Cooper v. Rogers et al
MEMORANDUM OPINION AND ORDER; it is ORDERED: (1) Dfts' 7 MOTION to Dismiss is GRANTED; (2) Counts I and IV are DISMISSED with prejudice; (3) Counts II and III are DISMISSED with leave to re-file; and (4) Dfts' 8 MOTION to Strike Fictitious Dfts is GRANTED; Plf is DIRECTED to file an Amended Complaint on or before 3/7/2012, as further set out in order. Signed by Honorable Judge Mark E. Fuller on 2/27/2012. (Attachments: # 1 Civil Appeals Checklist)(wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
BRITTANY S. COOPER,
RAYMOND ROGERS, et al.,
CASE NO. 2:11-cv-964-MEF
[WO – Do Not Publish]
MEMORANDUM OPINION AND ORDER
Plaintiff Brittany S. Cooper brings a number of constitutional claims against
Defendants Raymond Rogers and Curtis Pritchett, the Sheriff of Bullock County and the
Chief Administrator of the Bullock County Jail, respectively. The case is now before the
Court on Defendants’ motions (Docs. # 7, 8) to dismiss several of those causes of action and
to strike fictitious defendants, to which Plaintiff has responded (Doc. # 13). Having
considered the arguments of the parties and the relevant law, the Court finds that Defendants’
motions are due to be GRANTED. Plaintiff will be directed to file an amended complaint
consistent with the rulings herein.
I. JURISDICTION AND VENUE
Subject matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).
The parties do not contest personal jurisdiction or venue, and the court finds adequate
allegations in support of both.
II. STANDARD OF REVIEW
Defendants generally invoke Federal Rule of Civil Procedure 12(b)(6) as the basis for
this motion to dismiss. However, one of Defendants’ grounds for dismissal is sovereign
immunity, which is a challenge to subject matter jurisdiction under Rule 12(b)(1). See
Thomas v. U.S. Postal Serv., 364 F. App’x 600, 601 n.3 (11th Cir. 2010) (noting that “a
dismissal on sovereign immunity grounds should be pursuant to Rule 12(b)(1) because no
subject-matter jurisdiction exists” (citing Bennett v. United States, 102 F.3d 486, 488 n.1
(11th Cir. 1996))).
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction asserts either
a facial or factual challenge to the complaint.
McElmurray v. Consol. Gov’t of
Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007) (citing Williamson v. Tucker,
645 F.2d 404, 412 (5th Cir. May 20, 1981)1); accord Lawrence v. Dunbar, 919 F.2d 1525,
1528-29 (11th Cir. 1990). A factual attack challenges “the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as
testimony and affidavits, are considered.” Lawrence, 919 F.2d at 1529 (citation and internal
quotation marks omitted). A facial attack, on the other hand, challenges the complaint on its
face and “require[s] the court merely to look and see if [the] plaintiff has sufficiently alleged
a basis of subject matter jurisdiction.” McElmurray, 501 F.3d at 1251 (quoting Lawrence,
In Bonner v. City of Prichard, the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit issued prior to October 1, 1981. See 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
919 F.2d at 1529). In considering a facial attack, as with a Rule 12(b)(6) motion, the court
must take as true the allegations in the complaint. See Carmichael v. Kellogg, Brown & Root
Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). Defendants have made a facial attack on
the Complaint, asserting that Plaintiff has not alleged an adequate basis for subject matter
jurisdiction over her official capacity claims.
A Rule 12(b)(6) motion tests the legal sufficiency of a complaint; thus, in assessing
the merits of a Rule 12(b)(6) motion, the court must assume that all the factual allegations
set forth in the complaint are true. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007))). In other words, a complaint need not contain “detailed
factual allegations,” but must include enough facts “to raise a right to relief above the
speculative level on the assumption that all allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. at 545.
