Massey v. Connor et al (JOINT ASSIGN)(MAG2)
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
individually, and as the
administrator of the
estate of Cameron Massey,
RALPH CONNOR, in his
CIVIL ACTION NO.
record, it is ORDERED as follows:
sustained in part and overruled in part.
sustained in part and overruled in part.
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.
Plaintiff remains in the case only as the Administrator
terminated as a party.
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.*
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
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
designated section or other clear manner.
(7) Counts I and II, as brought by plaintiff in her
unchallenged by the dismissal motion and thus remain in
(8) Plaintiff’s request for attorneys’ fees for her
theory is not dismissed; instead, this issue will be
left for resolution if and when plaintiff obtains a
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
Furthermore, the court is confused by plaintiff’s
insistence that Counts III and IV are not simply
wrongful death claim. If there is another way to view
those claims, the court does not understand it.
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
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