Henderson et al v. City of Fairfield Alabama et al

Filing 19

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 13 MOTION to Dismiss Plaintiffs' Amended Complaint as set out herein. Signed by Judge Virginia Emerson Hopkins on 2/13/2013. (JLC)

FILED
2013 Feb-13 PM 03:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LARRY HENDERSON, a minor,
who sues by and through his Mother
and next friend, DEBORAH
HENDERSON, and DEBORAH
HENDERSON, individually,

)
)
)
)
)
)
Plaintiffs,
)
)
v.
) Case No.: 2:12-CV-1070-VEH
)
CITY OF FAIRFIELD, ALABAMA, )
)
a municipal corporation; PAT
)
MARDIS, individually and in her
)
official capacity; and K. DUDLEY,
)
individually and in his official
)
capacity,
)
)
Defendants.

MEMORANDUM OPINION AND ORDER
THIS CAUSE is before the court on the Motion to Dismiss Plaintiffs’
Amended Complaint (the “Motion”) (Doc. 13), filed on September 12, 2012 by
Defendants Officer K. Dudley (“Dudley”) and the City of Fairfield (the “City”).1
Plaintiff timely responded on October 24, 2012. (Doc. 17.) Neither Defendant
1

The other Defendant, Pat Mardis, did not move to dismiss the Complaint. (See Doc.
13, 14, & 15.) In fact, it appears that Mardis was never served with a complaint in either state
court or this court. (See Doc. 1-1 at 41–45.) Therefore, this court will enter a separate show
cause order as to why Mardis should not be dismissed from this action.

filed a reply brief. Therefore, the Motion is now ripe for disposition.
I.

FACTS AND PROCEDURAL HISTORY2
The facts relevant to the Motion to Dismiss are these. On March 6, 2010,

Plaintiff Larry Henderson (“Henderson”), then a minor, went to the Wal-Mart in
Fairfield, Alabama with four friends. No one in the group was armed. Inside the
Wal-Mart, one of Henderson’s friends got into an altercation with another person.
When the altercation started, Henderson and his friends left Wal-Mart and
proceeded on foot to the mall next door. Upon entering the mall, the group was
surrounded by several Fairfield police officers, including Dudley. Apparently, the
officers wanted to talk to the young men about the altercation in Wal-Mart. One
of Henderson’s friends ran past the officers. The officers attempted to grab him,
but he slipped away.
At that point, Henderson also ran away from the officers and into the
parking lot. Henderson never threatened or touched any of the officers.
Henderson alleges he was trying to get back to his car so he could go home.
Henderson further alleges that he feared the officers would harm him.

2

On a motion to dismiss, the court accepts the factual allegations of the complaint as true
and draws all reasonable inferences in favor of the plaintiff. See Randall v. Scott, 610 F.3d 701,
705 (11th Cir. 2010). Therefore, the court states the facts as alleged in Henderson’s Amended
Complaint.
2

Dudley and another officer gave chase with their guns drawn. They yelled
at Henderson to stop and get down, but he continued running. Another officer in a
police cruiser drove through the parking lot and pulled in front of Henderson,
blocking his route. At this point, Henderson immediately stopped and placed both
hands above his head. Henderson turned his head around toward Dudley and the
other pursuing officer. At that moment, Dudley struck Henderson in the back of
his head with the butt of his pistol. The blow was strong enough to knock
Henderson off his feet and against the side of the cruiser.
Dudley then opened the rear passenger door of the cruiser and angrily
yelled, “I told you to stop running from me.” (Doc. 12 at 7.) Dudley then hit
Henderson in the back of the head with his gun several more times. (Doc. 12 at 7,
¶ 26.) Dudley forced Henderson into the back of the cruiser. As he did so, he
slapped Henderson with the butt of his gun twice, both times on the right side of
his face. Neither the officer in the cruiser nor the officer who pursued Henderson
attempted to stop Dudley. Henderson never resisted Dudley after he stopped
running and put his hands above his head.
When Dudley put Henderson in the backseat of the cruiser, his right ear was
bleeding profusely. None of the officers on the scene administered first aide to
Henderson. When the paramedics arrived, they treated Henderson’s wounds.
3

