United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant Baldwin County,
Alabama Sheriff Huey “Hoss” Mack's
(“Sheriff Mack”) Motion to Dismiss (Doc. 27),
Pro se Plaintiff Daniel Hails'
(“Plaintiff”) Response (Doc. 37), and Sheriff
Mack's Reply (Doc. 40). This motion has been referred to
the undersigned United States Magistrate Judge for report and
recommendation pursuant to 28 U.S.C. § 636(b) and S.D.
Ala. GenLR 72(b). Upon consideration, and for the reasons
stated herein, the undersigned RECOMMENDS
that Sheriff Mack's Motion to Dismiss (Doc. 27) be
Amended Complaint (Doc. 23) raises a number of 42 U.S.C.
§ 1983 claims against thirteen defendants, including two
police officers from the Silverhill, Alabama Police
Department, ten deputies from the Baldwin County, Alabama
Police Department, and Sheriff Mack. All Defendants have
moved to dismiss Plaintiff's claims (See Docs.
27, 29, and 32).
Amended Complaint contains numerous allegations against the
twelve other defendants, including 42 U.S.C. § 1983
claims for false arrest, false imprisonment, and malicious
prosecution. However, Plaintiff makes only one allegation
against Sheriff Mack, and has provided little information
with regard to that allegation. Specifically, Plaintiff
alleges that Sheriff Mack “arbitrarily deni[ed] [his]
pistol renewal based upon a [f]alse charge and arrest with no
conviction.” (Doc. 23 at 13, ¶ 81). Though not
specific as such in the Amended Complaint, from the briefing
it appears Plaintiff has attempted to raise a Fourteenth
Amendment procedural due process claim against Sheriff Mack.
Mack has moved to dismiss Plaintiff's claim against him
pursuant to Federal Rule of Civil Procedure 12(b)(6) arguing,
in sum, that: 1) Plaintiff has failed to allege an actionable
wrong against him under § 1983; 2) that he is entitled
to qualified immunity; and 3) that the Amended Complaint
fails to identify a substantive source the alleged violation
of rights. (Doc. 28).
considering a Federal Rule of Civil Procedure 12(b)(6) motion
to dismiss, the Court must accept as true the allegations set
forth in the complaint drawing all reasonable inferences in
the light most favorable to the plaintiff. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). A
complaint offering mere “labels and conclusions”
or “a formulaic recitation of the elements of a cause
of action” is insufficient. Ashcroft v. Iqbal,
556 U.S 662, 678 (2009) (quoting Twombly, 550 U.S. at 555;
accord Fin. Sec. Assurance, Inc. v. Stephens, Inc.,
500 F.3d 1276, 1282-83 (11th Cir. 2007). Further, the
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 (citing Twombly, 550 U.S. at 570). Put
another way, a plaintiff must plead “factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. This so-called “plausibility
standard” is not akin to a probability requirement;
rather, the plaintiff must allege sufficient facts such that
it is reasonable to expect that discovery will lead to
evidence supporting the claim. Id.
cites 42 U.S.C. § 1983 as the basis for his claim
against Sheriff Mack. “Section 1983 ‘is not
itself a source of substantive rights, ' but merely
provides ‘a method for vindicating federal rights
elsewhere conferred.'” Albright v. Oliver,
510 U.S. 266, 271 (1994) (plurality opinion)(quoting
Baker v. McCollan, 443 U.S. 137, 144, n.3 (1979).
Thus, to plead a plausible claim, the first step for any
plaintiff is to identify the specific constitutional right
allegedly violated. Albright v. Oliver, 510 U.S.
266, 271 (1994). Sheriff Mack argues that the Amended
Complaint fails to identify the specific constitutional right
Plaintiff alleges was violated. (Doc. 28 at 7). The
undersigned agrees and finds that Plaintiff has failed to
properly plead a plausible claim as a result. Id.
Often, a pro se plaintiff is permitted an
opportunity to amend his complaint when it fails to state a
claim. However, for the reasons discussed herein, even if
Plaintiff were permitted another opportunity to amend his
complaint with regard to his allegation against Sheriff Mack,
the claim would still fail, as it is not cognizable under
only claim against Sheriff Mack is based on his allegation
that Sheriff Mack “arbitrarily deni[ed] [his] pistol
renewal based upon a [f]alse charge and arrest with no
conviction.” (Doc. 23 at 13, ¶ 81). Pursuant to
Ala. Code § 13A-11-75(a)(1)(a)-(c):
The sheriff of a county, upon the application of any person
residing in that county, within 30 days from receipt of a
complete application and accompanying fee, shall issue or
renew a permit for such person to carry a pistol in a vehicle
or concealed on or about his or her person within this state
for one -to five-year increments, as requested by the person
seeking the permit, from date of issue, unless the sheriff
determines that the person is prohibited from the possession
of a pistol or firearm pursuant to state or federal law, or
has a reasonable suspicion that the person may use a weapon
unlawfully or in such other manner that would endanger the
person's self or others. In making such determination,
the sheriff may consider whether the applicant:
1. Was found guilty but mentally ill in a criminal case.
2. Was found not guilty in a criminal case by reason of
insanity or mental ...