Mims v. Bogan (MAG+)(JOINT ASSIGN)
Filing
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MEMORANDUM OPINION AND ORDER that Defendants' Motion to Dismiss 8 is GRANTED IN PART and DENIED IN PART as follows: 1. Defendants' Motion to Dismiss Mims's § 1983 claim against the State of Alabama for negligent hiring, retent ion, and failure to supervise and train its officers as asserted in Count B of the Complaint is GRANTED, and this claim is DISMISSED WITH PREJUDICE; 2. Defendants' Motion to Dismiss any claims against Bogan in his official capacity, including Mi ms's state law battery claim (Count C), is GRANTED, and any official capacity claims against Bogan are DISMISSED WITH PREJUDICE; 3. Defendants' Motion to Dismiss any claim for injunctive relief against Bogan is GRANTED, and that claim is DISMISSED WITH PREJUDICE; 4. Defendants' Motion to Dismiss Mims's excessive force claim5 as alleged in Count A of the Complaint is DENIED; 5. Defendant Bogan shall file an answer to the Complaint on or before July 16, 2013. Signed by Honorable Judge Mark E. Fuller on 6/25/2013. (Attachments: # 1 Civil Appeals Checklist)(jg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
RICHARD MIMS,
Plaintiff,
v.
STATE OF ALABAMA,
and AGENT D. BOGAN,
Defendants.
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CASE NO.: 1:12-cv-887-MEF
(WO – Do Not Publish)
MEMORANDUM OPINION AND ORDER
This lawsuit arises from Plaintiff Richard Mims’s (“Plaintiff” or “Mims”) arrest on
a public intoxication charge on October 7, 2011. Mims claims that he was arrested without
probable cause and subjected to the use of unreasonable and excessive force in violation of
his constitutional rights. Before the Court is the Motion to Dismiss for Failure to State a
Claim and for Lack of Subject Matter Jurisdiction (Doc. #8) filed by Defendants State of
Alabama (“State of Alabama”) and Agent Demetrius Bogan (“Bogan”) (collectively,
“Defendants”) on November 8, 2012. For the reasons explained herein, the Court finds that
Defendants’ motion is due to be GRANTED IN PART and DENIED IN PART.
FACTUAL AND PROCEDURAL BACKGROUND1
On October 7, 2011, Mims entered a local store in the North Cherry Street area of
Dothan, Alabama to use the restroom. Bogan and a few of his colleagues were in the area
1
This recitation of facts is derived from Plaintiff’s Complaint (Doc. #1). As is required at
the motion to dismiss stage, the Court will take as true all factual allegations as pled in the
Complaint.
outside of the store. At all times pertinent to this lawsuit, Bogan was working as an agent
of the Alabama Alcoholic Beverage Control Board (the “ABC Board”), an agency of the
State of Alabama.
Mims exited the store after using the restroom when he was suddenly “accosted by
Bogan.” (Doc. #1, ¶ 4.) Bogan asked Mims to blow in a breathalyzer machine. Because
Mims was not under arrest, was not the target or subject of any investigation, and had not
committed any crime at the time Bogan made his request, Mims refused to submit to the
breathalyzer test. (Doc. #1, ¶ 4.) Bogan became “enraged that Mims did not want to
participate in his impromptu breathalyzer test,” and as a result, Bogan arrested Mims,
handcuffed him, and told him to stand in a specific location. (Doc. #1, ¶ 5.) Bogan charged
Mims with public intoxication.
At the time of arrest, Mims was over sixty years old and had suffered from various
physical ailments that affected his bones and joints and limited his flexibility in his legs.
Nevertheless, and without provocation or reason, Bogan, in one motion, forcefully kicked
Mims’s feet out from under him and threw him onto the pavement. At the time, Mims was
still handcuffed and could not resist or otherwise shield himself from “the blows of both
Bogan and the concrete pavement.” (Doc. #1, ¶ 6.) Following this incident, Mims sought
medical attention and was diagnosed with sciatic and chronic back pain and hip pain.
Mims contends that “Bogan’s conduct was willful, malicious, intentional, and
completely in bad faith, as Mims did nothing to warrant being subjected to such cruel and
unconstitutional behavior.” (Doc. #1, ¶ 6.) Mims also contends that “Bogan lacked both
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actual and arguable probable cause to believe” that Mims had committed any crime,
including public intoxication. (Doc. #1, ¶ 6.) Mims was tried for public intoxication and
found not guilty.
