Forehand v. Elmore County et al

Filing 21

MEMORANDUM OPINION AND ORDER as follows: 1) Dft Deputy C.S. Kearley's 7 Partial Motion to Dismiss is GRANTED, and the Claim I official-capacity claim and Claims II (assault and battery), III (negligence), and III (wantonness) of the Complaint are DISMISSED against Dft Kearley for lack of subject-matter jurisdiction; 2) Dft Elmore County's 10 Motion to Dismiss is GRANTED, and the Plf's claims against the County are DISMISSED with prejudice; 3) Dft Elmore County Sheriff Departme nt's 12 Motion to Dismiss is GRANTED, and the Plf's claims against the Sheriff's Department are DISMISSED with prejudice; 4) This case will continue as to Claim I against Dft Kearley in his individual capacity. Signed by Honorable Judge W. Harold Albritton, III on 6/5/2014. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

THORNTON FOREHAND,
Plaintiff,
v.

ELMORE COUNTY, et al.,
Defendants.

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CIVIL ACTION NO. 2:14-cv-207-WHA
(WO)

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION
This action is before the court on Defendant Deputy C.S. Kearley’s Partial Motion to
Dismiss under Federal Rule of Civil Procedure 12(b)(1) (Doc. # 7) filed on April 17, 2014,
Defendant Elmore County’s Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6)
(Doc. # 10) filed on April 17, 2014, and Defendant Elmore County Sheriff Department’s Motion
to Dismiss under Federal Rule of Civil Procedure 12(b)(6) (Doc. # 12) filed on April 17, 2014.
Thornton Forehand (“Forehand”) filed a Complaint in this case on March 24, 2014. The
Complaint brings claims for a violation of the Eighth and Fourteenth Amendments to the United
States Constitution and 42 U.S.C. § 1983 (Claim I), assault and battery under state law (Claim
II), negligence under state law (Claim III), and wantonness under state law (Claim III).1 The

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The Complaint includes two claims labeled as “Claim III.” For clarity, the court will include
the subject of each claim when referring to the claim in this Memorandum Opinion and Order.

Complaint only expressly seeks monetary damages; the Plaintiff does not seek any injunctive
relief.
For reasons to be discussed, all three motions are due to be GRANTED.

II. STANDARDS OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(1)
A Rule 12(b)(1) motion challenges the district court’s subject-matter jurisdiction and
takes one of two forms: a “facial attack” or a “factual attack.” A “facial attack” on the complaint
requires the court to assess whether the plaintiff has alleged a sufficient basis for subject-matter
jurisdiction. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990); Hayden v. Blue Cross
& Blue Shield of Ala., 855 F. Supp. 344, 347 (M.D. Ala. 1994). A “factual attack,” on the other
hand, challenges the existence of subject-matter jurisdiction based on matters outside the
pleadings. Lawrence, 919 F.2d at 1529.

B. Federal Rule of Civil Procedure 12(b)(6)
The court accepts the plaintiff's factual allegations as true, Hishon v. King & Spalding,
467 U.S. 69, 73 (1984), and construes the complaint in the plaintiff's favor, Duke v. Cleland, 5
F.3d 1399, 1402 (11th Cir. 1993). In analyzing the sufficiency of pleading, the court is guided by
a two-prong approach: one, the court is not bound to accept conclusory statements of the
elements of a cause of action and, two, where there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to entitlement
to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “[A] plaintiff's obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,

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and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a complaint need not
contain “detailed factual allegations,” but instead the complaint must contain “only enough facts
to state a claim to relief that is plausible on its face.” Id. at 570. The factual allegations “must be
enough to raise a right to relief above the speculative level.” Id. at 555.

III. FACTS
The Plaintiff alleges the following facts:
On March 29, 2012, Elmore County Sheriff’s Deputy C.S. Kearley (“Kearley”) attempted
to arrest Plaintiff Forehand for criminal littering. While attempting to arrest Forehand, Kearley
used excessive force, “causing injury and damage to the Plaintiff’s arm, shoulder, neck and other
parts of his body.” (Doc. # 1 ¶ 10).

