Waters v. Hughes
MEMORANDUM OPINION AND ORDER: All claims against the City and Magistrate Smith are due to be dismissed pursuant to Rule 12(b)(1) and (6) on the grounds explained in this opinion. It is ORDERED that Defendants' 15 Motion to Dismiss is GRANTED a s follows: (1) the 42 U.S.C. § 1983 official-capacity claims against Magistrate Smith, the fictitious-party claims, and the claims that request punitive damages from the City under both federal- and state-law are DISMISSED; (2) The § 1983 c laims in Counts III, VII, and IX are DISMISSED pursuant to Rule 12(b)(1) for lack of Article III standing; (3) The § 1983 claims in Counts I, II, VIII and IX are DISMISSED pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted; (4) The state-law claims in Counts IV, V, VI, VII, X, XI, and XIII. against the City are DISMISSED pursuant to § 11-47-190 of the Alabama Code; and (5) The state-law claim in Count IX against the City is DISMISSED for failure to state a claim upon which relief can be granted. The Clerk of the Court is DIRECTED to terminate The City of Geneva and Magistrate Smith as Defendants. This action proceeds with respect to Plaintiffs claims against Officer Hughes, which have been stayed. Signed by Chief Judge William Keith Watkins on 9/19/2014. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
THE CITY OF GENEVA, et al.,
CASE NO. 1:14-CV-236-WKW
MEMORANDUM OPINION AND ORDER
“Let there be no noise made, my gentle friends; Unless some dull and
favourable hand. Will whisper music to my weary spirit.”1 This lawsuit is about
the havoc that a “few seconds”2 of loud music from a car stereo system wreaked
for Plaintiff Tammy Waters and her minor son when their neighbor, an off-duty
police officer, called his department to lodge a noise complaint against Plaintiff.
Had no noise been made at all – or only a whisper of music – on November 21,
2013, in a neighborhood in the small town of Geneva, Alabama, things no doubt
would have played out differently. But the events on November 21 have brought
the parties here to federal court on a lawsuit replete with numerous causes of action
William Shakespeare, The Second Part of King Henry IV act 4, sc. 5.
(Compl. ¶ 13.)
under 42 U.S.C. § 1983 and state law arising from that night and Plaintiff’s
subsequent failed attempt to file a criminal complaint against the officer.
Before the court is a Motion to Dismiss (Doc. # 15), filed by Defendants
City of Geneva and Magistrate Stephanie Smith.3 Defendants move to dismiss the
Complaint pursuant to Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil
Procedure, with their grounds fully briefed in a memorandum.
(Doc. # 16.)
Plaintiff, individually and as next of kin of her minor son, N.C., filed a response in
opposition (Doc. # 19), to which Defendants filed a reply brief (Doc. # 24). After
careful consideration of the arguments of counsel, the appropriate law, and the
allegations set forth in the Complaint, the court finds that the Motion to Dismiss is
due to be granted.
I. JURISDICTION AND VENUE
Subject-matter jurisdiction is proper pursuant to 28 U.S.C. §§ 1331, 1343,
and 1367. Personal jurisdiction and venue are uncontested.
II. STANDARDS OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)
challenges the court’s subject-matter jurisdiction. McElmurray v. Consol. Gov’t of
Augusta–Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). On a Rule
The off-duty officer, Michael Hughes, also is a defendant, but the action against him is
stayed for the time being, and, thus, the claims against him are not presently before the court.
12(b)(1) facial attack, the court evaluates whether the plaintiff “has sufficiently
alleged a basis of subject matter jurisdiction” in the complaint and employs a
standard that is similar to that one governing Rule 12(b)(6) review. Houston v.
Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir. 2013).
When evaluating a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court must take the facts alleged in the complaint as true
and construe them in the light most favorable to the plaintiff. Resnick v. AvMed,
Inc., 693 F.3d 1317, 1321–22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny,
“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)). “[F]acial
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. (citing Twombly, 550 U.S. at 556).
The facts essential to resolution of the motion to dismiss, construed in
Plaintiff’s favor, are as follows.4 On November 21, 2013, Plaintiff’s son, N.C., and
Because the allegations of the Complaint are taken as true at this stage of the litigation,
these facts may not be the “actual facts.” Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1281
n.1 (11th Cir. 2006).
his friend were in the driveway of Plaintiff’s home in Geneva installing a stereo
system in N.C.’s truck. When N.C. connected the speakers to the stereo system,
the “stereo blared for a few seconds” until he “could get to the stereo and turn it
off.” (Compl. ¶ 13.)
Unbeknownst to Plaintiff, who was at home in the yard at the time,
Plaintiff’s neighbor, Geneva Police Officer Michael Hughes, who was off-duty,
called the Geneva Police Department and complained about the blast of loud
music. Geneva Police Officers, identified in the Complaint only as Fink and
Mock, responded to Plaintiff’s home in response to Officer Hughes’s complaint.
The officers informed Plaintiff that a neighbor had complained about the loud
music. Plaintiff explained to the officers that her son had been “making sure his
stereo worked for a few seconds,” but then had “turned it off.” (Compl. ¶ 14.)
Plaintiff asked the officers, “What kind of idiot calls the police when the stereo
was only on for a few seconds?” (Compl. ¶ 22.) The officers left Plaintiff’s
residence and promptly relayed Plaintiff’s comment to Officer Hughes.
A “short time later,” Officer Hughes went to Plaintiff’s home and confronted
Plaintiff in the yard. Officer Hughes, who was “loud and angry” (Compl. ¶ 16),
identified himself as a Geneva police officer, and reported that he was the one who
had lodged the noise complaint. He then threatened to arrest Plaintiff or issue her a
citation. Plaintiff asked Officer Hughes to leave numerous times, but he refused
and continued to yell that he could “arrest” her. (Compl. ¶ 17.) At one point,
Plaintiff pointed her finger at Officer Hughes. In response to Plaintiff’s fingerpointing, Officer Hughes grabbed Plaintiff and threw her into N.C.’s truck some
five feet away. When Plaintiff got up and tried to “defend[ ] herself,” Officer
Hughes “grabbed [her] again and began hitting her violently on the arms.”
(Compl. ¶ 17.)
