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