United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
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 .
November 28, 2016, Plaintiff filed her Application for Leave
to Proceed In Forma Pauperis (“IFP
Application”) . On December 1, 2016, Magistrate
Judge Catherine M. Salinas granted Plaintiff's IFP
Application and submitted Plaintiff's pro se
Complaint  to this Court for a frivolity review. ().
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.
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).
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,
“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).
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).
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).
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).
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).
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). ...