Armed with a sugar cane stick, Plaintiff’s son attempted to intervene in the
altercation. Officer Hughes threatened to shoot N.C., and N.C. threatened to “beat
the hell” out of Officer Hughes if he did not release Plaintiff. (Compl. ¶ 17.) At
that time, the on-duty officers, Fink and Mock, returned to Plaintiff’s residence and
persuaded Officer Hughes to leave.
Sometime “after the incident,” Plaintiff tried to file a criminal complaint
against Officer Hughes with Defendant Stephanie Smith, the City of Geneva’s
magistrate. (Compl. ¶ 18.) Magistrate Smith refused to accept Plaintiff’s criminal
complaint, stating that Plaintiff first had to “clear[ ] it” with the city prosecutor.
(Compl. ¶ 18.) Eventually, several months later in March 2014, Plaintiff was
informed that she could file a criminal complaint against Officer Hughes with the
magistrate of the City of Hartford.5
The Complaint does not indicate whether Plaintiff pursued this option or whether the
magistrate of the City of Hartford accepted the criminal complaint for filing.
On April 2, 2014, Plaintiff commenced this lawsuit against the City of
Geneva, Officer Hughes, and Magistrate Smith. The Complaint embodies thirteen
counts. Five counts – Counts I, II, III, VIII, and IX – are brought pursuant to 42
U.S.C. § 1983, alleging both municipal and individual liability for violations of the
First Amendment (Count I), the Eighth Amendment (Count II), the Fourteenth
Amendment’s Due Process and Equal Protection Clauses (Count III, VIII, and IX).
Eight counts – Counts IV, V, VI, VII, X, XI, XII, and XIII – assert state-law claims
for assault, battery, intentional infliction of emotional distress/outrage, abuse of
process, wanton supervision and retention of Officer Hughes, invasion of privacy,
and negligent training and supervision of Officer Hughes.
The Complaint names Magistrate Smith and Officer Hughes in their
individual and official capacities.
The City is named in all thirteen counts.
Magistrate Smith is named in Counts II, VII, and IX, and Officer Hughes is named
in Counts I, II, IV, V, VI, XI, and XII. The Complaint requests compensatory
damages, punitive damages, and injunctive relief aimed at preventing officer
violence towards the City’s citizens, as well as costs and attorney’s fees.
The City and Magistrate Smith responded to the Complaint with a motion to
dismiss. In lieu of an answer, Officer Hughes filed a motion to stay the action
against him pending resolution of charges against him in the City of Geneva for
harassment of Plaintiff. An Order was entered granting Officer Hughes’s motion
to stay as to Plaintiff’s action against him, but denying the motion as to Plaintiff’s
action against the City and Magistrate Smith.
The City and Magistrate Smith move to dismiss all claims against them with
prejudice for lack of subject-matter jurisdiction under Rule 12(b)(1) and for failure
to state a claim upon which relief can be granted under Rule 12(b)(6). Defendants
raise numerous arguments, including lack of Article III standing, judicial immunity
under federal and state law, municipal immunity under state law, and failure to
plead a plausible claim for relief.
Plaintiff’s response is unresponsive to the
majority of the argument raised by the City.
At the outset, there are three pleading matters that require only short
discussion for resolution.
These matters relate to the official-capacity claims
against Magistrate Smith, the fictitious-party claims, and the claims that request
punitive damages awards against the City. Defendants present arguments and
authority as to why Rule 12(b)(6) dismissal is appropriate as to these claims, and
Plaintiff has not demonstrated the contrary.
These preliminary matters invoke Rule 12(b)(6)’s standard of review.
Defendants argue that dismissal of the official-capacity claims against
Magistrate Smith is appropriate because those claims are “redundant to the claims
against the City.” (Doc. # 16, at 25.) Eleventh Circuit case law backs up this
In Busby v. City of Orlando, 931 F.2d 764 (11th Cir. 1991), the Eleventh
Circuit explained why a suit against a municipal officer is redundant of a suit
against the city for whom the municipal officer works:
Because suits against a municipal officer sued in his official capacity
and direct suits against municipalities are functionally equivalent,
there no longer exists a need to bring official-capacity actions against
local government officials, because local government units can be
sued directly (provided, of course, that the public entity receives
notice and an opportunity to respond).
Id. at 776 (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985) (internal footnote
The Complaint alleges that Magistrate Smith is an agent of the City and
seeks relief from Magistrate Smith in her official capacity in Counts III, VII, and
IX. The Complaint also joins the City as a Defendant on the three counts brought
against Magistrate Smith.
Based upon these allegations, the official-capacity
claims against Magistrate Smith are the functional equivalent of the claims brought
against the City.
Disposing of the official-capacity claims against Magistrate
Smith eliminates redundant claims, without changing the substance of what
remains before the court.
Plaintiff urges the court to retain the official-capacity claims by referring to
18 U.S.C. § 242 (the criminal analogue to § 1983),7 but the argument is not
developed or persuasive.
Nor does the argument address or refute Busby’s
Accordingly, the official-capacity claims against Magistrate Smith are due to
The Complaint attempts to join fictitious Defendants, identified as “A
through H.” (Compl. ¶ 6.) Defendants move to dismiss “all fictitious party claims
because such claims are not cognizable in federal court.” (Doc. # 16, at 26.)
“As a general matter, fictitious-party pleading is not permitted in federal
court.” Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (citing New v.
Sports & Recreation, Inc., 114 F.3d 1092, 1094 n.1 (11th Cir. 1997)); see also
Adams v. Franklin, 111 F. Supp. 2d 1255, 1259 n.3 (M.D. Ala. 2000) (“[F]ictitious
party practice is not authorized by either the Federal Rules of Civil Procedure or
The Complaint does not bring a claim under 18 U.S.C. § 242, and appropriately so. See
Butler v. Morgan, 562 F. App’x 832, 835 (11th Cir. 2014) (observing that § 242 is a criminal
statute that “do[es] not provide a civil cause of action or any civil remedy”).