On October 11, 2012, Mims filed his Complaint, asserting various federal and state
law claims against Defendants. More specifically, Mims’s Complaint asserts the following
claims: (1) a claim against Bogan for deprivation of Mims’s Fourth Amendment rights
through the use of unreasonable and excessive force in violation of 42 U.S.C. § 1983 (Count
A); (2) a claim against the State of Alabama for negligent retention and failure to train and
supervise its law enforcement officers, including Bogan, in violation of 42 U.S.C. § 1983
(Count B); (3) a state law battery claim against Bogan (Count C); and (4) a claim against
Bogan for deprivation of Mims’s Fourth Amendment rights through false/unlawful arrest in
violation of 42 U.S.C. § 1983 (Count D). (Doc. #1.) In his prayer for relief, Mims seeks
compensatory and punitive damages, injunctive relief, costs of court, and reasonable
attorney’s fees. (Doc. #1, Prayer for Relief.)
On November 8, 2012, Defendants moved to dismiss certain claims in Mims’s
Complaint pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure.
Specifically, Defendants moved to dismiss all claims against the State of Alabama, the
Fourth Amendment excessive force claim against Bogan, the official capacity state law
battery claim against Bogan, and any claim for injunctive relief.2 Defendants argue that
2
Defendants do not seek dismissal of Mims’s state law battery claim against Bogan in his
individual capacity.
3
Mims’s claim against the State of Alabama for negligent retention and failure to train and
supervise its law enforcement officers is due to be dismissed because the State of Alabama
is not a “person” subject to suit under § 1983 and because the State of Alabama has not
waived its sovereign immunity from such suits under the Eleventh Amendment. Defendants
argue that Mims’s state law battery claim brought against Bogan in his official capacity is
due to be dismissed because this claim is essentially a claim against the State of Alabama
and, consequently, is barred by Eleventh Amendment sovereign immunity.
Finally,
Defendants argue that Mims’s Fourth Amendment excessive force claim is due to be
dismissed because it is subsumed within his false arrest claim and his request for injunctive
relief is due to be dismissed for lack of subject matter jurisdiction and for failure to state a
claim upon which relief can be granted. (See Doc. #9.)
In response, Mims concedes dismissal of all claims asserted against the State of
Alabama and against Bogan in his official capacity. Mims further clarifies that his request
for injunctive relief, specifically, an “order enjoining Agent D. Bogan from serving as an
agent for the any [sic] law enforcement agency that operate [sic] in a public school setting,
as this poses a risk of danger to citizens,” was simply for his “personal protection” and for
the “protection of the public” and was not “meant to be construed as an official action or
request for injunctive relief.” (Doc. #1, Prayer for Relief.) Mims does oppose, however,
dismissal of his Fourth Amendment excessive force (Count A) and false arrest (Count D)
claims, arguing that his excessive force claim is not subsumed into his false arrest claim
because Mims’ purported false arrest does not form the sole basis of his excessive force
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claim. In other words, Mims argues that he can pursue alternative theories of recovery
because the use of excessive force occurred separately and independently from his otherwise
peaceful arrest. (See Doc. #13.)
The parties’ arguments are addressed in turn below.
STANDARD OF REVIEW
1.
Rule 12(b)(1)
Federal courts have limited jurisdiction. To establish a claim in federal court, the
plaintiff must display complete diversity of citizenship or raise a question of federal law for
subject matter jurisdiction to exist. The Eleventh Circuit recognizes two challenges to a
district court’s exercise of subject matter jurisdiction under Rule 12(b)(1) of the Federal
Rules of Civil Procedure: facial and factual attacks. See Whitson v. Staff Acquisition, Inc.,
41 F. Supp. 2d 1294, 1296 (M.D. Ala. 1999). “A facial attack questions the sufficiency of
the pleading and the plaintiff enjoys similar safeguards to those provided when opposing a
motion to dismiss” under Rule 12(b)(6). Id. “The court accepts the plaintiff’s allegations
as true, construes them most favorably to the plaintiff, and will not look beyond the face of
the complaint to determine jurisdiction.” Id. “A factual attack, on the other hand, permits
‘the trial court [to] proceed as it never could under [Rule] 12(b)(6).’” Id. (quoting Lawrence
v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (per curiam)). A district court may
consider “matters outside the pleadings, such as testimony and affidavits[.]” Lawrence, 919
F.2d at 1529. Indeed, to determine whether it has the power to hear a case, the district court
“may weigh the evidence to confirm its jurisdiction.” Whitson, 41 F. Supp. 2d at 1296. “‘No
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presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed
material facts does not preclude the trial court from evaluating for itself the merits of
jurisdictional claims.’” Id. (quoting Dunbar, 919 F.2d at 1529).
