Opinion
3:22cv893/TKW/ZCB
11-08-2022
SHELDON LEE HUTCHINS, Plaintiff, v. BILLY CLARK BAIL BONDS, INC., et al., Defendants.
REPORT AND RECOMMENDATION
ZACHARY C. BOLITHO UNITED STATES MAGISTRATE JUDGE
Plaintiff is incarcerated in the Florida Department of Corrections, and he is proceeding pro se in this 42 U.S.C. § 1983 case. Presently before the Court is Plaintiffs Amended Complaint. (Doc. 9). The Court has screened the Amended Complaint as required by 28 U.S.C. § 1915A(b)(1) and determined that Plaintiff has failed to state a plausible claim for relief against any Defendant. This case, therefore, should be dismissed.
I. Statutory screening standard
Because Plaintiff is a prisoner seeking redress from a governmental employee, the Court must dismiss this case if the Court determines it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A (governing civil actions in which a prisoner seeks redress from a governmental entity or an officer or employee thereof); see also Jones v. Bock, 549 U.S. 199, 202 (2007) (recognizing that Congress has mandated “early judicial screening of prisoner complaints”). The statutory language “tracks the language of Federal Rule of Civil Procedure 12(b)(6).” Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). Thus, dismissals for failure to state a claim under § 1915 A are governed by the same standard as Rule 12(b)(6). Id.
One of the named Defendants, Deputy Howton, is a governmental employee.
Under Rule 12(b)(6), a complaint's allegations are taken as true and construed in the light most favorable to the plaintiff. Davis v. Monroe Cnty. Bd. of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). The Court may consider documents incorporated into the complaint by reference and matters of which the court may take judicial notice, such as facts taken from court dockets. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Paez v. Secy, Fla. Dep't of Corr., 947 F.3d 649, 651-53 (11th Cir. 2020) (stating district court properly took judicial notice of facts taken from petitioner's state court dockets where petitioner had opportunity to object to report and recommendation in which magistrate judge took judicial notice), To survive dismissal at the screening phase, “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) (internal quotation marks omitted). The plausibility standard is met only where the facts alleged enable “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plausibility means “more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotation marks omitted).
The determination of whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. The Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 678 (internal quotation marks omitted). And “bare assertions” that “amount to nothing more than a formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Id. at 681 (internal quotation marks omitted). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679.
II. Plaintiffs allegations and claims
Plaintiffs Amended Complaint names five Defendants: (1) Billy Clark Bail Bonds, Inc.; (2) Billy Clark, owner of Billy Clark Bail Bonds, Inc.; (3) Matt McKeehan, a bond recovery agent; (4) Phillip Kichler, a bond recovery agent; and Carson Hunter Howton, a deputy with the Santa Rosa County Sheriff s Office. (Doc. 9 at 1-5).
According to the state court docket in Plaintiffs criminal case, Plaintiff posted a professional bond from Billy Clark Bail Bonds (as agent for Palmetto Surety Corporation) on August 13, 2019. See https://santarosaclerk.com/courts/search-court-records/, search Court Records for Case Number 2019-CF-000556, Doc. #79, Appearance Bond and Power of Attorney (see attached). On March 11, 2020, the state court issued a capias due to Plaintiffs failure to appear in court. Id., Doc. #132, Capias (see attached). The clerk of court notified Billy Clark Bail Bonds that Plaintiff had failed to appear and that the bond would be forfeited if he did not appear on May 19, 2020. Id., Doc. #122, Notice to Bondsman (see attached). On May 19, 2020, the clerk of court issued a notice of forfeiture to Billy Clark Bail Bonds after Plaintiff failed to appear in court that day. Id., Doc. #123, Notice of Forfeiture (see attached). See generally McDowell Bey v. Vega, 588 Fed.Appx. 923, 927 (11th Cir. 2014) (finding no error in a district court's taking judicial notice of records contained on the state court docket in the underlying criminal case).