Defendants also argue for the dismissal of the official-capacity claims against Officer
Hughes on the same grounds. (Doc. # 16, at 25.) Because the action presently is stayed against
Officer Hughes, the claims against him are not addressed in this opinion.
any federal statute.”). Plaintiff does not argue that an exception to the general rule
prohibiting fictitious-party pleading applies in this case. Accordingly, based upon
the authorities cited, the fictitious-party claims are not proper and are due to be
Punitive Damages Awards Against the City
All thirteen counts in the Complaint request punitive damages from the City
for its alleged violations of federal and state law. The City argues that a plaintiff
cannot recover punitive damages from an Alabama municipality. (Doc. # 16,
at 26.) The City is correct.
In City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), the United
States Supreme Court held that “a municipality is immune from punitive damages
under 42 U.S.C. § 1983.” Id. at 271. Moreover, § 6-11-26 of the Alabama Code
provides, in pertinent part, that “[p]unitive damages may not be awarded against
the State of Alabama or any county or municipality thereof . . . .” Ala. Code § 611-26 (emphasis added).
Based upon these authorities, the City’s motion to
dismiss the federal- and state-law claims for punitive damages is due to be granted.
Article III Standing (Counts III, VII, and IX)
Defendants move to dismiss Counts III (§ 1983), VII (§ 1983), and IX (state
law), arguing that Plaintiff has not alleged facts establishing that she has standing
and that her lack of standing deprives the court of subject-matter jurisdiction over
These three counts, which allege violations of the Fourteenth
Amendment’s Due Process and Equal Protection Clauses and state law, are
premised on the City’s and Magistrate Smith’s alleged liability for Magistrate
Smith’s refusal to permit Plaintiff access to the municipal court in order to file a
criminal complaint against Officer Hughes.9 Defendants contend that Plaintiff
“lacks a judicially cognizable interest in [Officer] Hughes’s prosecution,” and rely
principally upon the Supreme Court’s decisions in Linda R.S. v. Richard D., 410
U.S. 614 (1973), and Leeke v. Timmermann, 454 U.S. 83 (1982). (Doc. # 16,
at 12–13.) Plaintiff does not address Defendants’ standing arguments. For the
reasons that follow, Linda R.S. and Leeke demonstrate that the Complaint’s
allegations are insufficient to show that Plaintiff has standing to bring Counts III,
VII, and IX against the City and Magistrate Smith.
“[S]tanding is a threshold jurisdictional question that should be addressed
prior to and independent of the merits of a party’s claims.” Bochese v. Town of
Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005). It embodies three requirements.
First, the plaintiff must have “suffered an ‘injury in fact’ – an invasion of a
(See Compl. ¶ 19 (alleging that Magistrate Smith “informed . . . [Plaintiff] she could not
file the complaint until she cleared it with the City Prosecutor/City Attorney, thereby denying
[Plaintiff] access to the court”); ¶ 30 (alleging that Magistrate Smith violated Plaintiff’s
procedural and substantive due process rights and her right to equal protection by denying
Plaintiff “access to the law and courts” and that the City is liable for failing to “properly train and
supervise Smith” (Count III); ¶¶ 51, 54 (alleging that Ms. Smith “misused the legal process by
not allowing [Plaintiff] to file a complaint against [Mr. Hughes] with the City of Geneva” and
that the City “ratified her conduct” (Count VII)); ¶¶ 69, 73 (same allegations as ¶¶ 51, 54 (Count
judicially cognizable interest, which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical.”
31 Foster Children v.
Bush, 329 F.3d 1255, 1263 (11th Cir. 2003). Second, there must be a causal
connection between the injury and the defendant’s conduct. Id. Third, it must “be
likely, not merely speculative, that the injury will be redressed by a favorable
Plaintiff, as “[t]he party invoking federal jurisdiction[,] bears the burden” of
establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
The elements of standing “must be supported in the same way as any other matter
on which the plaintiff bears the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the litigation.” Id. “At the pleading
stage, general factual allegations of injury resulting from the defendant’s conduct
may suffice, for on a motion to dismiss [the court] presume[s] that general
allegations embrace those specific facts that are necessary to support the claim.”
Id. (alteration omitted).
The test for standing is the same under Alabama law. See Ex parte King, 50
So. 3d 1056, 1059–60 (Ala. 2010) (adopting United States Supreme Court’s test
for standing). The following standing analysis applies equally, therefore, to the
federal- and state-law claims.
In Linda R.S., the Supreme Court denied the plaintiff standing to sue a
district attorney for his refusal to enforce a criminal statute against the father of her
out-of-wedlock child for his failure to pay child support. See 410 U.S. at 615–16.
The district attorney had refused prosecution based upon the state’s belief that the
statute applied only to parents of legitimate children, and the plaintiff alleged that
this refusal violated the Fourteenth Amendment’s Equal Protection Clause. The
Court disagreed, holding that “a citizen lacks standing to contest the policies of the
prosecuting authority when he himself is neither prosecuted nor threatened with
prosecution” because “in American jurisprudence at least, a private citizen lacks a
judicially cognizable interest in the prosecution or nonprosecution of another.”
Id. at 619. Although the Court recognized that the plaintiff had “an interest in the
support of her child,” it concluded that, “given the special status of criminal
prosecutions in our system, . . . [the plaintiff] ha[d] made an insufficient showing
of a direct nexus between the vindication of her interest and the enforcement of the
State’s criminal laws.” Id. The Court continued that, even if the plaintiff were
granted the relief she requested (i.e., an injunction forbidding the district attorney
from declining to prosecute), that relief would not guarantee the father’s payment
of child support; it would only guarantee an increased likelihood that the father
would endure prosecution and end up in jail. “The prospect that prosecution will,
at least in the future, result in payment of support can, at best, be termed only
speculative.” Id. at 618. The Supreme Court concluded, therefore, that the district
court correctly dismissed the suit for “want of standing.” Id. at 620.