Defendants’ motion presents a facial attack on the Court’s subject matter jurisdiction
over Mims’s negligent training and retention claim against the State of Alabama, his official
capacity claims against Bogan, and his request for injunctive relief against Bogan. (See Doc.
# 9.)
2.
Rule 12(b)(6)
In considering a Rule 12(b)(6) motion to dismiss, “the court accepts the plaintiff’s
allegations as true . . . and construes the complaint liberally in the plaintiff’s favor.” Id. at
1297. Further, a district court must favor the plaintiff with “all reasonable inferences from
the allegations in the complaint.” Stephens v. Dep’t of Health and Human Servs., 901 F.2d
1571, 1573 (11th Cir. 1990).
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 (internal quotations omitted). A complaint states a
facially plausible claim for relief “when the plaintiff pleads factual content that allows the
court to draw a reasonable inference that the defendant is liable for the misconduct alleged.”
Id. A complaint does not state a facially plausible claim for relief if it shows only “a sheer
possibility that the defendant acted unlawfully.” Id. While a complaint need not contain
detailed factual allegations to survive a Rule 12(b)(6) motion, “[a] pleading that offers labels
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and conclusions or a formulaic recitation of the elements of a cause of action will not do.”
Id. (internal quotation and citations omitted). Absent the necessary factual allegations,
“unadorned, the-defendant-unlawfully-harmed-me accusation[s]” will not suffice. Id.
Courts are also not “bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Granting a motion to dismiss is
appropriate only “when it is demonstrated beyond a doubt the plaintiff can prove no set of
facts in support of [her] claim that would entitle [her] to relief.” Reeves v. DSI Sec. Servs.,
331 Fed. App’x 659, 661 (11th Cir. 2009).
DISCUSSION
1.
Claim Against the State of Alabama
Mims’s Complaint asserts a claim against the State of Alabama under § 1983 for
negligent hiring, retention, and failure to supervise and train its law enforcement officers,
including Bogan. (Doc. #1, Count B.) The State of Alabama, however, is not an entity
subject to suit under § 1983. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89
(1984); Cardwell v. Auburn Univ. Montgomery, No. 2:12-cv-522-MEF, 2013 WL 1729952,
at *5 (M.D. Ala. Apr. 22, 2013). Nor has the State of Alabama waived its sovereign
immunity to such a claim under the Eleventh Amendment, and this immunity has not been
abrogated by Congress. See Toth v. City of Dothan, 953 F. Supp. 1502, 1506 (M.D. Ala.
1996) (citing Carr v. City of Florence, 916 F.2d 1521, 1524 (11th Cir. 1990)). Indeed, Mims
concedes that there is no legal basis for this claim and does not oppose its dismissal.
Accordingly, Mims’s § 1983 claim against the State of Alabama for negligent hiring,
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retention, and failure to supervise and train its officers as asserted in Count B of the
Complaint is DISMISSED.
2.
Official Capacity Claim Against Bogan
Although the Complaint appears to name Bogan as a defendant in his individual
capacity (Doc. #1, ¶ 1(b)), Mims alleges in his state law battery claim that Bogan acted “in
his personal capacity and official capacity as an agent of the Alabama ABC Board.”3 (Doc.
#1, Count C, ¶ 12.) As a result, Defendants seek dismissal of any official capacity claim
against Bogan on the basis that such a claim is essentially a claim against the State of
Alabama, which, as discussed above, is prohibited under § 1983 and the Eleventh
Amendment. See Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989); Kentucky v.
Graham, 473 U.S. 159, 169 (1985); Pennhurst, 465 U.S. at 120 (noting that Eleventh
Amendment immunity applies to state pendant claims as well). Mims again concedes
dismissal of any official capacity claims against Bogan. Thus, to the extent any official
capacity claims are asserted against Bogan in Mims’s Complaint, those claims are
DISMISSED.
3.
Injunctive Relief
In the Complaint’s Prayer for Relief, Mims requests an “order enjoining Agent D.
3
Mims states in his response to Defendants’ Motion to Dismiss that it is “unclear what
official capacity claims the Defendants are referring to because the complaint names Agent Bogan
as a defendant in his individual capacity.” (Doc. #13, ¶ 2.) While it is true that the Complaint
names Bogan as a defendant in his individual capacity, Defendants’ view of the Complaint as
asserting a state law battery claim against Bogan in his official capacity is not unfounded, and
Mims’s counsel would be well-served to pay closer attention to the allegations and language
contained in his pleadings to avoid similar confusion in the future.
