Kesiena Tani v. Shelby County, Alabama ( 2013 )

Case: 12-10982 Date Filed: 02/28/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10982
Non-Argument Calendar
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D.C. Docket No. 2:11-cv-01479-AKK
KESIENA TANI,
Plaintiff - Appellant,
versus
SHELBY COUNTY, ALABAMA,
SHELBY COUNTY MANAGER,
SHELBY COUNTY COMMISSIONERS,
SHELBY COUNTY SHERIFF DEPARTMENT,
SHELBY COUNTY SHERIFF, et al.,
Defendants - Appellees,
INGEL REALTY COMPANY, LLC, et al.,
Defendants.
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Appeal from the United States District Court
for the Northern District of Alabama
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(February 28, 2013)
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Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Kesiena Tani appeals the district court’s dismissal of his complaint under
Federal Rule of Civil Procedure 12(b)(6). After review, we affirm.
In May 2011, Tani sued a multitude of defendants, including Shelby County,
Alabama (the County), the County’s manager, commissioners, and sheriff’s
department, and county sheriffs Chris Curry and Josh Forrest. 1 In an 84-page
complaint, Tani alleged that sheriffs Curry and Forrest racially profiled and
harassed him at his apartment. In one instance, Tani alleged, the sheriffs arrested
him, unlawfully searched his apartment, and seized his property. He claimed
violations of the Alabama Constitution and the Fourth, Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution. He sought damages, but no
injunctive relief.
Several defendants moved to dismiss Tani’s complaint. A magistrate judge
denied the motions to dismiss but ordered Tani to file an amended complaint
satisfying the “short and plain statement” requirement of Federal Rule of Civil
Procedure 8. In September 2011, Tani filed an amended complaint. This
complaint stated claims under the Alabama and United States Constitutions, as
well as federal civil statutes, including 39 U.S.C. § 3623 and 42 U.S.C. §§ 1981,
1
Tani also initially sued several parties that and are no longer part of this appeal.
2
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1982, 1983, 1985, 1986, and 5831, and federal criminal statutes, including 18
U.S.C. §§ 241, 371, and 2701. The amended complaint included no factual
allegations. Each of the defendants again moved to dismiss. A magistrate judge
again ordered Tani to amend his complaint, directing Tani to set out individual
facts and state in factual detail what occurred to form the basis for his legal claims.
The judge denied the defendants’ second set of motions to dismiss.
In October 2011, Tani filed a “supplement to first amended complaint,” in
which he repeated most of the claims from his first amended complaint. He added
only three factual allegations: (1) that, on February 24, 2010, sheriffs knocked on
his apartment door, asked his name, and placed him under arrest; (2) the specific
items allegedly seized from his apartment; and (3) the specific injuries he suffered.
The defendants once again moved to dismiss. The magistrate judge recommended
granting the defendants’ motions, and the district court adopted that
recommendation over Tani’s objections. Tani appeals.
We review de novo the district court’s grant of a motion to dismiss under
Rule 12(b)(6). Rosenberg v. Gould, 554 F.3d 962, 965 (11th Cir. 2009). Our duty
to liberally construe a pro se litigant’s complaint “in the face of a motion to
dismiss is not the equivalent of a duty to re-write it . . . .” Peterson v. Atl. Hous.
Auth., 998 F.2d 904, 912 (11th Cir. 1993).
3
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We conclude that each of Tani’s claims are either not properly before us or,
as the district court concluded, fail as a matter of law. As a preliminary matter,
Tani now couches his claim solely in terms of § 1983 liability. 2 Specifically, he
has failed to argue on appeal, and has therefore abandoned, any challenge to the
district court’s conclusions that his claims under the Alabama Constitution 3 and
under all federal laws except § 1983 fail as a matter of law. See Rowe v. Schreiber,
139 F.3d 1381, 1382 n.1 (11th Cir. 1998).
Tani’s remaining claims are that sheriffs Curry and Forrest, in their official
and individual capacities, are liable under § 1983 for violating Tani’s Fourth, Fifth,
Sixth, and Fourteenth Amendment rights by racially profiling, harassing, and
falsely arresting Tani and by unlawfully searching his apartment and seizing some
of its contents. He claims that the County manager and commissioners are also
liable for these violations. 4
The district court properly granted the defendants’ motions to dismiss on
these claims. First, Curry and Forrest, in their official capacities, are immune from
a suit for damages under § 1983 in their official capacities, and Tani sued for
2
To the extent Tani contends the district court violated Fed. R. Crim. P. 41(g) by allegedly
failing to return to him property seized, we decline to consider the argument because Tani did
not raise it before the district court. See Slater v. Energy Servs. Grp. Int’l, 634 F.3d 1326, 1332
(11th Cir. 2011).
3
Tani’s single reference to the Alabama Constitution in his appellate brief, without any
argument, is insufficient to preserve the issue for our review. See Rowe v. Schreiber, 139 F.3d
1381, 1382 n.1 (11th Cir. 1998).
4
Tani has also abandoned any challenge to the district court’s conclusion that the County
sheriff’s department is not a legal entity subject to suit. Id.4
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damages alone. Welch v. Laney, 57 F.3d 1004, 1008 (11th Cir. 1995). Second, the
district court correctly determined that Tani failed to state a viable claim, in
accordance with Rule 8, against Curry and Forrest in their individual capacities.
“[T]he pleading standard Rule 8 announces does not require detailed factual
allegations, but it demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted). 5 Tani’s complaint contains almost no factual
allegations. He alleges only that the defendants violated his various rights without
cause, but does not explain what actions caused which violations except in the
language of labels and legal conclusions. See id. at 678 (“A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action
will not do.” (internal quotation marks omitted)). This is clearly insufficient to
survive a Rule 12(b)(6) motion to dismiss. The district court was correct to
dismiss Tani’s claims against the County manager and commissioners for the same
reason.
AFFIRMED.
5
Tani argues that Iqbal does not apply to his § 1983 claim, but this contention is meritless. See
Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010) (applying Iqbal standard to § 1983
claim).
5