Merritt v. Richmond County Sheriff Office

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION BRODRICK KYLE MERRITT, ) ) Plaintiff, ) ) v. ) CV 119-099 ) RICHMOND COUNTY SHERIFF OFFICE, ) ) Defendant. ) MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Plaintiff, a pretrial detainee at Charles B. Webster Detention Center in Augusta, Georgia, brought the above-captioned case pursuant to 42 U.S.C. § 1983 . Because he is proceeding in forma pauperis (“IFP”), Plaintiff’s complaint must be screened to protect potential defendants. Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984); Al-Amin v. Donald, 165 F. App’x 733, 736 (11th Cir. 2006) (per curiam). I. SCREENING OF THE COMPLAINT A. BACKGROUND Plaintiff names Richmond County Sheriff Office (“RCSO”) as the only Defendant. (Doc. no. 1, p. 2.) Taking all of Plaintiff’s factual allegations as true, as the Court must for purposes of the present screening, the facts are as follows. In April 2018, Plaintiff fired the attorney he retained for his underlying criminal charges, and in June or July 2018, the state criminal court appointed Dan Franck to represent Plaintiff. (Id. at 5.) Plaintiff alleges there has been no communication, visitation, or answer from his attorney Dan Franck since he began representing Plaintiff. (Id.) Plaintiff filed complaints with the State Bar of Georgia. (Id. at 7-8.) B. DISCUSSION 1. Legal Standard for Screening The complaint or any portion thereof may be dismissed if it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune to such relief. See 28 U.S.C. §§ 1915 (e)(2)(B) and 1915A(b). A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). “Failure to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6).” Wilkerson v. H & S, Inc., 366 F. App’x 49, 51 (11th Cir. 2010) (citing 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 in the complaint must “state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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 (2009). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 . While Rule 8(a) of the Federal Rules of Civil Procedure does not require detailed factual allegations, “it demands more than an unadorned, the defendant unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 . A complaint is insufficient if it “offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of [2] a cause of action,’” or if it “tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 555, 557 ). In short, the complaint must provide a “‘plain statement’ possess[ing] enough heft to ‘sho[w] that the pleader is entitled to relief.’” Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)(2)). Finally, the court affords a liberal construction to a pro se litigant’s pleadings, holding them to a more lenient standard than those drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972); Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, this liberal construction does not mean that the court has a duty to re-write the complaint. Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006). 2. Plaintiff Fails to State a Claim Against RCSO The Eleventh Circuit has held that a district court properly dismisses a defendant where a plaintiff fails to state any allegations that associate the defendant with the purported constitutional violation. Douglas v. Yates, 535 F.3d 1316, 1321-22 (11th Cir. 2008) (“While we do not require technical niceties in pleading, we must demand that the complaint state with some minimal particularity how overt acts of the defendant caused a legal wrong.”). Plaintiff’s allegations are entirely concerning his appointed attorney Dan Franck. (Doc. no. 1.) Plaintiff alleges no facts connecting RCSO to Dan Franck. Therefore, Plaintiff fails to state a claim against RCSO. Additionally, RCSO is not a proper party because sheriff’s department are not legal entities capable of being sued. See Herrington v. Effingham Cty. Sheriff’s Office, CV 411099, 2011 WL 2550464 , at *1 (S.D. Ga. April 21, 2011) (citing Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir.1992)) (“However, [Plaintiff] cannot sue the sheriff's department [3] because it is not capable of being sued.”); Smith v. Dekalb Cty. Sheriff’s Office, Civil Action No. 1:09-CV-2820-TWT, 2010 WL 308984 , at *2 (N.D. Ga. Jan. 22, 2010) (same). Further, appropriate parties for suit under § 1983 include “persons” who participated in the alleged violation. See 42 U.S.C. § 1983 (subjecting only “persons” to liability); Ga. Insurers Insolvency Pool v. Elbert Cty., 368 S.E.2d 500, 502 (Ga. 1988) (limiting § 1983 liability to “(1) natural persons; (2) an artificial person (a corporation); and (3) such quasi-artificial persons as the law recognizes as being capable to sue’’) (quotations omitted). Il. CONCLUSION For the reasons set forth above, the Court REPORTS and RECOMMENDS Plaintiff's complaint be DISMISSED for failure to state a claim upon which relief may be granted and this civil action be CLOSED. SO REPORTED and RECOMMENDED this 12th day of September, 2019, at Augusta, Georgia. UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA