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Harris v. Johnson's Giant Foods Inc.

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

December 12, 2017

JOHNSON'S GIANT FOODS, INC., et al., Defendants.



         This case is before the court on Defendant Johnson's Giant Foods, Inc.'s (“Giant Foods”) Motion to Dismiss and Memorandum of Law (Doc. # 71) and Defendant Clark Thompson's Second Motion to Dismiss (Doc. # 79). The motions have been fully briefed and are under submission. (Docs. # 71, 80-81, 86-88). After careful review, and for the reasons explained below, the court concludes that Defendants' motions to dismiss are due to be granted, and all claims are due to be dismissed without prejudice.

         I. Relevant Allegations in the Second Amended Complaint

         Plaintiff alleges that Phyllis Minshew, a Giant Foods employee, filed a criminal complaint against him with the District Court of Etowah County, Alabama, on November 18, 2014. (Doc. # 66 at ¶¶ 3-4). Minshew's complaint charged Plaintiff with possessing or uttering a forged instrument with intent to defraud. (Id. at ¶ 5). According to the criminal complaint and an incident report allegedly prepared by Defendant Thompson, Plaintiff cashed a forged payroll check -- purported to be issued by Frito Lay, Inc. -- on October 27, 2014. (Id. at ¶¶ 5-6). Plaintiff denies that he ever entered Defendant Giant Foods's Gadsden grocery store and denies making or presenting a check to it from Frito Lay. (Id. at ¶ 8). Indeed, Plaintiff claims that he was a victim of identity theft. (Id. at ¶ 22). Moreover, he alleges that Giant Foods obtained fingerprints from the individual who cashed the check and took surveillance video of the incident. (Id. at ¶ 10).

         In the Second Amended Complaint, Plaintiff alleges, in the alternative, that either (1) Defendant Thompson knew about the fingerprints and video evidence pertaining to the fraudulent transaction, or (2) Giant Foods concealed or refused to provide such evidence to Thompson during his investigation. (Id. at ¶¶ 11-12). Based on the former allegation, Plaintiff claims that Thompson failed to consider the fingerprint or video evidence when investigating the forged check. (Id. at ¶ 17). Likewise, he alleges that Defendant Giant Foods possessed “video and fingerprint evidence which showed that the plaintiff was not the person who cashed the check.” (Id. at ¶ 15). Nevertheless, he claims that Defendant Thompson “prepared a warrant” for his arrest. (Id. at ¶ 7). He alleges that the forgery charges were instituted against him “to illegally and improperly collect money.” (Id. at ¶ 18). To that end, on December 4, 2014, Defendant Giant Foods filed a restitution affidavit seeking $1, 244.46. (Id. at ¶ 19).

         On December 18, 2014, Plaintiff was arrested in Hoover, Alabama, and held in Hoover's jail. (Id. at ¶ 1). Gadsden police transported him from Hoover to Gadsden and held him until he posted an appearance bond. (Id.). Ultimately, a grand jury issued a no bill and the criminal complaint against Plaintiff was dismissed. (Id. at ¶ 2).

         Along with his motion to dismiss, Defendant Thompson sought leave to submit state-court records to this court for review in conjunction with the motions to dismiss. (Doc. # 76). Plaintiff did not object to this motion. (Id. at 1). According to these records, on November 18, 2014, Minshew submitted a criminal complaint to the Etowah County court that charged Plaintiff with possessing or uttering a forged instrument with intent to defraud, in violation of Alabama Code § 13A-9-6. (Doc. # 76-1 at 2). The criminal complaint states that Defendant Thompson and Minshew are witnesses for the state. (Id.). On November 18, 2014, a district court magistrate signed an arrest warrant against Plaintiff premised on Minshew's criminal complaint. (Doc. # 76-2 at 2). Officers executed the arrest warrant on December 18, 2014, and Plaintiff was placed in Etowah County Jail. (Id.). A district court judge bound the criminal case against Plaintiff to a grand jury in May 2015. (Doc. # 76-3 at 2).

         II. Standard of Review

         The Federal Rules of Civil Procedure require that a complaint provide “a short and plain statement of the claim showing that the pleader 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 Atl. 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. Id. 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, Canfield, Paddock & Stone, PLC, 413 F. App'x 136, 138 (11th Cir. 2011) (quoting Am. Dental Ass'n 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.” Iqbal, 556 U.S. at 679. If the court determines that all of the 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 570.

         In most cases, a court may not consider anything beyond the face of a complaint and documents that are attached to a complaint when reviewing whether a plaintiff has stated a claim for relief. Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007). There are limited exceptions to this rule. Among other exceptions, a court may “take judicial notice of publicly filed documents, such as those in state court litigation, at the Rule 12(b)(6) stage.” U.S. ex rel. Osheroff v. Humana, Inc., 776 F.3d 805, 811 n. 4 (11th Cir. 2015). The state-court records filed by Defendant Thompson fall within the category of documents the court may consider under Rule 12(b)(6). See Id. And, in any event, Plaintiff has not objected to Thompson's request for the court to consider the documents. (See Docs. # 76 at 1; 87). Accordingly, the court will review and consider the criminal complaint, arrest warrant, and order filed by Thompson in ruling on these motions to dismiss. (See Docs. # 76-1, 76-2, & 76-3).

         III. Analysis

         The court begins its analysis by determining whether Plaintiff's § 1983 claim is due to be dismissed as to both Defendants. Then, it discusses whether Plaintiff has plausibly pled a conspiracy under 42 U.S.C. §§ 1981, 1985, or § 1986. Finally, it addresses ...

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