If Plaintiff disputes the accuracy of the facts taken from the state court's docket, or if he otherwise wishes to be heard on the propriety of the court's taking judicial notice of those facts, he must do so in an objection to this Report and Recommendation. See Paez, 947 F.3d at 651-53.
Plaintiff alleges on June 9, 2020, Defendants Billy Clark, Matt McKeehan, and Phillip Kichler (the “Bail Bondsmen”) traveled from Florida to Georgia and seized him from a private residence. (Doc. 9 at 7-9). Plaintiff alleges the Bail Bondsmen broke down the door to the residence, tased him, assaulted him, handcuffed him, and transported him from Georgia to Florida. (Id.). Plaintiff alleges no Georgia law enforcement officers were involved in his apprehension or transport back to Florida. (Id. at 7).
On June 9, 2020, Defendant Clark drove Plaintiff to the Billy Clark Bail Bonds, Inc. office in Santa Rosa County, Florida, and notified the Santa Rosa County Sheriffs Office. (Id. at 9). Defendant Deputy Howton responded to the call, and Defendant Clark surrendered Plaintiff to Deputy Howton. (Id.). Deputy Howton took Plaintiff into custody on the capias for failure to appear and transported him to the Santa Rosa County Jail. See State Court Doc. #132 (attached Arrest Report and Booking Information).
Plaintiff claims that Defendant Billy Clark Bail Bonds Inc. violated the federal kidnapping statute (18 U.S.C. § 1201) and the Fourth Amendment by “ordering” his kidnapping. (Doc. 9 at 10-11). Plaintiff claims that the Bail Bondsmen (Defendants Clark, McKeehan, and Kichler) violated the Fourth, Eighth, and Fourteenth Amendments by illegally seizing him, using excessive force, and depriving him of due process. (Id. at 10-13). Plaintiff claims Deputy Howton violated the Fourth and Fourteenth Amendments by taking him into custody, despite the Bail Bondsmen's failure to seek Plaintiffs extradition from Georgia. (Id. at 13). Plaintiff seeks compensatory damages and injunctive relief under 42 U.S.C. § 1983. (Id. at 10, 14).
III. Discussion
A. Plaintiff has no private right of action under 18 U.S.C. § 1201.
Plaintiffs complaint seeks relief against Defendant Billy Clark Bail Bonds, Inc. for violating the kidnapping statute, 18 U.S.C. § 1201. That claim necessarily fails because a private party cannot bring a civil action under 18 U.S.C. § 1201 because it is a criminal statute that does not provide a private right of action. See Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 190 (1994) (“We've refused to infer a private right of action from a bare criminal statute. And we have not suggested that a private right of action exists for all injuries caused by violations of criminal prohibitions.”) (cleaned up); see also Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th Cir. 1960) (“The sections of Title 18 may be disregarded in this suit. They are criminal in nature and provide no civil remedies”); Long v. Thomason, No. 13-00447, 2014 WL 266206, at *9 (S.D. Ala. Jan. 6, 2014) (holding that the federal kidnapping statute “does not provide a private, civil cause of action”) (cleaned up); see also Moskau v. Peterson, 2020 WL 13369431, at *2 (M.D. Fla. Sept. 18, 2020) (stating that a plaintiff “does not have the right to sue” a defendant under the kidnapping statute, 18 U.S.C. § 1201). Therefore, Plaintiff has not stated a plausible claim for relief under 18 U.S.C. § 1201.
The Eleventh Circuit has adopted as binding precedent decisions by the former Fifth Circuit rendered before September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
B. Defendants Billy Clark Bail Bonds, Inc., Billy Clark, Matt McKeehan, and Phillip Kichler are not state actors under 42 U.S.C. § 1983.
To prevail in any 42 U.S.C. § 1983 action, a plaintiff must establish that “the conduct complained of was committed by a person acting under color of state law.” Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). That is so because “§ 1983 only provides for claims to redress State action.” Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001). State action is an element of a § 1983 claim, not an affirmative defense. Charles v. Johnson, 18 F. 4th 686, 695 (11th Cir. 2021).
