Ballard et al v. House et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 4/22/2015. (JLC)
2015 Apr-22 PM 05:26
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DIANNE BALLARD, WILLIE
BALLARD, and SHANTRE
) Case No.: 1:14-CV-2487-VEH
SHANE HOUSE, TONY
HUBBARD, and TRENT ADAMS in )
their professional and individual
On December 30, 2014, Plaintiffs Dianne Ballard (“Ms. Ballard”), her husband,
Willie Ballard (“Mr. Ballard”), and her daughter, Shantre Jennings (“Ms. Jennings”),
initiated this civil rights lawsuit against three defendants sued in their official and
individual capacities: Shane House (“Officer House), Tony Hubbard (“Officer
Hubbard”), and Trent Adams (“Officer Adams”). (Doc. 1). Pending before the court
are Officer Adams’s Motion To Dismiss (Doc. 9) (“Adams’s Motion”) filed on March
31, 2015, Officer Hubbard’s Motion To Dismiss (Doc. 12) (“Hubbard’s Motion”)
filed on March 31, 2015, and Officer House’s Motion To Dismiss (Doc. 13) (the
“House’s Motion”) filed on April 1, 2015.
Plaintiffs have not opposed any of these motions and, their deadline to do so
under Appendix III to the court’s Uniform Initial Order (Doc. 18) expired on April
14, 2015, and April 15, 2015, respectively. (See Doc. 18 at 23 (“The opponent’s
responsive brief shall be filed no later than fourteen (14) calendar days thereafter.”)
(emphasis in original)). For the reasons explained below, all three motions are due to
be granted in part and otherwise termed as moot.
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.
R. Civ. P. 12(b)(6) (“[A] party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be granted[.]”). The Federal Rules of
Civil Procedure require only that the complaint provide “‘a short and plain statement
of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99,
103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting Fed. R. Civ. P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955,
1965, 167 L. Ed. 2d 929 (2007); see also Fed. R. Civ. P. 8(a) (setting forth general
pleading requirements for a complaint including providing “a short and plain
statement of the claim showing that the pleader is entitled to relief”).
While a plaintiff must provide the grounds of her entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S.
Ct. at 103). However, at the same time, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). “[O]nce a claim has been
stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. “While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at
556, 127 S. Ct. at 1965).
All defendants assert that qualified immunity bars Plaintiffs’ § 1983 claims
brought against them in their personal capacities. “The defense of qualified immunity
completely protects government officials performing discretionary functions from suit
in their individual capacities unless their conduct violates ‘clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (internal quotation marks
omitted) (quoting Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003)). “To
receive qualified immunity, a government official first must prove that he was acting
within his discretionary authority.” Id.
This is a two-part test. Under the first step, “the defendant must [prove that he
or she was] performing a function that, but for the alleged constitutional infirmity,
would have fallen within his legitimate job description.” Holloman ex rel. Holloman
v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove
that he or she was “executing that job-related function.” Id. at 1267. “Once a
defendant establishes that he was acting within his discretionary authority, the burden
shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.”
Cottone, 326 F.3d at 1358.
Until 2009, the Supreme Court required a two-part inquiry to determine the
applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194,
201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Under the Saucier test, “[t]he
threshold inquiry a court must undertake in a qualified immunity analysis is whether
[the] plaintiff’s allegations, if true, establish a constitutional violation.” Hope v.
Pelzer, 536 U.S. 730, 736, 122 S. Ct. 2508, 2513,153 L. Ed. 2d 666 (2002).
If, under the plaintiff’s allegations, the defendants would have violated a
constitutional right, “the next, sequential step is to ask whether the right was clearly
established.” Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at 201, 121 S. Ct.
at 2156). The “clearly established” requirement is designed to assure that officers
have fair notice of the conduct which is proscribed. Hope, 536 U.S. at 739, 122 S. Ct.
at 2515. This second inquiry ensures “that before they are subjected to suit, officers
are on notice their conduct is unlawful.” Saucier, 533 U.S. at 206, 121 S. Ct. at 2158.
