Montgomery v. Looney

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LUTHER STEVEN MONTGOMERY,
Plaintiff,
vs.
DARLENE LOONEY, et al.,
Defendants.
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CIVIL ACTION NO. 23-00131-TFM-B
REPORT AND RECOMMENDATION
This 	action 	is 	before 	the 	Court 	on 	Defendants 	Beau 	Bartel,
Darlene 	Looney, 	Joshua 	Evans, 	and 	Daniel 	Lawrence’s 	motion 	to
dismiss 	Plaintiff 	Luther 	Steven 	Montgomery’s 	third 	amended
complaint 	(Doc. 	44). 	The 	motion 	has 	been 	referred 	to 	the
undersigned Magistrate Judge for consideration and recommendation
pursuant 	to 	28 	U.S.C. 	§ 	636(b)(1). 	(See 	Doc. 	3). 	Upon
consideration 	of 	all 	matters 	presented, 	the 	undersigned
recommends, for the reasons stated herein, that Defendants’ motion
be GRANTED in part.
I. 	BACKGROUND
Plaintiff 	Luther 	Steven 	Montgomery 	(“Montgomery”), 	who 	is
proceeding without an attorney, commenced this action by filing a
complaint 	against 	“Officer 	Darlene 	Looney” 	on 	April 	14, 	2023.
(Doc. 1). 	In the initial complaint, Montgomery identified Officer
Looney 	as 	a 	“US 	Marshal,” 	he 	alleged 	that 	Officer 	Looney 	caused
him 	to 	“spend 	19 	days 	in 	jail” 	on 	“false 	charges” 	and 	seized 	his
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money, and he claimed that his “4th and 8th Amendment rights were
violated.” 	(Id. at 2, 4, 6-7). 	On May 25, 2023, Montgomery paid
the filing fee for a civil action. 	(Doc. 7).
On 	June 	7, 	2023, 	Montgomery 	filed 	a 	first 	amended 	complaint
on his own initiative. 	(Doc. 8). 	The first amended complaint was
largely identical to the original complaint, except that it added
seven new Defendants,1 it identified Defendant Looney as a Mobile
Police officer instead of a U.S. Marshal, and it attached a police
report narrative and a state court order. 	(See id.). 	On June 15,
2023, 	the 	Court 	entered 	an 	order 	striking 	Montgomery’s 	first
amended 	complaint 	as 	an 	impermissible 	shotgun 	pleading 	and
directing 	him 	to 	replead. 	(Doc. 	10). 	In 	response, 	Montgomery
filed 	a 	second 	amended 	complaint 	on 	July 	31, 	2023, 	which 	was
similar 	to 	his 	prior 	complaints 	and 	failed 	to 	correct 	the 	noted
pleading deficiencies. 	(Doc. 12). 	Consequently, the Court entered
another 	order 	on 	August 	14, 	2023, 	striking 	Montgomery’s 	second
amended complaint as a shotgun pleading and directing him to file
a 	third 	amended 	complaint. 	(Doc. 	14). 	The 	Court 	cautioned
Montgomery that he would receive no further opportunities to amend
in order to correct pleading deficiencies. 	(Id. at 15).
1 The Defendants named in the first amended complaint were Darlene
Looney, Kevin Nelson, Daniel Lawrence, Beau Bartel, Mobile Police
Department, 	Joshua 	Evans, 	Justin 	Washam, 	and 	“U.S. 	Marshalls.”
(Doc. 8 at 2-3).
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Montgomery 	filed 	a 	third 	amended 	complaint 	on 	September 	11,
2023, which is now his operative pleading. 	(Docs. 15, 15-1). 	In
his 	third 	amended 	complaint, 	Montgomery 	names 	the 	following
Defendants: 	Officer 	Darlene 	Looney 	of 	the 	Mobile 	Police
Department; Probation and Parole Officers Kevin Nelson and Daniel
Lawrence; Inspector Beau Bartel of the United States Marshal Task
Force; 	City 	of 	Mobile 	Canine 	Handlers 	Joshua 	Evans 	and 	Justin
Washam; 	and 	the 	City 	of 	Mobile. 	(Doc. 	15 	at 	2-3). 	Montgomery
alleges 	that 	he 	“was 	searched 	and 	arrested 	by 	Officer 	Darlene
Looney” 	on 	May 	7, 	2020,2 	and 	“spent 	19 	days 	in 	jail 	for 	false
charges 	that 	she 	put 	on 	[him].” 	(Id. 	at 	5). 	Montgomery 	further
alleges 	that 	Officer 	Looney 	“[seized 	his] 	money.” 	(Id.).
Montgomery 	claims 	that 	his 	“4th 	and 	8th 	Amendment 	rights 	were
violated.” 	(Doc. 15-1 at 5).
In an attachment to his complaint form,3 Montgomery writes:
On 	May 	7, 	2020 	I 	Luther 	Steven 	Montgomery 	were 	pulled
over 	and 	snatched 	out 	of 	my 	car 	at 	the 	gas 	station 	in
front of apartments by the City of Mobile Canine Handlers
Joshua 	Evans 	and 	Justin 	Washam. 	As 	Washam 	and 	Evans
pulled me out Washam and Evans searched me and the car,
lifted 	my 	hood 	and 	trunk 	and 	didn’t 	find 	anything.
That’s 	when 	Evans 	and 	Washam 	took 	me 	back 	to 	my
girlfriend’s apartment. 	Darlene Looney, Inspector Beau
Bartel 	with 	the 	U.S. 	Marshals, 	Kevin 	Nelson 	and 	Daniel
2 	The 	police 	report 	narrative 	attached 	to 	Montgomery’s 	third
amended complaint indicates that the search and arrest occurred on
May 6, 2020. 	(See Doc. 15-1 at 3).
3 	Montgomery 	utilizes 	a 	complaint 	form 	titled 	“Pro 	Se 	1 	(Rev.
12/16) 	Complaint 	for 	a 	Civil 	Case” 	for 	portions 	of 	his 	third
amended complaint. 	(See Doc. 15 at 1-2, 4-5).
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Lawrence 	put 	her 	and 	my 	son 	out 	the 	house 	and 	begin
searching 	her 	house. 	Inspector 	Beau 	Bartel, 	Daniel
Lawrence, 	came 	back 	down 	stairs 	and 	told 	my 	probation
officer 	they 	had 	to 	let 	me 	go. 	That’s 	when 	Darlene
Looney said “No she not letting me go because my mother
went and put complaints on them for searching her house
the 	previous 	day” 	at 	the 	attorney 	affairs, 	that’s 	when
Looney 	also 	stated 	she 	will 	be 	putting 	felonies 	on 	me
because that will be the only way I can be held at county
jail 	due 	to 	me 	being 	on 	state 	probation 	at 	that 	time.
Darlene Looney called a Mobile Police patrol officer to
transport 	me 	to 	the 	Mobile 	County 	Metro 	Jail, 	because
that was out of the U.S. Marshals jurisdiction. 	I spent
19 days in Mobile Metro Jail.
I had to pay my attorney Michael Kaoui 1,500 dollars to
represent 	me 	due 	to 	my 	probation 	officer 	Kevin 	Nelson
and his supervisor Daniel Lawrence doing a home visit to
a 	address 	that 	is 	not 	mine 	and 	is 	not 	listed 	on 	my
paperwork. 	Officer Nelson has my correct address which
is 	422 	R.V. 	Brown 	Dr. 	This 	address 	has 	always 	been
listed 	as 	my 	primary 	address. 	The 	reason 	the 	U.S.
Marshals 	even 	came 	out 	in 	the 	first 	place 	is 	because
they 	knew 	I 	were 	on 	probation 	and 	they 	could 	use 	my
probation to get inside of my girlfriend Breannia Thomas
home due to my brother child’s mother going to district
attorney 	Coy 	Morgan 	lying 	telling 	him 	I 	had 	guns
pertaining 	to 	a 	case 	she 	had 	against 	my 	brother
Quinterrious Williams. 	Looney also confiscated my money
and put it in evidence.
(Id. at 1-2 (alterations to spelling)).
On 	a 	separate 	attachment, 	Montgomery 	lists 	the 	names 	of
Nelson, Lawrence, Evans, Washam, and Bartel, and states:
My 	probation 	officer 	Kevin 	Nelson 	and 	his 	supervisor
came and did a illegal search with the defendants above
they ended up surrounding my vehicle at the entrance of
a 	gas 	station 	which 	was 	Beau 	Bartel, 	Joshua 	Evans, 	and
Justin Washam. 	They didn’t show me no search warrant or
proper 	cause 	I 	then 	were 	snatched 	out 	my 	car 	by 	Beau
Bartel 	and 	choked 	because 	he 	thought 	I 	swallowed
something. 	My 	car 	was 	searched 	and 	they 	didn’t 	find
anything. 	Beau Bartel put me in handcuffs. 	That’s when
Bartel, 	Evans, 	and 	Washam 	took 	me 	to 	my 	girlfriend
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apartment 	complex 	where 	they 	then 	performed 	a 	illegal
search 	on 	her 	apartment. 	My 	vehicle 	was 	left 	at 	the
store abandoned, no tow truck was called and no one came
and 	got 	my 	car. 	The 	five 	people 	I 	listed 	above 	along
with 	Darlene 	on 	the 	other 	page 	violated 	my 	Fourth
Amendment to the United States Constitution because they
did a unreasonable search and seizures.
(Id. at 6 (alterations to spelling)). 	For relief, Montgomery seeks
“3.5 million” in damages. 	(Doc. 15 at 5).