A private party typically does not act under color of state law and, therefore, is not subject to suit under § 1983. Dennis v. Sparks, 449 U.S. 24, 27-29 (1980). “Only in rare circumstances can a private party be viewed as a ‘state actor' for section 1983 purposes.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). Those circumstances are: “(1) the State has coerced or at least significantly encouraged the action alleged to violate the Constitution (‘State compulsion test'); (2) the private parties performed a public function that was traditionally the exclusive prerogative of the State (‘public function test'); or (3) the State had so far insinuated itself into a position of interdependence with the [private parties] that it was a joint participant in the enterprise (‘nexus/joint action test').” Rayburn ex rel. Rayburn, 241 F.3d at 1347 (cleaned up). To satisfy the “nexus/joint action test,” the private party must be “intertwined in a symbiotic relationship” with the government. Focus on Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1278 (11th Cir. 2003).
Numerous courts have held that bail bondsmen are not state actors for purposes of § 1983, unless they were acting at the behest of or in conjunction with law enforcement officers when engaging in the challenged conduct. See Landry v. A-Able Bonding, Inc., 75 F.3d 200, 204-05 (5th Cir. 1996) (finding that bail bondsmen were not state actors under § 1983 when they arrested the plaintiff in Texas and returned him to Louisiana because “the mere possession of an arrest warrant does not render a bail bondsman a state actor under § 1983, where he neither purports to act pursuant to the warrant, nor enlists the assistance of law enforcement officials in executing the warrant”); Weaver v. James Bonding Co., Inc., 442 F.Supp.2d 1219, 122429 (S.D. Ala. 2006); Green v. Abony Bail Bond, 316F.Supp.2d 1254, 1261 (M.D. Fla. 2004); McCoy v. Johnson, 176 F.R.D. 676, 682 (N.D.Ga. 1997).
Here, Plaintiff alleges that the Bail Bondsmen traveled to Georgia, apprehended him, and transported him back to Florida. He does not allege that any law enforcement officers assisted with the apprehension and transport. Indeed, Plaintiff specifically alleges that “no licensed police” assisted in his apprehension. (Doc. 9 at 7). Rather, the Bail Bondsmen acted unilaterally and in their private capacities when they took Plaintiff into custody and transported him to Florida. The mere fact that a law enforcement officer (Deputy Howton) received custody of Plaintiff after the Bail Bondsmen apprehended him and returned him to Florida does not turn the Bail Bondsmen into state actors for purposes of § 1983. There are no allegations that the Bail Bondsmen were acting at the behest of or in concert with Deputy Howton when they apprehended and transported Plaintiff from Georgia to Florida. See Landry, 75 F.3d at 204-05 (bail bondsman was not state actor when he conducted arrest of individual without assistance from law enforcement); see also Green, 316 F.Supp.2d at 1261 (bail bondsman was not a state actor where he received no instructions, directions, or aid from the state in pursuing and apprehending the plaintiff). Because state action is an essential element of a § 1983 claim, Plaintiffs § 1983 claims against Defendants Billy Clark Bail Bonds, Inc., Billy Clark, Matt McKeehan, and Phillip Kichler should be dismissed for failure to state a claim.
C. Plaintiff has not stated a plausible claim for relief against Defendant Deputy Howton.
Plaintiff claims that Defendant Deputy Howton violated the Fourth Amendment (as incorporated to the states by the Fourteenth Amendment) by receiving custody of Plaintiff from the Bail Bondsmen. As relief, Plaintiff asks the Court to order the termination of Deputy Howton's employment with the Sheriff s Office. (Doc. 9 at 14). Plaintiff further requests monetary damages for Deputy Howton's alleged Fourth Amendment violation. (Id.).
