Harris v. Lee County Sheriff's Department

Filing 23

OPINION AND ORDER as follows: (1) The 15 Motion to Dismiss Amended Complaint is GRANTED in part and DENIED in part; (2) All of Harris' claims pursuant to 42 U.S.C. § 1983 for damages against Jones and McGuire in their official capacities are DISMISSED WITH PREJUDICE; (3)All of Harris' claims pursuant to 42 U.S.C. § 1983 for declaratory or injunctive relief against Jones and McGuire are DISMISSED WITHOUT PREJUDICE; (4) All of Harris' claims pursuant to 42 U.S.C. § 1983 for alleged violations of 42 U.S.C. § 1981 are DISMISSED WITH PREJUDICE; (5)All of Harris' claims pursuant to 42 U.S.C. § 1983 against Jones and McGuire in their individual capacities are DISMISSED WITHOUT PREJUDICE; (6) Harris� 39; claims pursuant to Alabama law (Count II, III, and IV) are DISMISSED WITHOUT PREJUDICE; and (7) A separate final judgment will be entered consistent with this Memorandum Opinion and Order.. Signed by Hon. Chief Judge Mark E. Fuller on 3/31/2009. (cb, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION L A V E N T A HARRIS, ) ) P L A IN T IF F , ) ) v. ) C A S E NO.: 3:08-cv-246-MEF ) J A Y JONES, SHERIFF OF LEE COUNTY ) S H E R IF F 'S DEPARTMENT, et al., ) (WO- Not Recommended for Publication) ) D EFEN D A N TS. )

M E M O R A N D U M OPINION AND ORDER
L a v e n ta Harris ("Harris"), a woman who alleges that she was arrested and jailed im p ro p e rly after she called the Lee County Sheriff's Department for assistance with her m in o r son, who was out of control, brings suit against Jay Jones "(Jones"), Sheriff of the Lee C o u n ty Sheriff's Department and against a deputy sheriff named Bill McGuire ("McGuire"). Harris brings suit against both Jones and McGuire in their individual and their official c a p a c itie s . Harris alleges that certain unspecified policies and customs of the Lee County S h e rif f 's Department "created an atmosphere conducive to treating African-Americans more h a rs h ly than Caucasians." She also contends that she was subjected to race discrimination a n d denied her right to equal protection of the law. The factual predicate alleged in support o f these claims is that McGuire: "made racial remarks" while in her home, threw her nineye a r-o ld daughter on the sofa and cursed at her, told her he wanted to see her in jail, arrested h e r for domestic violence, and took her to jail barefoot. She seeks compensatory damages, in c lu d in g damages for mental anguish, unspecified injunctive and declaratory relief, and

attorney's fees and costs. In Count I of the Amended Complaint, Harris brings claims pursuant to 42 U.S.C. § 1 9 8 3 . Specifically, Harris also alleges that while at her home McGuire violated her rights u n d e r the Fourteenth Amendment to the United States Constitution "to be free from race d is c rim in a tio n and her entitlement to the equal protection of the law." She further alleges th a t McGuire violated her rights under 42 U.S.C. § 1981. In addition to the claims brought p u rs u a n t to 42 U.S.C. § 1983, Harris brings claims pursuant to Alabama law for Malicious P ro s e c u tio n (Count II), False Arrest/False Imprisonment (Count III), and "Race D is c rim in a tio n " (Count IV). Harris' original complaint was brought only against the Lee County Sheriff's D e p a rtm e n t. Counsel for that entity moved for the dismissal of the action because the Lee C o u n ty Sheriff's Department is not a legal entity subject to suit. Harris conceded this and s o u g h t leave to file the Amended Complaint, which named Jones and McGuire as defendants. The Court granted that request. After the Amended Complaint was filed on May 9, 2008, Jones and McGuire filed the M o tio n to Dismiss Amended Complaint (Doc. # 15) which is now before the Court. Jones a n d McGuire seek dismissal of all claims against them on a variety of ground. For the re a s o n s set forth in this Memorandum Opinion and Order, the motion is due to be G R A N T E D IN PART AND DENIED IN PART. JURISDICTION AND VENUE T h is court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 2

and 1367. Additionally, defendants have not argued that the court does not have personal ju ris d ic tio n over each of them. There is no dispute over whether venue pursuant to 28 U.S.C. § 1391(b) is appropriate as alleged. LEGAL STANDARDS

