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

Filing 18

MEMORANDUM OPINION AND ORDER as follows: (1) Defendants, Christopher Kearley and Ricky Lowery's 6 Motion to Dismiss is GRANTED in part and DENIED in part; (2) All federal claims against Defendant Kearley and Lowery in their official capacities are DISMISSED with Prejudice; (3) All federal claims against Defendant Kearley and Lowery in their individual capacities for alleged violation under the Fourth Amendment are DISMISSED with PREJUDICE; (4) The Motion to Dismiss is DENIED to the extent that it seeks dismissal of all federal claims against Defendant Kearley and Lowery in their individual capacities ; and (5) Kirkland shall file an Amended Complaint no later than 4/17/09 if he wishes to persist in the claims set forth in Paragraph 4 as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 3/18/2009. (Attachments: # 1 Civil Appeals Checklist)(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(W O - Do Not Publish)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.

T h is cause is now before the Court on the Defendants, Christopher Kearley and Ricky L o w e ry's , Motion to Dismiss (Doc. # 6) filed on March 10, 2008. Through his counsel K irk la n d has opposed this motion. For the reasons stated in this Memorandum Opinion and O rd e r, the Court finds that the motion is due to be GRANTED in part and DENIED in part. J U R IS D IC T I O N AND VENUE T h is court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1 3 4 3 (a ), and 1367. Additionally, defendants have not argued that the court does not have p e rso n a l jurisdiction over each of them. There is no dispute over whether venue pursuant to 2 8 U.S.C. § 1391(b) is appropriate as alleged. LEGAL STANDARDS

A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Prior to the
S u p r e m e Court's recent decision in Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007), a m o tio n to dismiss could only be granted if a plaintiff could prove "no set of facts . . . which w o u ld entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also H is h o n v. King & Spalding, 467 U.S. 69, 73 (1984); Wright v. Newsome, 795 F.2d 964, 9 6 7 (11th Cir. 1986). Now, in order to survive a motion to dismiss for failure to state a c laim , the plaintiff must allege "enough facts to state a claim to relief that is plausible on its f a ce ." Twombly, 127 S. Ct. at 1974. While the factual allegations of a complaint need not

be detailed, a plaintiff must nevertheless "provide the `grounds' of his `entitlement to relief' and a formulaic recitation of the elements of a cause of action will not do." Id. at 1965. The

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p la in tif f 's "[f]actual allegations must be enough to raise a right to relief above a speculative le v e l on the assumption that the allegations in the complaint are true." Id. It is not sufficient th a t the pleadings merely "le[ave] open the possibility that the plaintiff might later establish s o m e set of undisclosed facts to support recovery." Id. at 1968 (internal quotation and a lte ra tio n omitted). In considering a defendant's motion to dismiss, a district court will

accept as true all well-pleaded factual allegations and view them in a light most favorable to the plaintiff. See Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). Accord, Nelson v. Campbell, 541 U.S. 637, 640 (2004) (where a court is considering dismissal of a complaint at the pleading stage, it must assume the allegations of the complaint are true).
T h e federal claims in this action are brought against defendants pursuant to 42 U.S.C. § 1983. Section 1983 provides a remedy when person acting under color of state law d e p r iv e s a plaintiff of a right, privilege, or immunity secured by the Constitution, laws, or tre a tie s of the United States. See, e.g., 42 U.S.C. § 1983;1 Graham v. Connor, 490 U.S. 386, 3 9 3 - 9 4 (1989) ("§ 1983 is not itself a source of substantive rights, but merely provides a

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Section 1983 provides in relevant part: E v e ry person who, under color of any statute, ordinance, regulation, c u sto m , or usage, of any State or Territory or the District of Columbia, s u b je c ts , or causes to be subjected, any citizen of the United States or o th e r person within the jurisdiction thereof to the deprivation of any r ig h ts , privileges, or immunities secured by the Constitution and laws, s h a ll be liable to the party injured in an action at law, suit in equity, or o t h e r proper proceeding for redress.

