Gunn v. City of Montgomery, Alabama et al (JOINT ASSIGN)(MAG2)
MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) The 56 objection of Dft Finley and City of Montgomery is OVERRULED; 2) Dft Smith's 57 objection is OVERRULED; 3) Plf Nellie Ruth Gunn's 58 objection is OVERRULED; 4) The [5 5] Recommendation of the Magistrate Judge is ADOPTED; 5) Dft Smith's 42 motion to dismiss is GRANTED as to Plf Nellie Ruth Gunn's individual-capacity 1983 claims against Dft Smith for damages personal to her; In all other respects, Dft Sm ith's 42 motion to dismiss is DENIED; 6) Plf Nellie Ruth Gunn's individual capacity 1983 claims against Dft Smith for damages personal to her are DISMISSED; 7) This case is REFERRED back to the Magistrate Judge for further proceedings on Plf Nellie Ruth Gunn's remaining claims (i.e., her representative capacity 1983 claims and her state law claims). Signed by Chief Judge William Keith Watkins on 4/11/2018. (alm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NELLIE RUTH GUNN, individually
and as Administratrix of the Estate of
Gregory Gunn, Deceased,
CITY OF MONTGOMERY,
ALABAMA, et al.
) CASE NO. 2:16-CV-557-WKW
MEMORANDUM OPINION AND ORDER
On March 2, 2017, Defendant Aaron Cody Smith filed a motion to dismiss.
(Doc. # 42.) On January 24, 2018, the Magistrate Judge filed a Recommendation
that the motion be granted in part and denied in part. (Doc. # 55.) On February 7,
2018, objections were filed by Defendants City of Montgomery and Ernest N.
Finley, Jr. (Doc. # 56), Defendant Smith (Doc. # 57), and Plaintiff Nellie Ruth Gunn
(Doc. # 58). Upon an independent and de novo review1 of those portions of the
Recommendation to which objection is made, the Recommendation is due to be
adopted. See 28 U.S.C. § 636(b).
A district judge makes a de novo determination of those portions of the report to which
objection is made. The district judge “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see Fed. R.
Civ. P. 72(b)(3).
STANDARD OF REVIEW
Rule 12(b)(1) Motion to Dismiss for Lack of Jurisdiction
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Burns v. Windsor Ins. Co., 31
F.3d 1092, 1095 (11th Cir. 1994). This court is “‘empowered to hear only those cases
within the judicial power of the United States as defined by Article III of the
Constitution,’ and which have been entrusted to them by a jurisdictional grant
authorized by Congress.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409
(11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)).
Therefore, a federal court is obligated to inquire into subject matter jurisdiction sua
sponte “at the earliest possible stage in the proceedings.” Id. at 410. “It is to be
presumed that a cause lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511
U.S. at 377.
A motion to dismiss for lack of Article III standing implicates the court’s
subject matter jurisdiction. Duty Free Ams., Inc. v. Estee Lauder Companies, Inc.,
797 F.3d 1248, 1271 (11th Cir. 2015). Rule 12(b)(1) of the Federal Rules of Civil
Procedure governs motions to dismiss for lack of subject matter jurisdiction. In this
case, Defenant’s Rule 12(b)(1) motion to dismiss for lack of jurisdiction presents a
“facial attack” on the existence of subject matter jurisdiction. A “facial attack” on
the complaint “require[s] the court merely to look and see if the plaintiff has
sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his
complaint are taken as true for the purposes of the motion.” Lawrence v. Dunbar,
919 F.2d 1525, 1529 (11th Cir. 1990). Thus, the standard of review for a facial
jurisdictional challenge is functionally comparable to the standard of review
applicable to Defendant’s Rule 12(b)(6) motion to dismiss. See id. (“On a facial
attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule
Rule 12(b)(6) Motion to Dismiss
When evaluating a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court must take the facts alleged in the complaint as true and
construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc.,
693 F.3d 1317, 1321–22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
plausibility” exists “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556).
II. FACTS 2
In the very early morning hours of February 25, 2016, Defendant Aaron Cody
Smith, a white police officer for the City of Montgomery, Alabama, was working
alone on patrol. He confronted Gregory Gunn, a 58-year-old African-American, as
Mr. Gunn was walking home from a card game at a neighbor’s house. Without any
basis for reasonable suspicion that Mr. Gunn was involved in criminal activity,
Smith approached Mr. Gunn and initiated a “stop and frisk.” Mr. Gunn was not
armed, and Smith had no reason to believe he was armed.
Before Smith completed the pat-down, Mr. Gunn fled in the direction of his
home. Smith, still lacking any reasonable suspicion that Mr. Gunn was involved in
criminal activity, pursued Mr. Gunn on foot. During the pursuit, Smith deployed a
Taser on Mr. Gunn at least three times, even though Mr. Gunn had not threatened
Smith and Smith had no reason to fear for his own safety. Because the Taser failed
to stop Mr. Gunn’s flight, Smith struck Mr. Gunn several times with an expandable
metal baton. During the confrontation, Mr. Gunn made no oral threats or aggressive
moves, and he never tried to reach for any of Smith’s weapons. Nevertheless, by the
time Mr. Gunn reached his next-door neighbor’s house, Smith brandished his service
firearm and fired seven shots at Mr. Gunn, striking him five times and killing him.
The facts set forth in this Memorandum Opinion are as alleged in the complaint. (Doc. #
1 at ¶¶ 12-82.)
Mr. Gunn died in his next-door neighbor’s front yard. When he died, he was only
steps away from the home he shared with his mother, Plaintiff Nellie Ruth Gunn.
