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Clowers v. Cradduck

United States District Court, W.D. Arkansas, Fayetteville Division

October 6, 2016

TOM G. CLOWERS PLAINTIFF
v.
KELLY CRADDUCK; JASON WOOD; CHARLES “CHUCK” SNIDER; CHRIS C. SNIDER; CAPTAIN CHRIS SPARKS; CAPTAIN LYNN HAHN; CAPTAIN ANDY LEE, III; DOUG VANSCOY; NATHAN SMITH; STEPHANIE MCLEMORE; ROGERS JUDGE PAUL BRIDGES; SPRINGDALE JUDGE JEFF HARPER; KATHY O'KELLY, Springdale Police Chief; MIKE PETERS, Springdale Asst. Police Chief; D. TREAT, Springdale Patrolman; and R. STEWART, Springdale Patrolman DEFENDANTS

          OPINION AND ORDER

          P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE

         Before the Court are a motion to dismiss (Doc. 14) filed by Defendants Paul Bridges, Stephanie McLemore, and Nathan Smith; a motion to dismiss (Doc. 17) filed by Defendant Doug Vanscoy; a motion to dismiss party (Doc. 21) filed by Defendants Kathy O'Kelly, Mike Peters, R. Stewart, and D. Treat; and a motion to dismiss (Doc. 26) for failure to state a claim filed by Defendant Chris C. Snider. The movants have also filed briefs in support. All motions seek dismissal on Rule 12(b)(6) grounds. No responses have been filed.

         As an initial matter the Court must address a procedural issue. Defendants O'Kelly, Peters, Stewart, and Treat filed an answer (Doc. 19) prior to filing their Rule 12(b)(6) motion. Any Rule 12 motion asserting a 12(b) defense “must be made before pleading if a responsive pleading is allowed.” Fed.R.Civ.P. 12(b) (emphasis added). An answer is a responsive pleading. Fed.R.Civ.P. 7(a)(2). If this motion had been filed on a different Rule 12(b) basis, the Court would deny it as disallowed. However, failure to state a claim upon which relief can be granted is also a basis for relief under Rule 12(c), which allows a post-answer motion for judgment on the pleadings. Because the grounds for dismissal set out in the motion have merit, the Court will construe the motion to dismiss as a Rule 12(c) motion. Cf. Albers v. Bd. of Cnty. Comm'rs of Jefferson Cnty., Colo., 771 F.3d 697, 703-04 (10th Cir. 2014) (adopting Third Circuit approach of overlooking any error in a district court's treatment of Rule 12(b)(6) motion as Rule 12(c) motion because decision not to require defendants to technically comply with the Rules and file a new motion did not affect substantive rights of the parties).

         Though the remaining Defendants-Kelly Cradduck, Jason Wood, Charles “Chuck” Snider, Captain Chris Sparks, Captain Lynn Hahn, Captain Andy Lee, III, and Springdale Judge Jeff Harper-have not filed motions to dismiss, they have filed answers (Docs. 13, 23) raising as affirmative defenses failure to state a claim and various immunities. Because the motions to dismiss have given Clowers adequate notice that the sufficiency of his allegations is in dispute, and because the immunity defenses, if applicable, shield against suit rather than merely against liability, the Court will sua sponte consider whether judgment on the pleadings is appropriate for the answering Defendants. See Smith v. Boyd, 945 F.2d 1041, 1042-43 (8th Cir. 1991) (recognizing that district courts have the power to sua sponte dismiss a complaint for failure to state a claim).

         I. Legal Standard

         In ruling on a motion to dismiss, the Court must “‘accept as true all facts pleaded by the non-moving party and grant all reasonable inferences from the pleadings in favor of the non-moving party.'” Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012) (quoting United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir. 2000)). “[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) (quotation omitted). “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.” Id. The alleged facts must be specific enough “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain mere “labels and conclusions” or “a formulaic recitation of the elements of the cause of action will not do.” Id. “Though pro se complaints are to be construed liberally, they must still allege sufficient facts to support the claims advanced.” Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (internal citation omitted). The Court is not required to “blindly accept the legal conclusions drawn by the pleader from the facts.” Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). The Court may also consider matters of public record and materials necessarily embraced by the pleadings that do not contradict the complaint. Greenman v. Jessen, 787 F.3d 882, 887 (8th Cir. 2015). The standards for a Rule 12(b)(6) motion for failure to state a claim apply to a Rule 12(c) motion for judgment on the pleadings. Mickelson v. Cnty. of Ramsey, 823 F.3d 918, 923 (8th Cir. 2016).