Accepting as true the factual allegations in the Complaint, the Court finds the
On July 22, 2009, Plaintiff was arrested for an alleged probation violation and was
taken to the Bullock County Jail. (Compl. ¶¶ 5-6.) On August 6, 2009, while still in the
custody of the Bullock County Sheriff, Plaintiff learned from a doctor that she was pregnant.
(Compl. ¶¶ 9-10.) The doctor wrote a diagnosis of pregnancy, which Plaintiff provided to
the Bullock County Jail staff. Thereafter, Plaintiff was placed on house arrest. (Compl. ¶
On September 24, 2009, “Plaintiff’s probation was again revoked.”2 (Compl. ¶ 14.)
That same day, while in the Bullock County Jail, Plaintiff “began bleeding irregularly from
her vaginal area and immediately reported it to . . . Officer Pritchett.” (Compl. ¶ 15.) Officer
Pritchett responded that “Sheriff [Rogers] would send her to Tutweiler Prison if she
continued to talk about the bleeding and [need for] medical attention.” (Compl. ¶ 16.)
On September 25, 2009, Plaintiff “notified a second jailor[,] Ruby Thomas[,] about
her bleeding.” (Compl. ¶ 17.) Instead of seeking medical attention for Plaintiff, Officer
Thomas provided Plaintiff feminine hygiene products and over-the-counter pain relievers.
On September 26 and 27, 2009, Plaintiff complained to jailors Ruby Thomas and
Dorothy Thomas. On both days, the jailors did not seek medical attention, and instead
supplied Plaintiff with additional feminine hygiene products and over-the-counter pain
relievers. (Compl. ¶¶ 19-20.) Also on September 27, 2009, Plaintiff again requested
assistance from Officer Pritchett. Officer Pritchett informed Plaintiff that he was “off duty”
and instructed Plaintiff “to pretend that he was invisible . . . .” (Compl. ¶ 21.)
Plaintiff remained in the Bullock County jail an additional ten (10) days until October
7, 2009, when she finally persuaded Ruby Thomas to call Sheriff Rogers about her condition.
It is unclear whether Plaintiff’s probation was, in fact, revoked, or whether she was an
arrestee waiting for a revocation hearing. This will be discussed below.
Sheriff Rogers initially responded that Plaintiff had “better keep that baby in her.” (Compl.
¶ 23.) Plaintiff then sought assistance from Dorothy Thomas, who called Sheriff Rogers a
second time to seek permission to get Plaintiff medical assistance. Sheriff Rogers retreated
from his original position, and called Plaintiff’s probation officer, who instructed Sheriff
Rogers to allow Plaintiff to seek medical attention. (Compl. ¶ 24.) When Plaintiff finally
saw a doctor, she was informed that she had suffered a miscarriage. She also was informed
that had she gotten to the hospital sooner, the baby might have been saved. (Compl. ¶¶ 2425.)
Plaintiff brings four constitutional causes of action. Count I alleges a Fourteenth
Amendment equal protection violation. (Compl. ¶¶ 26-31.) Count II alleges an Eighth
Amendment deliberate indifference to serious medical needs claim. (Compl. ¶¶ 32-39.)
Count III alleges a substantive due process violation under the Fourteenth Amendment.
(Compl. ¶¶ 40-43.) Count IV alleges a general claim under 42 U.S.C. § 1983. (Compl. ¶¶
44-48.) Plaintiff has sued Sheriff Rogers and Officer Pritchett in their individual and official
capacities and seeks monetary (but not injunctive or declaratory) relief.
Official Capacity Claims
“Under the Eleventh Amendment, state officials sued for damages in their official
capacity are immune from suit in federal court.” Jackson v. Ga. Dep’t of Transp., 16 F.3d
1573, 1575 (11th Cir. 1994); see also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (stating
that “an official-capacity suit is, in all respects other than name, to be treated as a suit against
the entity”). Thus, Sheriff Rogers and Officer Pritchett are entitled to absolute immunity
with regard to any claims for damages against them in their official capacities. Since all of
Plaintiff’s claims seek monetary damages exclusively, and not injunctive or declaratory
relief, all claims against Sheriff Rogers and Officer Pritchett in their official capacities are
to dismissed for lack of subject matter jurisdiction.3 Similarly, the individual Defendants in
their official capacities are not “persons” for purposes of § 1983 monetary relief. Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989).