On July 8, 2016, Plaintiff filed this suit in her individual capacity and as
administratrix of the estate of Gregory Gunn. She asserts claims under 42 U.S.C. §
1983 and state law. With respect to the § 1983 claims, Plaintiff seeks to recover
personally for loss of companionship and support (Doc. # 1 at ¶¶ 131, 173, 189, 206,
227) and in her representative capacity for the death of her son. 3
On August 11, 2016, Defendants Finley4 and City of Montgomery filed a
motion to dismiss all Plaintiff’s individual and representative-capacity claims. On
March 2, 2017, the Magistrate Judge entered a Recommendation that the motion to
dismiss be granted as to Plaintiff’s individual-capacity § 1983 claims against
Defendants Finley and City of Montgomery, and denied as to the remainder of her
(Doc. # 41 at 8.)
On March 24, 2017, the court adopted the
Recommendation of the Magistrate Judge. (Doc. # 47.)
“[W]hen a constitutional violation actually causes the injured party’s death, a § 1983
claim can be asserted through the Alabama wrongful death statute, Ala. Code  § 6–5–410.9.”
Estate of Gilliam ex rel. Waldroup v. City of Prattville, 639 F.3d 1041, 1047 (11th Cir. 2011).
Alabama’s wrongful death statute allows a wrongful death action to be brought by the
representative of the decedent’s estate. Ala. Code 1975 § 6-5-410.
Defendant Finley is sued in his individual and representative capacity as chief of police
for the City of Montgomery. He is not alleged to have personally participated in the shooting of
On March 2, 2017, Defendant Smith filed a motion to dismiss arguing (1) that
Plaintiff lacks standing to sue in her individual capacity for injuries personal to her;
(2) that Alabama’s survivorship statute, Ala. Code 1975 § 6-5-462, bars survivorship
of claims for damages (such as Mr. Gunn’s pain and suffering) that arose prior to his
death; (3) that state law immunity bars Plaintiff’s state law negligence claim against
Defendant Smith; and (4) that Plaintiff failed to allege facts sufficient to support her
§ 1983 claim for racial profiling in violation of the Equal Protection Clause of the
Fourteenth Amendment. (Doc. # 42 at 3-11.)
On January 24, 2018, the Magistrate Judge filed a Recommendation that
Defendant Smith’s motion be granted in part as to claims for damages Plaintiff
alleges are personal to her, and that, in all other respects, the Defendant Smith’s
motion be denied. (Doc. # 55.) Plaintiff objects to the recommendation of dismissal
of claims brought in her individual capacity, arguing that this court’s March 24, 2017
Order, on which the Magistrate Judge relied in his January 24, 2018
Recommendation, was incorrect. (Doc. # 58.) Defendant Smith objects to the denial
of the remainder of his motion (Doc. # 57), and Defendants Finley and City of
Montgomery join his objections (Doc. # 56).
Plaintiff objects to the Magistrate Judge’s recommendation of her individual
capacity § 1983 claims against Defendant Smith. As to those claims, Plaintiff
contends that the killing of her son was the result of unconstitutional deprivations of
equal protection and due process. As compensation for the lethal deprivation of her
son’s constitutional rights, Plaintiff seeks to recover compensatory damages for her
own “severe emotional distress and mental anguish and other pain and suffering”
caused by her son’s death; “lost regular financial support that [her son] had provided
her; and [the lost] society and companionship of her son, with whom she had
resumed a close family unit for multiple years before his murder.” (Doc. # 1 at ¶¶
131, 173, 189.) Citing Carringer v. Rodgers, 331 F.3d 844, 849 (11th Cir. 2003)
and Brazier v. Cherry, 293 F.2d 401, 409 (5th Cir. 1961), 5 Plaintiff argues that
§ 1983 is deficient for failing to expressly provide for her, as a surviving family
member, to recover in her individual capacity for damages she personally suffered
as a result of the deprivation of her son’s constitutional rights. While Plaintiff
recognizes that state law generally fills the gap where §1983 is silent regarding
remedies, 6 she says that the court should not look to state law to remedy the
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), the Eleventh Circuit
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
42 U.S.C. § 1988(a) provides:
The jurisdiction in civil and criminal matters conferred on the district courts by the
provisions of titles 13, 24, and 70 of the Revised Statutes for the protection of all
persons in the United States in their civil rights, and for their vindication, shall be
exercised and enforced in conformity with the laws of the United States, so far as
deficiency in this case because Alabama law’s failure to recognize such claims 7 in
the wrongful death context fails to fully effectuate the purposes of § 1983.
In Carringer and Brazier, the court of appeals held that § 1983 is deficient in
not providing for survivorship of a § 1983 claim for unconstitutional conduct that
resulted in death and looked to state survivorship and wrongful death statutes to
determine that a civil rights wrongful death claim survives. By order entered March
24, 2017 (Doc. # 47), this court previously held that Carringer and Brazier are
such laws are suitable to carry the same into effect; but in all cases where they are
not adapted to the object, or are deficient in the provisions necessary to furnish
suitable remedies and punish offenses against law, the common law, as modified
and changed by the constitution and statutes of the State wherein the court having
jurisdiction of such civil or criminal cause is held, so far as the same is not
inconsistent with the Constitution and laws of the United States, shall be extended
to and govern the said courts in the trial and disposition of the cause.