On 	May 	14, 	2024, 	Defendants 	Bartel, 	Looney, 	Evans, 	and
Lawrence (collectively, the “Moving Defendants”) filed the instant
motion to dismiss Montgomery’s third amended complaint for lack of
subject matter jurisdiction and failure to state a claim upon which
relief 	can 	be 	granted. 	(Doc. 	44). 	The 	Moving 	Defendants 	argue
that 	the 	claims 	against 	them 	should 	be 	dismissed 	because 	(1)
Montgomery’s 	Fourth 	and 	Eighth 	Amendment 	claims 	are 	time-barred;
(2) 	no 	judicially 	crafted 	Bivens 	cause 	of 	action 	is 	available
against 	the 	Moving 	Defendants 	for 	the 	constitutional 	violations
alleged; 	(3) 	the 	complaint 	fails 	to 	allege 	sufficient 	facts 	to
state a Fourth Amendment Bivens claim; and (4) Montgomery’s claims
are 	barred 	by 	sovereign 	and 	qualified 	immunity. 	(Id. 	at 	9-27).
Montgomery filed a response in opposition to the motion but failed
to 	address 	the 	substantive 	arguments 	raised 	by 	the 	Moving
Defendants. 	(Doc. 	48). 	The 	Moving 	Defendants 	filed 	a 	timely
reply. 	(Doc. 	49). 	Therefore, 	the 	Moving 	Defendants’ 	motion 	to
dismiss has been fully briefed and is ripe for resolution.
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II. 	STANDARDS OF REVIEW
1. 	Motion 	to 	Dismiss 	for 	Lack 	of 	Subject 	Matter
Jurisdiction
Federal 	courts 	are 	courts 	of 	limited 	jurisdiction 	and 	are
authorized by Constitution and statute to hear only certain types
of 	actions. 	Kokkonen 	v. 	Guardian 	Life 	Ins. 	Co. 	of 	Am., 	511 	U.S.
375, 377 (1994). 	“In a given case, a federal district court must
have 	at 	least 	one 	of 	three 	types 	of 	subject 	matter 	jurisdiction:
(1) 	jurisdiction 	under 	a 	specific 	statutory 	grant; 	(2) 	federal
question 	jurisdiction 	pursuant 	to 	28 	U.S.C. 	§ 	1331; 	or 	(3)
diversity 	jurisdiction 	pursuant 	to 	28 	U.S.C. 	§ 	1332(a).” 	Baltin
v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997).
A 	party 	may 	move 	to 	dismiss 	a 	complaint 	for 	lack 	of 	subject
matter 	jurisdiction 	pursuant 	to 	Federal 	Rule 	of 	Civil 	Procedure
12(b)(1). 	A Rule 12(b)(1) challenge to subject matter jurisdiction
may 	take 	the 	form 	of 	a 	facial 	attack 	or 	a 	factual 	attack 	on 	the
complaint. 	Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.
1990) 	(per 	curiam). 	In 	a 	facial 	attack, 	the 	court 	must 	simply
evaluate 	whether 	the 	complaint 	alleges 	a 	sufficient 	basis 	for
subject 	matter 	jurisdiction, 	while 	accepting 	all 	factual
allegations as true for purposes of the motion. 	Id. at 1529. 	In
contrast, 	a 	factual 	attack 	challenges 	the 	existence 	of 	subject
matter 	jurisdiction 	in 	fact, 	irrespective 	of 	the 	pleadings. 	Id.
In 	a 	factual 	challenge 	to 	subject 	matter 	jurisdiction, 	the 	court
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may 	consider 	matters 	outside 	the 	pleadings 	and 	weigh 	conflicting
evidence, 	and 	no 	presumption 	of 	truthfulness 	attaches 	to 	the
plaintiff’s allegations. 	Id.
“If 	the 	court 	determines 	at 	any 	time 	that 	it 	lacks 	subject-
matter jurisdiction, the court must dismiss the action.” 	Fed. R.
Civ. 	P. 	12(h)(3). 	Dismissal 	for 	lack 	of 	subject 	matter
jurisdiction 	“must 	be 	without 	prejudice.” 	McIntosh 	v. 	Royal
Caribbean Cruises, Ltd., 5 F.4th 1309, 1313 (11th Cir. 2021).
2. 	Motion to Dismiss for Failure to State a Claim
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party
may move to dismiss a complaint for failure to state a claim upon
which 	relief 	can 	be 	granted. 	Fed. 	R. 	Civ. 	P. 	12(b)(6). 	“To
survive 	a 	[Rule 	12(b)(6)] 	motion 	to 	dismiss, 	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) 	(quoting 	Bell 	Atl. 	Corp. 	v.
Twombly, 	550 	U.S. 	544, 	570 	(2007)). 	“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. 	This necessarily requires
that 	a 	plaintiff 	include 	factual 	allegations 	that 	plausibly
support 	each 	essential 	element 	of 	his 	claim. 	Randall 	v. 	Scott,
610 F.3d 701, 708 n.2 (11th Cir. 2010).
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“If 	the 	complaint 	contains 	a 	claim 	that 	is 	facially 	subject
to an affirmative defense, that claim may be dismissed under Rule
12(b)(6).” 	LeFrere 	v. 	Quezada, 	582 	F.3d 	1260, 	1263 	(11th 	Cir.
2009). 	“The statute of limitations is an affirmative defense, so
‘a 	Rule 	12(b)(6) 	dismissal 	on 	statute 	of 	limitations 	grounds 	is
appropriate only if it is apparent from the face of the complaint
that 	the 	claim 	is 	time-barred.’” 	Boyd 	v. 	Warden, 	Holman 	Corr.
Facility, 856 F.3d 853, 872 (11th Cir. 2017) (citation omitted).
When 	evaluating 	a 	motion 	to 	dismiss 	under 	Rule 	12(b)(6), 	a
court 	“must 	accept 	the 	factual 	allegations 	in 	the 	complaint 	as
true 	and 	construe 	them 	in 	the 	light 	most 	favorable 	to 	the
plaintiff.” 	Almanza v. United Airlines, Inc., 851 F.3d 1060, 1066
(11th Cir. 2017). 	That said, “[l]egal conclusions without adequate
factual 	support 	are 	entitled 	to 	no 	assumption 	of 	truth.” 	Mamani
v. 	Berzain, 	654 	F.3d 	1148, 	1153 	(11th 	Cir. 	2011). 	A 	complaint
does not need detailed factual allegations, but it “requires more
than 	labels 	and 	conclusions, 	and 	a 	formulaic 	recitation 	of 	the
elements of a cause of action will not do.” 	Twombly, 550 U.S. at
555.
A 	court 	reviewing 	a 	motion 	to 	dismiss 	must 	typically 	limit
its consideration to the complaint and exhibits attached thereto.
Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)
(per curiam). 	However, a “court may consider an extrinsic document
if 	it 	is 	(1) 	central 	to 	the 	plaintiff’s 	claim, 	and 	(2) 	its
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authenticity 	is 	not 	challenged.” 	SFM 	Holdings, 	Ltd. 	v. 	Banc 	of
Am. 	Secs., 	LLC, 	600 	F.3d 	1334, 	1337 	(11th 	Cir. 	2010); 	see 	also
Harris 	v. 	Ivax 	Corp., 	182 	F.3d 	799, 	802 	n.2 	(11th 	Cir. 	1999)
(stating that “a document central to the complaint that the defense
appends 	to 	its 	motion 	to 	dismiss 	is 	also 	properly 	considered,
provided that its contents are not in dispute”). 	A court can also
“consider . . . matters of which a court may take judicial notice”
when evaluating a Rule 12(b)(6) motion to dismiss. 	Tellabs, Inc.
v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007).
3. 	Pro Se Litigation
“Pro se pleadings are held to a less stringent standard than
pleadings 	drafted 	by 	attorneys 	and 	will, 	therefore, 	be 	liberally
construed.” 	Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998) (per curiam). 	However, “this leniency does not give a
court 	license 	to 	serve 	as 	de 	facto 	counsel 	for 	a 	party, 	or 	to
rewrite 	an 	otherwise 	deficient 	pleading 	in 	order 	to 	sustain 	an
action.” 	Campbell 	v. 	Air 	Jamaica 	Ltd., 	760 	F.3d 	1165, 	1168-69
(11th Cir. 2014) (quotation omitted). 	Even a pro se litigant “is
subject 	to 	the 	relevant 	law 	and 	rules 	of 	court, 	including 	the
Federal Rules of Civil Procedure.” 	Moon v. Newsome, 863 F.2d 835,
837 (11th Cir. 1989).
III. DISCUSSION
In 	his 	third 	amended 	complaint, 	Montgomery 	implies 	that
officers acting under color of state and federal law violated his
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rights under the Fourth and Eighth Amendments to the United States
Constitution; 	thus, 	he 	appears 	to 	be 	asserting 	claims 	for 	relief
under 	42 	U.S.C. 	§ 	1983 	and 	Bivens 	v. 	Six 	Unknown 	Named 	Agents 	of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971).4
To 	state 	a 	claim 	for 	relief 	under 	§ 	1983, 	a 	plaintiff 	must
allege that a person acting under color of state law deprived him
of 	a 	specific 	federal 	constitutional 	or 	statutory 	right. 	Doe 	v.
Sch. 	Bd. 	of 	Broward 	Cty., 	Fla., 	604 	F.3d 	1248, 	1265 	(11th 	Cir.
2010). 	Section 	1983 	“is 	merely 	a 	vehicle” 	by 	which 	to 	sue 	those
acting 	under 	color 	of 	state 	law 	for 	violations 	of 	federal
constitutional 	and 	statutory 	provisions; 	“it 	does 	not 	create 	any
substantive federal rights.” 	Williams v. Bd. of Regents of Univ.
Sys. of Ga., 477 F.3d 1282, 1299 (11th Cir. 2007). 	Significantly,
§ 1983 “has no application to the actions of the federal government
or its officers acting under color of federal law, but is instead
confined to deprivations under color of state law.” 	Nicholson v.
Johanns, 511 F. Supp. 2d 1193, 1195 (S.D. Ala. 2007).
