Miller v. The City of Florala et al

Filing 54

MEMORANDUM OPINION AND ORDER directing as follows: (1) Counsel for Miller shall carefully read Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); and Sinatrainal v. Coca-Cola Co., 578 F.3d 1252, 1268 (11th Cir. 2009); By no later than January 22, 2010, counsel for Miller shall file with the Court a certification that he has read those cases, as further set out in order; (2) On or before January 29, 2010, but in any event afte r the filing of the certification required in the preceding paragraph, counsel for Miller shall file a second amended complaint, as further set out in order; (3) The Motion for Hearing 53 is DENIED; (4) Upon the filing of the Second Amending Complaint, the Court will deny all pending motions to dismiss as moot. Signed by Hon. Chief Judge Mark E. Fuller on 1/14/10. (djy, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION W IL L IS P. MILLER, P L A IN T IF F , v. C IT Y OF FLORALA, ALABAMA, et al., DEFEN DANTS. ) ) ) ) ) ) ) ) )

C A S E NO.: 2:08-cv-87-MEF (W O - Do Not Publish)

M E M O R A N D U M OPINION AND ORDER W illis P. Miller ("Miller") brings this suit challenging the grounds for his arrest and th e force used to carry it out. He claims that the City of Florala ("Florala") and two men then e m p lo ye d as police officers for Florala, should be liable to him for violations of his rights u n d e r the United States Constitution and for various claims created by the laws of Alabama. D e f e n d a n ts seek dismissal of all claims on a variety of grounds. The Court has spent s ig n if ic a n t time wrestling with the legal issues raised in the submissions. Due in part to an e v o lv in g legal landscape and in part to the quality of the briefs submitted, the Court has f o u n d resolution of the current motions quite difficult. Accordingly, for the reasons set forth b e lo w , the Court will require Miller to file a second amended complaint, and upon the filing o f that pleading, it will deny the motions to dismiss directed to the amended complaint as m o o t.

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 a n d 1367. 1 Additionally, Florala has not argued that the Court does not have personal ju ris d ic tio n over it. Pursuant to 28 U.S.C. § 1391(b), venue is appropriate in this district. FACTUAL AND PROCEDURAL BACKGROUND 2 In October of 2007, Miller was an 82 year old resident of Laurel Hill, Florida. M ille r's daughter Brenda Warhop ("Warhop") contacted Miller and told him that she was trav elin g to the Florala Police Department to file a harassment complaint against a neighbor, J a c k ie Inabinent ("Inabinent").3 Warhop also allegedly told Miller that Inabinent was f o llo w in g her closely as she was driving to the police station. Warhop and Inabinent arrived a t the station at the same time and an argument ensued. Perry Williams ("Williams"), who w a s then acting in the course of his employment as an investigator for the City of Florala, and C h ris to p h e r Neal ("Neal"), who was then acting within the line and scope of his employment

While Miller fails to specifically invoke 28 U.S.C. § 1367 in the jurisdiction section o f his Amended Complaint, he does plainly bring claims pursuant to Alabama law along with th e claims pursuant to 42 U.S.C. § 1983 ("§ 1983") over which this Court has original ju risd ictio n pursuant to 28 U.S.C. § 1331. Explicitly invoked or not, § 1367 is the only p lau sib le source of this Court's subject matter jurisdiction over the Alabama law claims in th is lawsuit. Due to the procedural posture of this case, the following is a summary of the factual b a sis for the lawsuit as set forth by the allegations of the Plaintiffs [sic] 1st Amended C o m p la in t (Doc. # 11). Although this the how the name is spelled in the allegations of the pleadings, it a p p e ars that Warhop's neighbor's name may actually be Inabinett, at least that is how D e f en d a n ts have spelled the name. 2
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a s a police officer for Florala, came outside and separated Warhop and Inabinent. Williams a n d Neal began to take statements from Warhop and Inabinent. Warhop's husband arrived o n the scene. Fearing for Warhop's safety, Miller also arrived at the police station with the in te n tio n of confronting Inabinent about Inabinent's past treatment of Warhop. Walking with the aid of a cane, Miller slowly approached Inabinent. Miller raised his c a n e in the air and cursed Inabinent saying "damn you Jackie I'm tired of you messing with m e and my family." At the time of this utterance, Neal was standing between Inabinent and M ille r. Williams took the cane away from Miller. Williams grabbed Miller by his arm and s lu n g him to the ground. Williams took Miller by the arm and pushed him face first into a b e n c h on the sidewalk. Warhop and her husband begged Williams not to be so rough with M ille r because he was 82 years old and scheduled for heart surgery. Williams responded that h e didn't "give a damn how old he was" because he "wasn't going to have this on his watch." W illia m s mashed Miller's head into the bench while placing the handcuffs on him tightly. M ille r suffered severe lacerations to his wrist and arms from the handcuffs. He begged to h a v e them removed or loosened. Williams refused and directed Neal to drive Miller to the C o v in g to n County Jail miles away in county seat of Andalusia. Defendants charged Miller w ith Assault III. The charges against Miller were later dropped. On February 8, 2008, Miller filed suit in this Court against Florala and Williams. The o rig in a l complaint contained three counts: excessive force in violation of his Fourth A m e n d m e n t rights; false arrest in violate of his Fourth Amendment rights; and negligence.