The “unlawfulness must be apparent” under preexisting law.1 Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987) (citing
Malley v. Briggs, 475 U.S. 335, 344-45, 106 S. Ct. 1092, 1097-98, 89 L. Ed. 2d 271
(1986)). Therefore, a temporal requirement exists related to this inquiry. More
particularly, a plaintiff must show that a reasonable public officer would not have
believed her actions to be lawful in light of law that was clearly established at the
time of the purported violation. See Anderson, 483 U.S. at 639,107 S. Ct. at 3038
(“[W]hether an official protected by qualified immunity may be held personally liable
for an allegedly unlawful official action generally turns on the ‘objective legal
reasonableness’ of the action[,] assessed in light of the legal rules that were ‘clearly
established’ at the time it was taken[.]”) (emphasis added) (citation omitted);
Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599, 160 L. Ed. 2d 583
(2004) (“If the law at that time did not clearly establish that the officer’s conduct
would violate the Constitution, the officer should not be subject to liability or, indeed,
even the burdens of litigation.”) (emphasis added); Brosseau, 543 U.S. at 198, 125
S. Ct. at 599 (“Because the focus is on whether the officer had fair notice that her
Only Supreme Court, Eleventh Circuit, and Alabama Supreme Court cases can “clearly
establish” the law in this litigation. See Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir. 2003) (“In
this circuit, rights are ‘clearly established’ by decisions of the Supreme Court, this court, or the
highest court of the state in which the case arose.” (citing Hamilton v. Cannon, 80 F.3d 1525, 1532
n.7 (11th Cir. 1996))).
conduct was unlawful, reasonableness is judged against the backdrop of the law at the
time of the conduct.”) (emphasis added); see also Johnson v. Clifton, 74 F.3d 1087,
1093 (11th Cir. 1996) (“We know of no [preexisting] case which might have clearly
told Clifton that he could not take the disciplinary action indicated by an investigation
which was initiated before he even knew about the allegedly protected speech, and
in circumstances where the public concern implication was doubtful.”).
However, the Saucier framework was made non-mandatory by the Supreme
Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818, 172 L. Ed. 2d
565 (2009), in which the Court concluded that, “while the sequence set forth [in
Saucier] is often appropriate, it should no longer be regarded as mandatory.” Thus,
“judges of the district courts and the courts of appeals should be permitted to exercise
their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case
at hand.” Id.
Despite the Supreme Court’s modification of Saucier’s analytical process, the
substantive analysis remains unchanged; an officer is entitled to qualified immunity
protection as long as he “could have believed” his conduct was lawful. Hunter v.
Bryan, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589 (1991).Therefore,
to deny immunity, a plaintiff must affirmatively demonstrate that “no reasonable
competent officer would have” acted as the public official did. Malley v. Briggs, 475
U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986).
In determining whether the plaintiff meets this burden in the context of a
motion to dismiss, this court is guided by the Eleventh Circuit’s holding in Randall
v. Scott, 610 F.3d 701 (11th Cir. 2010), which clarifies that the so-called heightened
pleading rule no longer applies to civil rights cases in which a qualified immunity
defense is asserted:
While Swann, GJR, and Danley reaffirm application of a
heightened pleading standard for § 1983 cases involving defendants able
to assert qualified immunity, we agree with Randall that those cases
were effectively overturned by the Iqbal court. Pleadings for § 1983
cases involving defendants who are able to assert qualified immunity as
a defense shall now be held to comply with the standards described in
Iqbal. A district court considering a motion to dismiss shall begin by
identifying conclusory allegations that are not entitled to an assumption
of truth-legal conclusions must be supported by factual allegations. The
district court should assume, on a case-by-case basis, that well pleaded
factual allegations are true, and then determine whether they plausibly
give rise to an entitlement to relief. . . .