4 	In 	their 	motion 	to 	dismiss, 	the 	Moving 	Defendants 	state: 	“[I]t
appears 	that 	[Montgomery] 	is 	only 	alleging 	Fourth 	and 	Eighth
Amendment 	violations. 	Therefore, 	the 	[Moving] 	Defendants 	only
address 	the 	substance 	of 	those 	claims.” 	(Doc. 	44 	at 	6 	n.3). 	In
his 	response 	to 	the 	motion, 	Montgomery 	reiterates 	his 	assertion
that his Fourth and Eighth Amendment rights were violated and does
not indicate that he is asserting any claims for relief other than
those 	addressed 	by 	the 	Moving 	Defendants 	in 	their 	motion 	to
dismiss. 	(See 	Doc. 	48). 	Accordingly, 	the 	Court 	construes
Montgomery’s complaint as asserting only § 1983 and Bivens claims
for violation of his Fourth and Eighth Amendment rights.
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In Bivens, the United States Supreme Court recognized for the
first time an implied private right of action for damages against
federal officers for violations of certain constitutional rights,
despite the absence of any statute conferring such a right. 	Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 66-67 (2001). 	A Bivens claim
is 	the 	federal 	counterpart 	of 	a 	claim 	brought 	against 	a 	state
official under 42 U.S.C. § 1983. 	Iqbal, 556 U.S. at 675-76. 	“The
effect 	of 	Bivens 	was, 	in 	essence, 	to 	create 	a 	remedy 	against
federal 	officers, 	acting 	under 	color 	of 	federal 	law, 	that 	was
analogous 	to 	the 	section 	1983 	action 	against 	state 	officials.”
Abella 	v. 	Rubino, 	63 	F.3d 	1063, 	1065 	(11th 	Cir. 	1995) 	(quotation
omitted). 	“Thus, 	courts 	generally 	apply 	§ 	1983 	law 	to 	Bivens
cases.” 	Id.
1. 	Official Capacity Claims
Montgomery 	does 	not 	specify 	whether 	he 	is 	suing 	the 	Moving
Defendants in their individual capacities, official capacities, or
both. 	The 	Moving 	Defendants 	construe 	the 	complaint 	as 	raising
claims 	against 	them 	in 	both 	their 	official 	and 	individual
capacities, 	and 	they 	argue 	that 	any 	claims 	asserted 	against 	them
in their official capacities should be dismissed. 	(Doc. 44 at 23-
24). 	For the reasons set forth below, the Court agrees.
“[W]hen 	an 	officer 	is 	sued 	under 	Section 	1983 	in 	his 	or 	her
official 	capacity, 	the 	suit 	is 	simply 	another 	way 	of 	pleading 	an
action against an entity of which an officer is an agent.” 	Busby
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v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (quotations
omitted). 	“Such 	suits 	against 	municipal 	officers 	are 	therefore,
in 	actuality, 	suits 	directly 	against 	the 	city 	that 	the 	officer
represents.” 	Id. 	“Under 	Section 	1983, 	there 	is 	no 	respondeat
superior 	liability. 	Thus, 	a 	municipality 	may 	not 	be 	sued 	under
Section 1983 for the acts of others but, rather, only for its own
acts.” 	Hamilton 	v. 	City 	of 	Jackson, 	508 	F. 	Supp. 	2d 	1045, 	1055–
56 	(S.D. 	Ala. 	2007), 	aff’d, 	261 	F. 	App’x 	182 	(11th 	Cir. 	2008).5
In 	other 	words, 	“a 	local 	government 	may 	not 	be 	sued 	under 	§ 	1983
for 	an 	injury 	inflicted 	solely 	by 	its 	employees 	or 	agents.
Instead, 	it 	is 	when 	execution 	of 	a 	government’s 	policy 	or 	custom
. 	. 	. 	inflicts 	the 	injury 	that 	the 	government 	as 	an 	entity 	is
responsible under § 1983.” 	Monell v. Dep’t of Soc. Servs. of City
of New York, 436 U.S. 658, 694 (1978). 	Accordingly, “to impose §
1983 liability on a municipality, a plaintiff must show: (1) that
his constitutional rights were violated; (2) that the municipality
had a custom or policy that constituted deliberate indifference to
that constitutional right; and (3) that the policy or custom caused
5 Federal Appendix cases are unpublished Eleventh Circuit opinions
and are not considered binding precedent, but they may be cited as
persuasive authority. 	See 11th Cir. R. 36-2 (“Unpublished opinions
are 	not 	considered 	binding 	precedent, 	but 	they 	may 	be 	cited 	as
persuasive 	authority.”); 	Henry 	v. 	Comm’r 	of 	Soc. 	Sec., 	802 	F.3d
1264, 	1267 	n.1 	(11th 	Cir. 	2015) 	(per 	curiam) 	(“Cases 	printed 	in
the Federal Appendix are cited as persuasive authority.”).
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the violation.” 	McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.
2004).
As 	relevant 	here, 	Montgomery 	alleges 	that 	Defendant 	Looney
was a Mobile Police officer, and that Defendant Evans was a canine
handler for the City of Mobile. 	(Doc. 15 at 2-3; Doc. 15-1 at 1).
Montgomery’s complaint also names the City of Mobile as a Defendant
but 	makes 	no 	specific 	allegations 	or 	claims 	against 	that
municipality.6 	(Doc. 	15 	at 	3). 	Although 	Montgomery 	fails 	to
identify 	his 	claims 	against 	the 	City 	of 	Mobile, 	it 	appears 	that
any § 1983 claims asserted against Defendants Looney and Evans in
their official capacities would be redundant of any claims asserted
against the City of Mobile. 	See Hamilton, 508 F. Supp. 2d at 1055
(dismissing 	§ 	1983 	claims 	against 	city’s 	police 	chief 	and 	police
officers 	in 	their 	official 	capacities 	because 	plaintiff 	also
brought 	his 	§ 	1983 	claims 	against 	the 	city); 	Burns 	v. 	City 	of
Alexander 	City, 	110 	F. 	Supp. 	3d 	1237, 	1247 	(M.D. 	Ala. 	2015) 	(“As
a 	matter 	of 	law, 	the 	official 	capacity 	claims 	against 	[a 	city’s
police officer] are due to be dismissed as redundant of the federal
6 On January 10, 2025, the Court granted Defendant City of Mobile’s
motion to dismiss Montgomery’s third amended complaint under Rules
12(b)(5) and 4(m) of the Federal Rules of Civil Procedure, and the
City 	of 	Mobile 	was 	dismissed 	from 	this 	action 	without 	prejudice
for lack of proper service of process. 	(Doc. 57 at 3). 	The Court
also 	dismissed 	Defendants 	Kevin 	Nelson 	and 	Justin 	Washam 	without
prejudice for lack of service of process under Rule 4(m). 	(Id. at
4). 	Thus, the Moving Defendants are the only remaining Defendants
in this action.
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claims 	asserted 	against 	the 	municipality.”). 	Even 	if 	the 	claims
are 	not 	redundant, 	Montgomery 	fails 	to 	identify 	or 	even 	suggest
that there was a municipal policy or custom responsible for causing
a violation of his constitutional rights, as would be necessary to
state 	a 	claim 	against 	the 	City 	of 	Mobile 	under 	§ 	1983.
Accordingly, to the extent Montgomery asserts § 1983 claims against
Defendants 	Looney 	and 	Evans 	in 	their 	official 	capacities, 	such
claims are due to be dismissed.
Additionally, 	Montgomery’s 	complaint 	identifies 	Defendant
Lawrence 	as 	a 	probation 	and 	parole 	officer, 	thereby 	indicating
that 	he 	is 	a 	state 	official. 	See 	Miles 	v. 	McDonald, 	2021 	U.S.
Dist. 	LEXIS 	10290, 	at 	*12-13, 	2021 	WL 	206353, 	at 	*4 	(M.D. 	Ala.
Jan. 	20, 	2021) 	(finding 	that 	probation 	and 	parole 	officers 	from
the 	Alabama 	Board 	of 	Pardons 	and 	Paroles 	were 	state 	officials).
The 	Eleventh 	Amendment 	to 	the 	United 	States 	Constitution 	states:
“The Judicial power of the United States shall not be construed to
extend 	to 	any 	suit 	in 	law 	or 	equity, 	commenced 	or 	prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.” 	U.S. Const. Amend.
XI. 	Although 	not 	obvious 	from 	its 	text, 	the 	Eleventh 	Amendment
bars a suit in federal court brought against a state by a citizen
of that state. 	Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1277
(11th 	Cir. 	1998). 	Eleventh 	Amendment 	immunity 	also 	extends 	to
state 	officials 	sued 	in 	their 	official 	capacities. 	Id. 	The 	two
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exceptions 	to 	Eleventh 	Amendment 	immunity 	are 	if 	the 	state 	has
waived 	its 	immunity 	or 	if 	Congress 	has 	abrogated 	the 	state’s
immunity. 	Carr 	v. 	City 	of 	Florence, 	Ala., 	916 	F.2d 	1521, 	1524
(11th Cir. 1990). 	“Alabama has not waived its Eleventh Amendment
immunity in § 1983 cases, nor has Congress abrogated it.” 	Holmes
v. 	Hale, 	701 	F. 	App’x 	751, 	753 	(11th 	Cir. 	2017) 	(per 	curiam)
(citing Carr, 916 F.2d at 1525). 	Further, state officials sued in
their official capacities are not “persons” within the meaning of
§ 1983, and monetary damages are unavailable for a § 1983 complaint
naming 	state 	officials 	in 	their 	official 	capacities. 	Edwards 	v.
Wallace Cmty. Coll., 49 F.3d 1517, 1524 (11th Cir. 1995). 	In light
of 	the 	foregoing, 	any 	§ 	1983 	claims 	for 	money 	damages 	asserted
against Defendant Lawrence in his official capacity are due to be
dismissed.
Finally, 	it 	is 	axiomatic 	that 	the 	United 	States 	government
“may 	not 	be 	sued 	without 	its 	consent 	and 	that 	the 	existence 	of
consent 	is 	a 	prerequisite 	for 	jurisdiction.” 	United 	States 	v.