Pursuant to § 1988, courts look to state law where federal civil rights statutes are deficient
but only “to the extent that [state law] is currently available to overcome these deficiencies,”
Brazier, 293 F.2d 408, and only if the state law “is not inconsistent with the Constitution and laws
of the United States.” Wilson v. Garcia, 471 U.S. 261, 267 (1985), superseded by statute in part
on other grounds, 28 U.S.C. § 1658.
It is undisputed that Alabama does not recognize a right of recovery in surviving parents
for loss of consortium and the like as a result of the death of the parents’ adult children. Rather,
under Alabama’s wrongful-death statute, Ala. Code 1975 § 6-5-410, a personal representative of
a deceased individual can bring suit to recover only punitive damages for “the wrongful act,
omission, or negligence of any person, persons, or corporation” that caused the decedent’s death.
Ala. Code 1975 § 6-5-410(a).
Alabama law does recognize the right of a decedent’s spouse to recover for the loss of
consortium that the surviving spouse suffered between the decedent’s injury and death.
Zimmerman v. Lloyd Noland Found., Inc., 582 So. 2d 548, 551 (Ala. 1991). Plaintiff is not a
spouse, and she is not asserting loss of consortium for the brief time between the infliction of her
son’s injuries and his death.
distinguishable because they relate to the survivorship of a decedent’s § 1983 action
and the ability of the survivor to maintain a § 1983 cause of action for wrongful
death, whereas this case involves a different question: whether a § 1983 wrongful
death action allows recovery of compensatory damages for injuries personal to a
parent of an adult child when that child is killed as a result of unconstitutional
actions by state officers. In his January 24, 2018 Recommendation, the Magistrate
Judge relied on the court’s March 24, 2017 holding to recommend dismissal of
Plaintiff’s individual-capacity claims against Defendant Smith. Plaintiff objects to
the Magistrate Judge’s Recommendation on grounds that this court’s March 24,
2017 holding was incorrect.
In Brazier, the former Fifth Circuit addressed “whether death resulting from
violation of the Civil Rights statutes give[s] rise to a federally enforceable claim for
damages sustained by the victim [of a constitutional violation] during his lifetime,
by his survivors, or both.” 293 F.2d at 402. Notably, however, Brazier did not
address “damages to survivors” in the form of loss of consortium and the like.
Rather, Brazier was concerned with who, if anyone, had the right to file a civil suit
for damages caused to the person who was subject to a constitutional violation that
resulted in injury, pain, suffering, and, eventually, death. 8 Specifically, the question
The decedent in Brazier had allegedly been subjected to two brutal police beatings: one
in the course of arrest and one several days later when he was removed from the custody of the jail
for the sole purpose of subjecting him to another beating. The decedent’s widow filed suit to
before the court was whether (1) the decedent’s claims for damages sustained during
his lifetime survived his death; and (2) whether damages were recoverable for the
decedent’s death by unconstitutional means. Looking to state law to fill the gap in
the federal statutory scheme, the appellate court noted that then-existing Georgia law
provided two separate and distinct causes of action: “[o]ne . . . for survival of the
decedent’s cause of action; the other for injury inflicted on the survivor.” Id. at 407
n.15. Specifically, the Georgia statute that the appellate court described as “a cause
of action for injury inflicted on the survivor” allowed recovery for “the full value of
the life of the decedent.” Id. The appellate court’s statement that “regard has to be
taken of both classes of victims” must be considered in its full context, which is as
Since Georgia now provides for both survival of the claim for damages
sustained during his lifetime as well as for a right of recovery to his
surviving widow and others for homicide, see note 15, supra
[describing Georgia’s two distinct causes of action], we need not
differentiate between the two types of actions. To make the policy of
the Civil Rights Statutes fully effectual, regard has to be taken of both
classes of victims. Section 1988 declares that this need may be fulfilled
if state law is available. Georgia has supplied the law.
Id. at 409 (emphasis added).
Carringer likewise arose in Georgia. Carringer did not address whether the
recover damages for illegal arrest of her husband, injuries inflicted on her husband in the beating,
mental anguish and other punitive damages related to the beatings, and damages for the death of
the decedent. Brazier, 293 F.2d at 402 n.1.
survivor/plaintiff, the decedent’s mother, could recover damages personal to her,
such as loss of consortium, that arose out of her son’s wrongful death at the hands
of his surviving spouse, who shot him with her police service revolver. Rather,
Carringer concerned whether the mother, who was not the administratrix of her
son’s estate, had standing to bring a § 1983 wrongful death suit to recover “the full
value of the death of the decedent” and “funeral, medical, and other necessary
expenses resulting from the injury and death of the deceased.” Carringer, 331 F.3d
at 845 and 846 n.1. The court held that, because Georgia law provided that a parent
had standing to sue for wrongful death when the spouse was responsible for the
death, the mother had standing to sue for the decedent’s wrongful death under §
1983. Id. at 850. Thus, like Brazier, Carringer was concerned with who, if anyone,
had the right to file a civil suit for damages caused to the person who was subject to
the constitutional violation, not whether the survivor could sue for damages that she
personally suffered incident to the infliction of a constitutional violation on her loved
one. See id. at 847–48 (holding that, to answer the issue presented, which was
whether the mother had a “right to bring a § 1983 action . . . for the wrongful death
of her son”, the court “must answer two questions: (1) whether a decedent’s § 1983
claim terminates upon his death; and (2) if not, where do we look to determine who
may bring a § 1983 claim for the wrongful death of the decedent whose
constitutional rights were violated” (emphasis added)).