Dudley wanted to take Henderson to jail, but the paramedics insisted he go to the
hospital. The police officer who was driving the cruiser and Dudley eventually
took Henderson to the emergency room of Children’s Hospital, where he was
admitted. Henderson’s wounds were treated, and he was released about two hours
later. During this time, he became unconscious. Upon being released from the
emergency room, Dudley took Henderson to Family Court detention.
Meanwhile, someone contacted Henderson’s mother. She was concerned
and spent the next couple of hours trying to contact and locate her son. At one
point, she talked to Henderson on Dudley’s personal cell phone. Dudley ended the
call as soon as Henderson said that Dudley had hit him in the head. Henderson’s
mother tried to call Dudley back, but he refused to answer. Eventually,
Henderson’s mother located him at Family Court detention. She picked him up
between 11:30 p.m. and midnight.
After the incident, Henderson’s mother filed a written complaint with the
Chief of the Fairfield Police Department, Pat Mardis (“Mardis”). However, no
one ever contacted her about the complaint. Dudley was never disciplined
regarding this incident. Additionally, Dudley attempted to charge Henderson with
Disorderly Conduct, Ala. Code § 13A-11-7, and Resisting Arrest, Ala. Code
§ 13A-10-41, but the charges were dropped.
4

Henderson filed suit against the Defendants on March 5, 2012 in the Circuit
Court of Jefferson County, Alabama. On April 6, 2012, the City and Dudley
timely removed this action to this court. (See Doc. 1.) The Notice of Removal
states that Defendant Pat Mardis had not yet been served with the state-court
complaint.
After removing this case, the City and Dudley moved to dismiss
Henderson’s complaint. Henderson then sought leave to amend his complaint,
which this court granted on July 26, 2012.
Henderson filed his Amended Complaint on August 29, 2012. (Doc. 12.)
The Amended Complaint alleges the above facts. It also alleges that the City
authorized, ratified, and confirmed Dudley’s conduct, failed to properly supervise
and train him and other officers, maintained a policy or custom allowing the
widespread use of excessive force, lacked formal procedures to investigate citizen
complaints, and failed to have formal policies, rules, and regulations regarding
police officer conduct and police procedures. (See Doc. 12 at 7, ¶ 58.) Henderson
further alleges that the officers’ conduct “shocks the conscience” and
“constitutes . . . gross, willful, intentional, and malicious conduct . . . [which]
shakes the very foundation of our civilized society . . . .” (Doc. 12 at 12, ¶ 64–65.)

5

The Amended Complaint asserts twelve counts: (1) a § 1983 claim against
Dudley, Mardis, and the City for deliberate indifference to Henderson’s right to be
free from excessive force; (2) a § 1983 claim against Dudley for unlawful arrest
and use of excessive force during the arrest; (3) a claim against Dudley under the
Fourth and Fourteenth Amendment for unlawful arrest; (4) a claim under the
Fourth Amendment against the two unnamed officers that assisted Dudley for
denying Henderson due process in failing to intervene and stop Dudley; (5) a
§ 1983 claim against Mardis and the City for ratification of Dudley’s actions; (6) a
§ 1983 claim against Mardis and the City for failure to train; (7) a § 1983 claim
against Mardis and the City for having a custom or practice of using or allowing
officers to use excessive force, investigate citizen complaints, or otherwise
supervise its officers; (8) a § 1983 claim against Mardis and the City for failing to
supervise Dudley and other officers and for failing to respond to Henderson’s
complaint about Dudley; (9) a state law claim against Dudley for assault and
battery and the intentional infliction of emotional distress; (10) a state law claim
against Dudley for abuse of process, malicious prosecution, and false
imprisonment; (11) a state law claim against Mardis and the City for respondeat
superior liability; (12) a state claim against all Defendants for damages for the loss
of services of a minor . Henderson also seeks punitive damages from all
6

Defendants.3
While the complaint clearly alleges which claims are against Dudley and
which claims are against the City and/or the two unnamed officers and/or Mardis,
the court notes that Henderson has sued Dudley in his individual and official
capacities. Therefore, in all counts where Henderson names Dudley as a
defendant, it appears he also intended to name the City as a defendant. See, e.g.,
Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105 (1985). Thus, the
court will assume that all counts which name only Dudley also include the City.
With this background information in mind, the court turns to the legal standard for
a motion to dismiss.
II.

LEGAL STANDARD
A.

Motion to Dismiss

A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.
R. Civ. P. 12(b)(6). 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 (1957), abrogated by

3

The first eleven claims are brought by Henderson. The last claim (Count 12) is brought
by Henderson’s mother, Deborah Henderson (“Ms. Henderson”) individually.
7

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007); see also Fed. R.
Civ. P. 8(a).
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 (citing Conley, 355 U.S. at 47, 78 S. Ct. 103). However,
at

the

same

time,

“it

demands

mo re

th an

an

u n ado rn ed,

the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949 (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.
“While legal conclusions can provide the framework of a complaint, they must
be supported by factual allegations.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950.
“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). The court therefore “accept[s] as true the facts set forth in the
complaint and draw[s] all reasonable inferences in the plaintiff’s favor.” Randall v.
Scott, 610 F.3d 701, 705 (11th Cir. 2010). “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.
8

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. (citation omitted)
B.