Linda R.S. provides guidance with respect to Article III standing’s injury-infact requirement where the plaintiff urges the prosecution of a third party. It also
expresses an early articulation of the causation and redressability requirements of
standing. See Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 79
n.24 (1978) (noting that the denial of standing to the plaintiff in Linda R.S. turned
on “the unlikelihood that the relief requested would redress appellant’s claimed
injury”); see also 13A Charles Alan Wright, et al., Federal Practice & Procedure
§ 3531.5, at 296 (3d ed. 2008) (“The current story of causation as an element of
standing begins with Linda R.S. v. Richard D.”). Linda R.S. explained the lack of a
causal nexus between the plaintiff’s injury (described as the plaintiff’s failure to
obtain child support payments from the father of her child) and the defendant’s
conduct (the refusal of the district attorney to prosecute the father): The plaintiff
“made no showing that her failure to secure support payments results from the
nonenforcement, as to her child’s father, of [the criminal statute].” Linda R.S., 410
U.S. at 618. That decision also spoke on the issue of redressability, concluding
that it was “only speculative” whether prosecution and jailing of the father actually
would result in the father’s payment of child support. Id.
Nine years after the decision in Linda R.S., the Supreme Court in Leeke v.
Timmermann, 454 U.S. 83 (1982), relied upon Linda R.S. to hold that state inmates
lacked standing to bring a 42 U.S.C. §§ 1983 and 1985(3) lawsuit alleging a
conspiracy among state correctional officers “to block the issuance of the arrest
warrants for the prosecution of the prison guards” for their role in the alleged
beating of inmates during a prison uprising. Id. at 84. The Court ruled that there
was a “questionable nexus” between the inmates’ “injury – the alleged beatings –
and the actions of the state officials.” Id. at 70. It reasoned that there was “no
guarantee” that, first, the issuance of a warrant would lead to a prosecution and,
second, that the “issuance of the arrest warrant would remedy claimed past
misconduct of guards or prevent future misconduct.” Id.
Moreover, although one leading treatise has labeled Linda R.S. as “not
convincing” for its “mingled concept of causation and remedial benefit,” 13A
Charles Alan Wright, et al., Federal Practice & Procedure § 3531.5, at 297–98
(3d ed. 2008), lower federal courts have, on the basis of Linda R.S , “generally
declined to recognize standing on the part of victims of crimes to bring a § 1983
action based upon lack of prosecution of others.” Fulson v. City of Columbus, 801
F. Supp. 1, 6 (S.D. Ohio 1992) (collecting cases); see also Parkhurst v. Tabor, 569
F.3d 861, 866 (8th Cir. 2009) (“The lower federal courts have maintained the
distinction in standing between those prosecuted by the state and those who would
urge the prosecution of others, even when the failure to prosecute was allegedly
discriminatory.” (collecting cases)). Furthermore, following Linda R.S.’s lead,
lower federal courts have concluded that, “[w]here the injuries allegedly sustained
by plaintiff as a result of the alleged criminal acts of another would not have been
redressed even if the offender had been prosecuted or if the police investigation
had been more thorough, plaintiff lacks standing under § 1983.” Fulson, 801
F. Supp. at 6. And the Eleventh Circuit has applied Linda R.S.’s rule “not only to
prosecutors, but [to] those acting in a ‘prosecutorial capacity.’” Garcia v. Miami
Beach Police Dep’t, 336 F. App’x 858, 859 (11th Cir. 2009) (quoting Smith v.
Shook, 237 F.3d 1322, 1324 (11th Cir. 2001)).
Application of Linda R.S. and Leeke lead to the conclusion that Plaintiff
cannot demonstrate the causation and redressability elements of standing.10
Beginning with causation, Linda R.S. and Leeke would define Plaintiff’s injury as
the physical beating and emotional trauma she endured from Officer Hughes on
November 13, 2013. Compare Linda R.S., 410 U.S. at 618 (observing that the
plaintiff “no doubt suffered an injury stemming from the failure of her child’s
father to contribute support payments.”), with Leeke, 454 U.S. at 86 (defining the
plaintiffs’ injuries as “the alleged beatings”). Under this definition of the injury,
Although causation and redressability are separate and distinct elements of standing,
they tend to “overlap as two sides of a causation coin.” Dynalantic Corp. v. Dep't of Def., 115
F.3d 1012, 1017 (D.C. Cir. 1997). Indeed, there is overlap in the standing discussions in Linda
R.S. and Leeke. To the extent these two standing elements converge on the facts of this case, the
court has attempted to keep the analyses separate.
the facts, construed in Plaintiff’s favor, reveal that the requisite causal connection
is lacking between the injury and Magistrate Smith’s conduct, i.e., her refusal to
accept Plaintiff’s criminal complaint for filing without approval by the City
prosecutor. Even if Magistrate Smith had accepted the criminal complaint for
filing, there are no allegations suggesting that the filing of the criminal complaint
would have resulted in the issuance of a warrant based upon a finding of probable
cause. See Ala. Code § 15-7-3 (“If the judge or magistrate is reasonably satisfied
from such deposition [i.e., a complaint on oath] that the offense complained of has
been committed and that there is reasonable ground to believe that the defendant is
guilty thereof, he must issue a warrant of arrest.”). More importantly, though, even
if Magistrate Smith had issued an arrest warrant, which Plaintiff implies is the
desired result, the Complaint alleges no facts and Plaintiff cites no authority
demonstrating that the issuance of a warrant in this case actually would lead to or
require the criminal prosecution of Officer Hughes by the city prosecutor. 11 The
allegations fall short of satisfying the causation requirement of standing.
As noted in Leeke, those jurisdictions that have provisions for private citizens to
initiate a criminal prosecution “have required or encouraged input of the prosecuting attorney
before issuance of an arrest warrant.” 454 U.S. at 87 n.3; see also id. (citing the American Bar
Association Standards for Criminal Justice for its statement that, “where the law permits a
private citizen to complain directly to a judicial officer, the complainant ‘should be required to
present the complaint for prior approval to the prosecutor, and the prosecutor’s actions or
recommendation thereon should be communicated to the judicial officer or grand jury.’”).
Plaintiff cites no authority under Alabama law that permits her, as a private citizen, to commence
a criminal prosecution. Cf. Ala. Code § 15-23-66 (“The rights of the victim do not include the
authority to direct the prosecution of the case.”).
Turning to the redressability prong of Article III standing, as in Leeke, there
also is no assurance that the issuance of an arrest warrant against Officer Hughes
or even his criminal prosecution would remedy Officer Hughes’s prior alleged
misconduct against Plaintiff or prevent Plaintiff from suffering similar harm in the
future. The likelihood that Plaintiff’s injury – a physical assault and emotional
trauma – would be redressed through the issuance of warrant and a prosecution
against Officer Hughes “can, at best, be termed only speculative.” Linda R.S., 410
U.S. at 618.
