United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
M. BORDEN, UNITED STATES MAGISTRATE JUDGE
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) for failure to state a claim upon which
relief can be granted.
JURISDICTION AND VENUE
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.
FACTUAL AND PROCEDURAL BACKGROUND
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).
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.
STANDARD OF REVIEW
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.
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
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).
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).
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.
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). ...