After Iqbal it is clear that there is no “heightened pleading
standard” as it relates to cases governed by Rule 8(a)(2), including civil
rights complaints. All that remains is the Rule 9 heightened pleading
Randall, 610 F.3d at 709-10 (emphasis added) (footnote omitted).
Plaintiffs’ Failure To Oppose
Plaintiffs’ failure to file any opposition does not automatically mean that all
three motions are due to be granted. As explained by Judge Steele in Branch Banking
and Trust Co. v. Howard, No. 12–0175–WS–N, 2013 WL 172903, *1 (S.D. Ala. Jan.
As noted, Churchill and Howard elected not to be heard in
response to BB & T’s Amended Motion to Dismiss. Notwithstanding
that omission, BB & T (as Rule 12(b)(6) movant) bears the initial
burden of demonstrating that it is entitled to dismissal of the
counterclaims. Churchill’s and Howard’s lack of response to the Rule
12(b)(6) Motion does not trigger the kneejerk granting of such Motion
on an abandonment theory. See Gailes v. Marengo County Sheriff’s
Dep’t, 2013 WL 81227, *5 (S.D. Ala. Jan. 4, 2013) (“the Court will not
treat a claim as abandoned merely because the plaintiff has not defended
it in opposition to a motion to dismiss”). Rather, it remains BB & T’s
burden as movant to establish its entitlement to relief under Rule
12(b)(6). In light of these circumstances, the Court scrutinizes BB & T’s
Motion to Dismiss in accordance with the following legal standard: “the
Court will review the merits of the [movant]’s position and, if it is
clearly incorrect or inadequate to satisfy the [movant]’s initial burden,
will deny the motion despite the [nonmovant]’s failure to respond. If,
however, the [movant]’s presentation is adequate to satisfy its initial
burden, the Court will not deny the motion based on arguments the
[nonmovant] could have made but by silence elected not to raise.” Id.
Branch Banking, 2013 WL 172903, *1 (footnotes omitted).
Having studied Defendants’ motions and Plaintiffs’ pleading, the court
concludes that Plaintiffs’ claims, as presently pled, are all implausible because they
are barred by the accrual of the applicable Alabama two-year statute of limitations
catchall provision, namely Ala. Code § 6-2-38(l) (“All actions for any injury to the
person or rights of another not arising from contract and not specifically enumerated
in this section must be brought within two years.”). Further, nothing in their
complaint suggests that the court should consider tolling the accrual of Plaintiffs’
As explained more specifically by Officer Adams in his brief, “Plaintiffs’
federal and state law claims arise from alleged acts that occurred on October 20,
2012.” (Doc. 10 at 7). However, “Plaintiffs did not file their Complaint with this
Court until December 30, 2014.” Id. Consequently, “so long as the statute of
limitations began to accrue on October 20, 2012 [or even shortly thereafter], Plaintiffs
filed their claims over two-months after the statute of limitations had expired.” (Id.
Given the adequate and straightforward presentation of Defendants’ collective
position regarding untimeliness and Plaintiffs’ corresponding silence, the court is
under no obligation to construct and consider possible counter arguments in
Plaintiffs’ favor. See Branch Banking, supra at 9. The court addresses the
untimeliness of each particular claim in greater detail below.
Plaintiffs’ § 1983 Federal Claims
Concerning Plaintiffs’ § 1983 claims generally:
In § 1983 actions, the statute of limitations is taken from a state’s
statute of limitation for personal-injury tort actions. Wallace v. Kato,
549 U.S. 384, 387 (2007). In Alabama, that statute of limitations is two
years. Holt v. Valls, 395 F. App’x 604, 606 (11th Cir. 2010) (citing Ala.
Code § 6-2-38). . . .
