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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MARVIN LEE NETTLES, 

 Plaintiff,

vs. 3:10cv87/RV/MD

CITY OF PENSACOLA POLICE

DEPARTMENT,

 Defendants.

REPORT AND RECOMMENDATION

This cause filed pursuant to Title 42 United States Code Section 1983 is

presently before the court on plaintiff’s civil rights complaint (doc. 1). Leave to

proceed in forma pauperis was granted and the initial partial filing fee has been paid

(doc. 5 & 7). 

Since plaintiff is proceeding in forma pauperis, the court is required to

dismiss the case at any time if it determines that the “action or appeal” is “(i)

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.” 28

U.S.C.A. § 1915(e)(2)(B). A complaint is frivolous under section 1915(e) “where it

lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

325, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). “[T]he statute 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.” Id., 490

U.S. 319, 327, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). Dismissals on this
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Case No: 310cv87/RV/MD

ground may be ordered when the legal theories are “indisputably meritless,” or

when the claims rely on factual allegations that are “clearly baseless.” Id. at 327,

109 S.Ct. at 1833; Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 1733, 118

L.Ed.2d 340 (1992); Williams v. Secretary for Department of Corrections, 131 Fed.

Appx. 682, 2005 WL 1130351 (11th Cir. 2005) (citing Carroll v. Gross, 984 F.2d 392, 393

(11th Cir. 1993) (per curiam) (internal quotations omitted)). 

Because the language of § 1915(e)(2)(B)(ii) tracks the language of FED. R. CIV.

P. 12(b)(6), dismissals for failure to state a claim are governed by the same standard

as Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1485

(11th Cir. 1997). The allegations of the complaint are taken as true and are construed

in the light most favorable to the plaintiff. See Pielage v. McConnell, 516 F.3d 1282

(11th Cir. 2008); Thaeter v. Palm Beach County Sheriff’s Office, 449 F.3d 1342, 1352

(11th Cir. 2006); Davis v. Monroe County Bd. Of Educ., 120 F.3d 1390, 1393 (11th Cir.

1997). Plaintiff must allege more than “labels and conclusions” or a “formulaic

recitation of the elements of a cause of action” and his complaint must include

factual allegations sufficient “to raise a right to relief above the speculative level.”

Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65, 1973 n.14, 167 L.Ed.2d 929

(2007) (declining to apply a heightened pleading standard, and abrogating Conley

v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (“a complaint should not

be dismissed for failure to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to

relief.” 355 U.S. at 45-46, 78 S.Ct. 99.) Leave to amend a complaint is futile when the

complaint as amended would still be properly dismissed or be immediately subject

to summary judgment for the defendant. Cockrell v. Sparks, 510 F.3d 1307, 1310

(11th Cir. 2007) (citing Hall v. United Ins. Co. Of Am., 367 F.3d 1255, 1263 (11th Cir.

2004)). Upon review of plaintiff’s complaint, the court concludes that plaintiff has

not presented an actionable claim and that sua sponte dismissal is therefore

warranted. Vanderberg v. Donaldson, 259 F.3d 1321, 1323 (11th Cir. 2001).
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Case No: 310cv87/RV/MD

The incident giving rise to the allegations in the instant complaint occurred

before the plaintiff’s incarceration. Plaintiff has repeated the allegations in his

amended complaint almost identically to those set forth in the initial complaint.

Plaintiff asserts that he was pulled over by an unnamed officer or officers driving a

Pensacola Police cruiser on May 21, 2008 for a traffic violation. After the plaintiff’s

license check came back clear, the officer asked if they (apparently more than one

officer was present) could search plaintiff’s vehicle. When plaintiff asked if they had

a search warrant, the officer responded in the negative, but indicated that they would

search anyway. Plaintiff stepped out of the car and 4 or 5 more officers showed up.

He said that he feared for his life, and began to run away. While he was fleeing the

scene, plaintiff states that Sgt. Bower hit him with his police cruiser “out of no

where.” (Doc. 10 at 6). Plaintiff was seriously injured as a result of the impact and

had to have surgery and follow-up medical care, much, if not most of which, took

place while he was in custody. Plaintiff was convicted of possession of cocaine and

sentenced to a term of five years imprisonment after this incident. He is currently

incarcerated at the Northwest Florida Reception Center. 

In the amended complaint, plaintiff claims that the Police Department of

Pensacola violated his fourth amendment rights by illegally searching his vehicle

without a warrant and without his consent, and violated his eighth amendment rights

when he was struck by the police cruiser. He also attaches a form of unidentifiable

origin upon which he indicates that this case falls into the category of “other

negligence” and “other” civil. (Doc. 10 at 10). Only the “City of Pensacola Police

Department” is named as a defendant in this action. 

In any section 1983 action, the initial inquiry must focus on whether two

essential elements are present:

1. whether the conduct complained of was committed by a person

acting under color of state law; and

2. whether this conduct deprived a person of rights, privileges, or

immunities secured by the Constitution or laws of the United States.
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West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988)

(citations omitted); Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005) (citing

West). 