Thus, Brazier and Carringer concerned issues of survivorship, standing, and
capacity to bring a § 1983 wrongful death suit (and, in Brazier, survival of the
decedent’s estate’s claims for damages suffered in unconstitutional police beatings
that took place in the days prior to his death). Both cases held that § 1983 protected
the right of survivors, as a class of victims (and as defined by Georgia law), to
maintain a cause of action “‘to recover for homicide.’” Carrringer, 331 F.3d at 849
(quoting Brazier, 293 F.2d at 409) (emphasis in Carringer). Brazier and Carringer
do not, however, address the question presented here: whether the types of damages
recoverable in such an action include damages suffered personally by the survivor
as a result of the death of a loved one. Accordingly, despite Plaintiff’s heavy reliance
on language in Brazier and Carringer emphasizing that § 1983 requires that “‘regard
has to be taken of both classes of victims’” (i.e., the decedent’s estate, which may
have claims for damages inflicted on the decedent prior to death, and the decedent’s
survivors, who may have claims for wrongful death), id. (quoting Brazier, 293 F.2d
at 409), that language is not particularly useful in answering the question presented
in this case. Alabama has no “classes of victims” in a wrongful death action, and in
this context “survivor” is nowhere defined in Alabama law.
Plaintiff cites Rhyne v. Henderson County, 973 F.2d 386 (5th Cir. 1992), for
the proposition that Brazier entitles her to recover under § 1983 for injuries personal
to her (such as loss of consortium) that were incidental to the constitutional violation
inflicted on her son. Unfortunately for Plaintiff, Rhyne undercuts her argument and
fully supports this court’s previous holding that Plaintiff’s loss-of-consortium
damages are not allowed in the Eleventh Circuit, at least not in cases arising in
In Rhyne, the court held that a mother had standing to recover under § 1983
for “injury to herself caused by her son’s death” from lack of medical care at a county
jail. Id. at 392. The court premised its holding on two Fifth Circuit cases: Brazier
and Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir. 1985). Unlike Brazier,
Rhyne and Grandstaff are not binding precedent in this Circuit. See Bonner, 661
F.2d 1206 (adopting as binding precedent in the Eleventh Circuit all of the decisions
of the former Fifth Circuit handed down prior to the close of business on September
30, 1981). The Rhyne court stated:
Rhyne does not seek to recover as a representative of her son’s estate
for the injuries that her son incurred. There has been no administration
of her son’s estate, and she has not brought this action in her
representative capacity. Rather, Rhyne seeks to recover for her own
injuries arising out of the wrongful death of her son. The right to such
recovery under § 1983 has “generated considerable confusion and
disagreement,” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.
1991), over which the circuits have divided. Compare Jaco v. Bloechle,
739 F.2d 239, 243 (6th Cir. 1984) and Bell v. City of Milwaukee, 746
F.2d 1205 (7th Cir. 1984). The Supreme Court has yet to decide this
question. . . .
This court first addressed the issue of wrongful death recovery under §
1983 in Brazier v. Cherry, 293 F.2d 401, 409 (5th Cir. 1961) . . . .
Much of Brazier’s discussion concerned the survival of the decedent’s
claim, as opposed to the widow’s right to recover for her own injuries
arising out of her husband’s death. However, the court held that both
Georgia’s wrongful death and survival statutes were incorporated into
federal law under § 1988 . . . .
In Grandstaff[, 767 F.2d at 172], this court allowed a father to recover
for the loss of society and companionship incurred by the wrongful
death of his [adult] son. In reaching this result, the Grandstaff court
stated simply that “[w]e look to Texas law for guidance on the damages
recoverable for [plaintiff’s son’s] death.” Id. As Judge Garwood's
dissent in Grandstaff noted, the plaintiff in Grandstaff was not
recovering damages that were a “rough proxy for the deceased’s
damages” [as in Brazier where the damages recovered were for the loss
of the decedent’s life,] but rather was recovering damages for an injury
that the parent suffered in his own right. Grandstaff, 767 F.2d at 173
n.* (Garwood, J., dissenting).
Under Brazier and Grandstaff, Rhyne has standing to recover for her
own injuries arising out of the wrongful death of her son. There is no
dispute that Rhyne is within the class of people entitled to recover under
Texas law for the wrongful death of a child. See Tex. Civ. Prac. &
Rem. Chapter 71. Both Brazier and Grandstaff hold that § 1988
incorporates this wrongful death remedy into § 1983, allowing Rhyne
to recover under § 1983 for her own injuries resulting from the
deprivation of her son’s constitutional rights.
We recognize the strength of the argument that, unlike survival statutes,
wrongful death statutes arguably create new causes of action and
therefore ought not to be incorporated by § 1988. . . . We also
acknowledge that allowing suit by the parent in her own right is not an
inevitable companion of a wrongful death statute. At the same time,
Texas wrongful death law provides Rhyne with the right to recover for
her son's wrongful death and she can recover for injury to herself caused
by her son’s death. To be more precise, our decisions allow recovery
by Rhyne for her injury caused by the state’s deprivation of her son’s
constitutionally secured liberty interests. We need not say more here
because Rhyne was not entitled to go to the jury on the question of
whether there was a constitutional violation, as we will explain.
Rhyne, 973 F.2d at 390–91 (emphasis added).