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M i lle r sought compensatory and punitive damages and attorney's fees and costs. Florala f ile d a motion to dismiss all claims against it. The Court directed Miller to respond. Miller f ile d the Amended Complaint on March 13, 2008. Later, he filed a cursory response to the m o tio n to dismiss. Because Florala's initial motion to dismiss was directed to the claims as a lle g e d in the initial complaint and because Miller had thereafter amended his complaint, the C o u rt denied Florala's initial motion to dismiss as moot. The Amended Complaint names three defendants: Florala, Williams, and Neal. All T h e Amended Complaint contains six counts. In Count I, Miller seeks compensatory and p u n itiv e damages from all three defendants for alleged use of excessive force during the c o u rs e of his unlawful arrest in violation of his rights under the Fourth Amendment to the U n ite d States Constitution.4 In Count II, Miller seeks compensatory and punitive damages f ro m all three defendants for alleged unlawful arrest without probable cause in violation of h is rights under the Fourth Amendment to the United States Constitution. In Count III, M ille r seeks compensatory and punitive damages from all defendants pursuant to Alabama la w for alleged false imprisonment. In Count V, 5 Miller seeks compensatory and punitive Although the Amended Complaint makes no reference to § 1983, the Court p r e s u m e s that Miller intends to avail himself of the remedy that statute provides for d e p riv a tio n s of federally protected rights at least to his claims arising out of alleged v io la tio n s of his rights under the United States Constitution: Count I, Count II, and Count VI -F a ilu re to Intervene. Indeed, Miller attempts to clarify this somewhat in his arguments in o p p o s itio n to the motions to dismiss. The Amended Complaint contains several typos with respect to the numbering of th e counts. There is actually no count identified as Count IV, and two counts are identified a s Count VI. 4
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d am ag es from all defendants pursuant to Alabama law for alleged assault and battery. In C o u n t VI - Failure to Intervene, Miller alleges that Neal had a duty to intervene to protect h im from the assault and the use of excessive force by Williams. This allegation purports to s e e k judgment from all defendants for Neal's failure to intervene to protect Miller from the u se of excessive force and is presumably brought pursuant to § 1983. Finally, in Count VI N e g lig e n t Hiring, Training, and Supervision, Miller alleges that Florala had a duty to p ro p e rly hire, train, and supervise Williams and that it failed to provide Williams with a d d itio n a l training and supervision which resulted in Williams injuring Miller. Miller d e m a n d s judgment against all three defendants 6 in Count VI and seeks compensatory and p u n itiv e damages. As mentioned, each of the counts in the Amended Complaint purports in some way to seek judgment against all defendants. Nevertheless, it is less than clear from other a lle g a t io n s that Miller actually intends to bring each of the counts against all the defendants. In d e e d , Miller has conceded in his briefs submitted in opposition to the pending motions for s u m m a ry judgment that certain of the counts are directed against only some of the d e f e n d a n ts. For the sake of clarity, the Court will recite those concessions here. Count I (E x c e ss iv e Force pursuant to § 1983) is brought against Williams, Neal, and Florala. Count

In a brief in opposition to one of the pending motions to dismiss, Miller clarified th a t Count VI- Negligent Hiring, Training and Supervision was intended to only be directed a t Florala and not at Neal or Williams. See Doc. # 43. Additionally, Miller clarified that this c la im is brought pursuant to Alabama law only and not pursuant to 42 U.S.C. § 1983. See D o c . # 32. 5

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II (False Arrest pursuant to § 1983) is brought against Williams, Neal, and Florala. Count III (False Imprisonment under Alabama law) is brought against Williams, Neal, and Florala. C o u n t V (Assault and Battery under Alabama law) is brought against Williams and Florala. C o u n t VI[sic] (Failure to Intervene pursuant to § 1983) is brought against Neal and Florala. C o u n t VI[sic] (Negligent hiring, training, and supervision pursuant to Alabama law) is b ro u g h t only against Florala. This matter is now before the Court on three motions to dismiss: the Motion to D ism iss Amended Complaint (Doc. # 17) filed by Florala on March 25, 2008; the Motion to D is m is s Based Upon Immunity (Doc. # 39) filed by Neal on April 29, 2008; and the Motion to Dismiss Based Upon Immunity (Doc. # 46) filed by Williams on May 19, 2008. Although h e has not refuted all grounds on which defendants urge dismissal, Miller has filed briefs in o p p o s itio n to each of these motions asking that the motions be denied. LEGAL STANDARD

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 decision in Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007), a motion to dismiss could only be granted if a plaintiff could prove "no set of facts . . . which would e n title him to relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Hishon v. K in g & Spalding, 467 U.S. 69, 73 (1984); Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1 9 8 6 ). Now, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual m a tte r, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v.

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Iq b a l, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 5 5 0 U.S. 544, 570 (2007)); Sinatrainal v. Coca-Cola Co., 578 F.3d 1252, 1268 (11th Cir. 2 0 0 9 ). Lawsuit was initiated after to the release of the Twombly decision, but prior to Iqbal a n d Sinatrainal which further clarify the paradigm shift brought about by Twombly. N o n e th e le ss , counsel for Miller has failed to appreciate the import of the Twombly ruling or e v e n to acknowledge its existence in his arguments. Instead, he relies on cases decided under th e prior standard. Under Twombly and its progeny, a complaint states a facially plausible claim for relief " w h e n the plaintiff pleads factual content that allows the court to draw a reasonable inference th a t the defendant is liable for the misconduct alleged." Iqbal, --- U.S. ----, 129 S. Ct. at 1 9 4 9 . A complaint does not state a facially plausible claim for relief if it shows only "a sheer p o s s ib ility that the defendant acted unlawfully." Id. While a complaint need not contain d etailed factual allegations to survive a motion pursuant to Federal Rule of Civil Procedure 1 2 (b )(6 ), "[a] pleading that offers labels and conclusions or a formulaic recitation of the e le m e n ts of a cause of action will not do." Id. (quotation marks and citations omitted). A b s e n t the necessary factual allegations, "unadorned, the-defendant-unlawfully-harmed-me a c c u s a tio n [ s ]" will not suffice. Id. In considering a defendant's motion to dismiss, a district c o u r t will accept as true all well-pleaded factual allegations and view them in a light most f a v o ra b le to the plaintiff. See Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (1 1 th Cir. 2007). Accord, Nelson v. Campbell, 541 U.S. 637, 640 (2004) (where a court is

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c o n sid e rin g dismissal of a complaint at the pleading stage, it must assume the well-pleaded a lle g a tio n s of the complaint are true). Furthermore, the Court notes that in addition to failing to appreciate this important s h if t in the applicable law, counsel for Miller has submitted arguments to this Court which a re replete with reliance on claims and facts not even hinted at in the Complaint or the A m en d ed Complaint. Even under the most liberal notice pleading standards, these are

c la im s and facts about which the pleadings fail to provide fair warning. In drafting the S e c o n d Amended Complaint, counsel for Miller must include in that document the factual p re d ic a te for any claims it wishes the Court to consider. Failure to do so will result in the g ra n tin g of motions to dismiss that the Court anticipates the defendants will file upon receipt o f the Second Amended Complaint. A c c o rd in g ly, it is hereby ORDERED as follows: 1. Counsel for Miller shall carefully read Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1 9 3 7 , 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); and S in a tr a in a l v. Coca-Cola Co., 578 F.3d 1252, 1268 (11th Cir. 2009). By no later than J a n u a r y 22, 2010, counsel for Miller shall file with the Court a certification that he has read th o s e cases. s a n c tio n s . 2 . On or before January 29, 2010, but in any event after the filing of the certification re q u ire d in the preceding paragraph, counsel for Miller shall file a second amended Failure to comply with this requirement may result in the imposition of

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c o m p la in t. Rather than simply recycling a prior version of this pleading, counsel for Miller is ordered to carefully and mindfully craft this pleading in a way that clearly sets forth the n a tu re of each claim, the factual predicate for that claim, and the defendant or defendants a g a in s t whom each claim is made. 3. The Motion for Hearing (Doc. # 53) is DENIED. 4 . Upon the filing of the Second Amending Complaint, the Court will deny all p e n d in g motions to dismiss as moot. DONE this the 14 th day of January, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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