United States District Court, N.D. Alabama, Northwestern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE.
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.
FUQUA’S MOTION FOR LEAVE TO AMEND COMPLAINT
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)).
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.
MOTION TO DISMISS
brings § 1983 claims 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.
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.
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.
Improper Service of Process
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)).
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).
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 ...