Mitchell, 	463 	U.S. 	206, 	212 	(1983). 	“Absent 	a 	waiver, 	sovereign
immunity 	shields 	the 	Federal 	Government 	and 	its 	agencies 	from
suit.” 	F.D.I.C. 	v. 	Meyer, 	510 	U.S. 	471, 	475 	(1994). 	“The
availability 	of 	a 	cause 	of 	action 	against 	federal 	officials 	in
their 	individual 	capacities 	for 	violations 	of 	federal
constitutional rights was established in Bivens.” 	Nalls v. Coleman
Low 	Fed. 	Inst., 	307 	F. 	App’x 	296, 	297 	(11th 	Cir. 	2009) 	(per
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curiam). 	However, 	“a 	plaintiff 	may 	not 	bring 	a 	Bivens 	action
against 	a 	federal 	agency 	or 	a 	federal 	officer 	acting 	in 	his
official capacity.” 	Horne v. Soc. Sec. Admin., 359 F. App’x 138,
143 (11th Cir. 2010) (per curiam); see Nalls, 307 F. App’x at 297
(“Bivens 	claims 	can 	be 	brought 	against 	federal 	officers 	in 	their
individual capacities only; they do not apply to federal officers
acting 	in 	their 	official 	capacities.”); 	Bevan 	v. 	Steele, 	417 	F.
App’x 	840, 	841 	n.3 	(11th 	Cir. 	2011) 	(per 	curiam) 	(“Bivens 	claims
do 	not 	extend 	to 	federal 	officers 	in 	their 	official 	capacity 	and
are 	barred 	by 	sovereign 	immunity.”); 	Malesko, 	534 	U.S. 	at 	71
(holding 	that 	Bivens 	“is 	concerned 	solely 	with 	deterring 	the
unconstitutional acts of individual officers”); Meyer, 510 U.S. at
486 (declining to imply a damages remedy under Bivens for federal
agencies). 	Accordingly, to the extent Montgomery seeks to assert
Bivens 	claims 	against 	any 	of 	the 	Moving 	Defendants 	in 	their
official capacities, such claims are due to be dismissed.7
7 	“Sovereign 	immunity 	is 	jurisdictional 	in 	nature.” 	Meyer, 	510
U.S. 	at 	475. 	When 	a 	dismissal 	is 	“based 	on 	sovereign 	immunity
grounds, the jurisdictional nature of the dismissal requires it to
be 	entered 	without 	prejudice.” 	Dupree 	v. 	Owens, 	92 	F.4th 	999,
1008 	(11th 	Cir. 	2024) 	(holding 	that 	dismissals 	based 	on 	Eleventh
Amendment 	sovereign 	immunity 	grounds 	were 	required 	to 	be 	entered
without 	prejudice); 	see 	also 	Carneiro 	v. 	USCIS 	Dist. 	Dir. 	Se.
Region, 	2021 	U.S. 	App. 	LEXIS 	22943, 	at 	*3-4, 	2021 	WL 	3360964, 	at
*1-2 	(11th 	Cir. 	Aug. 	3, 	2021) 	(per 	curiam) 	(affirming 	dismissal
without prejudice of plaintiffs’ official-capacity Bivens claim on
the basis of sovereign immunity).
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2. 	Statute of Limitations
The Moving Defendants argue that Montgomery’s claims against
them for allegedly violating his rights under the Fourth and Eighth
Amendments 	are 	time-barred 	because 	they 	were 	filed 	outside 	the
applicable two-year statute of limitations period. 	(Doc. 44 at 9-
11). 	Montgomery 	has 	responded 	to 	the 	Moving 	Defendants’ 	motion
but has failed to address the timeliness of his claims. 	(See Doc.
48).
“Federal 	courts 	apply 	their 	forum 	state’s 	statute 	of
limitations 	for 	personal 	injury 	actions 	to 	actions 	brought
pursuant to 42 U.S.C. § 1983.” 	Lovett v. Ray, 327 F.3d 1181, 1182
(11th 	Cir. 	2003) 	(per 	curiam) 	(quotation 	omitted). 	In 	Alabama,
the 	statute 	of 	limitations 	period 	for 	filing 	a 	§ 	1983 	action 	is
two 	years. 	Jones 	v. 	Preuit 	& 	Mauldin, 	876 	F.2d 	1480, 	1483 	(11th
Cir. 1989) (en banc). 	Courts apply the same statute of limitations
for 	Bivens 	claims 	as 	would 	apply 	to 	a 	claim 	under 	§ 	1983. 	Kelly
v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996). 	“Accordingly, the
statute of limitations for a Bivens claim filed in Alabama is two
years.” 	Nicholson 	v. 	Nathan 	Smoots, 	S.A., 	2023 	U.S. 	App. 	LEXIS
5530, at *7, 2023 WL 2401329, at *3 (11th Cir. Mar. 8, 2023) (per
curiam).
Although 	courts 	look 	to 	state 	law 	for 	the 	length 	of 	the
limitations 	period, 	the 	date 	on 	which 	the 	statute 	of 	limitations
period for a § 1983 or Bivens claim begins is a question of federal
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law. 	Wallace v. Kato, 549 U.S. 384, 388 (2007); Kelly, 87 F.3d at
1238-39. 	The statute of limitations period for a § 1983 or Bivens
claim 	“begins 	to 	run 	from 	the 	date 	that 	the 	cause 	of 	action
accrues, 	which 	occurs 	when 	‘the 	plaintiff 	has 	a 	complete 	and
present 	cause 	of 	action’ 	and 	‘can 	file 	suit 	and 	obtain 	relief.’”
Nicholson, 	2023 	U.S. 	App. 	LEXIS 	5530, 	at 	*7, 	2023 	WL 	2401329, 	at
*3 (quoting Wallace, 549 U.S. at 388). 	“Under the discovery rule,
an action accrues when ‘the facts which would support a cause 	of
action 	are 	apparent 	or 	should 	be 	apparent 	to 	a 	person 	with 	a
reasonably prudent regard for his rights.’” 	Id. (quoting Rozar v.
Mullis, 	85 	F.3d 	556, 	561-62 	(11th 	Cir. 	1996)). 	Thus, 	a 	cause 	of
action 	under 	§ 	1983 	or 	Bivens 	accrues, 	and 	the 	statute 	of
limitations begins to run, when the plaintiff knows or has reason
to know of his injury and who has inflicted the injury. 	Chappell
v. 	Rich, 	340 	F.3d 	1279, 	1283 	(11th 	Cir. 	2003); 	Rice 	v. 	Sixteen
Unknown 	Fed. 	Agents, 	658 	F. 	App’x 	959, 	962 	(11th 	Cir. 	2016) 	(per
curiam).
A. 	Illegal Search and Seizure
First, 	with 	respect 	to 	Montgomery’s 	Fourth 	Amendment 	claims
arising from the allegedly illegal searches of his vehicle and his
girlfriend’s 	apartment, 	“[a] 	cause 	of 	action 	based 	on 	an 	illegal
entry 	and 	search 	accrues 	when 	the 	plaintiff 	learns 	of 	the 	entry
and search.” 	Brady v. Walsh, 2022 U.S. Dist. LEXIS 104300, at *3-
4, 2022 WL 2104292, at *2 (M.D. Fla. June 10, 2022); see Villalona
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v. Holiday Inn Express & Suites, 824 F. App’x 942, 946 (11th Cir.
2020) 	(per 	curiam) 	(holding 	that 	plaintiff’s 	§ 	1983 	and 	Bivens
claims 	arising 	from 	the 	entrance 	and 	search 	of 	his 	hotel 	room 	by
law 	enforcement 	officers 	accrued 	when 	plaintiff 	“became 	aware 	of
the 	entry 	and 	search”); 	Ou 	v. 	Melnikov, 	2021 	U.S. 	Dist. 	LEXIS
108708, 	at 	*6, 	2021 	WL 	2380055, 	at 	*3 	(S.D. 	Fla. 	June 	10, 	2021)
(“The 	cause 	of 	action 	for 	an 	unreasonable 	search 	and 	seizure
accrues 	on 	the 	date 	the 	victim 	‘became 	aware 	of 	the 	entry 	and
search.’”) 	(quoting 	Villalona, 	824 	F. 	App’x 	at 	946); 	see 	also
Giddens 	v. 	Lawson, 	734 	F. 	App’x 	706, 	710 	(11th 	Cir. 	2018) 	(per
curiam) 	(finding 	that 	Bivens 	claims 	seeking 	damages 	against
officers 	who 	searched 	plaintiffs’ 	home 	accrued 	when 	the 	search
occurred 	and 	were 	not 	tolled 	while 	one 	of 	the 	plaintiffs 	was
incarcerated); 	Frederick 	v. 	Bondi, 	2018 	U.S. 	Dist. 	LEXIS 	105322,
at *3, 2018 WL 3105460, at *2 (M.D. Fla. June 25, 2018) (“[A] claim
for 	an 	illegal 	search 	accrues 	on 	the 	date 	the 	search 	was
conducted.”); Bridgewater v. DeKalb Cnty. by & through Jones, 2010
U.S. Dist. LEXIS 154559, at *10-11, 2010 WL 11507266, at *4 (N.D.
Ga. 	July 	12, 	2010) 	(“Federal 	courts 	have 	determined 	that 	claims
arising 	out 	of 	police 	actions 	toward 	a 	criminal 	suspect, 	such 	as
arrest, interrogation, or search and seizure, are presumed to have
accrued 	when 	the 	actions 	actually 	occur. 	As 	such, 	Plaintiff’s
claims 	relating 	to 	the 	traffic 	stop, 	seizure 	of 	the 	car 	and
appliances, 	and 	search 	of 	the 	residence 	accrued 	. 	. 	. 	when 	these
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events 	occurred.”) 	(internal 	citations, 	quotation 	marks, 	and
brackets 	omitted), 	report 	and 	recommendation 	adopted, 	2010 	U.S.
Dist. 	LEXIS 	149086, 	2010 	WL 	11526840 	(N.D. 	Ga. 	Oct. 	13, 	2010),
aff’d, 	430 	F. 	App’x 	837 	(11th 	Cir. 	2011); 	Glenn 	v. 	Schill, 	2023
U.S. Dist. LEXIS 98508, at *7-9, 2023 WL 3855590, at *3 (M.D. Ga.