Justice Garwood’s dissent in Grandstaff, cited in Rhyne, stated as follows:
Section 1983 recovery is limited to “the party injured,” the “citizen”
whose federal rights have been invaded. However, in Brazier [, 293
F.2d 401], we relied on 42 U.S.C. § 1988 as authority to look to state
survival and wrongful death statutes in [§] 1983 actions because “in a
very real sense” this “does not do more than create an effective remedy”
and “merely assures that there will be a remedy.” Id. at 409. Given
that the nature of the damages awarded the father here were generally
not recoverable when sections 1983 and 1988 were enacted . . . and,
unlike pecuniary loss or survival damages, can in no “real sense” be
regarded as some sort of rough proxy for the deceased’s damages, there
is room for doubt that [§] 1988 or the Brazier rationale warrant such
recovery merely because it has now become, over a century later,
available under state law. Whether the father is entitled to such a
recovery apart from state law is an open question in this Circuit. See
Logan v. Hollier, 711 F.2d 690 (5th Cir. 1983). Other authorities are
divided. Compare Jackson v. Marsh, 551 F. Supp. 1091 (D. Colo. 1982)
and White v. Talboys, 573 F. Supp. 49 (D. Colo. 1983) (no recovery)
with Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984)[ 9] and
Myres v. Rask, 602 F. Supp. 210 (D. Colo. 1985) (recovery). In contrast
to the protections afforded the spousal and parent-minor child
relationships, the common law did not recognize any action for injury
to the parent-adult child relationship. . . . Although the Constitution may
protect some aspects of the parent-adult child relationship, so that
[§] 1983 damages may be recoverable where the illegality of the
[9 In 2005, the Seventh Circuit overruled Bell and held that parents had no constitutional
right to recover for the loss of society and companionship of their adult son where (as in the case
of a police shooting) the unconstitutional state action at issue was not specifically aimed at
interfering with the familial relationship. The court noted that its reasoning in Bell stood alone
among the circuits, and that other circuits had rejected the reasoning in Bell for compelling reasons.
Russ v. Watts, 414 F.3d 783, 791 (7th Cir. 2005) (“We therefore overrule our decision in Bell
insofar as it recognized a constitutional right to recover for the loss of the companionship of an
adult child when that relationship is terminated as an incidental result of state action.”).]
complained of governmental action consists, in whole or in part, of
interference with or failure to give proper recognition to that
relationship as such . . . it does not necessarily follow that such damages
are recoverable where, as here, the parent-adult child relationship is
only fortuitously and indirectly related to the wrongdoing.
Grandstaff, 767 F.2d at 173 n.* (Garwood, J., dissenting) (emphasis added).
Unlike Texas law, neither the Georgia law described in Brazier and Carringer
nor Alabama law contemplates that a surviving parent may, in conjunction with a
wrongful death action, assert damages personal to the surviving parent incident to
the death of his or her adult child, such as loss of consortium. Rhyne and Grandstaff,
then, are distinguishable. Moreover, the Fifth Circuit’s approach in Rhyne does not
require, as a matter of federal policy, that the survivor should be allowed to recover
for loss of consortium in a § 1983 wrongful death action if the applicable state
wrongful death law does not allow it. Rather, as Judge Garwood indicated in his
dissent in Grandstaff, to which Rhyne cited, Brazier (upon which Carringer relied)
assures the right of survivors, as a “class of victims,” to a remedy — a cause of action
— to recover for homicide, but the damages recoverable in that cause of action were
“some sort of rough proxy for the deceased’s damages.” Grandstaff, 767 F.2d at
173 n.* (emphasis added). Indeed, in Robertson v. Hecksel, 420 F.3d 1254 (11th
Cir. 2005), the Eleventh Circuit observed that Brazier’s “incorporation of Georgia’s
wrongful death statute was not done in response to a violation of [the survivor’s]
rights: it was done to remedy the violation of the decedent’s rights.” Robertson, 420
F.3d at 1261 (citing Brazier, 293 F.2d at 408–09) (emphasis in original). These are
strong suggestions that, even under Brazier, the damages a survivor is entitled to
recover in a § 1983 wrongful death action are intended to compensate for injuries to
the victim, not to compensate for damages the survivor personally suffered incident
to the deprivation of the victim’s constitutional rights.
Moreover, although Alabama law does not permit a parent to assert her own
damages arising out of the death of her adult child, Alabama law is not the starting
point for resolving the issue presented in this case. While it is clear that, under
Brazier and Carringer, § 1983 protects the right of the survivor to maintain a § 1983
wrongful death cause of action for damages resulting from death caused by
unconstitutional state action, Carringer, 331 F.3d at 849 and Brazier, 293 F.2d at
409, the kinds of damages that are recoverable in such an action are determined by
first looking to federal law. Estate of Gilliam ex rel. Waldroup v. City of Prattville,
639 F.3d 1041, 1047 n.9 (11th Cir. 2011) (citing Gilmere v. City of Atlanta, Ga., 864
F.2d 734, 739 (11th Cir. 1989)). That is, “[f]ederal courts are to turn to state law
[only] to fill gaps which may exist in federal law,” but, “[w]here federal law is
sufficient to carry the policies of the civil rights statutes into effect, resort to state
law is not necessary.” Gilmere v. City of Atlanta, Ga., 864 F.2d 734, 738 (11th Cir.
As the court did in Brazier, to determine whether a gap exists in federal law,
the court first looks to the text of the applicable statute. Section 1983 provides that
“[e]very person who, under color of [state law], subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.” 42 U.S.C. § 1983 (emphasis added).
Plaintiff’s reading of § 1983 suggests that the “citizen . . . or other person” deprived
of privileges and immunities and “the party injured” by the deprivation and to whom
liability is owed need not necessarily be one and the same person. To the extent
Plaintiff has stumbled upon a latent ambiguity in the text of § 1983, practical
application of Eleventh Circuit case law is sufficient to resolve that ambiguity.