There is an additional pleading deficiency that precludes a finding of
redressability. The redressability prong of standing presumes a favorable decision
on the merits and that the requested relief will be granted. And a plaintiff “must
demonstrate standing separately for each form of relief sought.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000). Hence,
each form of requested relief must be likely to redress the injury. The foregoing
discussion assumes that the requested relief is an injunction, either affirmative or
negative, against Magistrate Smith concerning the performance of her duties with
respect to the receipt or perhaps review of a criminal complaint against a police
officer from a private citizen.
Cf. Linda R.S., 410 U.S. at 618 (seeking “an
injunction running against the district attorney forbidding him from declining
prosecution on the ground that the unsupported child is illegitimate”). But the
Complaint seeks no equitable relief from Magistrate Smith or from the City with
respect to its supervision and training of her.12
The Complaint’s request for
injunctive relief focuses solely on remedying officer assaults against citizens and
seeks only monetary damages from Magistrate Smith. And, even if it is assumed
that monetary damages are available against Magistrate Smith, the likelihood that
Magistrate Smith’s payment of money to Plaintiff would remedy Officer Hughes’s
alleged prior misconduct or deter him from engaging in future misconduct is that
much more remote and speculative. Plaintiff has not satisfied the redressability
requirement of Article III standing.13
This opinion expresses no opinion on what type of injunctive relief, if any, would be
Some mention of Article III’s injury-in-fact requirement is appropriate. Although
Plaintiff’s brief does not address the injury-in-fact requirement of Article III standing, it
emphasizes – consonant with the Complaint’s allegations, see supra note 9 – that Plaintiff’s
claims in Counts III, VII, and IX are predicated on Magistrate Smith’s denial of Plaintiff’s
“access to the court.” (Doc. # 19, at 6.) The suggestion is that Plaintiff has been injured by the
inability to access the municipal court to file a criminal complaint against Officer Hughes,
without having to obtain prior approval from the city prosecutor. Plaintiff provides no argument
or authority that demonstrates that this re-characterization of her injury, assuming it is viable,
would fare better. Under Leeke, which Plaintiff has not attempted to distinguish, the filing of a
criminal complaint under the best-case scenario might lead to “the issuance of an arrest warrant,”
but an executed arrest warrant would “simply [be] a prelude to actual prosecution” against
Officer Hughes and not a guarantee of prosecution. Leeke, 454 U.S. at 86. This brings the
discussion back to the principle enunciated in Linda R.S. that Plaintiff, who is a private citizen,
“lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda
R.S., 410 U.S. at 619; see also McGinley v. Fla. Dep’t of Highway Safety & Motor Vehicles, 438
F. App’x 754, 757 (11th Cir. 2001) (“Because only [the prosecutor] could have brought charges,
the [plaintiffs] did not have a right of access to the courts to bring criminal charges and they
suffered no legal injury as a result of [the prosecutor’s] actions” required to establish standing to
pursue their § 1983 claim; see also Carr v. Reed, 316 F. App’x 588, 589 (9th Cir. 2009) (“The
district court properly determined that [the plaintiff] lacked standing to challenge the
Commission on Judicial Conduct’s alleged failure to consider his complaints against judges and
justices of the State of Washington because “a private citizen lacks a judicially cognizable
In sum, Plaintiff fails to demonstrate the causation and redressability
elements of Article III standing, as any injury is not traceable to Magistrate
Smith’s failure to accept the criminal complaint for filing and a favorable decision
will not redress the asserted injury. Accordingly, Plaintiff lacks standing to bring
Counts III, VII, and IX against the City and Magistrate Smith, and Defendants’
motion to dismiss Counts III, VII, and IX for lack of standing is due to be
Federal Claims: Failure to State a Claim (Counts I, II, VIII, & IX)
Counts I, II, VIII, and IX plead claims against the City based upon theories
of ratification, failure to train, and failure to supervise. Defendants argue that the
allegations are insufficient to plead any of these theories with the facial plausibility
required by Iqbal/Twombly.
interest in the prosecution or nonprosecution of another.” (quoting Linda R.S., 410 U.S. at 619).
As one court has observed, this principle holds true “even where the person seeking the
prosecution was the victim of a criminal offense committed by the other.” McWilliams v.
McCormick, No. 5:08cv88, 2008 WL 2810277, at *2 (E.D. Tex. July 21, 2008) (citing Sattler v.
Johnson, 857 F.2d 224, 227 (4th Cir. 1988)). Based upon the foregoing authority, it is dubious
that Plaintiff demonstrates an injury-in-fact to the extent that injury is steeped in her desire for
Officer Hughes to be subject to criminal prosecution.
Because Counts III, VII, and IX are due to be dismissed for lack of standing, it is
unnecessary to address the affirmative defense of judicial immunity, which Defendants raise as
an alternative basis for dismissal of these claims. It also unnecessary to address the other Rule
12(b)(6) arguments, but it is noted that these claims potentially face other pleading pitfalls. For
example, with respect to the claim alleging procedural and substantive due process violations
under the Fourteenth Amendment, the Supreme Court has held that “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, neither in its procedural nor in its ‘substantive’ manifestations.’”
Town of Castle Rock v. Gonzalez, 545 U.S. 748, 768 (2005) (citation and internal quotation
Theories of Municipal Liability
For § 1983 liability to lie against a municipality, the Complaint must
“contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.” Randall v. Scott,
610 F.3d 701, 707 n.2 (11th Cir. 2010). Generally, “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
the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
A custom or policy “may include a failure to provide adequate training if the
deficiency ‘evidences a deliberate indifference to the rights of [the city’s]
inhabitants.’” Lewis v. City of W. Palm Beach, Fla., 561 F.3d 1288, 1293 (11th
Cir. 2009) (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)). When a
failure to train is at issue, a plaintiff must show “‘that the municipality knew of a
need to train . . . in a particular area and the municipality made a deliberate choice
not to take any action.’” Gilliam ex rel. Waldroup v. City of Prattville, 667
F. Supp. 2d 1276, 1292 (M.D. Ala. 2009), reversed on other grounds, 639 F.3d
1041 (11th Cir. 2011) (quoting Gold v. City of Miami, 151 F.3d 1346, 1350 (11th
Cir. 1998)). This requirement is “intentionally onerous” to avoid permitting a
municipality to suffer respondeat superior liability. Gold, 151 F.3d at 1351 n.10.
