United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION ON AMENDED
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
a federal prison inmate proceeding pro se and in
forma pauperis, filed an action under 42 U.S.C. §
1983, which was referred to the undersigned for appropriate
action pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D.
Ala. GenLR 72(a)(2)(R). It is recommended that this action be
dismissed without prejudice, prior to service of process,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to
state a claim upon which relief can be granted.
action is before the Court on Plaintiff's Amended
Complaint (Doc. 9), which he filed after the undersigned
entered a Report and Recommendation recommending the
dismissal of his original complaint for failure to state a
claim upon which relief can be granted as well as inviting
him to file an amended complaint for the purpose of stating a
claim. (Doc. 6). Because Plaintiff filed an amended
complaint, Chief Judge DuBose declined to adopt the initial
Recommendation and referred the amended complaint to the
undersigned for consideration pursuant to 28 U.S.C. §
1915(e)(2)(B). (Doc. 10).
original § 1983 complaint, Plaintiff sued an unknown
police officer with the City of Mobile Police Department
(“MPD”) and an unknown tow-truck operator with
West's Towing-Lockout (“West”) for injuries
he sustained and for damages to his truck and trailer when
the operator attempted to drive Plaintiff's vehicle onto
the roll-back wrecker without disengaging the trailer,
causing it to be propelled backward at high rate of speed and
to collide with the police vehicle in which he was being
held. (Doc. 6 at 1-2). The prior recommendation of dismissal
was based on the tow-truck operator not being a state actor,
the police officer being unidentified and therefore a
fictitious party, and negligence being the basis for
Plaintiff's claims, which is not recognized as a viable
theory of liability under § 1983. (Id. at 5-7).
accepted the invitation to file an amended complaint for the
purpose of stating a claim against these Defendants. (Doc. 6
at 8, citing Bank v. Pitt, 928 F.2d 1108, 1112 (11th
Cir. 1991); Doc. 9)). In the amended complaint, Plaintiff
names the MPD and West as Defendants, the apparent employers
of the unknown Defendants in the original complaint.
(Id. at 6). The claims against these new Defendants
are based on the incident in his original complaint. In the
amended complaint, according to Plaintiff, he “was
approached by a City of Mobile Police Officer, doing business
as (d/b/a/) the City of Mobile Police [D]epartment.”
while he stopped for fuel at a gas station. (Id. at
4). Plaintiff was informed that there was an outstanding
federal warrant against him, that his truck and sixteen-foot
utility trailer with contents were being impounded, and that
his passenger could not take possession of them.
arresting officer contacted dispatch for removal of
Plaintiff's truck and trailer. (Id.).
“[D]ispatch contacted the department[']s
contractor, d/b/a Wests Towing-Lockout.”
(Id.). Plaintiff was handcuffed behind his back and
placed in the police vehicle. (Id. at 3-4). The
tow-truck operator attempted to drive Plaintiff's truck
onto the incline ramp of the roll-back tow truck without
first attaching cables or chains to the truck or disengaging
the trailer. (Id. at 4). The truck became dislodged
from the ramp due to the extreme weight of the attached
trailer and was propelled backward down the ramp at a
high-rate of speed, colliding with the police vehicle
Plaintiff was in. (Id.). Damage occurred to the
truck, trailer, and police vehicle, and medics were called to
the scene. (Id.).
arresting officer would not allow Plaintiff to be examined by
the medics, insisting that Plaintiff remain in the
vehicle's back seat. (Id.). Medics allegedly
gave him an improper examination and recommended x-rays be
taken at the jail. (Id.). He was transferred to
another police vehicle and was taken to the jail.
(Id.). At the jail, he informed intake of the
accident and his resulting pain. (Id.). He was
scheduled to be seen by the medical staff the next day for
x-rays. (Id.). The next day the medical staff saw
him, and afterwards he received x-rays of his chest, instead
of his neck, shoulder, and arm where he had pain.
(Id.). His subsequent numerous complaints went
unanswered, and he did not receive anything for pain.
(Id.). A month and half later at a federal holding
facility, he received proper treatment. (Id.). But
he still has limited range of motion in his arm and shooting
pain from his neck and shoulder. (Id.). Plaintiff
has been unable to obtain a copy of the police department
report documenting the accident and eventually was informed
that he would need to submit a subpoena for further
information. (Id. at 5).
contends that Mobile Police Department is a state agency and
has a sworn duty to uphold the law and to act in accordance
with their obligations. (Id.). That is, everyone has
right to be free from harm and injury “due to the
negligence and willful indifference of state actors.”
(Id.). Plaintiff maintains that the
“aforementioned actions placed numerous people at risk
of injury, . . . which . . . was fortunately confined, [but]
the negligence exhibited here could have easily become
catastrophic . . . due to the proximity of flammable liquids
and pedestrian traffic. . . .” (Id.).
Plaintiff asserts that both state actors failed in their
responsibilities to avoid creating a dangerous situation
through their inattention, which resulted on damage and
consequence, Plaintiff seeks compensatory damages for the
deprivation of his property and for his pain, suffering, and
irreversible injury, court costs, and attorney fees.
(Id. & Id. at 8).
respect to his specific claims against Defendant MPD,
Plaintiff describes his claim as being for negligence, which
resulted in his injury and loss of property, as reflected in
his attachment. (Id. at 6). Then, with respect to
Defendant West, he describes his claim as “negligence
resulting in injury” based on the facts in the
Standards of Review Under 28 U.S.C. §
Plaintiff is proceeding in forma pauperis, the Court
is reviewing his amended complaint (Doc. 9) under 28 U.S.C.
§ 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim
may be dismissed as “frivolous where it lacks an
arguable basis in law or fact.” Neitzke v.
Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32,
104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of
law where, inter alia, the defendants are immune
from suit, id. at 327, 109 S.Ct. at 1833, or the
claim seeks to enforce a right that clearly does not exist.
a complaint may be dismissed under 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim upon which
relief may be granted. Mitchell v. Farcass, 112 F.3d
1483, 1490 (11th Cir. 1997). To avoid dismissal for failure
to state a claim upon which relief can be granted, the
allegations must show plausibility. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167
L.Ed.2d 929 (2007). “A claim has facial plausibility
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, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009). That is, “[f]actual allegations
must be enough to raise a right to relief above the
speculative level” and must be a “‘plain
statement' possess[ing] enough heft to ‘sho[w] that
the pleader is entitled to relief.'”