United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
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.
Relevant Allegations in the Second Amended Complaint
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).
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).
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
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).
Standard of Review
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.
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.
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.
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).
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 ...