In Robertson v. Hecksel, 420 F.3d 1254 (11th Cir. 2005), a case involving
facts very similar to the facts underlying Plaintiff’s claims, 10 the decedent’s mother
sought to recover damages based on injuries she suffered to her relationship with her
adult son as a result of her son’s death by an unconstitutional police shooting. The
Eleventh Circuit held that the mother could not recover because the Constitution
does not protect a parent’s due process interest in the right of a parent to her
In Robertson, the plaintiff’s son, Corey Rice, was killed when an officer shot him as he
fled from a traffic stop after the officer brandished his gun and pointed it at him without cause.
Robertson, 420 F.3d at 1255–56. Corey Rice’s mother, Patricia Robertson, brought § 1983 claims
in her individual capacity for “deprivation of a Fourteenth Amendment right to a relationship with
her adult son and sought damages for loss of support, loss of companionship, and past and future
mental pain and suffering.” Id. at 1256.
relationship with her adult child, at least where the infringement of the parental
association right is only incidental to the defendant’s actions against the decedent.
In so holding, the Eleventh Circuit distinguished Brazier and Carringer as follows:
[The decedent’s mother] argues her claim is controlled by Brazier v.
Cherry, 293 F.2d 401 (5th Cir. 1961), and Carringer v. Rodgers, 331
F.3d 844 (11th Cir. 2003). Because those cases involve the application
of 42 U.S.C. § 1988, it will be helpful for us to first briefly discuss how
§ 1988 works before explaining why Brazier and Carringer are not
relevant to [the decedent’s mother]’s claim.
Brazier and Carringer were both instances where state law was used to
fill gaps in federal law through § 1988’s borrowing provision. [The
decedent’s mother] would have us also look to [Florida 11] law through
§ 1988’s borrowing provision to decide her case. Her argument misses
the dispositive difference between Brazier and Carringer and our case.
In those cases, the plaintiffs were seeking vindication of the decedent’s
rights under § 1983. Here, [the decedent’s mother] alleges a violation of
her rights. Regardless of whose rights are being asserted, before § 1983
and § 1988 can come into play, the plaintiff must still establish the
existence of a federal right. Because [the decedent’s mother] has failed
to establish a federal right, we never reach § 1983, let alone § 1988 and
The plaintiffs in Brazier and Carringer passed the first hurdle of
bringing a § 1983 suit—identifying a federal right—by relying on the
rights of the decedent. Cf. Steven H. Steinglass, Wrongful Death
Actions and Section 1983, 60 Ind. L.J. 559, 621 (1985) (“Wrongful death
statutes permit survivors to sue when a killing violated their decedent’s
rights.... [B]oth survival and wrongful death actions assert the identical
legal rights of the decedent.”). In essence, they were bringing wrongful
death suits under federal law. Although the survivors’ claims were
separate from the claims of the decedents’ estates, the Brazier and
[11 Unlike Alabama law, Florida law would have allowed the decedent’s mother to pursue
claims for injuries personal to her as a result of the death of her child.]
Carringer plaintiffs’ claims necessarily required a finding that the
decedents’ deaths were wrongful in some way. Conversely, whether the
decedent’s rights in our case were violated has no bearing on the ability
of his mother to argue a loss of companionship, because her alleged
cause of action is based on a violation of rights personal to her, not rights
personal to the decedent. For that reason, Brazier and Carringer are not
[The decedent’s mother]’s belief that Brazier and Carringer were
controlling may have been caused in part by dicta in Carringer. Footnote
nine of Carringer begins by noting that the “right to wrongful death
recovery under § 1983 has generated considerable debate amongst our
sister circuits” and then compares the Brazier analysis with the analysis
of the circuits that “allow a claimant to argue that he had a relationship
with the deceased that was constitutionally protected and that the
homicide of the decedent destroyed that relationship and, therefore,
violated the claimant’s own protected constitutional rights.” Carringer,
331 F.3d at 850 n. 9 (citations omitted). This comparison insinuates that
the two approaches are in response to the same question, but, for reasons
already discussed, they are not.
Robertson, 420 F.3d at 1260–62 & 1262 n.9 (third emphasis added).
As a practical matter, Plaintiff’s individual § 1983 claims do not serve to
vindicate her son’s constitutional rights affected by the unlawful searches and
seizures, excessive force, and equal protection violations directed at her son.
Plaintiff’s representative capacity claims adequately serve that purpose. With
respect to Plaintiff’s individual capacity § 1983 claims, according to the plain
language of the complaint, the right Plaintiff is seeking to vindicate, and the violation
of which proximately caused her injury, is her own right to maintain her familial
relationship with her son. Specifically, Plaintiff alleges that, as a result of the
unconstitutional killing of her son, she suffered “severe emotional distress and
mental anguish and other pain and suffering; lost regular financial support that the
decedent, Gregory Gunn, had provided her; and lost the society and companionship
of her son, with whom she had resumed a close family unit for multiple years before
his murder.” (Doc. # 1 at ¶¶ 131, 173, 189, 206, 227.) But, despite the fact that
Plaintiff does not set forth her individual-capacity § 1983 claim in a separate count
of the complaint alleging a Fourteenth Amendment due process claim, in reality,
Plaintiff’s individual capacity claim is a Fourteenth Amendment due process claim
for interruption of her own familial association rights. Therefore, to be sufficient for
carrying out the purposes of the civil rights statutes, neither § 1983 nor Alabama law
is required to provide for Plaintiff to recover compensation for her own injuries, such
as loss of consortium and loss of financial support, that she incurred because her
familial relationship with her son was forever interrupted by his death.
