Harvey L. Boyd, Jr. v. Gary Peet , 249 F. App'x 155 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 25, 2007
No. 07-11276 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-02478-CV-RLV-1
HARVEY L. BOYD, JR.,
Plaintiff-Appellant,
versus
GARY PEET,
CHANCY H. TROUTMAN,
THE CITY OF STONE MOUNTAIN,
A political subdivision of
the State of Georgia,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 25, 2007)
Before ANDERSON, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
This appeal arises from an action brought by Harvey L. Boyd, Jr. (“Boyd”)
pursuant to 42 U.S.C. § 1983 , alleging violations of his constitutional rights by the
Chief of Police of Stone Mountain, Georgia, Chancy H. Troutman; the Mayor of
the City of Stone Mountain, Gary Peet; and the City of Stone Mountain
(collectively “the defendants”). Boyd’s complaint alleged violations of his rights
to due process and equal protection under the Fourteenth Amendment; malicious
prosecution; and violations of his rights to free speech and free association under
the First Amendment. The district court granted the defendants’ motion for
judgment on the pleadings, finding that Boyd abandoned his due process and
malicious prosecution claims, and that Boyd’s complaint failed to state a claim for
relief on the remaining claims. Boyd appeals the district court’s order.
STANDARD OF REVIEW
We review de novo a district court's grant of judgment on the pleadings.
Hardy v. Regions Mortgage, Inc., 449 F.3d 1357, 1359 (11th Cir. 2006). We take
as true the facts alleged in the complaint and draw all reasonable inferences in the
plaintiff's favor. Id. The complaint’s allegations must plausibly suggest that the
defendant has a right to relief, raising that possibility above a "speculative level"; if
they do not, the plaintiff’s complaint should be dismissed. See Bell Atl. Corp. v.
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Twombly, - - U.S. - -, 127 S. Ct. 1955, 1965, 1973 n.14, 167 L. Ed. 2d 929 ( 2007)
(retiring the often-criticized "no set of facts" language previously used to describe
the motion to dismiss standard and determining that because plaintiffs had "not
nudged their claims across the line from conceivable to plausible, their complaint
must be dismissed" for failure to state a claim).
DISCUSSION
As an initial matter, the district court dismissed Boyd’s due process and
malicious prosecution claims because it held that Boyd abandoned those claims by
failing to address them in his response brief to the defendants’ motion to dismiss.
However, at the motion to dismiss stage, the scope of a court’s review must be
limited to the four corners of the complaint. St. George v. Pinellas County, 285
F.3d 1334, 1337 (11th Cir. 2002). Accordingly, in considering the defendants’
motion for judgment on the pleadings, the district court erred by going beyond the
face of the complaint. Boyd did not abandon his due process and malicious
prosecution claims by failing to adequately address them in his response brief.
The appropriate inquiry at this stage of the litigation should have been
whether the allegations of the complaint plausibly indicate that Boyd has a claim
for relief. We find that he has not stated a claim for relief as to any cause of action.
A. Due Process Claim
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We have previously stated that “a procedural due process violation is not
complete unless and until the State fails to provide due process.” McKinney v.
Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (internal quotations omitted).
Accordingly, “only when the state refuses to provide a process sufficient to remedy
the procedural deprivation does a constitutional violation actionable under section
1983 arise.” Id. Boyd’s complaint does not allege that the city has failed to
provide an adequate remedy to the alleged violation of his rights. See Tinney v.
Shores, 77 F.3d 378, 382 (11th Cir. 1996) (per curiam). In fact, Boyd’s complaint
acknowledges that he had a hearing before the DeKalb Personnel Board, which he
appealed to Superior Court of DeKalb County. Accordingly, we cannot say that
Boyd’s complaint states a plausible claim for a due process violation.
B. Malicious Prosecution Claim
“To establish a federal malicious prosecution claim under § 1983, a plaintiff
must prove (1) the elements of the common law tort of malicious prosecution, and
(2) a violation of [his] Fourth Amendment right to be free from unreasonable
seizures.” Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004). The
elements of malicious prosecution under Georgia law are “(1) [a] prosecution for a
criminal offense; (2) instigated without probable cause; (3) with malice; (4) under a
valid warrant, accusation or summons; (5) which has terminated favorably to the
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plaintiff; and (6) has caused damage to the plaintiff.” Wal-Mart Stores, Inc. v.
Blackford, 449 S.E.2d 293, 294 (Ga. 1994); see also O.C.G.A. § 51-7-40. Boyd’s
complaint fails to allege either the existence of any criminal proceedings, or a
termination of such proceedings in his favor. Accordingly, he has failed to state a
claim upon which relief may be granted.
C. Equal Protection Claim
“[T]o properly plead an equal protection claim, a plaintiff need only allege
that through state action, similarly situated persons have been treated disparately.”
Thigpen v. Bibb County, 223 F.3d 1231, 1237 (11th Cir.2000), abrogated on other
grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061,
153 L. Ed. 2d 106 (2002). Boyd’s complaint does not allege any similarly situated
person or group with whom we can compare him in determining whether he was
treated disparately. The district court properly dismissed Boyd’s equal protection
claim.
D. First Amendment Claims
The district court construed Boyd’s complaint as alleging violations of his
right to free speech and his right to free association under the First Amendment.
The thrust of Boyd’s argument seems to be that he was retaliated against for
reporting police misconduct and unremedied criminal activity, and for associating
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with a city council member. To state a claim for retaliation for exercising their
First Amendment rights a plaintiff must establish that: (1) the speech or act was
constitutionally protected; (2) the defendant's retaliatory conduct adversely
affected the protected speech; and (3) a causal connection existed between the
retaliatory conduct and the adverse effect on speech. Bennett v. Hendrix, 423 F.3d
1247, 1250 (11th Cir.2005). The same three-pronged analysis applies to the
employment context: plaintiff must have suffered an adverse employment action
on account of protected speech. See Brochu v. City of Riviera Beach, 304 F.3d
1144, 1155 (11th Cir. 2002) (analyzing a retaliation claim under Title VII);
Stavropoulos v. Firestone, 361 F.3d 610, 620 (11th Cir. 2004) (concluding that a
court may apply Title VII standards to First Amendment retaliation claims).
Boyd’s complaint does not establish a causal connection between any conduct of
the defendants and any protected speech. Boyd does not allege that he was fired
because he had been speaking out about police misconduct or inaction. Further, he
does not allege any adverse action taken against him on account of his association
with the city council member. Accordingly, the district court properly dismissed
Boyd’s complaint.
CONCLUSION
Because Boyd’s complaint does not plausibly state a claim for relief as to
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any cause of action, the district court properly granted the defendants’ motion for
judgment on the pleadings. Accordingly, we affirm.
Affirmed.
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