United States District Court, M.D. Alabama, Northern Division
JEREMY LAMAR JOHNSON, Individually and on behalf of all others similarly situated, Plaintiff,
CITY OF MONTGOMERY, a municipality organized and existing under the laws of the State of Alabama, Defendant.
REPORT AND RECOMMENDATION
A. Baker, United States Magistrate Judge.
Jeremy Johnson filed a Complaint in this Court against
Defendant City of Montgomery alleging a single claim that he
and a class of others were denied their procedural due
process rights provided under the Fourteenth Amendment and
protected under 42 U.S.C. § 1983 for Defendant's
failure to adhere to the requirements of § 13A-11-84,
Ala. Code 1975. This matter comes before the Court on
Defendant's motion to dismiss. (Doc. 7). The motion is
fully briefed and taken under submission on the record and
without oral argument.
matter jurisdiction is conferred by 28 U.S.C. § 1331 as
to Plaintiff's federal cause of action. The parties do
not contest personal jurisdiction or venue, and there are
adequate allegations to support both. See 28 U.S.C.
§ 1391. On September 5, 2017, this matter was referred
to the undersigned by U.S. District Judge Myron H. Thompson
for disposition or recommendation on all pretrial matters.
(Doc. 6). See also 28 U.S.C. § 636(b); Rule 72,
Fed. R. Civ. P.; United States v. Raddatz,
447 U.S. 667 (1980); Jeffrey S. v. State Board of
Education of State of Georgia, 896 F.2d 507
(11th Cir. 1990).
BACKGROUND AND STATEMENT OF FACTS
February 2, 2016, Plaintiff was arrested by a police officer
employed by Defendant. (Doc. 1 at ¶ 6). Plaintiff was
carrying a pistol in his vehicle without a valid permit for
that pistol in violation of § 13A-11-73, Ala. Code 1975,
which provides, in pertinent part:
Except on land under his or her control or in his or her own
abode or his or her own fixed place of business, no person
shall carry a pistol in any vehicle or concealed on or about
his or her person without a permit issued under Section
13A-11-75(a)(1) or recognized under Section 13A-11-85.
13A-11-73. Pursuant to § 13A-11-84, the officer seized
the pistol, and Plaintiff subsequently pleaded guilty to
carrying a pistol without a valid permit. Id. at
¶¶ 7-8. Plaintiff sought the return of the pistol.
Id. at ¶ 10. “Plaintiff requested that
the Montgomery Municipal Court set a hearing, which it did on
July 25, 2016. At the hearing, Defendant refused to return
Plaintiff's pistol and gave no explanation as to why his
pistol would not be returned.” Id. “Upon
information and belief, the City of Montgomery has failed to
report the seizure and detention of Plaintiff's pistol to
the Montgomery County District Attorney. As a result, the
Montgomery County district attorney has not instituted
forfeiture proceedings against Plaintiff in accordance with
§ 13A-11-84.” Id. at ¶ 11.
filed his Complaint in this Court on August 14, 2017, seeking
“declaratory and injunctive relief” against
Defendant to comply with § 13A-11-84 and the return of
the seized pistol or money damages. Defendants filed their
motion to dismiss on September 7, 2017. (Doc. 7).
MOTION TO DISMISS STANDARD OF REVIEW
12(b)(6) motion to dismiss tests the sufficiency of the
Complaint against the legal standard set forth in Rule 8:
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
evaluating a motion to dismiss pursuant to Rule 12(b)(6), the
court must take “the factual allegations in the
complaint as true and construe them in the light most
favorable to the plaintiff.” Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
However, “the tenet that a court must accept as true
all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009). “[A]
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires 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.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)).
“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.” Id. at 663
(alteration in original) (citation omitted). “[F]acial
plausibility” exists “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). The standard also “calls for enough facts
to raise a reasonable expectation that discovery will reveal
evidence” of the claim. Twombly, 550 U.S. at
556. While the complaint need not set out “detailed
factual allegations, ” it must provide sufficient
factual amplification “to raise a right to relief above
the speculative level.” Id. at 555.
when the allegations in a complaint, however true, could not
raise a claim of entitlement to relief, ‘this basic
deficiency should ... be exposed at the point of minimum
expenditure of time and money by the parties and the
court.'” Twombly, 550 U.S. 558 (quoting 5
Wight & Miller § 1216, at 233-34 (quoting in turn
Daves v. Hawaiian Dredging Co., 114 F.Supp. 643, 645
(D. Haw. 1953)) (alteration original). “[O]nly a
complaint that ...