Plaintiff attempts to distinguish Robertson on grounds that her loss of
consortium damages are not couched as familial association claims, but are instead
derivative of, and require proof of, the unconstitutional deprivation of her son’s
constitutional equal protection and due process rights. Plaintiff’s attempt to avoid
application of Robertson through the use of artful pleading is unavailing. Even if
Plaintiff’s claims are viewed in their derivative context, and not as attempts to
recover for loss of Plaintiff’s and/or decedent’s familial association rights, the
relevant point of Robertson is that, between a parent and deceased adult child, there
is no constitutionally or federally protected right of companionship and support,
particularly where (as here) the defendant’s wrongful conduct was not directed at
the parent or at the decedent’s familial association with the parent. Thus, even
though Plaintiff was careful to frame her loss-of-consortium claims as derivative of
an unconstitutional deprivation of her son’s equal protection and due process rights,
Plaintiff still cannot establish that, to effectuate the purpose of § 1983, she must be
entitled to recover derivative damages for her own “severe emotional distress and
mental anguish and other pain and suffering; lost regular financial support that the
decedent, Gregory Gunn, had provided her; and lost the society and companionship
of her son, with whom she had resumed a close family unit for multiple years before
his murder.” (Doc. # 1 at ¶¶ 131, 173, 189.)
Accordingly, and for the reasons stated in the Recommendation (Doc. # 55),
the Magistrate Judge was correct in finding that, as to Plaintiff’s § 1983 claims
against Defendant Smith, Plaintiff cannot recover in her individual capacity for
injuries she personally incurred as a result of the death of her adult child. 12 Plaintiff’s
Plaintiff previously objected that the issue is not a question of standing, but of whether
Plaintiff has a cause of action under § 1983. However, whether the problem is characterized as a
lack of standing or as the nonexistence of a cause of action, the practical outcome is the same:
dismissal of Plaintiff’s §1983 claims for injuries personal to her. See Lawrence, 919 F.2d 1525,
1529 (11th Cir. 1990) (holding that, “[o]n a facial attack” in a Rule 12(b)(1) motion to dismiss for
individual capacity claims against Defendant Smith are due to be dismissed because
Plaintiff has not shown that effectuating the purpose of the civil rights laws requires
(or, if borrowing from state law, permits) recovery for damages personal to her, such
as loss of consortium, incident to the death of her adult son — particularly where, as
here, the unconstitutional deprivation of her son’s rights was not specifically targeted
at the parent-child relationship. See Robertson, 420 F.3d at 1262 (“The loss of a
child at any age, under any circumstances, is one of the most difficult experiences a
parent can endure. While the parent/adult child relationship is an important one, the
Constitution does not protect against all encroachments by the state onto the interests
of individuals. Instead, it is the province of the [state] legislature to decide when a
parent can recover for the loss of an adult child. We will not circumvent its authority
through an unsupported reading of the Fourteenth Amendment.”).
Defendant Smith’s Objections
Whether Alabama’s survivorship statute, Ala. Code 1975 § 6-5-462,
bars survivorship of claims for damages (such as Mr. Gunn’s pain
and suffering) that arose prior to his death
The court has considered Defendant Smith’s objections to the Magistrate
Judge’s finding that Alabama’s survivorship statute does not bar recovery of claims
for compensatory damages in a § 1983 action for Plaintiff’s son’s pre-death injuries,
lack of subject matter jurisdiction, “a plaintiff is afforded safeguards similar to those provided in
opposing a Rule 12(b)(6) motion — the court must consider the allegations of the complaint to be
such as physical pain and suffering and emotional distress. The court finds the
reasoning of the Magistrate Judge persuasive.
Defendant Smith’s reliance on Gilliam, 639 F.3d 1041, is unavailing. In
Gilliam, the Eleventh Circuit held that, where unconstitutional police conduct did not
cause the decedent’s death, application of Alabama’s survival statute was not
contrary to the purposes of § 1983. However, where a defendant’s acts do contribute
to the decedent’s death, survival of pre-death injuries is important for the dual
compensatory and deterrent purposes of § 1983. Otherwise, regardless of how a
victim is caused to die, how much suffering he or she endures, how much physical
damage is inflicted, how long the constitutional violations last, how many times they
occur, and how much time passes until death, pre-death damages would all be zero,
thus failing to both compensate and deter. A defendant who is “in for a dime” might
as well be “in for a dollar” — that is, so long as death is likely, a defendant would
have no cause to stop inflicting pain, or to provide medical assistance, or to otherwise
ameliorate his conduct, because the cost to the defendant of all damages from conduct
preceding the victim’s death would be the same in all circumstances: nothing.
Alternatively, contrary to the deterrent purposes of § 1983, a defendant could
consider whether to cease his unconstitutional conduct based on his estimate of
whether the potential compensatory damages in the event of the victim’s survival
might outsize the potential recovery in the event of death. For these reasons, and for
the reasons stated in the Recommendation and in the cases cited in the
Recommendation (including Lewis v. City of Montgomery, No. 2:04-CV-858-WKW,
2006 WL 1761673 (M.D. Ala. June 27, 2006), which explains why City of Tarrant
v. Jefferson, 682 So. 2d 29 (Ala. 1996) is not consistent with the purposes of federal
civil rights law), Defendant Smith’s objections are due to be overruled with respect
to this issue.