IV. DISCUSSION
A. State-Law Claims against Deputy Kearley
Defendant Kearley moves for dismissal under Federal Rule of Civil Procedure 12(b)(1)
of all state-law tort claims against him, whether brought against him in his official or his
individual capacity, and for dismissal of the 42 U.S.C. § 1983 claim brought against him in his
official capacity.2
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Kearley’s Partial Motion to Dismiss (Doc. # 7) is unclear as to whether it seeks dismissal of the
§ 1983 claim against Kearley in his official capacity. The motion only specifically mentions
“Claims II, III, and III (sic) (misnumbered in the Complaint).” (Doc. # 7 at 1). It then asserts that
“[a]ll official capacity claims against Deputy Sheriff Kearley are due to be dismissed as violative
of the Eleventh Amendment of the United States Constitution.” (Id. ¶ 2). Since Eleventh
Amendment immunity would apply only to the federal § 1983 claim, the court will interpret the
motion to include dismissal of the official-capacity claim contained in Claim I in addition to all
capacity claims in Claims II, III (negligence), and III (wantonness).
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1. Official-Capacity Claims
Deputy Kearley is immune from state-law claims in his official capacity. Under Alabama
law, sheriffs are executive officers of the state and, as a result, have immunity under the
Alabama Constitution. Hereford v. Jefferson Cnty., 586 So. 2d 209, 210 (Ala. 1991) (citing Ala.
Const. art. I, § 14 (“[T]he State of Alabama shall never be made a defendant in any court of law
or equity.”)); see also McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 789 (1997) (holding that,
based on an analysis of Alabama law, sheriffs are state officers, and suits against them in their
official capacity are suits against the state). Alabama law further recognizes that, “‘[i]n general,
the acts of the deputy sheriff are the acts of the sheriff. The deputy sheriff is the alter ego of the
sheriff.’” Hereford, 586 So. 2d at 210 (quoting Mosely v. Kennedy, 17 So. 2d 536, 537 (Ala.
1944)); see also Welch v. Laney, 57 F.3d 1004, 1008 (11th Cir. 1995) (recognizing that a
sheriff’s deputy is legally an extension of the sheriff); Carr v. City of Florence, Ala., 916 F.2d
1521, 1525 (11th Cir. 1990) (recognizing that a deputy’s acts are generally considered acts of the
sheriff). Thus, a deputy sheriff receives the same privilege of sovereign immunity as a sheriff.
See Johnson v. Conner, 720 F.3d 1311, 1313 (11th Cir. 2013) (“Under Alabama law, sheriffs and
deputy sheriffs are considered executive officers of the state, and are therefore immune from suit
in both their official and individual capacities.”). Exceptions to this immunity apply only in
situations where plaintiffs are seeking injunctive relief against a sheriff or deputy sheriff. See
Tinney v. Shores, 77 F.3d 378, 383 (11th Cir. 1996) (“The Alabama Supreme Court explained
that under Article I, § 14 [of the Alabama Constitution], the only exceptions to a sheriff’s
immunity from suit are actions brought to enjoin the sheriff’s conduct.”); see also Parker v.
Amerson, 519 So. 2d 442, 443 (Ala. 1987). Therefore, under Alabama law, a deputy sheriff is an
executive officer of the state, which provides him with absolute immunity from suits for money

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damages under state law causes of action. Accordingly, the Plaintiff’s state-law claims against
Deputy Kearley in his official capacity are due to be dismissed.

2. Individual-Capacity Claims
Further, Deputy Kearley is immune from state-law claims in his individual capacity.
“[S]heriffs and deputy sheriffs are executive officers of [the] State [of Alabama], pursuant to the
[Alabama Constitution].” Ex parte Sumter Cnty., 953 So. 2d 1235, 1239 (Ala. 2006). Under
Alabama law, “a claim for monetary damages made against a constitutional officer in the
officer’s individual capacity is barred by State immunity whenever the acts that are the basis of
the alleged liability were performed within the course and scope of the officer’s employment.”
Ex parte Davis, 930 So. 2d 497, 500–01 (Ala. 2005). Section 36-22-3(4) of the Alabama Code
states in part that “[i]t shall be the duty of sheriffs in their respective counties, by themselves or
deputies . . . to apprehend and arrest criminals.” The focus of Forehand’s Complaint is that
Deputy Kearley allegedly used excessive force while attempting to arrest Forehand. Further, the
Complaint alleges that Kearley was acting within the line and scope of his employment during
the attempted arrest. (See Doc. # 1 ¶ 9 (“Defendant Kearley acted in his official and individual
capacity.”); see also id. ¶ 16 (“The Defendant C.S. Kearley touched the Plaintiff in a harmful and
offensive manner . . . while acting as a Deputy of Elmore County Sheriff’s Department and in his
individual capacity.”); id. ¶¶ 20, 24 (stating that “Kearley was “acting in the line and scope of his
employment for Elmore County Sheriff’s Department”)). Based on these allegations, and
because “performing arrests fall[s] within the statutory duties of a sheriff”—and thus within the
statutory duties of a sheriff’s deputies— Forehand’s state-law claims for monetary damages

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against Deputy Kearley in his individual capacity are barred by State immunity. See Davis, 930
So. 2d at 501. As a result, those claims are due to be dismissed.