June 	6, 	2023) 	(finding 	that 	plaintiff’s 	§ 	1983 	claims 	for
unreasonable 	search 	and 	seizure 	began 	to 	run 	on 	the 	date 	of 	the
search 	and 	seizure 	and 	not 	on 	the 	date 	when 	all 	charges 	were
dismissed 	against 	plaintiff 	and 	the 	criminal 	proceedings
terminated in his favor); Bennett v. Harper, 2020 U.S. Dist. LEXIS
38575, 	at 	*7, 	2020 	WL 	1071293, 	at 	*2–3 	(S.D. 	Ga. 	Mar. 	5, 	2020)
(concluding 	that 	plaintiff’s 	§ 	1983 	claims 	arising 	from
defendants’ search of his bedroom accrued at the time of the search
and 	were 	not 	deferred 	until 	the 	criminal 	case 	against 	plaintiff
terminated in his favor), report and recommendation adopted, 2020
U.S. Dist. LEXIS 55542, 2020 WL 1528439 (S.D. Ga. Mar. 30, 2020).
Here, 	it 	is 	apparent 	from 	the 	face 	of 	the 	complaint 	that
Montgomery 	was 	aware 	of 	the 	searches 	of 	his 	vehicle 	and 	his
girlfriend’s 	apartment 	no 	later 	than 	May 	7, 	2020, 	almost 	three
years before he filed his initial complaint in this action in April
2023. 	Accordingly, 	Montgomery’s 	illegal 	search 	claims 	under
Bivens or § 1983 are barred by the two-year statute of limitations.
Similarly, 	to 	the 	extent 	Montgomery 	claims 	his 	personal
property 	(e.g., 	money, 	vehicle, 	digital 	scales, 	etc.) 	was
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unlawfully seized in violation of the Fourth Amendment, his claims
accrued when he knew of the seizures in May 2020. 	See Sanders v.
Beck, 	2018 	U.S. 	Dist. 	LEXIS 	154751, 	at 	*5-6, 	2018 	WL 	4326860, 	at
*3 	(N.D. 	Fla. 	Aug. 	23, 	2018) 	(“Regarding 	Plaintiff’s 	claims 	of
illegal 	search 	and 	seizure, 	Plaintiff 	also 	knew 	of 	or 	had 	reason
to know he was illegally searched and his property illegally seized
from his person when those searches and seizures occurred in 2012.
. . . Therefore, these claims accrued in 2012, more than four years
before Plaintiff filed his complaint.”), report and recommendation
adopted, 2018 U.S. Dist. LEXIS 153719, 2018 WL 4326812 (N.D. Fla.
Sept. 	10, 	2018); 	Holt 	v. 	Valls, 	395 	F. 	App’x 	604, 	606 	(11th 	Cir.
2010) (per curiam) (“Because Holt filed this lawsuit on September
15, 	2008, 	more 	than 	two 	years 	after 	the 	alleged 	unlawful 	seizure
of 	his 	property 	on 	March 	20, 	2006, 	the 	Fourth 	Amendment 	claim 	he
raises is barred by the statute of limitations.”); James v. United
States, 	1997 	WL 	1037822, 	at 	*3 	(S.D. 	Fla. 	Sept. 	12, 	1997) 	(“A
Bivens 	claim 	for 	deprivation 	of 	property 	through 	illegal 	search
and 	seizure 	accrues 	when 	the 	property 	is 	seized.”). 	Since
Montgomery 	waited 	for 	more 	than 	two 	years 	after 	he 	was 	aware 	of
the seizures to file this action, his unlawful seizure claims under
Bivens or § 1983 are barred by the two-year statute of limitations.
B. 	False Arrest/False Imprisonment
Montgomery 	also 	appears 	to 	levy 	claims 	for 	false 	arrest 	or
false imprisonment. 	(See Doc. 15 at 5). 	“False arrest and false
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imprisonment 	overlap; 	the 	former 	is 	a 	species 	of 	the 	latter.”
Wallace, 549 U.S. at 388. 	The tort of false imprisonment affords
a 	remedy 	for 	detention 	without 	legal 	process. 	Id. 	at 	389.
“Reflective 	of 	the 	fact 	that 	false 	imprisonment 	consists 	of
detention 	without 	legal 	process, 	a 	false 	imprisonment 	ends 	once
the victim becomes held pursuant to such process—when, for example,
he 	is 	bound 	over 	by 	a 	magistrate 	or 	arraigned 	on 	charges.” 	Id.
Thus, 	claims 	for 	false 	arrest 	or 	false 	imprisonment 	“accrue 	when
either the seizure ends or the plaintiff is held pursuant to legal
process.” 	Williams 	v. 	Aguirre, 	965 	F.3d 	1147, 	1158 	(11th 	Cir.
2020). 	Commencement of the statute of limitations for a claim of
false 	arrest 	or 	false 	imprisonment 	is 	not 	delayed 	because 	of 	an
anticipated 	future 	conviction, 	nor 	is 	it 	tolled 	while 	the 	bar
established 	in 	Heck 	v. 	Humphrey, 	512 	U.S. 	477 	(1994), 	subsists.
Wallace, 549 U.S. at 393-95.
The 	complaint 	itself 	does 	not 	state 	when 	Montgomery 	became
held 	pursuant 	to 	legal 	process. 	However, 	Alabama 	court 	records8
reflect 	that 	Montgomery 	was 	arrested 	on 	May 	7, 	2020, 	based 	on
8 This Court may take judicial notice of online state court docket
entries in state court proceedings. 	See Paez v. Sec’y, Fla. Dep’t
of 	Corr., 	947 	F.3d 	649, 	652-53 	(11th 	Cir. 	2020) 	(per 	curiam);
Lozman 	v. 	City 	of 	Riviera 	Beach, 	Fla., 	713 	F.3d 	1066, 	1075 	n.9
(11th Cir. 2013) (taking judicial notice, at the motion to dismiss
stage, 	of 	“court 	documents 	from 	[a] 	state 	eviction 	action”). 	As
such, 	the 	undersigned 	has 	reviewed 	Montgomery’s 	relevant 	state
court 	criminal 	cases 	on 	Alacourt, 	Alabama’s 	online 	court 	records
database, available at https://v2.alacourt.com.
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charges 	of 	possession 	of 	drug 	paraphernalia, 	possession 	of 	a
controlled 	substance 	(“spice”), 	and 	first-degree 	possession 	of
marijuana. 	(See also Doc. 15-1 at 3 (“MONTGOMERY was arrested on
new 	charges 	of 	Possession 	of 	a 	Controlled 	Substance 	‘Spice’,
Marijuana 1st and Possession of Drug Paraphernalia.”). 	Montgomery
appeared before a Mobile County district judge for an arraignment
on May 12, 2020. 	Montgomery was released from Mobile County Metro
Jail 	on 	bond 	on 	May 	26, 	2020. 	He 	subsequently 	appeared 	before 	a
different district judge for a preliminary hearing on February 10,
2021, 	and 	his 	case 	was 	bound 	over 	to 	the 	grand 	jury. 	Montgomery
was 	indicted 	by 	the 	grand 	jury 	for 	first-degree 	possession 	of
marijuana and possession of drug paraphernalia on August 4, 2021,
and 	he 	appeared 	before 	a 	Mobile 	County 	circuit 	judge 	for 	an
arraignment 	on 	December 	16, 	2021. 	On 	the 	State 	of 	Alabama’s
motion, 	the 	charges 	against 	Montgomery 	were 	nolle 	prossed 	on 	May
5, 2023. 	(Id. at 4).
Based on the foregoing, it is clear that Montgomery was held
pursuant to legal process no later than May 12, 2020, when he was
arraigned. 	Accordingly, 	the 	statute 	of 	limitations 	on
Montgomery’s 	false 	arrest 	or 	false 	imprisonment 	claims 	began 	to
run 	no 	later 	than 	May 	12, 	2020, 	nearly 	three 	years 	before 	the
commencement 	of 	this 	action. 	Thus, 	Montgomery’s 	federal 	false
arrest 	or 	false 	imprisonment 	claims 	are 	barred 	by 	the 	two-year
statute of limitations.
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C. 	Malicious Prosecution
Though 	its 	timeliness 	is 	not 	specifically 	addressed 	by 	the
Moving Defendants, Montgomery arguably asserts a Fourth Amendment
malicious prosecution claim against Defendant Looney.9 	(See Doc.
15 	at 	5). 	In 	contrast 	to 	a 	claim 	of 	false 	arrest 	or 	false
imprisonment, “malicious prosecution requires a seizure ‘pursuant
to legal process.’” 	Black v. Wigington, 811 F.3d 1259, 1267 (11th
Cir. 	2016) 	(quoting 	Heck, 	512 	U.S. 	at 	484). 	“[W]arrant-based
seizures fall within this category,” as do “seizures following an
arraignment, indictment, or probable-cause hearing.” 	Aguirre, 965
F.3d at 1158. 	“A police officer who applies for an arrest warrant
can 	be 	liable 	for 	malicious 	prosecution 	if 	he 	should 	have 	known
that his application failed to establish probable cause, or if he
made statements or omissions in his application that were material
and 	perjurious 	or 	recklessly 	false.”10 	Black, 	811 	F.3d 	at 	1267
(internal 	citations 	and 	quotation 	marks 	omitted). 	A 	claim 	of
malicious 	prosecution 	“does 	not 	accrue 	until 	the 	criminal
proceedings have terminated in the plaintiff’s favor.” 	Heck, 512
U.S. at 489. 	The entry of nolle prosequi constitutes termination
9 	Montgomery 	alleges 	no 	facts 	suggesting 	that 	he 	is 	asserting 	a
malicious 	prosecution 	claim 	against 	any 	Defendant 	other 	than
Defendant Looney.
10 	The 	state 	court 	records 	reflect 	that 	Officer 	Darlene 	Looney-
McKean applied for and executed arrest warrants for Montgomery on
May 11, 2020.
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in the plaintiff’s favor. 	Baker v. City of Atlanta, 662 F. Supp.
3d 1308, 1325 (N.D. Ga. 2023).
