “[t]he plausibility standard is not akin to a ‘probability requirement, '” the complaint must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” to support the claim. Twombly, 550 U.S. at 556.

         In considering a motion to dismiss, a court should “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.'” Kivisto v. Miller, Candield, Paddock & Stone, PLC, 413 Fed. App'x 136, 138 (11th Cir. 2011) (quoting Am. Dental Assn. v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task is context specific and, to survive the motion, the allegations must permit the court based on its “judicial experience and common sense . . . to infer more than the mere possibility of misconduct.” Twombly, 550 U.S. at 556. Further, “courts may infer from the factual allegations in the complaint ‘obvious alternative explanation[s], ' which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental, 605 F.3d at 1290 (quoting Iqbal, 556 U.S. at 682). If the court determines that well-pleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550 U.S. at 556.

         A statute of limitations defense is an affirmative defense, and a plaintiff is not obligated to negate a timeliness defense within the former corners of his complaint. La Grasta v. First Union Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004). “A Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate only if it is facially ...

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