B. Official-Capacity § 1983 Claim against Kearley
Deputy Kearley is immune from the Plaintiff’s official-capacity claim against him under
42 U.S.C. § 1983. In 42 U.S.C. § 1983 suits for monetary damages, “Alabama deputy sheriffs are
immune from suit in their official capacities under the eleventh amendment to the United States
Constitution.” Carr, 916 F.2d at 1527. In this case, because the Plaintiff only seeks monetary
damages under § 1983 against Kearley, and because Kearley is immune from suit in his official
capacity under the Eleventh Amendment, the official-capacity § 1983 claim against Kearley is
due to be dismissed.

C. Claims against Elmore County
Plaintiff’s claims against Elmore County are based on vicarious liability for acts of
Deputy Kearley, on failure to supervise Kearley, and on having promulgated policies and
practices which caused Kearley to commit a constitutional violation.
Defendant Elmore County seeks dismissal under Federal Rule of Civil Procedure
12(b)(6) of all claims brought against it. In support, the County argues that it cannot be held
liable for the actions of the Sheriff and Deputies. Specifically, the County argues that “Plaintiff’s
theory against Elmore County is based upon the incorrect premise that it has a role in the
supervision of Deputy Kearley.” (Doc. # 11 at 3). Because sheriffs and deputies are executive
officers of the State of Alabama, and because the County cannot be vicariously liable for actions
of individuals who are not agents, servants, or employees of the County, the County cannot be

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held vicariously liable for Deputy Kearley’s actions. Further, the County argues that vicarious
liability is not a cognizable theory under § 1983.
In response, the Plaintiff argues that the County “cannot now show beyond a doubt that
the Plaintiff cannot prove” that the County “promulgated an unconstitutional custom, policy,
practice, or procedure which was the moving force behind the constitutional deprivation” in this
case “under any set of circumstances,” and thus the motion to dismiss should be denied. (Doc.
# 19 ¶ 2). The County replies by asserting that the Plaintiff applied the wrong standard in its
response and that, under Twombly, the Plaintiff’s claim against the County is not plausible. Thus,
according to the County, all claims against it should be dismissed.
To the extent, if any, that Forehand alleges that the County is vicariously liable under
§ 1983 for any alleged tortious acts by Deputy Kearley, the court agrees that a plaintiff cannot
recover against a county under § 1983 on a vicarious liability theory. Monell v. Dep’t of Soc.
Servs. of N.Y., 436 U.S. 658, 691 (1978) (“[T]he language of § 1983 . . . compels the conclusion
that Congress did not intend municipalities to be held liable unless action pursuant to official
municipal policy of some nature caused a constitutional tort. In particular, we conclude that . . . a
municipality cannot be held liable under § 1983 on a respondeat superior theory.”). Further, to
the extent that Forehand seeks to recover against the County for an alleged “unconstitutional
custom, policy, practice, or procedure which was the moving force behind the unconstitutional
deprivation,” (Doc. # 19 ¶ 2), the court assumes, without finding, that the Plaintiff has
sufficiently pled allegations to satisfy Twombly.
Regardless of whether the claims are sufficiently pled, however, the § 1983 claims are
due to be dismissed with prejudice. The County cannot be held liable for the deputy’s actions in
this case because the deputy was acting pursuant to his law-enforcement authority and because,

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as noted earlier, he is an officer of the state, not an employee of the county. Under Alabama law,
“the ‘powers and duties’ of the counties themselves—creatures of the State who have only the
powers granted to them by the State—do not include any provision in the area of law
enforcement.” McMillian, 520 U.S. at 790 (citing Ala. Code § 11-3-11 (1989)) (internal citation
omitted). “Thus, the ‘governing body’ of the counties—which in every Alabama county is the
county commission—cannot instruct the sheriff how to ferret out crime, how to arrest a criminal,
or how to secure evidence of a crime.” Id. (emphasis added) (internal citation omitted). As a
result, because the sheriff and the sheriff’s deputies exercise state, rather than county, power in
acting with final policymaking authority in law enforcement under Alabama law, the county
cannot be held liable for the actions taken by the sheriff or the sheriff’s deputies in lawenforcement activities. See McMillian v. Johnson, 88 F.3d 1573, 1577–78 (11th Cir. 1996), aff’d,
McMillian, 520 U.S. 781 (stating that “[a] municipality may be held liable for a single act or
decision of a municipal official with final policymaking authority in the area of the act or
decision,” but determining that, under Alabama law, sheriffs do not act with final county
policymaking authority for law enforcement because counties have no law-enforcement
authority); see also Turquitt v. Jefferson Cnty., Ala., 137 F.3d 1285, 1292 (11th Cir. 1998)
(“[L]ocal governments can never be liable under § 1983 for the acts of those whom the local
government has no authority to control.”). Thus, because the Complaint only alleges that
Sheriff’s Deputy Kearley violated Forehand’s constitutional rights in the exercise of his lawenforcement activities, because Kearley is a state officer not under the control of the county, and
because Elmore County has no law-enforcement authority, the County cannot be held liable for
Kearley’s actions. Therefore, the § 1983 claims against the County are dismissed with prejudice.