Here, it appears that any malicious prosecution claim against
Defendant Looney accrued when the charges against Montgomery were
nolle prossed on May 5, 2023, only a few months before the filing
of Montgomery’s operative complaint in this action. 	Therefore, to
the 	extent 	Montgomery’s 	complaint 	can 	be 	construed 	to 	raise 	a
malicious prosecution claim against Defendant Looney under Bivens
or § 1983, the claim is not barred by the statute of limitations.
D. 	Excessive Force
Montgomery arguably asserts an excessive force claim against
Defendant 	Bartel 	for 	“snatch[ing]” 	him 	out 	of 	his 	car 	and
“chok[ing]” 	him 	“because 	[Bartel] 	thought 	[Montgomery] 	swallowed
something.” 	(See 	Doc. 	15-1 	at 	6). 	“Typically, 	a 	claim 	premised
on the use of excessive force begins to run at the time the alleged
force was used.” 	Hofmann v. Fla. Dep’t of Corr., 2019 U.S. Dist.
LEXIS 250183, at *4-5, 2019 WL 13280179, at *2 (N.D. Fla. Oct. 3,
2019); 	see, 	e.g., 	Baker 	v. 	City 	of 	Hollywood, 	391 	F. 	App’x 	819,
821 (11th Cir. 2010) (per curiam) (affirming the district court’s
dismissal 	of 	plaintiff’s 	claims 	premised 	on 	excessive 	force
because 	it 	was 	apparent 	from 	the 	face 	of 	the 	complaint 	that
plaintiff filed it more than four years after the date he allegedly
was beaten). 	Accordingly, the Court finds that any excessive force
claim against Defendant Bartel accrued no later than May 7, 2020,
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when 	Bartel 	allegedly 	choked 	Montgomery. 	Because 	Montgomery 	did
not file this action until almost three years later, any excessive
force 	claim 	against 	Defendant 	Bartel 	in 	this 	action 	is 	barred 	by
the two-year statute of limitations.
E. 	Eighth Amendment
Lastly, 	Montgomery 	purports 	to 	assert 	claims 	for 	the
violation 	of 	his 	rights 	under 	the 	Eighth 	Amendment, 	although 	he
neither explains how his Eighth Amendment rights were violated nor
specifies 	which 	clause 	of 	the 	Eighth 	Amendment 	he 	is 	invoking.
(See 	Doc. 	15 	at 	4-5; 	Doc. 	15-1 	at 	5). 	Notwithstanding 	the
foregoing, 	it 	is 	clear 	that 	Montgomery’s 	ill-defined 	Eighth
Amendment claims accrued in May 2020, when Montgomery knew of his
injuries and who allegedly inflicted them. 	See Benson v. Internal
Revenue 	Serv., 	2022 	U.S. 	Dist. 	LEXIS 	117248, 	at 	*18 	n.4, 	2022 	WL
2347366, at *6 n.4 (N.D. Ga. June 6, 2022) (“Count Five, violation
of 	the 	Eighth 	Amendment, 	accrues 	from 	the 	date 	that 	a 	‘plaintiff
knows 	or 	has 	reason 	to 	know 	of 	an 	injury 	and 	who 	has 	inflicted
it.’”) (citation omitted); Harley v. Cooley, 2008 U.S. Dist. LEXIS
78846, 	at 	*2, 	2008 	WL 	4279651, 	at 	*1 	(M.D. 	Fla. 	Sept. 	15, 	2008)
(finding 	that 	prisoner’s 	claim 	that 	prosecutor’s 	actions 	at 	his
trial 	violated 	his 	Eighth 	Amendment 	right 	to 	be 	free 	from 	cruel
and unusual punishment accrued at the time of the trial); Roberson
v. 	Walker, 	333 	F. 	Supp. 	3d 	1301, 	1306 	(N.D. 	Ala. 	2018) 	(finding
that 	plaintiff’s 	Eighth 	Amendment 	excessive 	bail 	claim 	accrued
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when 	he 	was 	informed 	of 	the 	charges 	and 	bail 	amounts).
Accordingly, 	Montgomery’s 	putative 	Eighth 	Amendment 	claims 	are
barred by the two-year statute of limitations.
3. 	Bivens Claims
As 	outlined 	above, 	Montgomery’s 	complaint 	indicates 	that
Defendant Bartel was an inspector with the United States Marshals
Service (“USMS”), and that Defendants Looney, Evans, and Lawrence
were state or local law enforcement officers. 	(See Doc. 15 at 2-
3; 	Doc. 	15-1 	at 	1, 	3, 	6). 	However, 	the 	Moving 	Defendants 	assert
that 	Looney, 	Evans, 	and 	Lawrence 	were 	deputized 	by 	the 	United
States Marshal11 and working with Bartel on a fugitive apprehension
task force overseen by the USMS12 at the time of “Montgomery’s home
11 The Moving Defendants identify Bartel as a Deputy United States
Marshal 	and 	Looney, 	Evans, 	and 	Lawrence 	as 	Special 	Deputy 	United
States Marshals who were part of the Gulf Coast Regional Fugitive
Task Force. 	(Doc. 44 at 1).
12 The Moving Defendants state:
Pursuant to 28 U.S.C. § 566, the USMS operates regional
and 	local 	joint 	fugitive 	apprehension 	task 	forces
consisting of federal, state, and local officers jointly
executing federal, state, and local arrest warrants for
serious 	offenders. 	Task 	force 	officers 	are 	state 	and
local 	police 	officers 	who 	receive 	special 	deputations
with the Marshals. 	The four SpDUSM [Moving] Defendants
are a part of the Gulf Coast Regional Fugitive Task Force
and 	provided 	assistance 	with 	Montgomery’s 	home 	visit
pursuant 	to 	this 	partnership 	with 	Mobile 	Police
Department. 	While 	on 	a 	task 	force, 	these 	officers 	can
exercise 	U.S. 	Marshals 	authorities, 	such 	as 	crossing
jurisdictional lines.
(Doc. 44 at 1-2 n.1).
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visit” 	on 	May 	6, 	2020. 	(Doc. 	44 	at 	1-2 	& 	n.1). 	Based 	on 	this
assertion, the Moving Defendants imply that they were acting under
color 	of 	federal 	(and 	not 	state) 	law 	at 	all 	relevant 	times, 	and
that all of Montgomery’s claims against them are properly construed
as Bivens (and not § 1983) claims. 	The Moving Defendants further
argue 	that 	no 	cause 	of 	action 	under 	Bivens 	is 	available 	against
them for the constitutional violations alleged. 	(Id. at 11-21).
Courts 	“have 	consistently 	treated 	local 	law 	enforcement
agents deputized as federal agents and acting as part of a federal
task 	force 	as 	federal 	agents 	and 	in 	doing 	so, 	these 	courts 	have
found that Section 1983 does not apply.” 	Bates v. City of Atlanta,
2021 U.S. Dist. LEXIS 211077, at *12, 2021 WL 5034837, at *4 (N.D.
Ga. 	Aug. 	26, 	2021) 	(quotations 	and 	brackets 	omitted); 	see, 	e.g.,
Robinson 	v. 	Sauls, 	2019 	U.S. 	Dist. 	LEXIS 	238337, 	at 	*7, 	2019 	WL
12338303, at *3 (N.D. Ga. Sept. 16, 2019) (“It is well-established
that 	an 	officer 	acting 	with 	a 	federal 	task 	force 	is 	a 	federal
officer 	and, 	therefore, 	acts 	under 	color 	of 	federal 	law.”). 	But
Montgomery’s operative complaint, which the Court must construe in
his 	favor, 	provides 	no 	allegation 	or 	clear 	indication 	that
Defendants Looney, Evans, or Lawrence were acting as federal agents
on 	a 	federal 	task 	force. 	Moreover, 	the 	Moving 	Defendants 	offer
nothing 	beyond 	their 	own 	broad 	assertions 	to 	establish 	that 	they
were 	all 	acting 	under 	color 	of 	federal 	(and 	not 	state) 	law. 	At
the motion to dismiss stage, the Court cannot simply accept these
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assertions 	at 	face 	value. 	See, 	e.g., 	Vielma 	v. 	Gruler, 	808 	F.
App’x 	872, 	883 	(11th 	Cir. 	2020) 	(per 	curiam) 	(“Obviously, 	in 	a
motion-to-dismiss 	context, 	we 	cannot 	accept 	as 	true 	Defendants’
assertion, 	but 	must 	instead 	accept 	Plaintiffs’ 	non-conclusory
allegations.”); see also McLeod v. United States, 2021 U.S. Dist.
LEXIS 	238497, 	at 	*12-13, 	2021 	WL 	5906373, 	at 	*4 	(S.D. 	Ala. 	Dec.
14, 	2021) 	(“The 	Court 	does 	not 	accept 	Defendants’ 	[a 	combination
of 	state 	and 	federal 	law 	enforcement 	agents] 	invitation 	to
conclude, 	as 	a 	matter 	of 	law, 	they 	were 	acting 	under 	color 	of
federal 	law 	in 	their 	effort 	to 	arrest 	McLeod. 	The 	current 	state
of 	the 	record 	leaves 	unanswered 	essential 	questions 	regarding
under 	what 	authority, 	and 	whose 	direction, 	the 	Defendants 	were
acting.”). 	Consequently, 	the 	Court 	cannot 	conclude 	at 	this
juncture 	that 	Defendants 	Looney, 	Evans, 	and 	Lawrence 	were 	acting
under 	color 	of 	federal 	(and 	not 	state) 	law 	at 	the 	time 	of 	the
alleged 	constitutional 	violations, 	nor 	can 	the 	Court 	determine
that Montgomery’s various claims against Defendants Looney, Evans,
and Lawrence for violating his rights under the Fourth and Eighth
Amendments must be construed solely as Bivens claims.