First, Plaintiff has failed to state a plausible claim for relief to the extent he requests an order requiring Deputy Howton's termination from the Sheriff s Office. That is so because the Court lacks the authority to order the Sheriff to terminate Deputy Howton's employment. Although federal courts have the power to order state and local officials to comply with the U.S. Constitution, they lack the power to order those officials to take certain disciplinary actions against employees. See LaMarca v. Turner, 995 F.2d 1526, 1543 (11th Cir, 1993) (holding that it was an “inappropriate use of the court's equity powers” to require a state prison official to discipline corrections officers); see also Newman v. Alabama, 559 F.2d 283, 288 (5 th Cir. 1978) (“We all understand, of course, that federal courts have no authority to address state officials out of office or to fire state employees or to take over the performance of their functions.”), rev'd in part on other grounds sub nom. Alabama v. Pugh, 438 U.S. 781 (1978); Coleman v. Dep't of Rehab. & Corr., 46 Fed.Appx. 765, 772 (6th Cir. 2002) (rejecting inmate's request for an injunction requiring the state “to punish the individuals involved” in his alleged beating because it “is not the type of injunctive relief this Court provides”). Thus, Plaintiff has failed to state a plausible claim for relief with respect to his request that the Court order the termination of Deputy Howton's employment.
Second, Plaintiff has failed to state a plausible damages claim against Deputy Howton for violating the Fourth Amendment. Plaintiff has not identified the precise nature of his Fourth Amendment claim, but as best the Court can tell Plaintiff is attempting to pursue a false or unlawful arrest claim against Deputy Howton. To prevail on a false or unlawful arrest claim, a plaintiff must establish that the defendant conducted an arrest without probable cause. Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010); Eiras v. Fla., 239 F.Supp.3d 1331, 1338 (M.D. Fla. 2017) (“To prevail on a false arrest claim under Section 1983 a plaintiff bears the burden of proving a lack of probable cause”). Generally, an individual who is taken into custody pursuant to a facially valid arrest warrant cannot maintain a false or unlawful arrest claim against the arresting officer. See Paylan v. Dirks, 847 Fed.Appx. 595, 600 (11th Cir. 2021) (explaining that “[b]ecause officers executed valid arrest and search warrants, [plaintiff] failed to state plausible claims against...[defendants] for false arrests....”); see also Williams v. Aguirre, 965 F.3d 1147, 1162 (11th Cir. 2020) (“In the context of arrest warrants.. .an officer ordinarily does not violate the Fourth Amendment when he executes a facially valid arrest warrant, regardless of whether the facts known to the officer support probable cause.”); Press v. Sheriff of Broward Cnty., Fla., 2013 WL 4437238, at *6 (M.D. Fla. Aug. 16,2013) (rejecting false arrest claim because “[t]here were valid warrants in existence at the time of both arrests”).
Here, Deputy Howton took Plaintiff into custody pursuant to a facially valid arrest warrant. More specifically, a Florida state court judge had issued a capias warrant authorizing the arrest of Plaintiff for failure to appear. See Case Number 2019-CF-000556, Doc. #132, Capias (attached). That warrant was the basis for Deputy Howton taking Plaintiff into custody. Accordingly, Plaintiff has failed to state a plausible claim that Deputy Howton violated the Fourth Amendment by taking him into custody.
IV. Conclusion
For the reasons above, it is respectfully RECOMMENDED that:
1. Plaintiffs Amended Complaint (Doc. 9) be DISMISSED with prejudice for failure to state a claim upon which relief may be granted.
2. The Clerk of Court be directed to enter judgment accordingly and close this case.
NOTICE TO THE PARTIES
This case was referred to the undersigned for the issuance of preliminary orders and recommendations regarding dispositive matters. See N.D. Fla. Loc. R. 72. (C); see also 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).
Objections to the proposed findings and recommendations set forth above must be filed within fourteen days of the date of this Report and Recommendation. Any different deadline that may appear on the electronic docket is for the Court's internal use only and does not control. An objecting party must serve a copy of the objections on all other parties. A party who fails to object to the magistrate judge's findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.