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Finally, the same analysis applies to the state-law claims against Elmore County. Because
the sheriff and the sheriff’s deputies are state officials, the County cannot be held liable for the
actions of the sheriff or the sheriff’s deputies. See King v. Colbert Cnty., 620 So. 2d 623, 625
(Ala. 1993) (“[E]ven if [the sheriff] can be held liable for his conduct as sheriff of Colbert
County, Colbert County itself cannot be held vicariously liable for his actions or inaction.”).
Thus, under Alabama law, all of the state-law claims against Elmore County in this case are due
to be dismissed with prejudice.

D. Claims against the Elmore County Sheriff’s Department
Defendant Elmore County Sheriff’s Department seeks dismissal under Federal Rule of
Civil Procedure 12(b)(6) of all claims brought against it. In support, the Sheriff’s Department
argues that it “is not a legal entity subject to suit.” (Doc. # 13 at 1). Specifically, the Sheriff’s
Department cites a case directly on point, Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992),
for the proposition that, under Alabama law, a sheriff’s department is not a legal entity, and thus
is not subject to suit. Therefore, because “Plaintiff cannot point to any statute or law that creates
a sheriff’s department as a legal entity,” the Sheriff’s Department “is due to be dismissed.” (Doc.
# 13 at 5).
The Plaintiff asserts the same argument in response as he did against the County.
Specifically, the Plaintiff argues that the Sheriff’s Department “cannot now show beyond a doubt
that the Plaintiff cannot prove” that the Sheriff’s Department “promulgated an unconstitutional
custom, policy, practice, or procedure which was the moving force behind the constitutional
deprivation” in this case “under any set of circumstances” and that thus the motion to dismiss
should be denied. (Doc. # 19 ¶ 2). In reply, the Sheriff’s Department asserts the same argument

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as the County, stating that, under Twombly, the claim against the Sheriff’s Department is not
plausible.
In Dean v. Barber, the Eleventh Circuit affirmed the dismissal of a pro se litigant’s
§ 1983 claim against the Jefferson County, Alabama Sheriff’s Department. The pro se plaintiff
“claimed his constitutional rights were violated by [the various] defendants’ policies which led to
a violent attack upon [the plaintiff] by a fellow inmate of the Jefferson County jail.” Dean v.
Barber, 951 F.2d 1210, 1212 (11th Cir. 1992). The court looked to Alabama law and determined
that “a county sheriff’s department lacks the capacity to be sued.” Id. at 1215. As a result, the
district court in that case correctly dismissed the § 1983 claim against the Sheriff’s Department.
In this case, all claims against the Elmore County Sheriff’s Department are due to be
dismissed. First, as in Dean, the § 1983 claim against the Sheriff’s Department is due to be
dismissed because the department “lacks the capacity to be sued.” Id. Second, all state-law
claims against the Sheriff’s Department are due to be dismissed as well. As noted in Dean, the
Alabama Supreme Court has dismissed state-law claims against a sheriff’s department because
the department was not a legal entity subject to suit. Id.; see also White v. Birchfield, 582 So. 2d
1085, 1087 (Ala. 1991) (“The Chambers County Sheriff’s Department is not a legal entity
subject to suit. Therefore, a cause of action may not be maintained against the Chambers County
Sheriff’s Department.”). As a result, all claims against the Elmore County Sheriff’s Department
are due to be dismissed.

V. CONCLUSION
The court finds that the § 1983 claim against Deputy Kearley in his official capacity and
all state-law claims against Deputy Kearley in his official and individual capacities are due to be

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dismissed for lack of subject-matter jurisdiction. Further, the court finds that all claims against
Elmore County and the Elmore County Sheriff’s Department are due to be dismissed with
prejudice. For the stated reasons,
It is hereby ORDERED as follows:
1. Defendant Deputy C.S. Kearley’s Partial Motion to Dismiss (Doc. # 7) is
GRANTED, and the Claim I official-capacity claim and Claims II (assault and
battery), III (negligence), and III (wantonness) of the Complaint are DISMISSED
against Defendant Kearley for lack of subject-matter jurisdiction.
2. Defendant Elmore County’s Motion to Dismiss (Doc. # 10) is GRANTED, and the
Plaintiff’s claims against the County are DISMISSED with prejudice.
3. Defendant Elmore County Sheriff Department’s Motion to Dismiss (Doc. # 12) is
GRANTED, and the Plaintiff’s claims against the Sheriff’s Department are
DISMISSED with prejudice.
4. This case will continue as to Claim I against Defendant Kearley in his individual
capacity.

DONE this 5th day of June, 2014.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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