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Crooker v. City of Mobile Police Department

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

July 8, 2019

JOHNNY LEE CROOKER, #16718-03, Plaintiff,
v.
CITY OF MOBILE POLICE DEPARTMENT, et al., Defendants.

          REPORT AND RECOMMENDATION ON AMENDED COMPLAINT

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.

         I. Proceedings.

         This 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).

         In the 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).

         Plaintiff 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. (Id.).

         The 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.).

         The 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).

         Plaintiff 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 injury. (Id.).

         As a 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).

         With 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 attachment. (Id.).

         II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

         Because 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. Id.[1]

         Moreover, 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.'” Twom ...


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