A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Prior to the
S u p re m e Court's recent decision in Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007), a m o tio n to dismiss could only be granted if a plaintiff could prove "no set of facts . . . which w o u ld entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also H is h o n v. King & Spalding, 467 U.S. 69, 73 (1984); Wright v. Newsome, 795 F.2d 964, 9 6 7 (11th Cir. 1986). Now, in order to survive a motion to dismiss for failure to state a c la im , the plaintiff must allege "enough facts to state a claim to relief that is plausible on its f a c e ." Twombly, 127 S. Ct. at 1974. While the factual allegations of a complaint need not

be detailed, a plaintiff must nevertheless "provide the `grounds' of his `entitlement to relief' and a formulaic recitation of the elements of a cause of action will not do." Id. at 1965. The
p la in tif f 's "[f]actual allegations must be enough to raise a right to relief above a speculative le v e l on the assumption that the allegations in the complaint are true." Id. It is not sufficient th a t the pleadings merely "le[ave] open the possibility that the plaintiff might later establish s o m e set of undisclosed facts to support recovery." Id. at 1968 (internal quotation and a lte ra tio n omitted). In considering a defendant's motion to dismiss, a district court will

accept as true all well-pleaded factual allegations and view them in a light most favorable to the plaintiff. See Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir.
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2007). Accord, Nelson v. Campbell, 541 U.S. 637, 640 (2004) (where a court is considering dismissal of a complaint at the pleading stage, it must assume the allegations of the complaint are true).
T h e federal claims in this action are brought against defendants pursuant to 42 U.S.C. § 1983. Section 1983 provides a remedy when person acting under color of state law d e p riv e s a plaintiff of a right, privilege, or immunity secured by the Constitution, laws, or tre a tie s of the United States. See, e.g., 42 U.S.C. § 1983;1 Graham v. Connor, 490 U.S. 386, 3 9 3 -9 4 (1989) ("§ 1983 is not itself a source of substantive rights, but merely provides a m e th o d for vindicating federal rights elsewhere conferred") (internal quotes omitted); C u m m in g s v. DeKalb County, 24 F.3d 1349, 1355 (11th Cir. 1994). To state a claim p u rs u a n t to § 1983, a plaintiff must point to a violation of a specific federal right. See, e.g., W h itin g v. Traylor, 85 F.3d 581, 583 (11th Cir. 1996). DISCUSSION A . Harris' Federal Claims Against Defendants in Their Official Capacities A s previously stated, Harris brings her claims pursuant to § 1983 alleging that Jones a n d McGuire violated her Fourteenth Amendment rights. With respect to these claims Jones
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Section 1983 provides in relevant part: E v e ry person who, under color of any statute, ordinance, regulation, c u s to m , or usage, of any State or Territory or the District of Columbia, s u b je c ts , or causes to be subjected, any citizen of the United States or o th e r person within the jurisdiction thereof to the deprivation of any rig h ts , privileges, or immunities secured by the Constitution and laws, s h a ll be liable to the party injured in an action at law, suit in equity, or o th e r proper proceeding for redress.

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and McGuire have moved to dismiss because they contend the Eleventh Amendment bars s u c h claims against them. 1. Compensatory and Punitive Damages Are Not Available A suit against a government official in his official capacity is considered a suit against th e official's office itself. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). When that o f f ic e is an arm of the state government, the Eleventh Amendment "protects the sovereignty o f the state by prohibiting suits when recovery would be paid from state funds." 2 Robinson v . Georgia Dep't of Transp., 966 F.2d 637, 638-39 (11th Cir. 1992); see Edelman v. Jordan, 4 1 5 U.S. 651 (1976) (defining scope of sovereign immunity under the Eleventh A m e n d m e n t) . Under Alabama law, it is well-settled that sheriffs are executive officers of the state, a n d , as a result, suits against a sheriff are considered suits against the state. Parker v. A m e r s o n , 519 So.2d 442, 442-43 (Ala.1987) ("A sheriff is an executive officer of the State o f Alabama ...."); see also McMillan v. Monroe County, Ala., 520 U.S. 781, 789 (1997) (h o l d i n g that, based on an analysis of Alabama law, sheriffs are state officers and suits a g a in s t them in their official capacity are suits against the state). This immunity also