Federal Qualified Immunity

Because qualified immunity is a central issue in this case, the court sets forth
the legal standard here. Federal qualified immunity is an immunity from suit, not just
from damages. See Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1022 (11th Cir.
2001). Therefore, if a defendant is entitled to qualified immunity on a claim, the
court must dismiss that claim. See id.
The qualified immunity analysis proceeds in two phases. “To claim qualified
immunity, a defendant must first show he was performing a discretionary function.”
Barnes v. Zaccari, 669 F.3d 1295, 1302–03 (11th Cir. 2012) (internal citations and
quotation marks omitted). If the defendant meets this burden, “[t]he burden then
shifts to the plaintiff to show that: (1) the defendant violated a constitutional right;
and (2) the right was clearly established at the time of the violation.” See id. (internal
citations and quotation marks omitted).
To determine if a government employee was involved in a discretionary
9

function, the court “asks whether the government employee was (a) performing a
legitimate job-related function (that is, pursuing a job-related goal), (b) through
means that were within his power to utilize. See Holloman ex rel. Holloman v.
Harland, 370 F.3d 1252, 1265 (11th Cir. 2004) (citation omitted).
To determine if the defendant violated a constitutional right, the court must
examine the particular right asserted. However, regardless of the right asserted, a
plaintiff can only show that the right was clearly established in one of three ways.
First, a plaintiff may show that the federal statute or constitutional provision is
enough—on its face—to establish the right asserted. See Vinyard v. Wilson, 311 F.3d
1340, 1350 (11th Cir. 2002). Such cases are referred to as “obvious clarity” cases.
Id. Second, a plaintiff may show “that some broad statements of principle in case
law, [although] not tied to particularized facts,” clearly establishes the right in
subsequent cases. See id. at 1351.

Third, the plaintiff may point to a previous

decision of the Supreme Court, the Eleventh Circuit, or the relevant state supreme
court which says that the defendant’s conduct violates the right at issue. See id. at
1351–52.
C.

State Agent Immunity

Because Alabama’s state agent immunity is a central issue in this case, the
court sets forth the legal standard here. State-agent immunity, like federal qualified
10

immunity, protects state employees “in the exercise of their judgment in executing
their work responsibilities.” Ex parte Estate of Reynolds, 946 So.2d 450, 453 (Ala.
2006).
“In order to claim State-agent immunity, a State agent bears the burden of
demonstrating that the plaintiff’s claims arise from a function that would entitle the
State agent to immunity. If the State agent makes such a showing, the burden then
shifts to the plaintiff to show that the State agent acted willfully, maliciously,
fraudulently, in bad faith, or beyond his or her authority.” Id. at 452 (internal
quotation marks and citations omitted); see also Brown v. City of Huntsville, Ala., 608
F.3d 724, 740–741 (11th Cir. 2010).
D.

Municipal Liability under § 1983

Finally, Henderson’s attempts to hold the City liable for Dudley’s actions.
Because municipal liability under § 1983 differs from ordinary vicarious liability, the
court sets forth the applicable legal standard here.
There is no respondeat superior or vicarious liability under § 1983. See
Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). Instead, to hold a
municipality liable, “a plaintiff must show: (1) that his constitutional rights were
violated; (2) that the municipality had a custom or policy that constituted deliberate
indifference to that constitutional right; and (3) that the policy or custom caused the
11

violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004); see Gold v.
City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (citing Monell v. Dep’t of Social
Servs., 436 U.S. 658, 694–95, 98 S. Ct. 2037–38 (1978)). A plaintiff can show an
official policy either by (1) alleging “an officially promulgated [municipal] policy”
or (2) alleging “an unofficial custom or practice of the [municipality] shown through
the repeated acts of a final policymaker for the [municipality].” Grech v. Clayton
County, Ga., 335 F.3d 1326, 1329 (11th Cir. 2003).
Regarding the custom requirement, the Eleventh Circuit has said:
We define[] custom as a practice that is so settled and permanent that it
takes on the force of the law. In order for a plaintiff to demonstrate a policy
or custom, it is generally necessary to show a persistent and wide-spread
practice.
McDowell, 392 F.3d at 1290 (internal quotation marks and citations omitted)
(emphasis added). The policy or custom requirement ensures that “a municipality is
held liable only for those deprivations resulting from the decisions of its duly
constituted legislative body or of those officials whose acts may fairly be said to be
those of the municipality. This prevents the imposition of liability based upon an
isolated incident.” Id. (emphasis added).
III.

ANALYSIS
A.

Claims against Dudley in his Individual Capacity

12

1.

Federal Claims
a.