While § 1983 claims barrow the statute of limitations from the forum
state, when the statute of limitation begins to accrue is a matter of
federal law. Wallace, 549 U.S. 384, 388 (2007) (stating “the accrual date
of a § 1983 cause of action is a question of federal law that is not
resolved by reference to state law”). Under federal law, the statute of
limitations begins to accrue “when the plaintiff has a complete and
present cause of action.” Wallace, 549 U.S. at 388. The Eleventh Circuit
has stated that “[t]he statute of limitations on a section 1983 claim
begins to run when the facts which would support a cause of action are
apparent or should be apparent to a person with a reasonably prudent
regard for his rights.” Van Poyck v. McCollum, 646 F.3d 865, 867 (11th
(Doc. 10 at 7, 8 (emphasis added)).
Under this Wallace/Van Poyck framework, Plaintiffs should have reasonably
been aware that they had a valid § 1983 excessive force claim against Defendants at
the time in which the challenged force was used against them–October 20, 2012.
Therefore, with an accrual date of October 20, 2012, October 20, 2014, was the latest
date on which Plaintiffs could have timely filed their excessive force claim (absent
any tolling, which has not been alleged here). See, e.g., Curtis v. Gordon Police
Dep’t, No. Civ. A. 504CV281WDO, 2005 WL 3262960, at *1 (M.D. Ga. Dec. 1,
2005) (“Accordingly, absent any cause for tolling, the limitations period for
Plaintiff’s claims commenced on August 26, 1999 [i.e., the day on which the force
was used] and expired on August 26, 2001.”).
As for Plaintiffs’ unlawful arrest/false imprisonment count, “the statute of
limitations upon a § 1983 claim seeking damages for a false arrest in violation of the
Fourth Amendment, where the arrest is followed by criminal proceedings, begins to
run at the time the claimant becomes detained pursuant to legal process.” Wallace,
549 U.S. at 397. To the extent that Plaintiffs were detained by legal process on
October 20, 2012, this means that their federal false arrest claim accrued on October
20, 2014. See, e.g., Ferguson v. City of Jasper, No. 5:13–CV–1678–AKK–JEO, 2014
WL 4957218, at *7 (N.D. Ala. 2014) (“Plaintiff’s cause of action against the
defendants for unlawful arrest accrued on June 20, 2008, the day he was arrested; he
therefore had until June 20, 2010, to file a § 1983 action.”).
Alternatively, the accrual of Plaintiffs’ false imprisonment claim is tied to the
date on which any of their arrest warrant(s) were signed by the magistrate. See
Ferguson, 2014 WL 4957218, at *7 (“His cause of action against the defendants for
false imprisonment accrued on June 23, 2008, the day the magistrate signed the arrest
warrant; he therefore had until June 23, 2010, to file a § 1983 action.” (emphasis
Relying upon Burgest v. McAfee, 264 F. App’x 850, 852 (11th Cir. 2008) as
persuasive authority, Officer Adams argues that:
Plaintiffs’ claim [for false imprisonment] [is] ripe for dismissal as a
matter of law. In Burgest, the Eleventh Circuit, in upholding a district
court’s grant of a motion to dismiss a false arrest claim, “assumed” the
court in the underlying state criminal proceeding properly applied
Florida law requiring that “every arrested person shall be taken before
a judicial officer . . . within 24 hours of arrest.” Burgest, 264 F. App’x
at 852 (citing Fla. R. Crim. P. 3.130(a)). “[W]e assume that Burgest
received an initial appearance on November 13, 1998, at which point his
complaint for false imprisonment accrued. When this ‘legal process was
initiated against him,’ the period of limitation began ‘to run.’” Id. (citing
see Wallace, 549 U.S. at 389).