Accordingly, the Recommendation is due to be adopted with respect to the
Magistrate Judge’s conclusion that Plaintiff may seek compensatory damages from
Defendant Smith 13 capacity for pre-death injuries to her son. 14
As the Magistrate Judge noted (Doc. # 55 at 8), Defendant Smith did not clarify whether
his motion to dismiss was directed at claims asserted in his official capacity, his individual
capacity, or both. In his objection, Defendant Smith seeks to clarify that point by moving for
dismissal of official-capacity claims against him on grounds that those claims are duplicative of
claims against Defendant City of Montgomery. Nothing in this Memorandum Opinion and Order
precludes Defendant from raising that argument in a timely motion. However, the court will not
dismiss claims on grounds raised for the first time in an objection. See Fed R. Civ. P. 7(b)(1)
(providing that a request for court action must be made by motion).
For clarity, the court notes that (1) Defendant Smith did not move to dismiss Plaintiff’s
claims for punitive damages against him and (2) the Magistrate Judge did not recommend
dismissal of Plaintiff’s § 1983 punitive damages claims against Defendant Smith. See Young
Apartments, Inc. v. Town of Jupiter, FL, 529 F.3d 1027, 1047 (11th Cir. 2008) (In a § 1983 action,
punitive damages are . . . available from government officials when they are sued in their individual
capacities.”). Further, to the extent Lewis held that no punitive damages could be recovered, it did
so in part because Alabama law precludes recovery of punitive damages against a municipality,
and thus, limiting § 1983 wrongful death recovery to punitive damages would thwart § 1983’s
deterrent purposes by effectively conferring immunity on the municipality. At this time, Plaintiff’s
representative capacity claims for punitive and compensatory damages against Defendant Smith
in his individual capacity remain pending.
Defendant Smith objects to the Magistrate Judge’s rejection of his arguments
that state law immunity bars Plaintiff’s state law negligence claim against Defendant
Smith and that Plaintiff failed to allege facts sufficient to support her § 1983 claim
for racial profiling in violation of the Equal Protection Clause of the Fourteenth
Amendment. The court has considered Defendant Smith’s remaining objections and
finds the reasoning of the Magistrate Judge to be correct.
Defendant City of Montgomery’s Objection
The Recommendation did not address a motion by Defendants Finley and City
of Montgomery (because they did not have a pending motion to dismiss), nor did it
recommend action on Plaintiff’s claims against those Defendants. Nevertheless,
Defendants Finley and City of Montgomery have filed an objection to the
Recommendation. See Fed. R. Civ. P. 72 (providing that “[a] party” may file an
objection to a recommendation). To the extent Defendants Finley and City of
Montgomery adopt arguments presented by Defendant Smith in his objections and
motion to dismiss, the objections of Defendants Finley and City of Montgomery are
due to be overruled as stated in Section IV.B.
To the extent that Defendants Finley and City of Montgomery present
arguments that were not presented to the Magistrate Judge in Defendant Smith’s
motion to dismiss, the arguments of Defendants Finley and City of Montgomery are
also overruled. For example, although Defendant Smith moved for dismissal of
Plaintiff’s claims for compensatory damages for Plaintiff’s son’s pre-death injuries,
Defendants Finley and City of Montgomery argue that Plaintiff should not be able to
recover any compensatory damages pursuant to her § 1983 wrongful death claims.
Defendants rely heavily on Brown v. Morgan County, Alabama, 518 F. Supp. 661
(N.D. Ala. 1981), which the Magistrate Judge discussed in his Recommendation, but
which Defendant Smith mentioned for the first time in his reply brief on the motion
to dismiss. Defendants argue that the Magistrate Judge improperly distinguished
Brown on grounds that the Magistrate Judge failed to consider the Alabama Supreme
Court’s decision in City of Tarrant v. Jefferson, 682 So. 2d 29 (Ala. 1996), which
allegedly mandates a different result. However, Defendant Smith did not cite Tarrant
in his motion to dismiss or in his reply brief.
Nothing in this Memorandum Opinion and Order precludes Defendants Finley
and City of Montgomery from filing an appropriate motion that contains their
However, they may not, in essence, seek dismissal of Plaintiff’s
compensatory damages claims against them by raising new arguments in an objection
to the Magistrate Judge’s ruling on another party’s motion to dismiss. See Fed. R.
Civ. P. 7(b)(1) (“A request for a court order must be made by motion.”).
Accordingly, it is ORDERED as follows:
The objection of Defendant Finley and City of Montgomery (Doc. #
56) is OVERRULED.
Defendant Smith’s objection (Doc. # 57) is OVERRULED.
Plaintiff Nellie Ruth Gunn’s objection (Doc. # 58) is OVERRULED.
The Recommendation of the Magistrate Judge (Doc. # 55) is
Defendant Smith’s motion to dismiss (Doc. # 42) is GRANTED as to
Plaintiff Nellie Ruth Gunn’s individual-capacity § 1983 claims against Defendant
Smith for damages personal to her. In all other respects, Defendant Smith’s motion
to dismiss (Doc. # 42) is DENIED.
Plaintiff Nellie Ruth Gunn’s individual capacity § 1983 claims against
Defendant Smith for damages personal to her are DISMISSED.
This case is REFERRED back to the Magistrate Judge for further
proceedings on Plaintiff Nellie Ruth Gunn’s remaining claims (i.e., her
representative capacity § 1983 claims and her state law claims).
DONE this 11th day of April, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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