extends to the sheriff's deputies. Carr v. City of Florence, Alabama, 916 F.2d 1521, 1526 (1 1 th Cir. 1990). Accordingly, this court must consider a suit against Jones in his official c a p a c ity as sheriff of Houston County, Alabama and against McGuire in his official capacity a s a deputy sheriff as a suit against the State of Alabama. Because the Eleventh Amendment

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There is no indication that Alabama has waived its sovereign immunity. 5

bars suits against the state in federal court, in the absence of consent, this Court has no ju ris d ic tio n to hear any claims for monetary damages against Jones or McGuire in their o f f ic ia l capacities and those claims are due to be DISMISSED. Perhaps recognizing this bar to her seeking claims for damages from Jones or M c G u ire in their official capacities, Harris has alleged in the Amended Complaint that she seeks "injunctive and declaratory relief" in addition to her request for compensatory dam ages. 2. Viability of Request for Injunctive Relief W h ile , the Eleventh Amendment has been construed to bar suits against a state b ro u g h t by that state's own citizens, absent the state's consent, there exists a well-recognized e x c e p tio n to this general rule "for suits against state officers seeking prospective equitable re lie f to end continuing violations of federal law." McClendon v. Ga. Dep't of Cmty. Health, 2 6 1 F.3d 1252, 1256 (11th Cir.2001) (emphasis in original). See also Ex parte Young, 209 U .S . 123, 159-60 (1908). In determining whether the doctrine of Ex parte Young avoids an Eleventh A m e n d m e n t bar to suit, a court need only conduct a `straightforward inquiry in to whether [the] complaint alleges an ongoing violation of federal law and s e e k s relief properly characterized as prospective.' Idaho v. Coeur d'Alene T r ib e of Idaho, 521 U.S. 261, 296, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997) (O 'C O N N O R , J., joined by SCALIA and THOMAS, JJ., concurring in part and c o n c u rrin g in judgment); see also id., at 298-299, 117 S. Ct. 2028 (SOUTER, J ., joined by STEVENS, GINSBURG, and BREYER, JJ., dissenting). Verizon Maryland, Inc. v. Public Serv. Comm'n of Maryland, 535 U.S. 635, 645 (2002). In th is case, the pertinent inquiry is impeded by the failure of Harris to in any way allege what

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kind of injunctive or declaratory relief she seeks. Moreover, the injury Harris alleges as her F o u rte e n th Amendment violation was McGuire's past failure to accord her equal protection o f the law and to treat her as he would have treated similarly situated Caucasian citizens. Clearly, she has not alleged an on-going violation of her rights under the Fourteenth A m e n d m e n t or any likelihood of future similar violations of her rights if the unspecified d e c la ra to ry and injunctive relief is not granted her. The Court is simply not convinced that th e permanent injunction Harris seeks is actually prospective relief intended to prevent an ong o in g violation of Harris' rights. Federal courts have jurisdiction only over concrete cases and controversies. U.S. C o n s t. Art. 3, § 2, cl. 1. A plaintiff will generally have standing only where (1) she e x p e rie n c e d injury in fact, (2) the injury is fairly traceable to the defendant's conduct, and (3 ) her harm is likely to be redressed should the court order relief. A plaintiff seeking in ju n c tiv e or declaratory relief, however, must prove not only an injury, but also "a real and im m e d ia te threat of future injury in order to satisfy the `injury in fact' requirement." City of L o s Angeles v. Lyons, 461 U.S. 95, 102-05 (1983) (holding that because injunctions regulate f u tu re conduct, a party has standing to seek injunctive relief only if he alleges a real and im m e d ia te -a s opposed to a merely conjectural or hypothetical-threat of future injury); Nat'l P a rk s Conservation Ass'n v. Norton, 324 F.3d 1229, 1241 (11th Cir. 2003); Cotterall v. Paul, 7 5 5 F.2d 777, 780 (11th Cir. 1985). Where, as here, the threat of future harm dissipates, the p la in tif f 's request for prospective injunctive relief becomes moot. See, e.g., Adler v. Duval C o u n ty Sch. Bd., 112 F.3d 1475, 1477-78 (11th Cir. 1997); Spears v. Thigpen, 846 F.2d 7