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m etho d for vindicating federal rights elsewhere conferred") (internal quotes omitted); C u m m in g s v. DeKalb County, 24 F.3d 1349, 1355 (11th Cir. 1994). To state a claim p u rs u a n t to § 1983, a plaintiff must point to a violation of a specific federal right. See, e.g., W h itin g v. Traylor, 85 F.3d 581, 583 (11th Cir. 1996). DISCUSSION A . Federal Claims Against Kearley and Lowery in Their Official Capacities A s previously stated, Kirkland brings his claims pursuant to § 1983 alleging that K e a rle y and Lowery violated his rights under the Fourth and Fourteenth Amendments to the C o n s titu tio n of the United States of America. With respect to these claims against Kearley a n d Lowery in their official capacities,2 Kearley and Lowery have moved to dismiss because th e y contend the Eleventh Amendment bars such claims against them. A suit against a government official in his official capacity is considered a suit against th e official's office itself. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). When that o f f ice is an arm of the state government, the Eleventh Amendment "protects the sovereignty o f the state by prohibiting suits when recovery would be paid from state funds." 3 Robinson v . Georgia Dep't of Transp., 966 F.2d 637, 638-39 (11th Cir. 1992); see Edelman v. Jordan, 4 1 5 U.S. 651 (1976) (defining scope of sovereign immunity under the Eleventh While in some portions of the Complaint it appears that Kirkland is suing Kearley in his individual capacity only, other portions of the Complaint are less clear. The Court will a ss u m e arguendo that the Complaint includes claims against Kearley in his individual and o f f ic ia l capacities.
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There is no indication that Alabama has waived its sovereign immunity. 4

A m e n d m e n t) . Under Alabama law, it is well-settled that sheriffs are executive officers of the state, a n d , as a result, suits against a sheriff are considered suits against the state. Parker v. A m e rs o n , 519 So.2d 442, 442-43 (Ala.1987) ("A sheriff is an executive officer of the State o f Alabama ...."); see also McMillan v. Monroe County, Ala., 520 U.S. 781, 789 (1997) (h o ld in g that, based on an analysis of Alabama law, sheriffs are state officers and suits a g a i n s t them in their official capacity are suits against the state). This immunity also

e x te n d s to the sheriff's deputies. Carr v. City of Florence, Alabama, 916 F.2d 1521, 1526 (1 1 th Cir. 1990). Similarly, this immunity also extends to jailers. See Lancaster v. Monroe C o u n ty , Ala., 116 F.3d 1419, 1429 (11th Cir. 1997). Accordingly, this Court must consider a suit against Lowery in his official capacity as a deputy sheriff of Elmore County, Alabama a n d against Kearley in his official capacity as jailer as a suit against the State of Alabama. B e c au s e the Eleventh Amendment bars suits against the state in federal court, in the absence o f consent, this Court has no jurisdiction to hear any claims for monetary damages, which c la im s are the only claims Kirkland brings, against Kearley or Lowery in their official c a p a c itie s and those claims are due to be DISMISSED. B. Federal Claims Against Kearley and Lowery in Their Individual Capacities W h ile the Eleventh Amendment shields state officers from damage suits in their o f f ic ia l capacities, these officials are individually amenable to suit under 42 U.S.C. § 1983 f o r violations of the United States Constitution and federal law. See Graham, 473 U.S. at

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1 6 5 -6 7 . However, a government official sued in his individual capacity under § 1983 may asse rt qualified immunity as an affirmative defense if he was performing a discretionary f u n c tio n . Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004). "Once the o f f ic ia l has established that he was engaged in a discretionary function, the plaintiff bears the b u rd e n of demonstrating that the official is not entitled to qualified immunity." Id. If the p lain tiff fails to furnish sufficient factual allegations at this stage, the defendant officer is e n title d to judgment. See Marsh v. Butler County, Alabama, 268 F.3d 1014, 1022 (11th Cir. 2 0 0 1 ). In this case, there is no dispute as to whether Kearley and Lowery were engaged in d is c re tio n a ry functions. In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court delineated a two-step a n a lys is for determining whether an officer, who was engaged in a discretionary function, is eligible for qualified immunity. The initial inquiry focuses on whether the plaintiff's a lle g a tio n s , if considered true, show that the officer violated a constitutional right. Id. The a b s e n c e of a constitutional violation ends the inquiry. Id. However, where a court does find th a t an officer acted in an unconstitutional manner, the analysis turns to whether the right in q u e stio n was clearly established so that the officer had fair warning that his conduct was c o n s titu tio n a lly prohibited. Id. " F o r a constitutional right to be clearly established, its contours must be sufficiently c le a r that a reasonable officer would understand that what he is doing violates that right." H o p e v. Pelzer, 536 U.S. 730, 739 (2002) (citation and internal quotations omitted). This