         II. Analysis

         Clowers makes factual allegations against several parties and identifies several legal theories under which he seeks recovery. Read in a light most favorable to Clowers, the complaint alleges that he was the victim of arrest and malicious prosecution undertaken without probable cause. The Court reads this complaint primarily as asserting a cause of action under 42 U.S.C. § 1983 for deprivation by state actors of Clowers's Fourth Amendment rights.[1] Cf. Zackary Lee Stewart v. Karl Wagner, --F.3d--, 2016 WL 4728039, *3 (8th Cir. Sept. 12, 2016) (“Therefore, a § 1983 plaintiff's claim that he was arrested or prosecuted without probable cause, even if labeled a claim of malicious prosecution, must be judged under the Fourth Amendment, not substantive due process.” (quotation omitted)). The Court has subject matter jurisdiction over this civil rights action pursuant to either 28 U.S.C. § 1331 or § 1343. Clowers also identifies some state law causes of action over which the Court may exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

         Because Clowers's complaint is organized by party rather than by cause of action, the Court's analysis will also proceed by party. “If a plaintiff's complaint is silent about the capacity in which she is suing the defendant, we interpret the complaint as including only official-capacity claims.” Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995). Clowers has not set out whether he is suing the Defendants in their official or individual capacities, so all Defendants who held an office are presumably sued in their official capacities. To prevail on official capacity § 1983 claims, Clowers must show that the entity for which the Defendant is an officer has a custom or policy that played a part in the violation giving rise to the suit. Kentucky v. Graham, 473 U.S. 159, 166 (1985). Clowers has not alleged any facts from which the Court could infer that any Defendant's office had a custom or policy that played a part in the purported deprivation of rights. This alone provide a grounds for dismissal of most of Clowers's claims. However, even assuming Clowers is proceeding against Defendants in their individual capacities, his claims must be dismissed for the reasons set forth below.

         A. Kelly Cradduck

         Clowers alleges that Kelly Cradduck is liable “[f]or recording an interview with the news media, saying ‘Evidently he [Clowers] was targeting drivers who were not wearing seat belts'! This was knowingly filing of a false police report and conspiracy to file a false police report.” (Doc. 1-1, p. 2) (emphasis omitted). He also alleges that “Sheriff Cradduck's lies to the media, ” to which Clowers could not respond, resulted in a violation of Clowers's First Amendment right to free speech. (Doc. 1-3, p. 1).

         The First Amendment does not confer upon a person the right to respond in the media to statements made about him, nor is the Court aware of any federal or state law or regulation presently in effect that confers such a right. With respect to the false police report allegations, there are no allegations that Cradduck was directly involved in Clowers's arrest, but only that he made statements to the media, nor are there any factual allegations from which the Court could reasonably infer Cradduck entered into any conspiracy with other Defendants. See Marti v. City of Maplewood, Mo., 57 F.3d 680, 685 (8th Cir. 1995) (requiring allegations of agreement that would show conspiracy to be made with “particularity”). Clowers has alleged no facts giving rise to a claim against Cradduck, and Clowers's claims against Cradduck must be dismissed.

         B. Jason Wood

         Clowers alleges that Jason Wood is liable for knowingly filing a false police report, obstruction of government operations, battery, and violating “8 out of the ten bill of rights given by law.” (Doc. 1-1, pp. 1-2). In addition to these conclusory allegations, Clowers alleges that Wood took a false police report from Chris Snider; came to Clowers's house and notified him of a complaint that Clowers, who was not at that time a sworn law enforcement officer, made a traffic stop; later came back to Clowers's home with a search warrant, which he did not allow Clowers to read; arrested Clowers and had him taken to jail; searched Clowers's property, displayed it to the media, and seized it; and visited Clowers in jail and said “it will go better for you if you just go ahead and admit it.” (Doc. 1, pp. 2-4). Clowers also alleges that Wood failed to adequately investigate the complaining witness (Doc. 1, p. 4); had been reprimanded and suspended at a previous job for lying on police reports (Doc. 1, p. 5); and lied on the police report concerning Clowers “to further his status with the new Sheriff Kelly Cradduck.” (Doc. 1-2, pp. 1-2). Finally, Clowers alleges that Wood violated his Constitutional rights by not letting Clowers respond to the media which was at his ...


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