1327, 1328 (11th Cir. 1988); Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985). Accord, R h o d e n v. Randall, No. 96-6137, 1997 WL 570346 at *2 (6th Cir. Sept. 11, 1997) (holding th a t injunctive relief requested for malicious prosecution was rendered moot when underlying c o n v ic tio n was vacated); Berry v. South Carolina Dep't of Social Servs., No. 95-2678, 1997 W L 4 9 9 9 5 0 at *4-*5 (4th Cir. Aug. 25, 1997) (affirming dismissal of claims for injunctive re lie f to prevent future malicious prosecution on ground that claims were moot when p ro s e c u tio n against plaintiff had been terminated long before suit). Here, with respect to the alleged actions giving rise to her claims that her rights under th e Fourteenth Amendment were violated, Harris has failed to allege that she is suffering and w ill continue to suffer irreparable injury unless the Court grants the unspecified requested in ju n c tiv e relief. For the foregoing reasons, the Court finds that the claims against Jones and M c G u ire in their official capacities for injunctive relief are due to be DISMISSED. 3. Adequacy of Allegations of Basis for Official Capacity Liability U n d e r § 1983, there is no respondeat superior liability; a municipality or county may n o t be sued under § 1983 for the acts of others. See Monell, 436 U.S. at 691-94; see also City o f St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988); Brown, 188 F.3d at 1290 ("A g o v e rn m e n ta l entity is not liable under § 1983, merely as a matter of respondeat superior, f o r constitutional injuries inflicted by its employees."); Gold, 151 F.3d at 1350 (municipality m a y not be liable for the wrongful actions of its police officers pursuant to a respondeat s u p e r io r theory of liability). "Instead, a municipality [or county] may be held liable for the a c t i o n s of a police officer only when municipal [or county] `official policy' causes a 8

constitutional violation." Gold, 151 F.3d at 1350. It is incumbent upon a plaintiff seeking to hold a municipality or county liable pursuant to § 1983 to identify the municipal or county p o lic y or custom that he contends caused his injury to be inflicted. Id. In Brown v. City of Ft. Lauderdale, 923 F.2d 1474 (11th Cir.1991), the Eleventh C irc u it explained that a plaintiff can establish governmental entity liability under §1983 in e ith e r one of two ways. First, liability may attach if a plaintiff demonstrates "a widespread p ra c tic e that, `although not authorized by written law or express municipal policy, causes a c o n s titu tio n a l deprivation and is so permanent and well settled as to constitute a custom and u s a g e with the force of law.'" Id. at 1481 (quoting Praprotnik, 485 U.S. at 127). Second, a p la in tif f can establish the liability of a municipality or county by showing that his or her a lle g e d constitutional injury was caused by a person who "possess[ed] `final authority to e s ta b lis h municipal [or county] policy with respect to the action ordered.'" Id. at 1480 (q u o tin g Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)); see also Jett v. Dallas In d . Sch. Dist., 491 U.S. 701, 737 (1989); Church v. City of Huntsville, 30 F.3d 1332, 1337 (1 1 th Cir.1994). H a rris makes no allegation whatsoever regarding Jones or McGuire as a policymaker o f any sort. Harris' factual allegations make no mention whatsoever of any written official p o lic y. She fails to include in the Amended Complaint any specific factual allegations of any w id e s p re a d practice so permanent and well settled as to constitute a custom and usage with th e force of law. To the extent that Jones and McGuire are sued in their official capacities, th e s e failures to plead requisite factual grounds in support of Harris' claims require the Court 9

