Massey v. Connor et al (JOINT ASSIGN)(MAG2)

Filing 54

ORDER directing as follows: (1) pfls' 40 objections are sustained in part and overruled in part; (2) defs' 39 Objections are sustained in part and overruled in part; (3) the 36 Report and Recommendation of the Magistrate Judge is adopted in part and rejected in part; (4) defs' 18 Motion to Dismiss is granted in part and denied in part; (5) To the extent she is pursuing this case individually, plf's claims are dismissed; Plf remains in the case only as the Ad ministrator of the Estate on Cameron Massey; She is otherwise terminated as a party; (6) Counts III and IV are dismissed without prejudice and with leave to plf to amend her complaint, as further set out in order; (7) Counts I and II, as brought by p lf in her capacity as executor of her son's estate, are unchallenged by the dismissal motion and thus remain in the case ; (8) plf's request for attorneys' fees for her state-law claims under a private attorney-general theory is not di smissed; instead, this issue will be left for resolution if and when plf obtains a judgment in her favor on those claims; further ORDERING that the case is referred back to the magistrate judge for further proceedings. Signed by Honorable Judge Myron H. Thompson on 9/29/17. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JAQUELINE MASSEY,
individually, and as the
administrator of the
estate of Cameron Massey,

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Plaintiff,
v.
RALPH CONNOR, in his
individual capacity,
et al.,
Defendants.

CIVIL ACTION NO.
2:15cv739-MHT
(WO)

ORDER
After

an

independent

and

de

novo

review

of

the

record, it is ORDERED as follows:
(1)

Plaintiff's

objections

(doc.

no.

40)

are

no.

39)

are

sustained in part and overruled in part.
(2)

Defendants’

objections

(doc.

sustained in part and overruled in part.
(3)

The

recommendation

of

the

United

States

Magistrate Judge (doc. no. 36) is adopted in part and
rejected in part.

(4) Defendants' motion to dismiss (doc. no. 18) is
granted in part and denied in part.
(5)

To

the

individually,

extent

she

plaintiff’s

is

pursuing

claims

are

this

case

dismissed.

Plaintiff remains in the case only as the Administrator
of

the

Estate

on

Cameron

Massey.

She

is

otherwise

terminated as a party.
(6)

Counts

prejudice
complaint.

and

III

with

and

IV

leave

to

are

dismissed

plaintiff

to

without

amend

her

As the court is confused as to the legal

theory for these claims and the facts underlying them,
plaintiff should make clear in the amended complaint
the exact legal theory for each Count and should set
forth clearly the facts relevant to each Count.*

If

*
The court agrees with the recommendation’s
analysis of Count Three of the complaint in that
plaintiff has not at this time pleaded sufficient facts
to state an unskillfulness claim against the defendant
city for the officers’ use of force. Plaintiff has two
arguably inconsistent theories: her federal claim that
the defendant officers intentionally violated her son’s
Fourth Amendment rights in their use of force against
him and her state-law claim against the city based on
the officers’ unskillfulness in that use of force. No
one challenges the viability of the Fourth Amendment
2

plaintiff seeks to plead facts in the alternative to
support the inconsistent claims, she should make this
intent clear in the amended complaint and plead those
facts

needed

to

support

each

claim

in

a

clearly

designated section or other clear manner.
(7) Counts I and II, as brought by plaintiff in her
capacity

as

executor

of

her

son’s

estate,

are

unchallenged by the dismissal motion and thus remain in
the case.
(8) Plaintiff’s request for attorneys’ fees for her
state-law

claims

under

a

private

attorney-general

theory is not dismissed; instead, this issue will be
left for resolution if and when plaintiff obtains a
claim.
Instead, the magistrate judge found that the
unskillfulness claim could not proceed because it was
inconsistent with the facts pled in the complaint. Of
course, there is no problem with pleading inconsistent
theories; Federal Rules of Civil Procedure 8(d)(2) and
(3) allow pleading of inconsistent or alternative facts
and claims. The problem with the current complaint as
to that claim is the lack of facts to support the
unskillfulness theory.
Furthermore, the court is confused by plaintiff’s
insistence that Counts III and IV are not simply
different
legal
theories
supporting
plaintiff’s
wrongful death claim. If there is another way to view
those claims, the court does not understand it.
3

judgment in her favor on those claims.
It is further ORDERED that the case is referred
back to the magistrate judge for further proceedings.
DONE, this the 29th day of September, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE