Rotton v. Slay
MEMORANDUM OPINION AND ORDER: It is hereby ORDERED that Slay's 19 Motion to Dismiss is GRANTED in part and DENIED in part as further set out in the opinion and order. Count three of the 18 Amended Complaint is hereby DISMISSED. Signed by Hon. Chief Judge Mark E. Fuller on 12/22/2010. (dmn)
Rotton v. Slay
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION K E V IN CARL TYLER ROTTON P la in tif f , v. D A V ID SLAY, Deputy Sheriff, in his in d iv id u a l capacity, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )
C A S E NO. 2:10-cv-22-MEF
M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on Defendant Deputy Sheriff David Slay's ("Slay") p a rtia l Motion to Dismiss (Doc. # 19) filed March 25, 2010. Plaintiff Kevin Carl Tyler R o tto n ("Rotton") filed suit against Slay alleging three counts: 1) use of excessive force in violation of his 4th Amendment rights, 2) use of excessive force in violation of his 14 th A m e n d m e n t substantive due process rights, and 3) a claim for assault and battery arising u n d e r Alabama law. (Doc. # 18). Slay filed a Motion to Dismiss arguing that counts one a n d three of the Amended Complaint should be dismissed. For the foregoing reasons, this M o tio n is due to be GRANTED in part and DENIED in part. I . JURISDICTION AND VENUE T h is Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1 3 3 1 , 1343, and 1367. The parties do not assert that this Court lacks personal jurisdiction o v e r them, and there is no dispute that venue is proper pursuant to 28 U.S.C. § 1391(b).
II. LEGAL STANDARD A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Therefore, for th e purposes of adjudging a Rule 12(b)(6) motion to dismiss, the Court will accept as true a ll well-pleaded factual allegations and view them in the light most favorable to the p la in tif f . See Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008); Am. United L ife Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). W h ile Federal Rule of Civil Procedure 8(a)(2) requires only that a complaint c o n ta in "a short and plain statement of the claim showing that the pleader is entitled to re lie f ," as a general matter, to survive a motion to dismiss for failure to state a claim, the p la in tif f must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007). "A claim has facial plausibility w h e n the plaintiff pleads factual content that allows the court to draw the reasonable in f e re n c e that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S . Ct. 1937, 1950 (2009). The plaintiff must provide "more than labels and conclusions, a n d a formulaic recitation of the elements of a cause of action will not do." Twombly, 5 5 0 U.S. at 559. It is not sufficient that the pleadings merely leave "open the possibility th a t a plaintiff might later establish some set of undisclosed facts to support recovery." Id. at 561 (internal quotation and alteration omitted). III. FACTUAL AND PROCEDURAL HISTORY O n January 12, 2008, Rotton was stopped by the Millbrook, Alabama police for
driving erratically. (Doc. # 18 ¶ 4). He was arrested and taken to the Millbrook City P o lic e Department where he failed a breathalyzer test. Id. ¶ 15. The Millbrook Police th e n transported Rotton to Elmore County Detention Facility ("jail"), where he was kept in a holding area. Id. While Rotton was waiting, Slay brought another arrestee into the s a m e holding area. Id. ¶ 7. Slay asked the other arrestee if he was Mexican, and upon h e a rin g this Rotton smiled at Slay. Id. In response, according to the Plaintiff's Amended C o m p la in t, Slay threw Rotton to the ground and began hitting and kicking him. Id. ¶ 7, 9. According to Slay's Answer to the Amended Complaint, Rotton's use of obscenities and m e n a c in g gestures prompted the use of force. (Doc. # 21). After being released from ja il, Rotton was taken to Baptist Hospital in Montgomery where he was treated for a c o lla p se d lung, a cut on the right side of his face, and a black eye. (Doc. # 18 ¶ 9, 10). O n January 8, 2010, Rotton filed suit in this Court alleging three counts against S la y: 1) a violation of civil rights pursuant to Title 42, § 1983 and the Fourth Amendment f o r unreasonable seizure and excessive force, 2) a violation of civil rights pursuant to T itle 42, § 1983 and the Fourteenth Amendment for violations of Rotton's substantive d u e process rights, and 3) a claim for assault and battery arising under Alabama law. (Doc. # 18). Slay has filed a partial Motion to Dismiss arguing that counts one and three should b e dismissed. (Doc. # 19). Slay first argues that because Rotton's claim arose while he w a s a pretrial detainee and not an arrestee, the Fourth Amendment is inapplicable to
