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Lietzke v. City of Montgomery

United States District Court, M.D. Alabama, Northern Division

December 4, 2018

BILL LIETZKE, Plaintiff,
v.
CITY OF MONTGOMERY and KEVIN MURPHY, Defendants.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN, UNITED STATES MAGISTRATE JUDGE

         Before the court is the pro se complaint of Plaintiff Bill Lietzke. Doc. 1. Also pending is a motion to proceed in forma pauperis. Doc. 2. Pursuant to 28 U.S.C. § 636(b)(1) this case was referred to the undersigned United States Magistrate Judge for review and submission of a report with recommended findings of fact and conclusions of law. Doc. 3. For the reasons stated herein, the Magistrate Judge RECOMMENDS that the motion to proceed in forma pauperis (Doc. 2) be GRANTED, but that the action be DISMISSED prior to service of process pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)[1] for failure to state a claim upon which relief can be granted.

         I. JURISDICTION AND VENUE

         The court has subject-matter jurisdiction over the claims in the action pursuant to 28 U.S.C. § 1331. The court finds adequate allegations to support both jurisdiction and venue in the Middle District of Alabama.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         Lietzke filed this action in the Eastern District of California on August 30, 2018. Doc. 1. Pursuant to 28 U.S.C. § 1631, the District Court for the Eastern District of California transferred the case to this district. Doc. 3. This is not the first time that Lietzke has brought allegations such as these against these defendants. See, e.g., Lietzke v. City of Montgomery, et al., 2:17-cv-609-MHT-GMB (Doc. 6 at 23).

         The facts alleged in the complaint are as follows. On or around May 26, 2017 at approximately 4:45 p.m., City of Montgomery police officers detained Lietzke on the corner of Monroe Street and South Lawrence Street in Montgomery, Alabama. Doc. 1 at 2. The officers inquired, “What's going on?” Doc. 1 at 2. They also informed Lietzke that the City of Montgomery had received a call that he was chasing someone. Doc. 1 at 2. However, Lietzke maintains that he was not engaged in any unlawful activities. Doc. 1 at 2. He was later released on his own recognizance. Doc. 1 at 2.

         III. STANDARD OF REVIEW

         The same standards governing dismissal under Federal Rule of Civil Procedure 12(b)(6) also govern the review of a complaint under § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted. See Douglas v. Yates, 535 F.3d 1316, 1320 (11th Cir. 2008). In evaluating the sufficiency of a complaint, the court must indulge reasonable inferences in the plaintiff's favor but is “not required to draw plaintiff's inference.” Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). Similarly, “unwarranted deductions of fact” are not admitted as true for the purpose of testing the sufficiency of a plaintiff's allegations. Id.

         A complaint may be dismissed if the facts as pleaded do not state a claim for relief that is plausible on its face. See Iqbal, 556 U.S. at 679 (explaining that “only a complaint that states a plausible claim for relief survives a motion to dismiss”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561, 570 (2007) (retiring the prior standard allowing dismissal only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim”). In Twombly, the Supreme Court emphasized that a complaint “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 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Factual allegations in a complaint need not be detailed but “must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (internal citations omitted). “[U]nadorned, the-defendant-unlawfully-harmed-me accusation[s]” will not suffice. Iqbal, 556 U.S. at 678. Further, when a successful affirmative defense (such as the statute of limitations) appears on the face of the complaint, dismissal for failure to state a claim also is warranted. Jones v. Bock, 549 U.S. 199, 215 (2007).

         In addition to the pleading requirements of Twombly and Iqbal, a plaintiff's pro se status must be considered when evaluating the sufficiency of a complaint. “A document filed pro se is ‘to be liberally construed,' and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Yet any leniency cannot serve as a substitute for pleading a proper cause of action. See Odion v. Google Inc., 628 Fed.Appx. 635, 637 (11th Cir. 2015) (recognizing that although courts must show leniency to pro se litigants, “this leniency does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action”) (internal quotation marks omitted). “While the pleadings of pro se litigants are liberally construed, they must still comply with procedural rules governing the proper form of pleadings.” Hopkins v. St. Lucie Cnty. Sch. Bd., 399 Fed.Appx. 563, 565 (11th Cir. 2010) (internal citations and quotation marks omitted).

         III. DISCUSSION

         Lietzke claims that the defendants acted “without probable cause and without lawful privilege therefor, abridging the Plaintiff's right of the people peaceably to assemble under the First Amendment, and abridging the Plaintiff's right to plead the Fifth Amendment of the United States Constitution.” Doc. 1 at 2. He seeks monetary damages for these violations. Doc. 1 at 2. The court construes Lietzke's allegations as an attempt to state First Amendment, Fourth Amendment, and Fifth Amendment claims. Lietkze also appears to assert state-law claims for libel and slander. Doc. 1 at 2.

         Title 42 U.S.C. § 1983 imposes liability on any person who, under color of state law, deprives any citizen of the United States “of any rights, privileges, or immunities secured by the Constitution and laws[.]” In this way, § 1983 provides citizens with the mechanism to enforce their individual rights guaranteed by the United States Constitution. E.g., Gonzaga Univ. v. Doe, 536 U.S 273, 285 (2002); Micklas v. Doe, 450 Fed.Appx. 856, 857 (11th Cir. 2012). ...


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