to dismiss the claims as insufficient. For this additional reason, the motion to dismiss the f e d e ra l claims against the defendants in their official capacities is due to be GRANTED. B. 42 U.S.C. § 1981 Claims H a rris alleges that the conduct of the defendants violated well-established federal law, s p c if ic a lly, 42 U.S.C. § 1981. 42 U.S.C. § 1981 prohibits racial discrimination by private p a rtie s and state actors in the making and enforcement of contracts. To state a cause of a c tio n under § 1981 plaintiff must allege facts that, if proved, would demonstrate: "(1) that th e plaintiff is a member of a racial minority; (2) that the defendant intended to discriminate o n the basis of race; and (3) that the discrimination concerned one or more of the activities e n u m e ra te d in the statute." Kinnon v. Arcoub, Gopman & Assocs., Inc., 490 F.3d 886, 891 (1 1 th Cir. 2007) (quoting Jackson v. BellSouth Telecomms., Inc., 372 F.3d 1250, 1270 (11th C ir. 2004)). Harris fails to allege any facts to show that she was discriminated against due to her race in regard to any of the activities enumerated in the statute such as the making or e n f o rc e m e n t of a contract. Thus, Harris fails to state a cognizable claim under 42 U.S.C. § 1 9 8 1 . To the extent that Harris' Amended Complaint intended to articulate claims for a lle g e d violations of 42 U.S.C. § 1981 those claims are due to be DISMISSED. C. Harris' Remaining Federal Claims Against Jones and McGuire in Their Individual C a p a c itie s 1 . Legal Paradigm W h ile the Eleventh Amendment shields state officers from damage suits in their o f f ic ia l capacities, these officials are individually amenable to suit under 42 U.S.C. § 1983 10

for violations of the United States Constitution and federal law. See Graham, 473 U.S. at 1 6 5 -6 7 . However, a government official sued in his individual capacity under § 1983 may a s s e r t qualified immunity as an affirmative defense if he was performing a discretionary f u n c tio n . Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004). "Once the o f f ic ia l has established that he was engaged in a discretionary function, the plaintiff bears the b u rd e n of demonstrating that the official is not entitled to qualified immunity." Id. If the p la in tif f fails to furnish sufficient factual allegations at this stage, the defendant officer is e n title d to judgment. See Marsh v. Butler County, Alabama, 268 F.3d 1014, 1022 (11th Cir. 2 0 0 1 ) . In this case, there is no dispute as to whether Jones and McGuire were engaged in d is c re tio n a ry functions. In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court delineated a two-step a n a lys is for determining whether an officer engaged in a discretionary function is eligible for q u a lif ie d immunity. The initial inquiry focuses on whether the plaintiff's allegations, if c o n s id e re d true, show that the officer violated a constitutional right. Id. The absence of a c o n s titu tio n a l violation ends the inquiry. Id. However, where a court does find that an o f f ic e r acted in an unconstitutional manner, the analysis turns to whether the right in question w a s clearly established so that the officer had fair warning that his conduct was c o n s titu tio n a lly prohibited. Id. " F o r a constitutional right to be clearly established, its contours must be sufficiently c le a r that a reasonable officer would understand that what he is doing violates that right." Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation and internal quotations omitted). This 11