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Bogan from serving as an agent for the any [sic] law enforcement agency that operate [sic]
in a public school setting, as this poses a risk of danger to citizens.” (Doc. #1, Prayer for
Relief.) Defendants have interpreted this request as a claim for equitable relief in the form
of an injunction against Bogan, and they seek dismissal of this claim for lack of subject
matter jurisdiction and for failure to state a claim upon which relief can be granted. (Doc.
#9.) However, in response to Defendants’ Motion to Dismiss, Mims clarified that this
request “was not meant to be construed as an official action or request for injunctive relief,”
thereby abandoning any injunctive relief claim against Bogan (to the extent one was
asserted). Accordingly, any claim against Bogan for injunctive relief is DISMISSED.
4.
Fourth Amendment Excessive Force Claim
Mims’s Complaint asserts two separate claims under § 1983 for excessive force and
unlawful arrest in violation of his Fourth Amendment rights. (Doc. #1, Counts A & D.)
Defendants seek dismissal of Mims’s excessive force claim on the basis that it is entirely
subsumed within his unlawful arrest claim, citing to Gray ex rel. Alexander v. Bostic, 458
F.3d 1295 (11th Cir. 2006), and Bashir v. Rockdale County, 445 F.3d 1323 (11th Cir. 2006).
These two cases,4 in particular Bashir, recognize that “where an excessive force claim is
predicated solely on allegations the arresting officer lacked the power to make an arrest, the
excessive force claim is entirely derivative of, and is subsumed within, the unlawful arrest
claim.” Bashir, 445 F.3d at 1333 (emphasis added).
4
Notably, the claims in both Gray and Bashier were decided at the summary judgment, as
opposed to motion to dismiss, stage.
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This is markedly different from the claims alleged in Mims’s Complaint. Unlike the
plaintiff’s claim in Bashir, the sole basis of Mims’s excessive force claim is not that any
force used by Bogan in making his arrest was excessive because the arrest itself was
unlawful. If that were the case, Mims’s excessive force claim could not proceed as a discrete
constitutional violation, as it would be wholly dependent upon and inseparable from his
unlawful arrest case. See id. In this case, however, Mims’s excessive force claim is
premised on allegations that, at some point after Mims’s otherwise peaceful arrest (whether
lawful or unlawful), Bogan, without provocation or reason, kicked Mims’s legs out from
underneath him and threw him onto the pavement, all while Mims was handcuffed, subdued,
and not resisting. (Doc. #1.) In the Court’s opinion, these allegations are sufficient to
present an excessive force claim that is separate and independent from a claim as to whether
Bogan had probable cause to arrest Mims in the first place. See id. (“When properly stated,
an excessive force claim presents a discrete constitutional violation relating to the manner
in which an arrest was carried out, and is independent of whether law enforcement had the
power to arrest.”). Therefore, Defendants’ motion to dismiss Mims’s excessive force claim
as alleged in Count A of the Complaint is DENIED.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendants’ Motion to Dismiss
(Doc. #8) is GRANTED IN PART and DENIED IN PART as follows:
1.
Defendants’ Motion to Dismiss Mims’s § 1983 claim against the State of
Alabama for negligent hiring, retention, and failure to supervise and train its officers as
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asserted in Count B of the Complaint is GRANTED, and this claim is DISMISSED WITH
PREJUDICE;
2.
Defendants’ Motion to Dismiss any claims against Bogan in his official
capacity, including Mims’s state law battery claim (Count C), is GRANTED, and any official
capacity claims against Bogan are DISMISSED WITH PREJUDICE;
3.
Defendants’ Motion to Dismiss any claim for injunctive relief against Bogan
is GRANTED, and that claim is DISMISSED WITH PREJUDICE;
4.
Defendants’ Motion to Dismiss Mims’s excessive force claim5 as alleged in
Count A of the Complaint is DENIED;
5
The Court notes that because Defendants did not seek dismissal of Plaintiff’s false arrest
claim (Count D), the Court did not address the merits of this claim, and therefore, this decision does
not affect Plaintiff’s ability to proceed with litigating that claim.
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5.
Defendant Bogan shall file an answer to the Complaint on or before July 16,
2013.
DONE this the 25th day of June, 2013.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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