Plaintiff again appears to claim that Sgt. Bower’s collision with him can be

characterized as “excessive force,” although he cites the eighth, rather than the

fourth, amendment. As plaintiff was previously instructed, claims involving

allegations of excessive use of force in making an arrest arise under the fourth and

not the eighth amendment. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865,

1871, 104 L.Ed.2d 443 (1989); Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85

L.Ed.2d 1 (1985). The factual allegations as presented still do not support a claim

that a fourth amendment violation occurred. Plaintiff’s description of the event, that

Sgt. Bower came “out of no where” and hit him as he fled down the street away from

the scene of the traffic stop suggests neither that the collision was intentional, nor

that it was a part of effectuating the plaintiff’s arrest. If plaintiff means to allege that

Sgt. Bower was negligent, which the attachment to the complaint suggests, this is

an entirely different matter, and does not support a constitutional claim under §

1983. Additionally, even if plaintiff had stated a claim against Sgt. Bower, Bower is

no longer named as a defendant in this action, and plaintiff has offered no basis for

holding the City of Pensacola liable for the actions of Sgt. Bower.

Although, liberally construed, plaintiff has amended his complaint to name the

City of Pensacola as a defendant in this action in lieu of the Pensacola Police

Department, this amendment does not alter the fact that there is no basis for holding

the City of Pensacola liable for the incident described in the complaint. Respondeat

superior, or supervisory liability, without more, does not provide a basis for recovery

under section 1983. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d

509 (1981); Goebert v. Lee County, 510 F.3d 1312, 1331 (11th Cir. 2007); Cottone v.

Jenne, 326 F.3d 1352 (11th Cir. 2003); Harris v. Ostrout, 65 F.3d 912, 917 (11th Cir.

1995). “Supervisory liability under § 1983 occurs either when the supervisor
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Case No: 310cv87/RV/MD

personally participates in the alleged unconstitutional conduct or when there is a

causal connection between the actions of a supervising official and the alleged

constitutional deprivation.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003);

see also Marsh v. Butler County, 268 F.3d 1014, 1035 (11th Cir. 2001); Swint v. City

of Wadley, Alabama, 51 F.3d 988, 999 (11th Cir. 1995); Rivas v. Freeman, 940 F.2d

1491, 1495 (11th Cir. 1991). No such link is apparent from the allegations of plaintiff’s

complaint.

A plaintiff seeking to impose liability on a municipality under § 1983 must

identify a particular municipal "policy" or "custom" that caused the constitutional

injury. Board of County Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 1388,

137 L.Ed.2d 626 (1997). "A policy is a decision that is officially adopted by the

municipality, or created by an official of such rank that he or she could be said to be

acting on behalf of the municipality.... A custom is a practice that is so settled and

permanent that it takes on the force of law." Wayne v. Jarvis, 197 F.3d 1098, 1105

(11th Cir.1999) (quoting Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.

1997), cert. denied, 522 U.S. 1075, 118 S.Ct. 852, 139 L.Ed.2d 753 (1998)); see also

Griffin v. City of Opa-Locka, 261 F.3d 1295, 1307 (11th Cir. 2001). Plaintiff must show

that a county policy or custom was the "moving force" that caused the alleged

constitutional violations to establish the county's § 1983 liability. McElligott v. Foley,

182 F.3d 1248, 1259 (11th Cir. 1999); Young v. City of Augusta, GA., 59 F.3d 1160,

1171 (11th Cir. 1995)

A single incident alleged in a complaint, especially if it involved only actors

below the policymaking level, generally will not suffice to raise an inference of the

existence of a custom or policy that resulted in a constitutional violation and will not

state a claim. See Dwares v. City of New York, 985 F.2d 94, 100 (2nd Cir. 1993) (citing

City of Oklahoma City v. Tuttle, 471 U.S. 808, 823- 24, 105 S.Ct. 2427, 2436, 85

L.Ed.2d 791 (1985)); Dyno v. Village of Johnson City, 240 Fed.Appx. 432 (2nd Cir.

2007) (citing Dwares); Rivers v. Escambia County Jail, 2005 WL 2176863 (N.D. Fla.
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2005). Plaintiff’s allegations do not suggest a policy or custom of having police

cruisers collide with fleeing suspects, and likewise does not support the conclusion

that the Pensacola Police Department has a policy of encouraging officers to engage

in unconstitutional searches, if this is even what occurred. Thus, plaintiff has failed

to state a constitutional claim against the City of Pensacola.

After careful review, the court is satisfied that plaintiff’s complaint lacks an

arguable basis in law or fact and that it fails to state a claim for a violation of 42

U.S.C. § 1983.. 

Accordingly, it is respectfully RECOMMENDED:

That this cause be dismissed for failure to state a claim pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii).

At Pensacola, Florida, this 21

st day of May, 2010.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only, and does not control. A

copy of objections shall be served upon all other parties. Failure to object may limit the

scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v.

Roberts, 858 F.2d 698, 701 (11th Cir. 1988).