Notice may be established in two ways. “First, if the city is aware that a pattern of
constitutional violations exists, and nevertheless fails to provide adequate training,
it is considered to be deliberately indifferent.” Lewis, 561 F.3d at 1293. Second,
“deliberate indifference may be proven without evidence of prior incidents, if the
likelihood for constitutional violation is so high that the need for training would be
obvious” (“obvious need test”). Id.
A § 1983 failure-to-supervise claim is closely akin to a § 1983 failure-totrain claim. A plaintiff may prove that a failure to supervise is a municipal policy
or custom by demonstrating that the city’s failure “evidenced a ‘deliberate
indifference’ to the right of its inhabitants.” Gold, 151 F.3d at 1350. Deliberate
indifference requires a showing that “the municipality knew of a need to . . .
supervise in a particular area and the municipality made a deliberate choice not to
take any action.” Id.
As discussed below, in limited circumstances, a city also may be held liable
on a ratification theory. Support for ratification as a theory of § 1983 municipal
liability emanates from dicta in City of St. Louis v. Praprotnik, 485 U.S. 112
(1998) (plurality opinion), that, “[i]f the authorized policy makers approve a
subordinate’s decision and the basis for it, their ratification would be chargeable to
the municipality because their decision is final.” Id. at 127. The Eleventh Circuit
has explained that § 1983 municipal liability on the basis of ratification occurs
“when a subordinate public official makes an unconstitutional decision and when
that decision is then adopted by someone who does have final policymaking
authority.” Matthews v. Columbia Cnty., 294 F.3d 1294, 1297 (11th Cir. 2002).
“The final policymaker, however, must ratify not only the decision itself, but also
the unconstitutional basis for it.” Id. (citing Gattis v. Brice, 136 F.3d 724, 727
(11th Cir. 1998) (“A policymaker’s approval of an unconstitutional action can
constitute unconstitutional county policy only when the policymaker ‘approve[s] a
subordinate’s decision and the basis for it.’”)).
Count I (First Amendment) and Count II (Eighth Amendment)
Against the City: Ratification Theory
Counts I and II of the Complaint seek to hold the City liable based on
allegations that the City ratified Officer Hughes’s conduct. (See Compl. ¶ 24 (The
City “ratified [Officer Hughes’s] conduct” (Count I)); Compl. ¶ 28 (same) (Count
II)).)15 (Compl. ¶ 27.) Defendants challenge the sufficiency of the allegations
supporting Counts I and II on multiple grounds, but the analysis need only rest on
Count I alleges that Officer Hughes “intentionally harassed and physically assaulted
the [Plaintiff] Mother and threatened to kill the Child, solely because the Mother exercised her
right to free speech under the First Amendment.” (Compl. ¶ 22.) The speech that allegedly led
to Officer Hughes’s retaliatory conduct was Plaintiff’s statement: “What kind of idiot calls the
police when the stereo was only on for a few seconds[?]” (Compl. ¶ 22.) Count II alleges that
Officer Hughes’s “action violated [Plaintiff’s] rights under the Eighth Amendment to the United
States Constitution, by utilizing cruel and unusual punishment.” (Compl. ¶ 27.) The source of
Plaintiff’s constitutional right against excessive force is the Fourth Amendment, not the Eighth
Amendment. See Graham v. Connor, 490 U.S. 386, 395 (1989) (“[A]ll claims that law
enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop,
or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment.”).
the absence of allegations demonstrating a theory of ratification for holding the
City liable under § 1983.
The Complaint does not include any allegations that a final policymaker for
the City was aware of the incident on the night of November 21, 2013. The only
mention in the Complaint of other City police officers is to Fink and Mock, the
officers who responded to Officer Hughes’s noise complaint.
There are no
allegations from which it can be inferred, and no argument from Plaintiff, that Fink
and Mock were final policymakers, or even officers superior to Officer Hughes.
Moreover, there are no allegations that, after Plaintiff referred to the complainant
as an “idiot,” Officer Hughes requested and obtained approval from an authorized,
municipal policymaker to grab, throw, and hit, and verbally abuse Plaintiff on
November 21, 2013. The Complaint does not allege that a City employee with
final decision-making authority even knew about the events that culminated in
Officer Hughes’s alleged misconduct. The Complaint’s attempt to hold the City
liable for the § 1983 constitutional violations in Counts I and II is solely based
upon a conclusory allegation that the “City ratified [Officer Hughes’s] conduct.”
(Compl. ¶¶ 27–28.) Legal conclusions that are devoid of factual support do not
satisfy Rule 12(b)(6)’s facial plausibility standard. See Iqbal, 556 U.S. at 678
(explaining that one of Twombly’s “working principles” is that “the tenet that a
court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” (citing Twombly, 550 U.S. at 555)).
In sum, there are no plausible allegations indicating that the City is liable
under § 1983 based upon a ratification theory. The § 1983 municipal liability
claims in Counts I and II fail, therefore, and are due to be dismissed.
Count VIII (§ 1983 Failure to Train and Supervise Officer Hughes)
and Count IX (§ 1983 Failure to Train and Supervise Magistrate Smith)
Counts VIII and IX allege § 1983 municipal liability claims against the City
under the Fourteenth Amendment’s Equal Protection Clause based upon the City’s
allegedly deficient training and supervision of Officer Hughes and Magistrate
Smith.16 Defendants contend that the Complaint falls short of pleading plausible
allegations of an underlying equal protection violation or of a custom or policy
sufficient to support § 1983 municipal liability. See McDowell, 392 F.3d at 1289
(setting forth the elements for imposing § 1983 liability on a municipality).
Defendants’ arguments are unrebutted by Plaintiff.
As to the municipal-liability requirement of an underlying constitutional
violation, “[e]qual protection jurisprudence is typically concerned with
governmental classification and treatment that affects some discrete and
identifiable group of citizens differently from other groups.” Corey Airport Servs.,
The court already has found that Plaintiff lacks standing to bring Count IX. This
section provides alternative grounds for dismissal of that count.
