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Curry v. County of Clayton

United States District Court, N.D. Georgia, Atlanta Division

April 28, 2017

DEBRA DENISE CURRY, Plaintiff,
v.
COUNTY OF CLAYTON, TERRY BASKIN, TOMISHA SMITH, OFFICER A. COWELL, DANIELLE JONES, CHIEF MICHAEL REGISTER, DETECTIVE MCCART, MICHAEL MURPHY, and CHARLES REED, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the required frivolity review, under 28 U.S.C. § 1915(e)(2)(B), of Plaintiff Debra Denise Curry's (“Plaintiff”) Complaint [3].

         I. BACKGROUND

         On November 28, 2016, Plaintiff filed her Application for Leave to Proceed In Forma Pauperis (“IFP Application”) [1]. On December 1, 2016, Magistrate Judge Catherine M. Salinas granted Plaintiff's IFP Application and submitted Plaintiff's pro se Complaint [3] to this Court for a frivolity review. ([2]).

         Plaintiff's Complaint alleges that, on May 3, 2016, she drove to the Clayton County Tag Office to renew her vehicle registration. (Compl. ¶¶13, 45). Plaintiff's daughter and a friend were passengers in the car. (Compl. ¶ 13). When Plaintiff arrived, she spoke with the officer manager, Defendant Tamisha Smith (“Smith”), who told her to contact the Clayton County Tax Commissioner's Office. (Compl. ¶ 13). Plaintiff called the Tax Commissioner's Office and spoke with Defendant Danielle Jones (“Jones”), who told her that Defendant Terry Baskin (“Commission Baskin”), the Clayton County Tax Commissioner, was required to authorize her registration renewal. (Compl. ¶¶ 9, 13). Jones explained that Baskin was currently unavailable. (Compl. ¶ 13).

         After her conversation with Jones, Plaintiff returned to the Tag Office to pay the registration renewal fee. (Compl. ¶ 13). Smith would not allow Plaintiff to pay the fee, and was “rude and obnoxious.” (Compl. ¶ 13). Plaintiff “tried to explain that she couldn't drive her car without her registration.” (Compl. ¶ 13). Defendant Officer A. Cowell (“Officer Cowell”), a Clayton County police officer, told Plaintiff “if you don't leave this building I will throw you out.” (Compl. ¶¶ 10, 13). Plaintiff asked for Officer Cowell's badge number and threatened to report her to “Internal Affairs.” (Compl. ¶ 13). Plaintiff then returned to her vehicle and called the Office of the Clayton County Chief of Police (the “Chief of Police's Office”), Michael Register (“Chief Register”). (Compl. ¶¶ 8, 13).

         While Plaintiff was on the phone with the Chief of Police's Office, two police cars arrived, apparently at the request of Officer Cowell. (Compl. ¶ 13). Defendant Michael Murphy (“Officer Murphy”), a Morrow County police officer, was in one of the cars. (Compl. ¶ 13). Plaintiff exited her vehicle and approached Officer Murphy. (Compl. ¶ 13). “[B]efore [Plaintiff] knew what was happening Officer Murphy grabbed the phone out of her hands, and slammed it down onto her vehicle, and twirled her around, and forcefully put handcuffs on the defendant.” (Compl. ¶ 13). Plaintiff alleges that Officer Murphy arrested her without probable cause or a warrant, and that the handcuffs “stopped circulation in her wrists while she sat screaming in pain.” (Compl. ¶¶ 3, 36).[1] “Plaintiff asked her daughter to take her phone and film everything, and she was told by the officer that if she filmed it he would arrest her; she stopped temporarily but started up right after [the officer] walked away.” (Compl. ¶ 13). Officer Cowell allegedly searched Plaintiff's vehicle, and unnamed officers obtained identification from Plaintiff and the passengers in Plaintiff's car. (Compl. ¶¶ 36, 30-32, 36, 70).

         Over the next six days, after Plaintiff “was released and forced to pay a bail, ” Commissioner Baskin prohibited Plaintiff from coming into the office to pay her registration renewal fee. (Compl. ¶ 15). In July 2016, Plaintiff was tried in state court on unnamed charges arising out of the incident for which she was arrested by Officer Murphy. (Compl. ¶¶ 3, 13). Plaintiff alleges that Commissioner Baskin, Smith, Jones, and Officer Cowell committed perjury at the trial. (Compl. ¶¶ 3, 13, 17). The jury found Plaintiff “not guilty on every charge.” (Compl. ¶ 13).

         Plaintiff asserts claims, under 42 U.S.C. § 1983, for (i) excessive force and unlawful search and seizure in violation of the Fourth and Fourteenth Amendments (Count 1), and (ii) “unconstitutional denial and suppression of the right of free speech and the right to question the conduct of police officers, and conduct every day rights of services, ” in violation of the First and Fourteenth Amendments (Count 3). (Compl. at 8, 12). Plaintiff also asserts state law claims for excessive force and unlawful search and seizure (Count 2), “unconstitutional denial and suppression of the right of free speech and the right to question the conduct of police officers” (Count 4), false imprisonment (Count 5), assault (Count 6), battery (Count 7), trespass and damage to property (Count 8), and obstruction of justice (Count 9). Plaintiff seeks damages, declaratory relief, attorney's fees, and “delet[ion] and expunge[ment] from any and all police records or databases any information about Plaintiff obtained at the Clayton County Tag office and court records.” (Compl., Prayer for Relief).

         II. DISCUSSION

         A. Legal Standard

         A court must dismiss a complaint filed in forma pauperis if at any time the court determines the action is frivolous or malicious or that it fails to state a claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). “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)). Under this standard, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

         Review for frivolousness, on the other hand, “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” See Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). A claim is frivolous when it “has little or no chance of success, ” that is, when it appears “from the face of the complaint that the factual allegations are ‘clearly baseless' or that the legal theories are ‘indisputably meritless.'” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (quoting Neitzke, 490 U.S. at 327). “[I]f the district court sees that an affirmative defense would defeat the action, a [dismissal on the grounds of frivolity] is allowed.” Clark v. State of Ga. Pardons & Paroles Bd., 915 F.2d 636, 640 (11th Cir. 1990).

         Complaints filed pro se must be construed liberally and are “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) (internal quotation marks omitted)). Nevertheless, a pro se complaint must comply with the threshold requirements of the Federal Rules of Civil Procedure, and must properly state a claim upon which relief can be granted. See Beckwith v. BellsouthTelecomms. Inc., 146 F. App'x 368, 371 (11th Cir. 2005); Grigsby v. Thomas, 506 F.Supp.2d 26, 28 (D.D.C. 2007). ...


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