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Aswell v. Wal-Mart Stores Inc.

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

November 7, 2018




         This matter is before the court on Walmart Stores, Inc.'s Partial Motion to Dismiss Plaintiff's First Amended Complaint filed on July 27, 2018. (Doc. 3). Walmart Stores, Inc. (“Walmart”) argues that the claims brought pursuant to the Fourteenth Amendment are due to be dismissed because the plaintiff has failed to allege that Walmart is a “state actor.” The plaintiff was given until October 1, 2018, to respond to the motion; to date, the plaintiff has not responded. The parties have consented to dispositive jurisdiction by a United States Magistrate Judge in accordance with 28 U.S.C. § 636(c). (Doc. 9). Accordingly, the court enters the following memorandum opinion.


         Plaintiff brought this suit in the Circuit Court of Jefferson County, Alabama, asserting claims of Fourteenth Amendment violation, false imprisonment, negligence, and negligent hiring, retention, and supervision. The claims all stem from an incident at a Walmart store where the plaintiff was accused of shoplifting, detained by a Walmart employee, and arrested by local police. However, the sole defendant in the case is Walmart. The case was removed by the defendant on July 27, 2018, asserting diversity jurisdiction.[1] (Doc. 1). The defendant filed the motion to dismiss that is now pending before the court on July 27, 2018. (Doc. 3). The plaintiff's response to the motion was due no later than August 16, 2018. (Doc. 5). The plaintiff failed to respond within the proper time period, and the court notified the plaintiff that he was to respond by October 1, 2018. The plaintiff did not respond.


         On a motion to dismiss, the court must accept as true all of the facts alleged in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-51, 173 L.Ed.2d 868 (2009). Federal Rule of Civil Procedure 8(a) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Liberal notice pleading standards embodied in Rule 8(a) “do not require that a plaintiff specifically plead every element of a cause of action, ” Roe v. Aware Woman Ctr. For Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001), or set out in precise detail the specific facts upon which he bases his claim. The complaint must only “contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Id. (quoting In re Plywood Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. Unit A Sept. 8, 1981)).

         The Supreme Court clarified the threshold for a sufficient pleading in Bell Atlantic Corp. v. Twombly. 550 U.S. 544, 570, 127 S.Ct. 1955, 1965 (2007) (rejecting the standard from Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that any “conceivable” set of facts supporting relief is sufficient to withstand a motion to dismiss). To show that “the pleader is entitled to relief, ” under Rule 8(a)(2), the complaint must allege facts that “plausibly” demonstrate a viable cause of action. The threshold of plausibility is met 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). To withstand scrutiny under Rule 12(b)(6) a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face, ” and that will thus “nudge [his] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. This 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. The Eleventh Circuit Court of Appeals has explained that the principles set forth in Twombly and Iqbal require the complaint to set forth sufficient facts that “raise a right to relief above the speculative level.” Speaker v. U.S. Dep't of Health and Human Servs. Centers for Disease Control and Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010).


         I. Motion to Dismiss Count One

         Count One of the complaint in this case expressly alleges a claim under the Fourteenth Amendment to the United States Constitution. Section 1 of the Fourteenth Amendment provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV, § 1. It is well-settled that the Fourteenth Amendment is a limitation on the power of States and those who act under the states' authority as “state actors.” See District of Columbia v. Carter, 409 U.S. 418, 423, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973) (citing Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed.2d. 835 (1883); United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1883); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876)). “The Fourteenth Amendment itself ‘erects no shield against merely private conduct, however discriminatory or wrongful.'” Id. (quoting Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948).

         The remedial vehicle for enforcing the rights enshrined in the Fourteenth Amendment is the cause of action provided by 42 U.S.C. § 1983, which states in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party ...

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