The State Alabama, similar to the State of Florida, has a statute requiring
that arrestees receive process shortly, within forty-eight hours, after their
arrest. See Ala. R. Crim. P. 4.3(a)(1)(iii). Specifically, the statute states
that following a warrantless arrest, an arrestee:
[s]hall be afforded an opportunity to make bail in
accordance with Rules 4.3(b) and 4.4. A judge or
magistrate in the county of arrest shall determine whether
probable cause exists to believe that the defendant
committed the charged offense. . . . If a probable cause
determination is not made by a judge or magistrate without
undue delay, and in any event later than forty-eight (48)
hours after arrest, then . . . the person should be released
upon execution of an appearance bond set in the amount of
Ala. R. Crim. P. 4.3(a)(1)(iii) (emphasis added). Applying Alabama law,
Plaintiffs [by way of the Burgest assumption] appeared before a judge
or magistrate within 2-days after their arrests on October 20, 2012,
causing their false imprisonment claims to begin accruing on October
22, 2012. Plaintiffs filed their Complaint December 30, 2014, (Doc. 1),
which was over two months after the statute of limitations had expired.
(Doc. 10 at 11-12 (emphasis by underlining added)).
This court is persuaded to follow Burgest and agrees with Officer Adams that
Plaintiffs’ false imprisonment claim, by operation of Alabama’s warrantless arrest
procedures, began to accrue on Monday, October 22, 2012, i.e., within 48 hours of
Saturday, October 20, 2012, at the latest. As a result, Plaintiffs’ complaint should
have been filed no later than October 22, 2014, in order to preserve that particular
federal cause of action.
Therefore, consistent with the above analysis, all of Plaintiffs’ § 1983 claims
are implausibly pled and due to be dismissed because they are, from the face of
Plaintiffs’ complaint, time-barred by the accrued application of § 6-2-38(l).
Plaintiffs’ Alabama Assault and Battery Claim
As Officer Adams explains the untimeliness of Plaintiffs’ assault and battery
In Alabama, a cause of action “accrues” when the actual damage or
injury is sustained. Ex parte Stonebrook Development, L.L.C., 854 So.
2d 584, 588-89 (Ala. 2003); Choice Builders, Inc. v. Complete
Landscape Service, Inc., 955 So. 2d 437, 441 (Ala. Civ. App. 2006). In
other words, a cause of action accrues as soon as a party is entitled to
maintain an action. Booker v. United American Ins. Co., 700 So. 2d
1333, 1339 (Ala. 1997). Additionally, there is no “discovery rule” under
which the cause of action does not accrue until the injury or damage is
discovered. Boyce v. Cassese, 941 So. 2d 932, 946 (Ala. 2006)
(Alabama has no “discovery rule” with respect to negligence or
wantonness actions that would toll the running of the limitations period).
Thus, Plaintiffs’ state law claim for assault and battery is barred by the
statute of limitations.
(Doc. 10 at 9-10).
The court concurs with this analysis and finds that Plaintiffs’ assault and
battery claim is implausibly pled because it was not filed on or before October 20,
2014. See Wright v. Wright, 654 So. 2d 542, 544 (Ala. 1995) (“Mrs. Wright provided
no evidence of an assault or a battery committed against her by Mr. Wright since
1981, and an action based on such torts occurring that far back is barred by the statute
of limitations.” (citing Ala. Code § 6-2-38(l))).
Once again, nothing alleged in Plaintiffs’ complaint suggests that tolling the
applicable statute of limitations for assault and battery is appropriate in this instance.
Therefore, consistent with the above analysis, Plaintiffs’ assault and battery claim is
also due to be dismissed as untimely and implausible by the accrued application of
In sum, Adams’s Motion, Hubbard’s Motion, and Houses’s Motion are due to
be granted on the basis that Plaintiffs’ claims are all untimely and implausibly alleged
from a statute of limitations standpoint. The court does not reach the other grounds
offered in support of dismissal, including qualified immunity, state agent immunity,
scope of official capacity relief, and the inappropriate shotgun characteristics of
Plaintiffs’ complaint. Consequently, those unaddressed portions of the three motions
are due to be termed as moot. Finally, the court will enter a final judgment order
dismissing Plaintiffs’ case with prejudice.
DONE and ORDERED this the 22nd day of April, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
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