Rotton's case. Accordingly, Slay requests that this Court dismiss count one of the A m e n d e d Complaint, which is based on a violation of the Fourth Amendment. Slay also re q u e s ts dismissal of count three because as a Deputy Sheriff, he is entitled to state law im m u n ity under Article I, § 14 of the Alabama Constitution of 1901. IV. DISCUSSION A . Applicability of the Fourth Amendment to Rotton's Claims: R o tto n has alleged in count one of his Amended Complaint that Slay violated his F o u rth Amendment rights by subjecting him to an unreasonable seizure and excessive f o rc e .1 (Doc. # 18). Slay argues that because Rotten was a pretrial detainee, and not an a rre s te e , when his injuries occurred, only the Fourteenth Amendment, through 42 U.S.C. § 1983, can be used to vindicate Rotton's rights. T h e first step in analyzing an excessive force claim brought pursuant to § 1983 is to determine the specific constitutional right allegedly infringed. Calhoun v. Thomas, 360 F . Supp. 2d 1264, 1270 (M.D. Ala. 2005) (Thompson, J.). Whether Rotton's claim is p ro p e rly brought under the Fourth Amendment or the Fourteenth Amendment is d e p e n d e n t upon the point in time at which the alleged violation occurred. See id. at 1 2 7 1 2 . "All claims that law enforcement officers have used excessive force. . . in the
Rotton has also alleged that Slay violated his Fourteenth Amendment rights. (D o c . # 18). In his Response to Slay's Motion to Dismiss Rotton states that he has "plead in the alternative a violation of both the Fourth and Fourteenth Amendments" due to the la c k of precedent in the Eleventh Circuit about which framework applies to his cases. 4
course of an arrest, investigatory stop, or other `seizure' of a free citizen should be a n a lyz e d under the Fourth Amendment and its `reasonableness' standard." Graham v. C o n n o r , 490 U.S. 386, 395 (1989). Any excessive force claim arising after pretrial d e te n tio n would trigger Fourteenth Amendment substantive due process rights. Calhoun, F . Supp. 2d at 1271. In between arrest and detention is a "legal twilight zone" where little E le v e n th Circuit guidance is available. See id. at 127274. This legal twilight zone is where Rotton falls. At the point in time at which his e x c e s s iv e force claim arose, his arrest had already been completed. Rotton was no longer in the custody of the arresting officers, having already been taken to jail. For all intents a n d purposes, he had already been `seized,' as the physical force restraining his liberty w a s applied when he was placed in the holding area of the jail. Id. at 1271. However, he h a d not yet become a pretrial detainee--he was being kept in a holding cell, had not yet b e e n officially booked, and had not appeared before a magistrate. See id. at 1272; Shaw v . Marshall, No. 2:07-cv-66, 2008 WL 1924992 at *7 (M.D. Ala. 2008) (DeMent, J.); M c C a ll v. Crosthwait, 590 F. Supp. 2d 1337, 1341 n4 (M.D. Ala. 2008) (Watkins, J.) (all c o n s id e rin g whether the plaintiff had been booked and whether the plaintiff had made an in itia l appearance before a magistrate as factors in the determination of whether the p la in tif f had attained pretrial detainee status). When a Plaintiff's claim arises in this legal twilight zone, this Court has repeatedly f o u n d that Fourth Amendment analysis applies. Calhoun, F. Supp. 2d at 1274; Shaw,
2008 WL 1924992 at *7; McCall, 590 F. Supp. 2d at 1341. Accordingly, the Fourth A m e n d m e n t is the constitutional provision under which Rotton's claim for excessive f o rc e arises, and Slay's Motion to Dismiss is due to be denied to the extent that it seeks d is m is s a l of count one of the Amended Complaint.2 B . State Law Immunity for Deputy Sheriffs: R o tto n has included in his Amended Complaint a claim for assault and battery a risin g under Alabama law. Slay claims that as a deputy sheriff he has absolute immunity f ro m such suits. P u rs u a n t to Article I, § 14 of the Alabama Constitution of 1901, "the State of A la b a m a shall never be made a defendant in any court of law or equity." Courts have in te rp re te d this provision to mean that, "a claim for monetary damages made against a c o n s titu tio n a l officer in the officer's individual capacity is barred by State immunity w h e n e v e r the acts that are the basis of the alleged liability were performed within the c o u rs e and scope of the officer's employment." Ex parte Davis, 930 So. 2d 497, 50001 (A la . 2005). The Alabama Supreme Court, and other courts applying Alabama law, have c o n s is te n tly held that because a sheriff is a constitutional officer, "an action against a s h e rif f -- o r a deputy sheriff--for damages arising out of the performance of his duties is a e s s e n tia lly a suit against the state," and is therefore barred by § 14 immunity. Id. at 501;
