              Case: 18-11824     Date Filed: 02/07/2019   Page: 1 of 6


                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-11824
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 3:17-cv-00430-WKW-DAB


DANIEL WEBSTER WILBORN,

                                                  Plaintiff - Appellant,

versus


JAY M. JONES,
Lee County Sheriff,
DAVID C. MAYO,
Sergeant, in his official and individual
capacity,
TERRANCE MOORE,
Deputy, in his official and individual
Capacity,

                                                  Defendants - Appellees

                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Alabama
                          ________________________

                                 (February 7, 2019)
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Before MARCUS, BRANCH and DUBINA, Circuit Judges.

PER CURIAM:

      This is an appeal from the district court’s order adopting a magistrate

judge’s Report and Recommendation that a motion to dismiss filed by defendants

Sheriff J. M. Jones and Sergeant David C. Mayo be granted. Plaintiff/Appellant

Daniel Webster Wilborn (“Wilborn”) filed a six-count civil rights complaint

alleging various violations of federal and state law. The relevant question before

the district court was whether Alabama law guarantees citizens a property interest

in police assistance to arrest or take mentally ill persons into custody to prevent

potential crimes. The district court concluded there was no such guarantee and

granted the defendants’ motion to dismiss.

                                          I.

      Specifically, Wilborn alleges that he sustained injuries from a neighbor-

relative, Darius Lashaun Wilborn (“Shaun”) because the police would not arrest

Shaun for domestic violence or request for an ambulance to transport Shaun to the

hospital. Shaun resided with his mother, and his mother activated a silent alarm

after Shaun began acting violently. After the officers arrived, Shaun assured the

officers that he was taking his medications, that he was going to his room, and that

there would be no problems. Shaun refused to leave the residence voluntarily.

Shaun’s mother left, and Wilborn arrived at the residence. Wilburn requested that


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the officers arrest Shaun, but they declined to do so. Wilburn tried to call an

ambulance, but because Shaun would not leave voluntarily, Sergeant Mayo

cancelled the ambulance request. The defendants explained to Wilburn that they

did not have probable cause to arrest Shaun. After the officers left the residence,

Shaun attacked Wilborn.

                                          II.

      A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint

against the legal standard set forth in Rule 8: “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

      When evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court

must take “the factual allegations in the complaint as true and construe them in the

light most favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284

(11th Cir. 2008). However, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft

v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). “[A] plaintiff’s

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more

than labels and conclusions, and a formulaic recitation of the elements of a cause

of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.

1955, 1965 (2007).




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        “To survive a 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.’”

Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127

S. Ct. at 1974). “Determining whether a complaint states a plausible claim for

relief [is] … a context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Id. at 679, 129 S. Ct. at 1950. Facial

plausibility exists “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. at 678, 129 S. Ct. at 1949. The standard also “calls for enough facts

to raise a reasonable expectation that discovery will reveal evidence” of the claim.

Twombly, 550 U.S. at 556, 127 S. Ct. at 1965. While the complaint need not set

out “detailed factual allegations,” it must provide sufficient factual amplification

“to raise a right to relief above the speculative level.” Id. at 555, 127 S. Ct. at

1965.

                                           III.

        After reviewing the record and reading parties briefs, we conclude that the

district court properly dismissed this case under Town of Castle Rock, Colo. v.

Gonzales, 545 U.S. 748, 125 S. Ct. 2796 (2005). In Town of Castle Rock, the

Supreme Court affirmed dismissal of a complaint filed by a mother alleging that

police officers’ failure to enforce a domestic abuse restraining order, despite her


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repeated demands, resulted in her estranged husband murdering their children. 545

U.S. at 751, 125 S. Ct. at 2800–01. The Supreme Court held that the officers’

alleged failure to enforce the restraining order was not a denial of the Due Process

Clause. Id. at 768, 125 S. Ct. at 2810 (stating “the benefit that a third party may

receive from having someone else arrested for a crime generally does not trigger

protections under the Due Process Clause”). The Supreme Court did not defer to

the appellate court which looked to whether Colorado law had created a property

or liberty interest in the enforcement of restraining orders. Id. at 756, 125 S. Ct. at

2803. Rather, the Supreme Court noted that federal constitutional law determined

whether an interest rises to the level of a “legitimate claim of entitlement”

protected by Due Process. Hence, the Supreme Court ultimately held that no such

interest existed due to the inevitable police discretion involved in arrest statutes.

Id. at 756, 125 S. Ct. at 2803 (stating “that a benefit is not a protected entitlement if

government officials may grant or deny it in their discretion.”).

      As the plaintiff in Town of Castle Rock, Wilborn lacked property or liberty

interests in Shaun being taken into custody under Ala. Code § 22-52-91, which

provides a procedure for law enforcement officers when confronted with persons

believed to be mentally ill and posing a danger to themselves or others. Moreover,

the statute makes clear that the decision to arrest an individual or contact a mental

health officer on behalf of an individual is within the discretion of the attending


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officer. “Generally, arrests and attempted arrests are classified as discretionary

functions” under Alabama law. Telfare v. City of Huntsville, 841 So. 2d 1222,

1228 (Ala. 2002). Wilborn does not present any facts or legal authority to support

his claim that the defendants should have placed Shaun under arrest or that the

defendants lacked the discretion not to arrest Shaun. Accordingly, for the above

reasons, we affirm the district court’s order adopting a magistrate judge’s Report

and Recommendation that the motion to dismiss filed by defendants be granted.

      AFFIRMED.




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