Kirkland v. The County Commission of Elmore County, Alabama et al

Filing 17

MEMORANDUM OPINION AND ORDER that 4 Motion to Dismiss is GRANTED and all claims against The County Commission of Elmore County, AL are DISMISSED with prejudice. To the extent that this defendant has moved for attorneys fees pursuant to 42 U.S.C. § 1988, that request is DENIED as further set out. Signed by Hon. Chief Judge Mark E. Fuller on 3/6/2009. (cb, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION W I L L IA M ALLEN KIRKLAND, P L A IN T IF F , v. T H E COUNTY COMMISSION OF E L M O R E COUNTY, ALABAMA, et al., DEFEN DANTS. ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:08cv86-MEF

(W O - Do Not Publish)

M E M O R A N D U M OPINION AND ORDER O n February 7, 2008, William Allen Kirkland ("Kirkland") filed suit against the C o u n ty Commission of Elmore County, Alabama ("the Commission"), Ricky Lowery (" L o w e ry" ), and Jailer Kearley ("Kearley"). Kirkland alleges that on January 12, 2006, he re p o rte d to the Elmore County detention facility to serve a thirty (30) day sentence, but that h e was not released until March 3, 2006. Kirkland alleges that he was told that Lowery and K e a rle y had not sent out legal required notices to the public informing them that Kirkland, a convicted sex offender, would be residing near them. Apparently, Kirkland believes that L o w e ry and Kearley held him in the detention facility for longer than the sentence imposed s o that they could complete the sex offender notification process. Pursuant to 42 U.S.C. §§ 1 9 8 3 and 1988, Kirkland seeks damages from the defendants for alleged violations of his rig h ts under the Fourth and Fourteenth Amendments to the United States Constitution. A d d itio n a lly, pursuant to Alabama tort law, he seeks damages from defendants for n e g lig e n c e , negligent training, wantonnes[sic], and willfulness.

O n March 10, 2008, the Commission filed a Motion to Dismiss (Doc. # 4). This m o tio n was supported by an eleven page brief in which the Commission set forth various le g a l arguments for its contention that the Complaint against it failed to state a claim for w h ich relief could be granted. The Commission correctly notes that the Complaint is devoid o f factual allegations regarding the basis for Kirkland's claims against the Commission. P r e su m a b ly, he seeks to hold the Commission responsible for the actions of Lowery and K e a rle y. The Commission quite correctly notes that as to the claims pursuant to 42 U.S.C. § 1983, Kirkland cannot hold the Commission liable on a respondeat superior theory of l i a b i l i t y. Moreover, the Commission correctly notes that Alabama law provides no

a u th o riz a tio n for a county or a county commission to supervise the operation of county jails o r detention facilities. Indeed, the Commission sets forth numerous legal arguments in su p p o rt of the dismissal of the claims against it and seeks attorney's fees and costs it c o n te n d s are owed it by Kirkland pursuant to 42 U.S.C. § 1988. On May 7, 2008, the Court entered an Order (Doc. # 13) requiring Kirkland to re sp o n d to the Commission's motion to dismiss and to a motion to dismiss filed by the in d iv id u a l defendants. The wording of this Order unambiguously requires a response from K irk land to both motions by no later than May 28, 2008. On May 28, 2008, Kirkland's c o u n se l filed a brief response in opposition to the motion to dismiss filed by Kearley and L o w e ry (Doc. # 15). To date, Kirkland have made no response whatsoever to the

C o m m is s i o n ' s motion to dismiss. This is true despite the fact that on July 9, 2008, the

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C o m m is s io n 's counsel filed an unsolicited reply brief (Doc. # 16) pointing out that Kirkland s h o u ld be deemed to have abandoned his claims against the Commission because he had f a ile d to respond in any way to its motion to dismiss. DISCUSSION B e c a u s e Kirkland has failed to defend his claims against the Commission, those c la im s are due to be dismissed. Courts in the Eleventh Circuit and beyond have held that the f a ilu re of a party to respond or oppose a pending motion may constitute an abandonment of th e claims at issue in that motion. See, e.g., Black v. Panola Sch. Dist., 461 F.3d 584, 588 n .1 (5th Cir. 2006) (finding that plaintiff abandoned claim by failing to defend it in response to a motion to dismiss); Coalition for the Abolition of Marijuana Prohibition v. City of A tla n ta , 219 F.3d 1301, 1326 (11th Cir. 2000) (finding that a party's failure to brief and a rg u e an issue before the district court is grounds for declaring it abandoned); Hooper v. City o f Montgomery, 482 F. Supp. 2d 1330, 1334 (M.D. Ala. 2007) (concluding that a plaintiff's f a ilu r e to respond to claims in a defendant's motion to dismiss resulted in dismissal of those c la im s as abandoned). As previously noted, Kirkland has failed to respond in any way to the C o m m issio n 's motion and thus, has neglected to address the merits of the Commission's c o n te n tio n s with regard to Kirkland's claims against it. This inaction supports a finding of a b a n d o n m e n t. See, e.g., Hudson v. Norfolk Southern Ry. Co., 209 F. Supp. 2d 1301, 1324 ( N .D . Ga. 2001) (providing that "[w]hen a party fails to respond to an argument or otherwise a d d re ss a claim, the Court deems such argument or claim abandoned[ ]" (citing Resolution

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T r u st Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)). Indeed, this Court is not u n d e r a duty to exercise imagination or conjure what a party might have argued, but did not a rg u e ; nor is this Court obliged to do counsel's work for him.. See Lyes v. City of Riviera B e a c h , Fla., 126 F.3d 1380, 1388 (11th Cir. 1997) (explaining that "the onus is upon the p a rties to formulate arguments"); Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (1 1 th Cir. 1995) ("[t]here is no burden upon the district court to distill every potential a rg u m e n t that could be made based upon the materials before it"); Bowden ex rel. Bowden v . Wal-Mart Stores, Inc., 124 F. Supp. 2d 1228, 1236 (M.D. Ala. 2000) ("[i]t is not for the c o u rt to manufacture arguments on Plaintiff's behalf"). Accordingly, a party's decision not to proffer argument or authority in response to a dispositive motion is at his peril. A ltern a tiv e ly, the Court finds that the legal arguments advanced by the Commission in its b rie f in support of its motion to dismiss are well taken and warrant dismissal on the merits a s well. C O N C L U SIO N F o r these reasons, it is hereby ORDERED that the Motion to Dismiss (Doc. # 4) is G R A N T E D and all claims against The County Commission of Elmore County, Alabama are D IS M IS S E D with prejudice. To the extent that this defendant has moved for attorney's fees p u rs u a n t to 42 U.S.C. § 1988, that request is DENIED at this time, but the Court reserves the rig h t to revisit this ruling at a later date if it deems it appropriate. DONE this the 6th day of March, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 4