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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROBERT WEST, )

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Plaintiff,

vs. CIVIL ACTION NO. 14-0218-CG-C

SAM COCHRAN, SHERIFF OF 

MOBILE COUNTY, ALABAMA

Defendant.

ORDER

The cause before the Court is Plaintiff’s Motion for Leave to Amend 

Complaint (Doc. 15) and Defendant’s opposition (Doc. 17). For the reasons 

stated below, the Court finds that the Plaintiff’s motion to amend is due to be 

denied. 

I. BACKGROUND

This case arises from a complaint filed on May 13, 2014, which alleged

the Defendant violated Plaintiff’s constitutional rights by wrongfully listing 

him on the sex offender registry. (Doc. 1). 

In 2012, a member of the Mobile County Police Department arrested 

the Plaintiff for failing to register his address in compliance with sex-offender 

registration laws. (Doc. 1 p. 2; Doc. 15-1 p.2). On January 30, 2013, the state 

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district court dismissed the charges. (Doc. 15-1 p.2). Plaintiff claims the

arrest and subsequent listing on the registry caused him to lose his job and 

resulted in substantial mental anguish for which he is entitled damages. 

(Doc. 1 pp. 2-3). 

On August 8, 2014, Defendant filed a Motion to Dismiss (Doc. 9) and a 

brief in support of that motion. (Doc. 10). In the brief, Defendant claimed a 

lack of jurisdiction, qualified immunity and that the Plaintiff failed to meet 

the heightened pleading requirements of 42 U.S.C. § 1983. (Doc. 10 pp. 2 – 4). 

On September 16, 2014, Plaintiff filed a Motion for Leave to Amend along 

with a proposed amended complaint that added Detective Daniel Webster as 

a defendant and an additional claim of slander per se. (Doc. 15-1, pp. 2, 4). In 

response, Defendant filed an objection and stated the Court should reject any 

amendment to the complaint because it would be futile. (Doc. 17 p. 2). The 

Court now considers Plaintiff’s Motion for Leave to Amend. (Doc. 15). 

II. DISCUSSION

Federal Rule of Civil Procedure 15(a) provides that leave to amend 

pleadings “shall be freely given when justice so requires.” See Fed. R. Civ. P. 

15(a). The Eleventh Circuit recognized that Rule 15(a) “severely restricts” a 

district court’s discretion to deny leave to amend. Sibley v. Lando, 437 F.3d 

1067, 1073 (11th Cir. 2005). “Unless a substantial reason exists to deny leave 

to amend, the discretion of the District Court is not broad enough to permit 

denial.” Florida Evergreen Foliage v. E.I. DuPont De Nemours and Co., 470 

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F.3d 1036, 1041 (11th Cir. 2006) (citation omitted). That said, leave to 

amend can be properly denied under circumstances of “undue delay, bad faith 

or dilatory motive on the part of the movant, repeated failure to cure 

deficiencies by amendments previously allowed, undue prejudice to the 

opposing party by virtue of allowance of the amendment, [or] futility of 

amendment.” Equity Lifestyle Properties, Inc. v. Florida Mowing and 

Landscape Service, Inc., 556 F.3d 1232, 1241 (11th Cir. 2009) (citation 

omitted). 

In this case, there is no evidence of undue delay, bad faith, a dilatory 

move by the movant, undue prejudice or a repeated failure to cure a 

deficiency. Therefore, for the Plaintiff’s motion to be denied, the amendment 

must be futile. In this case, determining futility depends on, even with the 

proposed amendments, if the Plaintiff could recover against the Defendant 

based on his claims. It is clear to this Court that the Plaintiff cannot and 

therefore, the proposed amendments are futile. 

In the original complaint, Plaintiff claims that he is entitled to § 1983 

relief because the Defendant violated his right to trial. (Doc. 1). “To state a 

claim under § 1983, a plaintiff must allege the violation of a right secured by 

the Constitution and laws of the United States, and must show that the 

alleged deprivation was committed by a person acting under color of state 

law.” Parratt v. Taylor, 451 U.S. 527, 535 (1981) (overruled in part on other 

grounds, Daniels v. Williams, 474 U.S. 327, 330–331 (1986)).

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Plaintiff’s original complaint cites no specific Constitutional 

amendment and instead, merely states “violates Plaintiff’s fundamental right 

to trial as guaranteed by the United States Constitution.” (Doc. 1, p.2). 

Plaintiff also vaguely claims a violation of § 1983. (Doc. 1 p.3). However, 

section 1983 exists to secure constitutional rights and does not create a right 

within itself. “Section 1983 alone creates no substantive rights; rather it 

provides a remedy for deprivations of rights established elsewhere in the 

Constitution or federal laws.” Cornelius v. Town of Highland Lake, Ala., 880 

F.2d 348, 352 (11th Cir. 1989). Section 1983 “merely provides a mechanism 

for enforcing individual rights ‘secured’ elsewhere, i.e., rights independently 

‘secured by the Constitution and laws' of the United States. ‘[O]ne cannot go 

into court and claim a “violation of § 1983”—for § 1983 by itself does not 

protect anyone against anything.’” Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 

(2002) (quoting Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 

(1979)). Therefore, based on the original complaint, the Plaintiff failed to 

adequately plead grounds on which he could recover. 

In the proposed amended complaint, Plaintiff again failed to establish 

grounds on which he could recover, this time by citing the wrong 

Constitutional amendment. The proposed amended complaint claims 

Defendant violated Plaintiff’s due process rights guaranteed under the Fifth 

Amendment. (Doc. 15-1 p. 4). However, the Fifth Amendment Due Process 

Clause serves as a limitation on the power of the federal government and the 

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Due Process Clause of the Fourteenth Amendment applies to States and 

municipalities. Green v. Freeman, 434 F.Supp.2d 1172, 1176 (2005) (See also 

Davidson v. City of New Orleans, 96 U.S. 97, 99 24 L.Ed. 616 (1877) “The 

fifth amendment to the Constitution, which declares that no person shall be 

‘deprived of life, liberty, or property without due process of law...,’ is a 

limitation on the powers granted by that instrument to the Federal 

government, and not a restraint upon the States.”) Therefore, individuals 

who alleged due-process violations against state or municipal actors must 

bring their claims under the Fourteenth Amendment rather than the Fifth. 

Green at 1176. 

Sheriff Cochran and Detective Daniel Webster are state actors and not 

agents of the federal government. Amending the complaint to reflect the 

addition of Detective Webster and a defamation claim would not change the

fact that the suit was brought alleging violations of the wrong Constitutional 

amendment. 

The proposed amendment is futile because the Plaintiff does not allege 

a claim on which he can recover. Therefore, it is ORDERED that Plaintiff’s 

motion to amend (Doc. 15) is DENIED. 

DONE and ORDERED this 9th day of March, 2015.

/s/ Callie V. S. Granade

UNITED STATES DISTRICT JUDGE.

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