The complaint does indicate that Defendant Bartel was acting
under 	color 	of 	federal 	law 	during 	the 	events 	alleged 	on 	May 	6,
2020. 	(See 	Doc. 	15 	at 	2; 	Doc. 	15-1 	at 	1, 	3, 	6). 	However, 	the
Court notes that Montgomery’s claims against Defendant Bartel are
due to be dismissed as time-barred regardless of whether they are
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asserted 	under 	Bivens 	or 	§ 	1983. 	Indeed, 	all 	of 	Montgomery’s
Fourth 	and 	Eighth 	Amendment 	claims 	against 	Bartel, 	Evans, 	and
Lawrence, 	whether 	asserted 	under 	Bivens 	or 	§ 	1983, 	are 	due 	to 	be
dismissed 	on 	statute 	of 	limitations 	grounds. 	The 	only 	non-time-
barred claim – for malicious prosecution – is apparently asserted
only against Defendant Looney, and it is by no means clear at this
stage 	whether 	Defendant 	Looney 	was 	acting 	under 	color 	of 	federal
or state law when she “put” charges on Montgomery. 	In any event,
as explained in the next section of this report and recommendation,
Montgomery’s malicious prosecution claim against Defendant Looney,
while 	timely, 	is 	due 	to 	be 	dismissed 	regardless 	of 	whether 	it 	is
properly 	asserted 	under 	Bivens 	or 	under 	§ 	1983. 	Accordingly, 	it
is 	not 	necessary 	for 	the 	Court 	to 	determine 	whether 	any 	Bivens
cause of action is available to Montgomery under the circumstances
of this case, particularly given the lack of clarity as to whether
Defendants Looney, Evans, and Lawrence were acting under color of
state or federal law.
4. 	Malicious Prosecution
As 	noted 	supra, 	Montgomery’s 	only 	non-time-barred 	claim
against 	the 	Moving 	Defendants 	is 	his 	malicious 	prosecution 	claim
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against Defendant Looney.13 	The Moving Defendants assert that the
claim is barred by qualified immunity. 	(Doc. 44 at 23).
Qualified 	immunity 	shields 	federal 	and 	state 	officials 	sued
in 	their 	individual 	capacities 	“from 	money 	damages 	unless 	a
plaintiff 	pleads 	facts 	showing 	(1) 	that 	the 	official 	violated 	a
statutory 	or 	constitutional 	right, 	and 	(2) 	that 	the 	right 	was
‘clearly 	established’ 	at 	the 	time 	of 	the 	challenged 	conduct.”
Ashcroft 	v. 	al-Kidd, 	563 	U.S. 	731, 	735 	(2011). 	“When 	qualified
immunity 	is 	asserted 	in 	the 	context 	of 	a 	motion 	to 	dismiss,
[courts] 	look 	to 	the 	pleadings 	to 	see 	if 	the 	plaintiff 	has
successfully 	alleged 	the 	violation 	of 	a 	clearly 	established
right.” 	O’Rourke v. Hayes, 378 F.3d 1201, 1206 (11th Cir. 2004);
see 	also 	Snider 	v. 	Jefferson 	State 	Cmty. 	Coll., 	344 	F.3d 	1325,
1327 	(11th 	Cir. 	2003) 	(“The 	defense 	of 	qualified 	immunity 	may 	be
raised and addressed on a motion to dismiss and will be granted if
the 	‘complaint 	fails 	to 	allege 	the 	violation 	of 	a 	clearly
established 	constitutional 	right.’”) 	(citations 	omitted).14 	The
13 Because Montgomery’s other claims against the Moving Defendants
are 	time-barred, 	it 	is 	not 	necessary 	to 	address 	whether 	his
complaint 	states 	a 	claim 	on 	which 	relief 	may 	be 	granted 	under 	§
1983 	or 	Bivens 	for 	illegal 	search, 	unlawful 	seizure 	of 	property,
false 	arrest, 	excessive 	force, 	or 	unspecified 	violation 	of 	the
Eighth Amendment.
14 To receive qualified immunity, a government official must first
show 	that 	she 	was 	acting 	within 	the 	scope 	of 	her 	discretionary
authority 	when 	the 	allegedly 	unconstitutional 	acts 	occurred.
Hinson v. Bias, 927 F.3d 1103, 1116 (11th Cir. 2019). 	Challenged
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Court finds that Montgomery’s malicious prosecution claim, whether
asserted 	under 	Bivens 	or 	§ 	1983, 	is 	due 	to 	be 	dismissed 	because
the 	complaint 	fails 	to 	plausibly 	allege 	that 	Defendant 	Looney
violated Montgomery’s Fourth Amendment rights.
To state a malicious prosecution claim under Bivens or § 1983,
a 	plaintiff 	must 	allege 	facts 	that 	would 	show 	“(1) 	that 	the
defendant 	violated 	his 	Fourth 	Amendment 	right 	to 	be 	free 	from
seizures 	pursuant 	to 	legal 	process 	and 	(2) 	that 	the 	criminal
proceedings against him terminated in his favor.” 	Luke v. Gulley,
975 F.3d 1140, 1144 (11th Cir. 2020). 	A plaintiff must also plead
facts that would “satisfy ‘the elements of the common law tort of
malicious prosecution.’” 	Laskar v. Hurd, 972 F.3d 1278, 1284 (11th
Cir. 	2020) 	(quoting 	Aguirre, 	965 	F.3d 	at 	1157). 	These 	elements
are 	“(1) 	a 	criminal 	prosecution 	instituted 	or 	continued 	by 	the
present defendant; (2) with malice and without probable cause; (3)
that 	terminated 	in 	the 	plaintiff 	accused’s 	favor; 	and 	(4) 	caused
damage to the plaintiff accused.” 	Grider v. City of Auburn, Ala.,
618 F.3d 1240, 1256 (11th Cir. 2010) (citation omitted).
actions 	are 	within 	the 	scope 	of 	an 	official’s 	discretionary
authority when they were (1) undertaken pursuant to the performance
of 	her 	duties 	and 	(2) 	within 	the 	scope 	of 	her 	authority. 	Id.
Here, it is clear that Defendant Looney was performing her official
duties 	within 	the 	scope 	of 	her 	authority 	at 	all 	times 	alleged.
Therefore, she was acting within her discretionary authority, and
qualified immunity is available to her.
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The 	entry 	of 	nolle 	prosequi 	attached 	to 	Montgomery’s
complaint 	appears 	to 	satisfy 	the 	second 	element 	of 	his 	federal
malicious 	prosecution 	claim. 	The 	first 	element 	of 	Montgomery’s
claim, a violation of his right to be free from seizures pursuant
to 	legal 	process, 	requires 	establishing 	two 	sub-elements: 	“(1)
that the legal process justifying his seizure was constitutionally
infirm 	and 	(2) 	that 	his 	seizure 	would 	not 	otherwise 	be 	justified
without legal process.” 	Aguirre, 965 F.3d at 1165.
A 	plaintiff 	can 	show 	that 	the 	legal 	process 	justifying 	his
seizure 	was 	constitutionally 	infirm 	if 	he 	can 	show 	“either 	that
the officer who applied for the warrant should have known that his
application failed to establish probable cause, or that an official
. . . intentionally or recklessly made misstatements or omissions
necessary 	to 	support 	the 	warrant.” 	Id. 	(internal 	citations
omitted). 	Montgomery’s 	complaint 	arguably 	implicates 	the 	latter
half 	of 	this 	rule, 	simply 	alleging 	that 	Defendant 	Looney 	“put”
“false 	charges” 	on 	him. 	However, 	“‘[g]eneral 	attacks 	upon 	[a]
defendant’s 	credibility’ 	are 	not 	enough 	to 	meet” 	a 	plaintiff’s
burden, 	“[n]or 	are 	conclusory 	allegations 	and 	speculation.” 	Id.
at 1165-66.
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Ultimately, 	even 	if 	the 	Court 	overlooks 	its 	other
deficiencies,15 	Montgomery’s 	malicious 	prosecution 	claim 	fails
because it rests solely on the conclusory allegation that Defendant
Looney 	“put” 	“false 	charges” 	on 	Montgomery. 	See 	Johnson 	v. 	Town
of 	Pinckard, 	2024 	U.S. 	Dist. 	LEXIS 	53629, 	at 	*16-18, 	2024 	WL
1286193, 	at 	*6–7 	(M.D. 	Ala. 	Mar. 	26, 	2024) 	(dismissing 	§ 	1983
malicious prosecution claim against police officer under the first
qualified 	immunity 	prong 	where 	plaintiff’s 	complaint 	merely 	made
conclusory allegations that the officer provided false information
and lied under oath); Banks v. Dean, 2015 WL 4637694, at *4 (N.D.
Ala. Aug. 3, 2015) (dismissing § 1983 malicious prosecution claims
where the plaintiff “only alleged the ultimate conclusion, that he
was 	wrongfully 	accused 	of 	domestic 	violence, 	without 	submitting
specific 	factual 	assertions 	to 	support 	such 	a 	conclusion”);
Williams 	v. 	Allen, 	2017 	U.S. 	Dist. 	LEXIS 	66962, 	at 	*14, 	2017 	WL
1653744, 	at 	*6 	(M.D. 	Fla. 	May 	2, 	2017) 	(dismissing 	malicious
prosecution 	claim 	where 	plaintiff 	did 	“not 	allege 	any 	facts
15 	For 	example, 	Montgomery 	does 	not 	allege 	facts 	showing 	that 	he
was 	seized 	pursuant 	to 	legal 	process, 	nor 	does 	he 	allege 	facts
explaining 	how 	any 	Defendant 	instituted 	or 	continued 	a 	criminal
prosecution 	against 	him. 	See 	Fuqua 	v. 	Turner, 	2018 	U.S. 	Dist.
LEXIS 	66506, 	at 	*2-3, 	2018 	WL 	1900549, 	at 	*1 	(N.D. 	Ala. 	Apr. 	20,
2018) (finding that plaintiff failed to state a claim for malicious
prosecution against his arresting officers because he alleged only
that 	the 	officers 	arrested 	him 	without 	probable 	cause 	to 	believe
he 	was 	a 	felon 	in 	possession 	of 	a 	firearm 	and 	was 	“silent 	on
whether 	the 	officers 	took 	any 	additional 	actions 	beyond 	the
arrest”), aff’d, 996 F.3d 1140 (11th Cir. 2021).