The § 1983 Claim (Count IV)
Count IV is entitled “Deprivation of Rights (42 U.S.C. § 1983)” and alleges that
Defendants violated Alabama and federal constitutional law in a variety of ways. (Compl.
¶ 45.) First, Plaintiff’s § 1983 theories based on alleged deprivations of state law are due to
be dismissed. See Parratt v. Taylor, 451 U.S. 527, 536 (1981) (§ 1983 plaintiff must allege
deprivation of federal, not state, right). Second, to the extent that Plaintiff’s § 1983 claim
is a “stand-alone” claim, it is due to be dismissed. Oklahoma City v. Tuttle, 471 U.S. 808,
816 (1985) (Section 1983 “creates no substantive rights, but merely provides a remedy for
Plaintiff’s omission of a request for injunctive or declaratory relief was, perhaps,
intentional on the facts of this case. See Los Angeles v. Lyons, 461 U.S. 95, 108 (1983)
(Recognizing that the plaintiff’s “standing to seek the injunction requested depended on whether
he was likely to suffer future injury from the use of chokeholds by police officers[,]” and finding
that the plaintiff lacked standing because “it is surely no more than speculation to assert either
that Lyons himself will again be involved in one of those unfortunate instances, or that he will be
arrested in the future and provoke the use of a chokehold by resisting arrest, attempting to escape,
or threatening deadly force or serious bodily injury”).
deprivations of federal rights created elsewhere.”). Third, to the extent that Plaintiff’s § 1983
claim does allege deprivations of federal rights created elsewhere, namely the Eighth and
Fourteenth Amendments, it is redundant to the claims asserted in Counts I, II, and III, all of
which need § 1983 as their vehicle in this civil lawsuit. See Williams v. Consol. City of
Jacksonville, 341 F.3d 1261, 1269 (11th Cir. 2007). Accordingly, whatever Plaintiff’s intent
in Count IV, it is due to be dismissed either as a legal non-sequitur or a legal redundancy.
As to Plaintiff’s claims that survive this opinion, she is directed to incorporate § 1983
The Fourteenth Amendment Equal Protection Claim (Count I)
As best as the Court can decipher, Plaintiff’s Fourteenth Amendment Equal Protection
claim alleges that Defendants have treated Plaintiff differently than other prisoners by
seeking prompt and proper medical attention for other prisoners but not for Plaintiff.
Plaintiff’s equal protection claim is due to be dismissed. Plaintiff has not alleged that she
was treated differently from other prisoners on account of some protected classification or
that the unequal treatment was a manifestation of intentional discrimination. See Sweet v.
Sec’y, Dep’t of Corr., 467 F.3d 1311, 1319 (11th Cir. 2006) (“‘a mere demonstration of
inequality is not enough [to state an equal protection claim]” (quoting McQueary v. Blodgett,
924 F.2d 829, 835 (9th Cir. 1991))); see also Snowden v. Hughes, 321 U.S. 1, 8 (1944) (“The
unlawful administration . . . of a state statute fair on its face, resulting in its unequal
application to those who are entitled to be treated alike, is not a denial of equal protection
unless there is shown to be present in it an element of intentional or purposeful
The Eighth Amendment Deliberate Indifference Claim (Count II)
Defendant has not moved to dismiss Count II. However, because Plaintiff will be
ordered to file an amended complaint, the Court wishes to note factual and legal ambiguities
as regards this claim. The Supreme Court has said that “the State does not acquire the power
to punish with which the Eighth Amendment is concerned until after it has secured a formal
adjudication of guilt in accordance with due process of law.” Ingraham v. Wright, 430 U.S.