Defendants have not moved to dismiss Count II of the Amended Complaint, and th e re f o re the Court has not addressed the merits of this claim. 6
Tinney v. Shores, 77 F.3d 378, 383 (11th Cir.1996). The only recognized exceptions to § 14 immunity are inapplicable here, as they a p p ly only when a Plaintiff seeks injunctive or declarative relief against a sheriff or d e p u ty sheriff. Ex parte Davis, 930 So. 2d at 501.3 R o tto n argues, however, that Slay is not entitled to § 14 immunity because Slay's u s e of force against Rotton was not in the course and scope of Slay's employment as a c o n s titu tio n a l officer of the state of Alabama. (Doc. # 23 at 4). Under Alabama law, a lb e it in contexts different from the state law immunity one under which this claim arises, " th e acts of employees are deemed to be within the scope of their employment if the acts a re so closely connected with what the servant is employed to do and so fairly and re a s o n a b ly incidental to it, that they may be regarded as methods, even though quite im p r o p e r ones, of carrying out the objectives of the employment." Shrader v. Emp'rs M u t. Cas. Co., 907 So. 2d 1026, 1034 (Ala. 2005) (emphasis in original) (construing the te rm s "under color of state law" and "within the line and scope of employment" in order to determine the coverage of an insurance policy). Conduct is not within the scope of e m p lo ym e n t if it is done for "personal motive to further some personal interest" and not
A sheriff or deputy sheriff can be sued only to 1) compel him to perform his d u tie s, 2) compel him to perform ministerial acts, 3) enjoin him from enforcing u n c o n stitu tio n a l laws, 4) enjoin him from acting in bad faith, fraudulently, beyond his a u th o rity, or under mistaken interpretation of the law, or 5) to seek construction of a s ta tu te under the Declaratory Judgment act if the sheriff is a necessary party for the c o n s tru c tio n of the statute. Ex parte Davis, 930 So. 2d at 501. As Rotton is suing Slay f o r damages, none of these exceptions are applicable. 7
as part of the actor's job duties. See Ex parte Davis, 930 So. 2d at 501 (considering on a p p e a l of the trial court's denial of a motion to dismiss whether the plaintiff had alleged a n y evidence of personal motive or personal interest to refute a finding that defendant's a c tio n s were within the scope of his employment); Machen v. Childersburg B a n c o r p o r a tio n , Inc., 761 So. 2d 981, 985 (Ala. 1999) (finding that the defendant had a c te d outside the scope of his employment when sexually harassing an employee, in part b e c a u s e the "alleged acts were aimed merely at satisfying his own lustful desires"). In Ex parte Davis, 9 So. 3d 480, the Alabama Supreme Court found that two d e p u ty sheriffs were acting in the line and scope of their employment while guarding p riso n e rs in the county jail. 9 So. 3d 480, 483 (Ala. 2008). Accepting as true the a lle g a tio n s in the Amended Complaint, Slay was in the process of guarding and tra n s p o rtin g arrestees when he used excessive force against Rotton. The Amended C o m p la in t does not allege any facts under which the Court could find that Slay was acting o u ts id e the scope of his employment when he injured Rotton--no personal motive, no p e rs o n a l interest, etc. Therefore, the Court finds that Slay was acting in the scope of his employment w h e n the alleged injuries were inflicted. As such, Slay is entitled to state law immunity p u rs u a n t to Article I, § 14 of the Alabama Constitution of 1901, and count three of the A m e n d e d Complaint is due to be dismissed.
V. CONCLUSION F o r the foregoing reasons, it is hereby ORDERED that Slay's Motion to Dismiss (D o c . # 19) is GRANTED in part and DENIED in part. Count three of the Amended C o m p la in t (Doc. # 18) is hereby DISMISSED. Done this the 22nd day of December, 2010.
/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE
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