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Fuqua v. Turner

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

April 20, 2018

DOUGLAS FUQUA, Plaintiff,
v.
BRETT TURNER, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE.

         Douglas Fuqua brings this action against the Defendants asserting claims under 42 U.S.C. §§ 1983 and 1985 and state law claims of unlawful entry and search, false arrest, and false imprisonment. Doc. 1. Before the court are Fuqua’s Motion for Leave to Amend Complaint, doc. 46, and Adam Nesmith and Brett Turner’s motion to dismiss, doc. 40, both of which are fully briefed, docs. 44, 45, and ripe for review. For the reasons stated more fully below, the motion to dismiss is due to be granted.

         I. FUQUA’S MOTION FOR LEAVE TO AMEND COMPLAINT

         Fuqua’s proposed Amended Complaint incorporates his original Complaint, and adds a state law claim of malicious prosecution against all Defendants. See doc. 46-1. The motion for leave to amend is due to be denied as futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). The elements of a malicious prosecution action are (1) that the defendant initiated a judicial proceeding against the plaintiff, (2) that the judicial proceeding was instituted without probable cause, (3) that the defendant instituted the proceedings maliciously, (4) that the judicial proceeding had been terminated in favor of the plaintiff, and (5) that the plaintiff suffered damage as a proximate result of the judicial proceeding. Eidson v. Olin Corp., 527 So. 2d 1283, 1284 (Ala. 1988) (citing Smith v. Wendy’s of the South, Inc., 503 So.2d 843, 844 (Ala. 1987)).

         Fuqua does not plead any facts to support his conclusory allegation that the Defendants lacked probable cause to believe he was a felon in possession of a firearm. See doc. 42-1 at 2; see also Ex parte Harris, 216 So. 3d 1201');">216 So. 3d 1201, 1215 n.2 (Ala. 2016) (“Probable cause for a malicious-prosecution claim is not determined at the time of the arrest but when the defendant (usually the arresting officer) initiates the prosecution by filing a report with the prosecutor, submitting an affidavit, or giving grand-jury testimony”) (citation omitted). As such, he has failed to plead facts to support a claim of malicious prosecution. In addition, while “[m]alicious-prosecution actions are not disallowed against arresting police officers simply because they are not the individuals who ultimately decide to institute a criminal proceeding,” Ex parte Harris, 216 So. 3d at 1215 n.2 (citation omitted), Fuqua’s proposed Amended Complaint alleges that only Nesmith and Turner arrested him, and is silent on whether the officers took any additional actions beyond the arrest, see doc. 1 at 6. His malicious prosecution claim against Sheriff Williamson and Jimmy Collier fails also for that reason. Accordingly, Fuqua’s proposed Amended Complaint is futile, and, as such, his motion to amend is due to be denied.

         II. MOTION TO DISMISS[1]

         Fuqua brings § 1983 claims[2] for conspiracy to violate the Fourth and Fourteenth Amendments and unreasonable search in violation of the Fourth Amendment, a § 1985 claim for conspiracy to deprive Fuqua of his equal protection rights, and state law claims of unlawful entry and search, false arrest, and false imprisonment against all Defendants in their individual and official capacities. Id. at 2-3, 6-10. Presently before the court is Nesmith and Turner’s motion to dismiss, doc. 40.

         Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. “To 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and internal quotation marks omitted). A complaint states a facially plausible claim for relief “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. (citation omitted). The complaint must establish “more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level.”). Ultimately, this inquiry is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

         Turning now to the specifics here, Nesmith and Turner move to dismiss all claims against them on various grounds. Doc. 40. As two of these are dispositive- improper service and qualified immunity-the court does not reach the other grounds raised.

         A. Improper Service of Process

         “Service of process is a jurisdictional requirement: a court lacks jurisdiction over the person of a defendant when that defendant has not been served.” Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990). When defendants are not properly served, it is improper for the court to reach the merits of the case; rather, the court should dismiss it without prejudice. See, e.g., Kabbaj v. Obama, 568 F. App’x 875, 881 (11th Cir. 2014) (citing Pardazi, 896 F.2d at 1317); Jackson v. Warden, FCC Coleman-USP, 259 F.App’x 181, 183 (11th Cir. 2007) (citing Pardazi, 896 F.2d at 1317); Davis v. Chase Bank, No. 1:17-CV-4206-WSD, 2018 WL 338956, at *3 (N.D. Ga. Jan. 9, 2018) (citing Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 n.6 (11th Cir. 1999); Pardazi, 896 F.2d at 1317; Read v. Ulmer, 308 F.2d 915, 917 (5th Cir. 1962)). The plaintiff bears the burden of proving proper service. Hyundai Merch. Marine Co. v. Grand China Shipping (Hong Kong) Co., 878 F.Supp.2d 1252, 1263 (S.D. Ala. 2012) (citing Cornwall v. Miami-Dade Cty. Corr. & Rehab. Dep’t, No. 10-23561-CIV, 2011 WL 3878352, at *2 (S.D. Fla. Aug. 31, 2011)).

         Nesmith and Turner contend that Fuqua has failed to properly serve them. Doc. 40 at 7-12. To serve a United States officer sued in his official capacity, “a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).” Fed. R. Civ. P. 4(i)(3).

         To serve the United States, a party must:

(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought-or to an assistant United States attorney or clerical employee whom the United States attorney ...

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