Inc. v. Clear Channel Outdoor, Inc., 682 F.3d 1293, 1296 (11th Cir. 2012).
“Defining an ‘identifiable group’ that has been discriminated against is critical to
establishing a claim under the Equal Protection Clause.” Id. at 1296–97. For
example, “groups based on race, sex, or even longer-term and discrete political
affiliation . . . all potentially allow courts to identify clearly the parties involved,
separate the parties into strongly defined groupings, and discern the existence of an
identifiable group whose members may have suffered discrimination.”
There are at least four reasons why Counts VIII and IX do not plead factual
allegations that plausibly demonstrate that Officer Hughes or Magistrate Smith
violated a right protected by the Equal Protection Clause. First, the Complaint
does not indicate the discrete and identifiable group to which Plaintiff contends she
and her son belong, and none can be ascertained either from the allegations or the
briefing. The Complaint alleges that, on November 21, 2013, Plaintiff and her son
suffered violence – physical and verbal – at the hands of Officer Hughes and that,
subsequently, Magistrate Smith refused to permit Plaintiff to file a criminal
complaint against Officer Hughes in the City of Geneva municipal court. (See
Compl. ¶¶ 58, 61, 70.) Eleventh Circuit authority is clear, however, that a class
comprising the victims of the offending conduct is insufficient to establish classbased discrimination: “[T]he class for a class-based claim for equal protection
purposes cannot be defined solely as those persons who suffered at the hands of the
supposed discriminator.” Corey Airport Servs., 682 F.3d at 1298.
Second, it necessarily follows that, absent allegations defining the
identifiable group, the Complaint does not establish that either Officer Hughes or
Magistrate Smith targeted Plaintiff or her son on account of their membership in an
identifiable group. Without allegations of a discrete and identifiable group to
which Plaintiff and her son belong and against which Officer Hughes or Magistrate
Smith discriminated, no valid, underlying equal protection claim exists. Moreover,
in her response, Plaintiff does not offer any theory or point to any allegations that
would support an equal protection violation.
Third, specific to Count XIII, paragraphs 61 and 63 of the Complaint
premise the alleged equal protection violation on the “negligence” of the City;
however, allegations of negligence are legally insufficient to sustain an equal
protection violation. See Rickett v. Jones, 901 F.2d 1058, 1060 (11th Cir. 1990)
(“Merely negligent conduct is insufficient to support a claim for denial of equal
protection.”). For this additional reason, Count XIII fails to state a claim upon
which relief can be granted.
Fourth, specific to Count IX, Plaintiff also “fails to allege facts sufficient to
support a reasonable inference of differential treatment.” Ford v. Strange, ___
F. App’x ___, 2014 WL 4336952, at *8 (11th Cir. 2014). There are no allegations
identifying a similarly situated comparator who was permitted to file a criminal
complaint against a police officer with Magistrate Smith, without having to first
obtain the City prosecutor’s approval. See, e.g., Jackson v. BellSouth Telecomms.,
372 F.3d 1250, 1273 (11th Cir. 2004) (“[D]ifferent treatment of dissimilarly
situated persons does not violate civil rights laws.”). For this additional reason,
Count IX fails to state a claim upon which relief can be granted.
Accordingly, a valid equal protection claim is not plausibly pleaded in
Counts VIII and IX. Without an underlying equal protection violation, there can
be no municipal liability under § 1983.
Even if the allegations in Counts VIII and IX stated an underlying equal
protection claim, there are no allegations that attach liability to the City. First, the
Complaint alleges only a single incident of alleged unconstitutional conduct by
Officer Hughes and Magistrate Smith; it does not contain allegations, direct or
inferential, that identify a policy or custom evidencing the City’s failure to provide
training or supervision in an area that caused Plaintiff or her son harm. Neither
Count VIII nor Count IX contains a suggestion that the City knew about any
deficiencies – much less constitutional deficiencies – in either Officer Hughes’s or
Magistrate Smith’s job performance that required correction through training or
supervision. The allegation in Count VIII that the City was “aware” of Officer
Hughes’s “propensity for violence,” absent some factual elaboration, is conclusory
and insufficient to satisfy Twombly’s pleading threshold. See Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555); cf. Franklin v. Curry, 738 F.3d 1246,
1251 (11th Cir. 2013) (holding that an allegation that the defendants “knew or
should have known” of a risk “merely recited an element of a [§ 1983] claim
without providing the facts from which one could draw such a conclusion” and
should have been disregarded for purposes of Twombly’s analysis.). The allegation
also is insufficient to demonstrate a ratification theory (see Compl. ¶ 66) because
there are no allegations that a final policy maker knew of and approved Officer
Hughes’s use of violence on the night in question.
Second, the Complaint does not allege anything close to a “glaring
omission” in the City’s training program so as to establish the obvious need test.
Gold, 151 F.3d at 1352. As stated by the court in Gilliam, the lone example cited
by the Supreme Court as constituting a glaring omission is a city’s failure to train
its officers in the use of deadly force. See 667 F. Supp. 2d at 1292 (citing City of
Canton, 489 U.S. at 390). Hence, as this court has observed, “The Eleventh
Circuit has repeatedly rejected attempts to extend failure-to-train liability [for
single incidents] to other law-enforcement situations, such as the use of ‘hobble’
restraints, responding to complaints about the use of handcuffs, and the
identification and treatment of mentally ill inmates by jail staff.” Borton v. City of
Dothan, 734 F. Supp. 2d 1237, 1256 (M.D. Ala. 2010) (internal citations omitted).
Based on Eleventh Circuit authority, the facts of this case do not fit within the
“narrow range of circumstances” in which “a plaintiff might succeed without
showing a pattern of constitutional violations.” Gold, 151 F.3d at 1352.