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sta n d a rd does not require a prior court decision to have declared the precise set of facts p re se n tly alleged unlawful, "but it is to say that in the light of pre-existing law the u n la w f u ln e ss must be apparent." Anderson v. Creighton, 438 U.S. 635, 640 (1987). "The s a lie n t question. . . is whether the state of the law . . . gave [the officers] fair warning that th e ir alleged treatment of [the plaintiff] was unconstitutional." Hope, 536 U.S. at 741. The Eleventh Circuit has further refined the analysis of when the law is clearly e sta b lis h e d . It has observed that "fair and clear" notice may be given by (1) the "obvious c la rity" of the pertinent federal statute or constitutional provision, such that qualified im m u n ity may be overcome in the "total absence of case law," (2) the judicial determination th a t certain conduct has been defined as unlawful without regard to particular facts, and (3) h o ld in g s in specific cases that are tied to certain facts. Vinyard v. Wilson, 311 F.3d 1340, 1 3 5 0 -5 1 (1 1 th Cir. 2002) (emphasis removed). Only the decisions of the Supreme Court, the E le v e n th Circuit, or the highest court in the state in which the case arose provide the case law c a p a b le of clearly establishing the boundaries of rights in the qualified immunity analysis. T h o m a s ex rel. Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir. 2003). M o re than a decade ago, the Eleventh Circuit Court of Appeals required plaintiffs b rin g in g claims pursuant to 42 U.S.C. § 1983 to satisfy a heightened pleading standard. See, e .g ., Oladeinde v. City of Birmingham, 963 F.2d 1481 (11th Cir. 1992), cert. denied, 507 U .S . 987 (1993). To satisfy this standard in such cases, a plaintiff must plead her claims with s o m e factual detail. Id. at 1485.

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In 1993, the Supreme Court of the United States held that courts may not impose a h e ig h te n e d pleading requirement for claims pursuant to 42 U.S.C. § 1983 against municipal e n titie s, but it specifically declined to reach the issue of whether a similar holding was w a rr a n te d in such cases against individual government entities. See Leatherman v. Tarrant C o u n ty Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167-68 (1993). It is clear th a t after the Leatherman decision, the Eleventh Circuit Court of Appeals determined that it was still appropriate to require heightened pleading in some cases pursuant to 42 U.S.C. § 1 9 8 3 or similar cases. See, e.g, Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1250-51 (11 th Cir. 2003) (affirming the district court's decision to apply heightened pleading standard to a § 1983 claim); Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (applying h e i g h te n e d pleading standard to motion to dismiss in a Bivens action); Laurie v. Alabama C o u r t of Crim. Appeals, 256 F.3d 1266, 1275-76 (11th Cir. 2001) ("`Heightened pleading is the law of this circuit' when § 1983 claims are asserted against government officials in their individual capacities."); Kyle K. v. Chapman, 208 F.3d 940, 944 (11th Cir. 2000) ( re c o g n i z in g "heightened pleading requirement applicable to section 1983 actions against in d iv id u a l government officials"); GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1 3 5 9 , 1367-68 (11th Cir. 1998). In 2002, the United States Supreme Court decided a case which once again has caused so m e courts to reconsider the appropriateness of requiring heightened pleading. In

S w ie r k ie w ic z v. Sorema, N.A., 534 U.S. 506 (2002), the Supreme Court held that "an

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e m p lo ym en t discrimination complaint need not include [specific facts establishing a prima f a c ie case of discrimination under the framework set forth by McDonnell Douglas Corp. v. G r e e n ] and instead must contain only `a short and plain statement of the claim showing that t h e pleader is entitled to relief.'" Swierkiewicz, 534 U.S. at 508 (citing Fed. R. Civ. P. 8 (a )(2 )). While the clearly announced specific holding of this case makes it plain that it is a p p lic a b le to employment discrimination cases and does not address cases against individual g o v e rn m e n ta l actors pursuant to 42 U.S.C. § 1983, nearly every Circuit Court of Appeals has s u b s e q u e n tly rejected a heightened pleading requirement in cases against government o f f icia ls pursuant to 42 U.S.C. § 1983.4 Despite this apparent trend, the Eleventh Circuit C o u rt of Appeals has reiterated that it requires heightened pleading in civil rights cases to the e x te n t that they are brought against individual defendants who might raise a qualified

The First, Second, Third, Sixth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits h a v e rejected heightened pleading in the wake of Leatherman , Swierkiewicz and CrawfordE l v. Britton, 532 U.S. 574 (1998) (rejecting a heightened burden of proof in a civil rights c a s e against government officials). See, e.g., Doe v. Cassel, 403 F.3d 986, 988-89 (8th Cir. 2 0 0 5 ); Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 66-67 (1st Cir. 2 0 0 4 ); Alston v. Parker, 363 F.3d 229, 233-35 (3rd Cir. 2004); Phelps v. Kapnolas, 308 F.2d 1 8 0 , 187 (2d Cir. 2002); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125-26 (9th C ir. 2002); Goad v. Mitchell, 297 F.3d 497, 501-05 (6th Cir. 2002); Higgs v. Carver, 286 F .3 d 437, 439 (7th Cir. 2002); Currier v. Doran, 242 F.3d 905, 911-17 (10th Cir. 2001); H a r b u r y v. Deutch, 233 F.3d 596, 610 (D.C. Cir. 2000), rev'd on other grounds sub nom. C h r is to p h e r v. Harbury, 536 U.S. 403 (2002) ("plaintiffs making constitutional claims based o n improper motive need not meet any special heightened pleading standard"). See also 2 J a m e s Wm. Moore et al., Moore's Federal Practice § 9.10[2], at 9-62-67 (3rd ed. 2004). The F i f t h Circuit Court of Appeals does not have heightened pleading, but instead uses a p ro c e d u re pursuant to Federal Rule of Civil Procedure 7(a) in cases where a government o f f ic ia l wishes to raise qualified immunity. See, e.g., Schultea v. Wood, 47 F.3d 1427, 14333 4 (5th Cir. 1995). 9

