Grissom v. Verizon Wireless, Inc.

          RECOMMENDATION OF MAGISTRATE JUDGE

          WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the Second Amended Complaint^[1] filed by Christian Andre Grissom (“Plaintiff” or “Grissom”). Doc. 17. This case has been referred to the undersigned Magistrate Judge “for all pretrial proceedings and entry of any orders or recommendations as may be appropriate.” Doc. 18. Plaintiff requested and was granted leave to proceed in forma pauperis to the extent set forth in this Court's Order of April 9, 2019. Docs. 4 and 6. Pursuant to 28 U.S.C. § 1915(e) governing proceedings in forma pauperis, courts are instructed, notwithstanding any filing fee or any portion thereof that may have been paid, to dismiss any action wherein it is determined that the case is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Upon review of Plaintiff's Complaint, the undersigned finds that this case is due to be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) because it fails to state a claim on which relief may be granted.

         I. STANDARD OF REVIEW

         A review of the Complaint for purposes of § 1915(e)(2)(B)(ii) begins with analysis of whether it complies with the pleading standard applicable to all civil complaints in federal courts. See Thompson v. Rundle, 393 Fed.Appx. 675, 678 (11th Cir. 2010) (citations omitted) (“A dismissal under § 1915(e)(2)(B)(ii) is governed by the same standard as dismissal under Federal Rule of Civil Procedure 12(b)(6). Dismissal for failure to state a claim is appropriate when the facts as pleaded do not state a claim for relief that is ‘plausible' on its face.”). Rule 8 of the Federal Rules of Civil Procedure requires that a plaintiff file a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In general, then, a pleading is insufficient if it offers only mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action[.]” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (a complaint does not suffice under Rule 8(a) “if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'”). Thus, in order to satisfy Rule 8(a), Plaintiffs' complaint “‘must contain sufficient factual matter, accepted as true, to ‘state a claim for relief which is plausible on its face.'” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1051 (11th Cir. 2015) (quoting Iqbal, 556 U.S. at 678). “A claim is factually plausible where the facts alleged permit the court to reasonably infer that the defendant's alleged misconduct was unlawful. Factual allegations that are merely consistent with a defendant's liability are not facially plausible. Id.

         As a general matter, “[i]n the case of a pro se action . . . the court should construe the complaint more liberally than it would a formal pleadings drafted by lawyers.” Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). However, although district courts must apply a “less stringent standard” to the pleadings submitted by a pro se plaintiff, such “‘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.'” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014) (quoting GJR Invs., Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)). Accordingly, the Complaint in this action, even if liberally construed, must minimally satisfy Rule 8(a) of the Federal Rules of Civil Procedure in order to survive review under § 1915(e).

         II. PLAINTIFF'S CLAIMS

         Plaintiff alleges that on or about August 10, 2014, Verizon Wireless, Inc. (“Defendant” or “Verizon”) “negligently in violation of [his] right to privacy and 4th and 14th amendment rights, released [his] phone records that were used arbitrarily to arrest and falsely imprison him.” Doc. 17 at 2. In describing the events leading up to the production of the documents, Grissom states that Verizon was contacted by the Russell County Sheriff on August 7, 2014, “under the false premise of compliance with Title 18, Part 1, Chapter 121 subsection 2703(d) U.S.C. requesting Grissom's phone records because a relevant investigation was going on of a life-threatening situation.” Doc. 17 at 2. Grissom then alleges that the sheriff never complied with the provisions of the cited statute, “as he never submitted any facts, court order, or narrative [as to] how Grissom was involved with the request and [ ] facts substantiating . . . a life-threatening situation.” Id. Grissom further alleges that he did not become aware of the alleged violations by Verizon “until he was provided a copy and heard testimony of a suppression hearing in August 2017, of Sheriff Taylor's information given to Verizon.” Doc. 17 at 2. He filed this lawsuit on March 18, 2019. Doc. 1.

         Grissom does not describe the manner in which the sheriff allegedly contacted Verizon on August 7, 2014, which documents were requested or provided, or the information provided to Verizon as part of this request. However, in addition to his Complaint, Grissom filed a document entitled “Motion for Summary Judgment, ” with which he filed copies of three documents relating to the disclosure of his cell phone records: (1) a letter from an investigator at the Russell County Sheriff's Office to Verizon dated August 10, 2014; (2) an application and affidavit for search warrant dated April 11, 2014; and (3) a search warrant issued on August 11, 2014, by the District Court of Russell County, Alabama, ordering Verizon to produce Grissom's cell phone records within ten days. Docs. 19-3, 19-4, and 19-5.

         The August 10th letter from the Russell County Sheriff's Office states as follows:

We will be requesting telephone records which we believe will provide important evidence in our case. The court order, which will follow, will comply with all requirements outlined in United States Code, Title 18, Part 1, Chapter 121, Sub section 2703(d). The court order will be obtained with a sworn affidavit which will include “[s]pecific and articulable facts.

We are sending this notice to request the records be pulled and held before they are lost and cannot be recovered. The court order will follow within 30 days.

Doc. 19-3 at 1. The application and affidavit for search warrant described how Grissom had been seen with 19-year-old Keonte Chavis before her disappearance and that her body had been discovered two days later. Doc. 19-3 at 1-2. It further described how, within an hour after Ms. Chavis's last known communication, Grissom's cell phone had hit a cellular tower less than one mile from the location where her body was found. Id. In response to the application and affidavit, the District Court of Russell County issued a search warrant containing a finding of probable cause and ordering production of Grissom's cell phone records. Doc. 19-5 at 1. Based on the undersigned's reading of materials filed by Grissom, his Complaint is based on the disclosure of information showing his proximity to the location where Ms. Chavis's body was discovered, which was used to support the application for a search warrant and, thus, disclosed prior to obtaining a search warrant.^[2]

         III. DISCUSSION

         Although Grissom does not cite to 42 U.S.C. § 1983 in his Complaint, § 1983 is the statute that provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights. Conn v. Gabbert,526 U.S. 286, 290 (1999). Plaintiff has no direct right of action under the Constitution, so his constitutional claims are due to be dismissed on this failure alone. See Bush v. Frazier, No. 2:18-CV-00732-SGC, 2019 WL 3305145, at *8 (N.D. Ala. July 23, 2019); Barbee v. Naphcare, Inc., 2007 WL 9712008, at *3 (N.D. Ala. Aug. 9, 2007) (dismissing claims for ...