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concerning 	the 	form 	or 	substance 	of 	the 	evidence 	or 	information
she claims Defendants fabricated”).
Because 	Montgomery 	does 	not 	allege 	sufficient 	facts 	to
plausibly 	show 	that 	Defendant 	Looney 	provided 	false 	information
leading 	to 	his 	arrest 	or 	continued 	prosecution, 	he 	“fails 	to
sufficiently allege that the legal process justifying his seizure
was infirm, which in turn means that he has not plausibly alleged
a federal malicious prosecution claim.” 	Johnson, 2024 U.S. Dist.
LEXIS 53629, at *17, 2024 WL 1286193, at *7.
Relatedly, Montgomery fails to satisfy all of the common law
elements 	of 	malicious 	prosecution 	because 	he 	does 	not
“sufficiently 	allege 	a 	lack 	of 	probable 	cause, 	the 	existence 	of
which 	‘defeats 	a 	[federal] 	malicious 	prosecution 	claim.’”16 	Id.
(quoting 	Grider, 	618 	F.3d 	at 	1256); 	see 	also 	Hesed-El 	v. 	McCord,
2019 	U.S. 	Dist. 	LEXIS 	60440, 	at 	*7, 	2019 	WL 	1441624, 	at 	*3 	(S.D.
Ga. 	Mar. 	29, 	2019) 	(“[A]s 	a 	material 	element 	of 	malicious
16 	Likewise, 	to 	the 	extent 	Montgomery 	is 	asserting 	a 	claim 	for
false arrest or false imprisonment under Bivens or § 1983, he fails
to plausibly allege a constitutional violation because he does not
allege 	sufficient 	facts 	to 	show 	that 	he 	was 	arrested 	without
probable cause. 	See Andrews v. Scott, 729 F. App’x 804, 808 (11th
Cir. 2018) (per curiam) (“A plaintiff asserting a claim for false
arrest 	under 	§ 	1983 	must 	show 	that 	she 	was 	arrested 	without 	a
warrant 	and 	without 	probable 	cause.”); 	Ortega 	v. 	Christian, 	85
F.3d 	1521, 	1526 	(11th 	Cir. 	1996) 	(“Where 	a 	police 	officer 	lacks
probable 	cause 	to 	make 	an 	arrest, 	the 	arrestee 	has 	a 	claim 	under
section 1983 for false imprisonment based on a detention pursuant
to that arrest.”). 	Accordingly, even if they were not time-barred,
Montgomery’s 	false 	arrest 	or 	false 	imprisonment 	claims 	would 	be
subject to dismissal.
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prosecution and false arrest, Plaintiff must allege, at a minimum,
non-conclusory allegations allowing the Court to infer the absence
of 	probable 	cause.”), 	aff’d, 	829 	F. 	App’x 	469 	(11th 	Cir. 	2020);
Vandiver v. Meriwether County, Ga., 325 F. Supp. 3d 1321, 1327 n.4
(N.D. Ga. 2018) (noting that plaintiff’s failure to “discharge his
pleading 	burden 	on 	at 	least 	the 	probable 	cause 	element” 	by
providing more than “conclusory allegations that he was prosecuted
without 	probable 	cause” 	was 	fatal 	to 	his 	§ 	1983 	malicious
prosecution claim).
Instead 	of 	providing 	non-conclusory 	factual 	allegations
concerning 	the 	substance 	of 	the 	evidence 	or 	the 	charges 	brought
against 	him, 	Montgomery 	offers 	only 	the 	naked 	assertion 	that
“charges . . . put on” him by Defendant Looney were “false.” 	This
vague and conclusory allegation is simply not enough to give rise
to a plausible claim for malicious prosecution, particularly given
the 	absence 	of 	any 	allegations 	in 	the 	complaint 	concerning
Defendant Looney’s actions following Montgomery’s arrest on May 6
or 	7, 	2020. 	Indeed, 	Montgomery 	does 	not 	even 	identify 	what 	the
“charges” against him were, much less provide any facts supporting
his 	contention 	that 	they 	were 	“false.” 	Accordingly, 	because 	the
complaint 	fails 	to 	plausibly 	allege 	the 	violation 	of 	a
constitutional 	right, 	Montgomery’s 	malicious 	prosecution 	claim
against Defendant Looney is due to be dismissed.
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5. 	Leave to Amend
Leave 	to 	amend 	a 	deficient 	complaint 	should 	be 	freely 	given
when justice so requires. 	Fed. R. Civ. P. 15(a)(2). 	Ordinarily,
a party must be given leave to amend at least one time before the
complaint is dismissed with prejudice. 	Corsello v. Lincare, Inc.,
428 	F.3d 	1008, 	1014 	(11th 	Cir. 	2005) 	(per 	curiam). 	However, 	a
court need not allow an amendment “(1) where there has been undue
delay, 	bad 	faith, 	dilatory 	motive, 	or 	repeated 	failure 	to 	cure
deficiencies by amendments previously allowed; (2) where allowing
amendment 	would 	cause 	undue 	prejudice 	to 	the 	opposing 	party; 	or
(3) where amendment would be futile.” 	Bryant v. Dupree, 252 F.3d
1161, 1163 (11th Cir. 2001) (per curiam).
In 	this 	action, 	Montgomery 	has 	repeatedly 	failed 	to 	cure
deficiencies 	in 	his 	pleadings. 	If 	the 	Court 	were 	to 	grant
Montgomery yet another opportunity to amend, it would be his fifth
attempt 	at 	producing 	a 	viable 	pleading. 	The 	Court 	has 	spent 	a
significant 	amount 	of 	time 	and 	effort 	outlining 	deficiencies 	in
both 	the 	form 	and 	substance 	of 	Montgomery’s 	pleadings 	and
explaining to Montgomery what is required to plead his claims with
the requisite specificity and to state a claim on which relief can
be granted. 	The Court has given Montgomery detailed instructions
on how to correct his pleading deficiencies and formulate a proper
complaint 	that 	provides 	adequate 	notice 	of 	his 	claims. 	And 	the
Court warned Montgomery that the third amended complaint would be
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his 	final 	opportunity 	to 	amend 	in 	order 	to 	correct 	pleading
deficiencies. 	(Doc. 14 at 15).
Despite the Court’s warnings and instructions, Montgomery has
continued 	to 	produce 	substantially 	similar 	pleadings 	with
substantially similar shortcomings. 	It is notable that the fourth
iteration 	of 	Montgomery’s 	complaint 	still 	fails 	to 	identify 	his
claims with a reasonable degree of clarity, forcing both the Court
and 	the 	Defendants 	to 	fill 	in 	blanks 	and 	engage 	in 	a 	non-trivial
degree 	of 	guesswork 	in 	an 	effort 	to 	discern 	his 	claims. 	It 	is
also 	remarkable 	that 	Montgomery 	has 	continued 	to 	rely 	upon 	the
same 	conclusory 	terminology 	(e.g., 	“false 	charges,” 	“illegal
search”) 	to 	support 	his 	claims, 	despite 	being 	repeatedly
admonished 	that 	a 	complaint 	must 	provide 	more 	than 	bare 	and
conclusory assertions in order to state a facially plausible claim
for relief.
Although 	the 	Moving 	Defendants 	have 	attempted 	to 	interpret
and 	substantively 	respond 	to 	Montgomery’s 	claims, 	Montgomery’s
inability to produce an adequate pleading continues to hamper the
Moving Defendants’ and the Court’s ability to decipher his claims.
Moreover, 	the 	Defendants 	have 	been 	compelled 	to 	expend
considerable 	time 	and 	resources 	defending 	against 	Montgomery’s
poorly drafted pleadings and poorly defined claims. 	Accordingly,
the undersigned recommends that Montgomery not be granted leave to
file a fourth amended complaint.
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IV. 	CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	recommends
that 	the 	Moving 	Defendants’ 	motion 	to 	dismiss 	Montgomery’s 	third
amended complaint (Doc. 44) be GRANTED in part; that Montgomery’s
§ 1983 and/or Bivens claims against the Moving Defendants in their
individual capacities be DISMISSED with prejudice; that any § 1983
claims 	asserted 	against 	Defendants 	Looney 	and 	Evans 	in 	their
official 	capacities 	be 	DISMISSED 	with 	prejudice; 	and 	that 	any
Bivens 	claims 	asserted 	against 	the 	Moving 	Defendants 	in 	their
official 	capacities, 	and 	any 	§ 	1983 	claim 	asserted 	against
Defendant Lawrence in his official capacity, be DISMISSED without
prejudice for lack of subject matter jurisdiction.
NOTICE OF RIGHT TO FILE OBJECTIONS
A 	copy 	of 	this 	report 	and 	recommendation 	shall 	be 	served 	on
all parties in the manner provided by law. 	Any party who objects
to this recommendation or anything in it must, within fourteen (14)
days of the date of service of this document, file specific written
objections with the Clerk of this Court. 	See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). 	The parties should
note 	that 	under 	Eleventh 	Circuit 	Rule 	3-1, 	“[a] 	party 	failing 	to
object 	to 	a 	magistrate 	judge’s 	findings 	or 	recommendations
contained 	in 	a 	report 	and 	recommendation 	in 	accordance 	with 	the
provisions 	of 	28 	U.S.C. 	§ 	636(b)(1) 	waives 	the 	right 	to 	challenge
on appeal the district court’s order based on unobjected-to factual
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and legal conclusions if the party was informed of the time period
for objecting and the consequences on appeal for failing to object.
In the absence of a proper objection, however, the court may review
on appeal for plain error if necessary in the interests of justice.”
11th Cir. R. 3-1.
In 	order 	to 	be 	specific, 	an 	objection 	must 	identify 	the
specific place in the Magistrate Judge’s report and recommendation
where 	the 	disputed 	determination 	is 	found. 	An 	objection 	that
merely incorporates by reference or refers to the briefing before
the Magistrate Judge is not specific.
DONE this 16th day of January, 2025.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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