In sum, Counts VIII and IX do not plead a plausible claim of § 1983
municipal liability. This conclusion is reached after liberal construction of the
Complaint with all well-pleaded facts accepted as true. Accordingly, Count VIII
and IX are due to be dismissed for failure to state a claim upon which relief can be
State-Law Claims (Counts IV, V, VI, VII, X, XI, XII, and XIII)
The Complaint also includes eight state-law claims that rely on the theory of
respondeat superior to hold the City liable for Officer Hughes’s and Magistrate
Smith’s alleged misconduct. Those claims are: (1) assault (Count IV); (2) battery
(Count V); (3) intentional infliction of emotional distress (Count VI); (4) abuse of
process (Count VII); (5) wanton supervision and retention of Mr. Hughes (Count
X); (6) outrage (Count XI); (7) invasion of privacy (Count XII); and (8) negligence
(Count XIII). Counts VI and XI are functional equivalents under Alabama law.
See Ex parte Bole, 103 So. 3d 40, 52 (Ala. 2012) (“The intentional infliction of
emotional distress is also known as the tort of outrage.”). Defendants move to
dismiss all of these claims against the City on state-law immunity grounds and for
failure to plead plausible claims.
The Intentional Tort Claims Brought Against the City
Seven of the eight state-law claims brought against the City allege
intentional torts (i.e., Counts IV, V, VI, VII, X, XI, and XII). The City argues that
it is immune from liability on these claims pursuant to § 11-47-190 of the Alabama
Section 11-47-190 provides, in pertinent part, that “[n]o city or town shall be
liable for damages for injury done to or wrong suffered by any person or
corporation, unless such injury or wrong was done or suffered through the neglect,
carelessness, or unskillfulness of some agent, officer, or employee of the
municipality . . . .” Ala. Code § 11-47-190. The upshot of § 11-47-190 is that “a
city is liable for negligent acts of its employees within the scope of their
employment, but not intentional torts of its employees.”
Brown v. City of
Huntsville, Ala., 608 F.3d 724, 742–43 (11th Cir. 2010).
All of the claims find support in allegations that Magistrate Smith and
Officer Hughes engaged in intentional conduct, not negligent conduct. Plaintiff
makes no argument to the contrary.
Section 11-47-190 supplies, therefore,
immunity to the City on Counts IV, V, VI, VII, X, XI, and XII, and dismissal of
these claims is appropriate.17
In light of this finding, it is unnecessary to address Defendants’ other arguments for
dismissal of these claims.
The Negligence Claim Brought Against the City
Count XIII alleges that the City negligently failed to supervise and train
Officer Hughes so as to prevent the physical and emotional trauma Plaintiff and
her son suffered on November 21, 2013. Citing City of Lanett v. Tomlinson, 659
So. 2d 68, 70 (Ala. 1995), the City contends that vicarious liability must attach to
the negligence of “someone in [Officer] Hughes’s chain of command, such as the
police chief,” and that a “direct negligence claim against the City” is not viable.
(Doc. # 16, at 73.) The City argues alternatively that, even if the Complaint had
premised the City’s liability on a supervisor’s negligent supervision and training of
Officer Hughes, the City still would not be liable because the cause of action does
not exist under Alabama law.
Count XIII lacks a specific allegation that one of Officer Hughes’s superiors
negligently supervised and trained him, but the court need not decide the motion
on that ground. See, e.g., McBride v. Houston Cnty. Health Care Auth., No.
12cv1047, 2013 WL 2948445, at *8 (M.D. Ala. June 7, 2013) (rejecting a strict
reading of the complaint that limited the state-law vicarious liability claim to a
direct liability claim against the city and finding “little purpose in dismissing the
complaint over this minor ambiguity”) (citing Fed. R. Civ. P. 8(d) and (e)). The
City’s second ground will suffice as there is ample authority from federal district
courts in Alabama that “a claim against a municipality for a supervisor’s negligent
hiring or training is not cognizable under Alabama law.”18
Doe v. City of
Demopolis, 799 F. Supp. 2d 1300, 1310 (S.D. Ala. 2011) (collecting cases); see
also Black v. City of Mobile, 963 F. Supp. 2d 1288, 1308 (S.D. Ala. 2013)
(“Pursuant to Ala. Code. § 11-47-190 and applicable Alabama case law, there can
be no state law claim for negligent training or supervision against the City of
Mobile.”); Borton, 734 F. Supp. 2d at 1258 (“[N]o Alabama court has expressly
recognized a cause of action against a municipality for a supervisor’s negligent
training or supervision of a subordinate.”). Plaintiff has not offered any authority
or presented a cogent argument as to how the facts in the Complaint could
establish a claim against the City for its supervisory officer’s negligent supervision
and training of Officer Hughes. Accordingly, Count XIII is due to be dismissed
for failure to state a claim upon which relief can be granted.
All claims against the City and Magistrate Smith are due to be dismissed
pursuant to Rule 12(b)(1) and (6) on the grounds explained in this opinion.
Accordingly, it is ORDERED that Defendants’ Motion to Dismiss (Doc. # 15) is
GRANTED as follows:
In a 2013 opinion, another judge of this court observed that “the Alabama Supreme
Court recently recognized the potential for a negligent hiring, training, and supervision claim
against the City of Montgomery itself.” Hughes v. City of Montgomery, No. 12cv1007, 2013
WL 5945078, at *2 (M.D. Ala. Nov. 6, 2013) (citing Ex parte City of Montgomery, 99 So. 3d
282, 299 (Ala. 2012)). But, as Hughes pointed out, that potential claim would not arise where
the city employee is a police officer, id., and, thus, the viability of this potential claim does not
require further probing here.
the 42 U.S.C. § 1983 official-capacity claims against Magistrate
Smith, the fictitious-party claims, and the claims that request punitive damages
from the City under both federal- and state-law are DISMISSED;
The § 1983 claims in Counts III, VII, and IX are DISMISSED
pursuant to Rule 12(b)(1) for lack of Article III standing;
The § 1983 claims in Counts I, II, VIII and IX are DISMISSED
pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be
The state-law claims in Counts IV, V, VI, VII, X, XI, and XIII
against the City are DISMISSED pursuant to § 11-47-190 of the Alabama Code;
The state-law claim in Count IX against the City is DISMISSED for
failure to state a claim upon which relief can be granted.
The Clerk of the Court is DIRECTED to terminate The City of Geneva and
Magistrate Smith as Defendants. This action proceeds with respect to Plaintiff’s
claims against Officer Hughes, which have been stayed.
DONE this 19th day of September, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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