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im m u n ity defense on several occasions since the Supreme Court decided Swierkiewicz. See, e .g ., Swann v. Southern Health Partners, Inc., 388 F.3d 834, 838 (11th Cir. 2004); Dalrymple v . Reno, 334 F.3d 991, 996 (11th Cir. 2003); Gonzalez, 325 F.3d at 1235. In light of the b in d in g decisions from the Eleventh Circuit Court of Appeals and the absence of direct a u th o rity from the United States Supreme Court to the contrary, this Court will continue to a p p ly the heightened pleading standard in cases pursuant to 42 U.S.C. § 1983 against g o v e r n m e n t a l officials sued in their individual capacities. W ith respect to Kirkland's claims of violation of his rights under the Fourth A m e n d m e n t, Kearley and Lowery contend he has failed to state a claim for which relief can b e granted. Kirkland makes no attempt to refute this contention. Having considered the a p p lic a b le legal authorities, the Court is persuaded that the factual predicate alleged does not s u p p o rt a claim that Kirkland's rights under the Fourth Amendment were violated. A c c o rd in g ly, those claims are due to be DISMISSED. Kirkland's remaining federal claim is his claim against Kearley and Lowery in their in d iv id u a l capacities for an alleged violation of his rights under the Fourteenth Amendment. W ith respect to this claim, Kearley and Lowery contend that Kirkland has failed to plead the claim with the degree of specificity required by prior decisions of the Eleventh Circuit Court o f Appeals. The Court agrees. However, rather than dismissing this action outright, the C o u rt will allow Kirkland an opportunity to file an Amended Complaint setting forth his c la im s against Kearley and Lowery in their individual capacities only for alleged violations

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o f his rights under the Fourteenth Amendment to the United States Constitution. Kirkland s h o u ld not attempt to replead any of the claims dismissed by this Memorandum Opinion and O r d e r. Furthermore, until the Court ascertains whether it will have any remaining claims o v e r which it has original subject matter jurisdiction, the Court declines to address the merits o f the motion to dismiss as it pertains to the claims over which this Court has supplemental ju ris d ic tio n . Kirkland may replead any state law claims in his amended complaint or he may e le c t to abandon those claims in light of his failure to find any arguments in opposition to the m e r i t s of the motion to dismiss those claims. Counsel for Kirkland is reminded of his o b lig a tio n s pursuant to Federal Rule of Civil Procedure 11. He must keep those obligations in mind as he crafts an amendment to the complaint. For the foregoing reasons, it is hereby ORDERED as follows: 1 . Defendants, Christopher Kearley and Ricky Lowery's, Motion to Dismiss (Doc. # 6) filed on March 10, 2008 is GRANTED in part and DENIED in part. 2 . All federal claims against Defendants Kearley and Lowery in their official c a p a c itie s are DISMISSED with PREJUDICE. 3 . All federal claims against Defendants Kearley and Lowery in their individual c a p ac itie s for alleged violations of Kirkland's rights under the Fourth Amendment to the U n ite d States Constitution are DISMISSED with PREJUDICE. 4 . The motion to dismiss is DENIED to the extent that it seeks dismissal of all federal c la im s against Defendants Kearley and Lowery in their individual capacities for alleged

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v io la tio n s of Kirkland's rights under the Fourteenth Amendment to the United States C o n s titu tio n and Kirkland's claims pursuant to Alabama law. 5 . To the extent that Kirkland wishes to persist in the claims set forth in Paragraph 4 above, he shall file an Amended Complaint in compliance with the dictates of Federal Rule o f Civil Procedure 11 and the requirements of the decisions of the Eleventh Circuit Court of A p p e a ls with respect to "heightened pleading." The Amended Complaint shall be filed by n o later than April 17, 2009. Failure to file an Amended Complaint by that date will be d e e m e d an indication that Kirkland wishes to abandon any remaining claims and will result in the dismissal of his claims without prejudice. DONE this the 18th day of March, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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