standard does not require a prior court decision to have declared the precise set of facts p re s e n tly alleged unlawful, "but it is to say that in the light of pre-existing law the u n la w f u ln e s s must be apparent." Anderson v. Creighton, 438 U.S. 635, 640 (1987). "The s a lie n t question. . . is whether the state of the law . . . gave [the officers] fair warning that th e ir alleged treatment of [the plaintiff] was unconstitutional." Hope, 536 U.S. at 741. The Eleventh Circuit has further refined the analysis of when the law is clearly e s ta b lis h e d . It has observed that "fair and clear" notice may be given by (1) the "obvious c la rity" of the pertinent federal statute or constitutional provision, such that qualified im m u n ity may be overcome in the "total absence of case law," (2) the judicial determination th a t certain conduct has been defined as unlawful without regard to particular facts, and (3) h o ld in g s in specific cases that are tied to certain facts. Vinyard v. Wilson, 311 F.3d 1340, 1 3 5 0 -5 1 (1 1 th Cir. 2002) (emphasis removed). Only the decisions of the Supreme Court, the E le v e n th Circuit, or the highest court in the state in which the case arose provide the case law c a p a b le of clearly establishing the boundaries of rights in the qualified immunity analysis. Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir. 2003). In this case, Harris has sued two individual defendants, Jones and McGuire. Both J o n e s and McGuire are sued in their individual capacity, as well as their official capacity. Both Jones and McGuire have filed a motion to dismiss predicated, at least in part, on q u a lif ie d immunity. Additionally, both Jones and McGuire argue that Harris' Complaint fails to comply with the "heightened pleading" requirement applicable to cases such as this one a c c o rd in g to the law of the Eleventh Circuit Court of Appeals. 12

More than a decade ago, the Eleventh Circuit Court of Appeals required plaintiffs b rin g in g claims pursuant to 42 U.S.C. § 1983 to satisfy a heightened pleading standard. See, e .g ., Oladeinde v. City of Birmingham, 963 F.2d 1481 (11th Cir. 1992), cert. denied, 507 U .S . 987 (1993). To satisfy this standard in such cases, a plaintiff must plead her claims with s o m e factual detail. Id. at 1485. In 1993, the Supreme Court of the United States held that courts may not impose a h e ig h te n e d pleading requirement for claims pursuant to 42 U.S.C. § 1983 against municipal e n titie s, but it specifically declined to reach the issue of whether a similar holding was w a rra n te d in such cases against individual government entities. See Leatherman v. Tarrant C o u n ty Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167-68 (1993). It is clear th a t after the Leatherman decision, the Eleventh Circuit Court of Appeals determined that it was still appropriate to require heightened pleading in some cases pursuant to 42 U.S.C. § 1 9 8 3 or similar cases. See, e.g, Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1250-51 (1 1 th Cir. 2003) (affirming the district court's decision to apply heightened pleading standard to a § 1983 claim); Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (applying h e ig h te n e d pleading standard to motion to dismiss in a Bivens action); Laurie v. Alabama C o u r t of Crim. Appeals, 256 F.3d 1266, 1275-76 (11th Cir. 2001) ("`Heightened pleading is the law of this circuit' when § 1983 claims are asserted against government officials in th e i r individual capacities."); Kyle K. v. Chapman, 208 F.3d 940, 944 (11th Cir. 2000) (re c o g n iz in g "heightened pleading requirement applicable to section 1983 actions against in d iv id u a l government officials"); GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 13

1359, 1367-68 (11th Cir. 1998). In 2002, the United States Supreme Court decided a case which once again has caused s o m e courts to reconsider the appropriateness of requiring heightened pleading. In

S w ie r k ie w ic z v. Sorema, N.A., 534 U.S. 506 (2002), the Supreme Court held that "an e m p lo ym e n t discrimination complaint need not include [specific facts establishing a prima f a c ie case of discrimination under the framework set forth by McDonnell Douglas Corp. v. G r e e n ] and instead must contain only `a short and plain statement of the claim showing that th e pleader is entitled to relief.'" Swierkiewicz, 534 U.S. at 508 (citing Fed. R. Civ. P. 8 (a )(2 )). While the clearly announced specific holding of this case makes it plain that it is a p p lic a b le to employment discrimination cases and does not address cases against individual g o v e rn m e n ta l actors pursuant to 42 U.S.C. § 1983, nearly every Circuit Court of Appeals has s u b s e q u e n tly rejected a heightened pleading requirement in cases against government o f f ic ia ls pursuant to 42 U.S.C. § 1983.3 Despite this apparent trend, the Eleventh Circuit