651, 671 n.40 (1977). Consistent with this statement, courts have held that pretrial detainees
are not protected by the Eighth Amendment. Snow ex rel. Snow v. City of Citronelle, Ala.,
420 F.3d 1262, 1268 (11th Cir. 2005) (“[T]he Eighth Amendment prohibitions against cruel
and unusual punishment do not apply to pretrial detainees.” (internal quotation marks and
citations omitted)). Rather, “[c]laims involving the mistreatment of arrestees or pretrial
detainees in custody are governed by the Fourteenth Amendment’s Due Process Clause
instead of the Eight Amendment’s Cruel and Unusual Punishment Clause.” Cottrell v.
Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996).
The factual ambiguity in this case is whether Plaintiff, who was serving probation on
a theft of property charge (Compl. ¶ 34) but was then arrested on an alleged violation of
probation, was a post-conviction detainee or a pre-trial detainee. The Complaint is unclear
as to whether Plaintiff had been adjudicated guilty of violating her probation, supra n.2.
Plaintiff is directed to resolve this ambiguity upon re-pleading.
The legal ambiguity is whether Plaintiff’s status as a post-revocation (i.e., postconviction) detainee or pre-revocation (i.e., pre-trial on the probation violation) makes any
difference. Courts have considered the argument that such a detainee is always postconviction since the punishment for violating probation is technically a revocation on the
prior sentence. See Palmer v. Marion Cnty., 327 F.3d 588, 592-93 (7th Cir. 2003); Brown
v. Harris, 240 F.3d 383, 389 (4th Cir. 2001); Gannaway v. Berks Cnty. Prison, 439 F. App’x
86, 89 n.2 (3d Cir. 2011). Either way, it makes no difference to the applicable legal standard.
Lancaster v. Monroe Cnty, Ala., 116 F.3d 1419, 1425 & n.6 (11th Cir. 1997) (concluding that
“the minimum standard for providing medical care to a pre-trial detainee under the
Fourteenth Amendment is the same as the minimum standard required by the Eight
Amendment for a convicted prisoner” and that the standard is “violated by a government
official’s deliberate indifference to serious medical needs”). However, for the sake of factual
clarity, Plaintiff is directed to resolve the factual ambiguity and style her cause of action
Violation of Fundamental Constitutional Right (Count III)
Plaintiff alleges that Defendants’ actions interfered with her fundamental right to raise
a family, violating substantive due process. (Compl. ¶ 42.) Defendants contend that the
Fourteenth Amendment “simply does not ensure a right to raise a family.” (Defs.’ Mot. to
The parties mistakenly style their substantive due process arguments as if Plaintiff is
challenging legislative, and not executive, action. In County of Sacramento v. Lewis, the
Supreme Court ruled that the substantive due process standard depends on whether the
plaintiff is challenging legislative action or executive action. 523 U.S. 833 (1998). When
the challenge is to executive action, the question is whether the government action is
shocking to the judicial conscience. Id. at 846; see also Collins v. City of Harker Heights,
503 U.S. 115, 128 (1992). The alleged governmental actions for which Plaintiff seeks
recompense are those of Sheriff Rogers and Officer Pritchett, members of the executive
branch of the State of Alabama. Accordingly, Count III is due to be dismissed with leave to
re-file in accordance with the above.
Fictitious-party pleading is not permitted in federal court. Richardson v. Johnson, 598
F.3d 734, 738 (11th Cir. 2010). Accordingly, Defendants’ motion to strike fictitious
defendants (Doc. # 8) is due to be granted.
Accordingly, it is ORDERED:
Defendants’ Motion to Dismiss (Doc. # 7) is GRANTED;
Counts I and IV are DISMISSED with prejudice;
Counts II and III are DISMISSED with leave to re-file; and
Defendants’ Motion to Strike Fictitious Defendants (Doc. # 8) is GRANTED.
Plaintiff is DIRECTED to file an Amended Complaint on or before March 7, 2012.
Failure to file an Amended Complaint by the deadline will result in dismissal of the action.
DONE this 27th day of February, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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