The First, Second, Third, Sixth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits h a v e rejected heightened pleading in the wake of Leatherman , Swierkiewicz and CrawfordE l v. Britton, 532 U.S. 574 (1998) (rejecting a heightened burden of proof in a civil rights c a s e against government officials). See, e.g., Doe v. Cassel, 403 F.3d 986, 988-89 (8th Cir. 2 0 0 5 ); Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 66-67 (1st Cir. 2 0 0 4 ); Alston v. Parker, 363 F.3d 229, 233-35 (3rd Cir. 2004); Phelps v. Kapnolas, 308 F.2d 1 8 0 , 187 (2d Cir. 2002); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125-26 (9th C ir. 2002); Goad v. Mitchell, 297 F.3d 497, 501-05 (6th Cir. 2002); Higgs v. Carver, 286 F .3 d 437, 439 (7th Cir. 2002); Currier v. Doran, 242 F.3d 905, 911-17 (10th Cir. 2001); H a r b u r y v. Deutch, 233 F.3d 596, 610 (D.C. Cir. 2000), rev'd on other grounds sub nom. C h r is to p h e r v. Harbury, 536 U.S. 403 (2002) ("plaintiffs making constitutional claims based o n improper motive need not meet any special heightened pleading standard"). See also 2 J a m e s Wm. Moore et al., Moore's Federal Practice § 9.10[2], at 9-62-67 (3rd ed. 2004). The F if th Circuit Court of Appeals does not have heightened pleading, but instead uses a p ro c e d u re pursuant to Federal Rule of Civil Procedure 7(a) in cases where a government 14

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Court of Appeals has reiterated that it requires heightened pleading in civil rights cases to the e x te n t that they are brought against individual defendants who might raise a qualified im m u n ity defense on several occasions since the Supreme Court decided Swierkiewicz. See, e .g ., Swann v. Southern Health Partners, Inc., 388 F.3d 834, 838 (11th Cir. 2004); Dalrymple v . Reno, 334 F.3d 991, 996 (11th Cir. 2003); Gonzalez, 325 F.3d at 1235. In light of the b in d in g decisions from the Eleventh Circuit Court of Appeals and the absence of direct a u th o rity from the United States Supreme Court to the contrary, this Court will continue to a p p ly the heightened pleading standard in cases pursuant to 42 U.S.C. § 1983 against g o v e rn m e n ta l officials sued in their individual capacities. W h e n that standard is applied to this case, the Court is compelled to find the a lle g a tio n s of the Amended Complaint against Jones and McGuire in their individual c a p a c itie s are legally insufficient. The Amended Complaint is wholly devoid of any specific d e lineation of the factual predicate for Harris' claims against Jones in his individual capacity. Tellingly, Harris' argument in opposition to the motion to dismiss has little to say about the b a s is for the claims against Jones other than that he is Caucasian and is responsible for the p o lic ie s and procedures used by Deputies under his supervision. Frankly, this analysis s m a c k s of an impermissible respondeat superior liability approach. The Court cannot find th a t Harris has satisfied the requirements of heightened pleading with respect to her claims a g a in s t Jones. Absent such pleading, the Court's ability to assess the availability of the

o f f ic ia l wishes to raise qualified immunity. See, e.g., Schultea v. Wood, 47 F.3d 1427, 14333 4 (5th Cir. 1995). 15

qualified immunity defense is impaired. The Court notes that nowhere in her response does H a rris ask the Court for another opportunity to attempt to plead her claims if the Court finds th e m deficient. That fact and the fact that she has already had a second chance at setting f o rth her claims support a conclusion that the federal claims against Jones in his individual c a p a c ity are due to be DISMISSED. W h i l e slightly more is pled about Harris' federal claims against McGuire in his in d iv id u a l capacity, those allegations also are legally insufficient. Harris' claim against M c G u ire is essentially that he called her a "nigger" and cursed at her in front of her nine year o ld child after Harris had called law enforcement for help with a domestic violence situation. Although McGuire is Caucasian and Harris African-American, the allegations set forth in the A m e n d e d Complaint are insufficient to satisfy the Eleventh Circuit Court of Appeals' re q u ire m e n t of heightened pleading. Accordingly, the motion to dismiss is due to be G R A N T E D with respect to these claims. D. State Law Claims In addition to Harris' claims pursuant to 42 U.S.C. § 1983, Harris brings a number of c la im s pursuant to Alabama law. ju ris d ic tio n provides that (a) Except as provided in subsections (b) and (c) or as expressly provided o th e rw is e by Federal statute, in any civil action of which the district courts h a v e original jurisdiction, the district courts shall have supplemental ju ris d ic tio n over all other claims that are so related to claims in the action w ith in such original jurisdiction that they form part of the same case or c o n tro v e rs y under Article III of the United States Constitution. The statutory provision addressing supplemental

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28 U.S.C. § 1367(a). Thus, Section 1367(a) provides a basis for this Court to exercise ju ris d ic tio n over Harris' claims against the defendants in this action pursuant to Alabama law b e c a u s e it has jurisdiction over Harris' related claims against them pursuant to 42 U.S.C. § 1983. However, the requirement contained in § 1367(a) that this Court exercise its

s u p p le m e n ta l jurisdiction over Harris' state law claims is subject to certain enumerated in s ta n c e s in which it is appropriate for a federal court to decline to exercise its supplemental ju ris d ic tio n over a case. Those circumstances are set forth in Section 1367(c), which p ro v id e s that T h e district courts may decline to exercise supplemental jurisdiction over a c la im under subsection (a) if ­ (1 ) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over w h ic h the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original ju ris d ic tio n , or (4 ) in exceptional circumstances, there are other compelling reasons for d e c lin in g jurisdiction. 2 8 U.S.C. § 1367(c). The Court finds that claims before this Court pursuant to § 1367(a) p re s e n t novel or complex issues of Alabama law. Additionally, the federal claims over which th is Court had original jurisdiction have now been dismissed. Pursuant to 28 U.S.C. § 1 3 6 7 (c )(1 ) & (3), the Court declines to exercise supplemental jurisdiction over Harris' claims p u rs u a n t to Alabama law. All of Harris' claims pursuant to Alabama law will accordingly b e DISMISSED WITHOUT PREJUDICE. This dismissal should not work to Harris' d is a d v a n ta g e should she elect to bring suit in state court because the period of limitations for a n y of these claims is tolled during the pendency of this action. See 28 U.S.C. § 1367(d). 17

CONCLUSION F o r the foregoing reasons, the Court finds that all federal claims remaining in Harris' A m e n d e d Complaint over which this Court has original subject matter jurisdiction, are due to be DISMISSED. Having disposed of these claims, the Court declines to exercise s u p p l e m e n ta l jurisdiction over Harris' remaining claims pursuant to Alabama law. Moreover, having disposed of all of Harris' federal claims on the grounds articulated above, th e Court need not and does not address any of the other arguments made in the motion to d is m is s . This does not mean that the arguments are not correct; it simply means that the C o u rt cannot justify a further expenditure of scarce judicial research on a detailed discussion o f such matters. Accordingly, it is hereby ORDERED as follows: 1 . The Motion to Dismiss Amended Complaint (Doc. # 15) is GRANTED in part and D E N IE D in part. 2. All of Harris' claims pursuant to 42 U.S.C. § 1983 for damages against Jones and M c G u ire in their official capacities are DISMISSED WITH PREJUDICE. 3 . All of Harris' claims pursuant to 42 U.S.C. § 1983 for declaratory or injunctive re lie f against Jones and McGuire are DISMISSED WITHOUT PREJUDICE. 4 . All of Harris' claims pursuant to 42 U.S.C. § 1983 for alleged violations of 42 U .S .C . § 1981 are DISMISSED WITH PREJUDICE. 5 . All of Harris' claims pursuant to 42 U.S.C. § 1983 against Jones and McGuire in th e ir individual capacities are DISMISSED WITHOUT PREJUDICE.

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6. The Court declines to exercise supplemental jurisdiction over Harris' claims p u rs u a n t to Alabama law (Count II, III, and IV) and such claims are DISMISSED W IT H O U T PREJUDICE. 7. A separate final judgment will be entered consistent with this Memorandum O p in io n and Order. D O N E this the 31st day of March, 2009.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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