Challenges under Twombly and Iqbal

Initially, the court finds that Henderson’s Amended Complaint contains
sufficient factual allegations under Twombly and Iqbal. Dudley contends that
Counts 1, 2, and 3 of the Amended Complaint merely recite the elements of a
cause of action and, therefore, must fail. (Doc. 15 at 4.) Dudley overlooks the fact
that these counts incorporate the Amended Complaint’s factual allegations. (See
Doc. 12 at 5–13, ¶ 12–69; at 13, ¶ 70; at 14, ¶ 73; at 15, ¶ 78.) Because the factual
allegations give Dudley adequate notice of the substance of Henderson’s claims,
the court rejects Dudley’s contention.
b.

Qualified Immunity

Because Henderson’s complaint does more than merely recite the elements
of a cause of action, the court must determine if the alleged facts actually state a
claim for which the court can grant relief. See Fed. R. Civ. P. 12(b)(6). Dudley
has raised qualified immunity as a defense. If Dudley is entitled to qualified
immunity on a claim, then the court must dismiss that claim.
Henderson alleges three federal claims against Dudley—Counts 1, 2, and 3.
But, upon closer inspection, these counts only complain about two actions. First,
Henderson complains that Dudley used excessive force (Counts 1 and 2). Second,
13

Henderson complains that Dudley unlawfully arrested him (Counts 2 and 3).
Regarding either claim, Henderson cannot seriously contend that Dudley
was not performing a discretionary function. See, e.g., Crosby v. Monroe Cnty.,
394 F.3d 1328, 1332 (11th Cir. 2004) (stating that “[b]ecause making an arrest is
within the official responsibilities of a [police officer], [the defendant] was
performing a discretionary function when he arrested [the plaintiff].”) Therefore,
the burden shifts to Henderson to show that Dudley violated a constitutional right,
and that the right was clearly established.
i.

Excessive Force

Henderson has met his burden on the excessive force claim. “The Fourth
Amendment’s freedom from unreasonable searches and seizures encompasses the
plain right to be free from the use of excessive force in the course of an arrest.
The question is whether the officer’s conduct is objectively reasonable in light of
the facts confronting the officer. Use of force must be judged on a case-by-case
basis from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir.
2002) (internal citations and quotation marks omitted).
In determining whether the force used was reasonable, the court must
consider several factors. See Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct.
14

1865, 1872 (1989); Reese v. Herbert, 527 F.3d 1253, 1272 (11th Cir. 2008).
These factors include (1) “the severity of the crime at issue,” (2) “whether the
suspect poses an immediate threat to the safety of the officers or others,” and (3)
“whether [the suspect]is actively resisting arrest or attempting to evade arrest by
flight.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872.
In this case, all three factors weigh in Henderson’s favor. First, Henderson
was suspected of Disorderly Conduct—a Class C misdemeanor. Henderson did
run from the officers, but this fact does not amplify the severity of Henderson’s
alleged offense. Second, Henderson never posed a serious threat to the safety of
the officers or others. Instead, Henderson was stopped and surrounded in the
middle of a parking lot. And, although he initially ran from the officers, he was
stopped with his hands raised by the time Dudley caught up with him.
This fact means that the third factor also weighs in Henderson’s favor.
Though Henderson fled from Dudley, he was not fleeing when Dudley used force
against him. In fact, Henderson was surrounded and was signaling his intent to
surrender. Thus, Henderson was not evading arrest when Dudley began to use
force against him.
After considering these factors, the court finds that Dudley’s use of force
was unreasonable under the circumstances. Henderson was suspected of a minor
15

offense, was not armed, and was not acting in a threatening manner. Although
Henderson ran from the officers and disobeyed their commands, he eventually
stopped and put his hands up before Dudley began using force. When Dudley hit
Henderson, he was standing in the middle of a parking lot with a police cruiser in
front of him and two officers directly behind him. His hands were raised above
his head signaling his intent to surrender. Despite this, Dudley came from behind
Henderson and pistol whipped him to the back of his head hard enough to knock
him into the police cruiser.
Further, Henderson alleges that, after the initial blow to his head by
Dudley’s gun butt, Dudley stopped and opened the door of the police cruiser.
Dudley then returned to Henderson and hit him with the butt of his gun several
more times. At the time of these blows, Henderson was not resisting Dudley nor
was he attempting to flee. So, even if Dudley arguably was acting reasonably
when he hit Henderson the first time, he clearly had no justifiable reason to resume
hitting him in the head with his gun butt. Moreover, Dudley also slapped
Henderson’s face with his gun two more times as he was putting him into the
patrol car. Not surprisingly, Dudley’s repeated pistol whipping of Henderson
caused severe injuries. In fact, Dudley and another officer, at the paramedic’s
insistence, took Henderson directly to the emergency room of Children’s Hospital
16

(where he was admitted), rather than to Family Court detention. Because Dudley’s
use of force was unreasonable under the circumstances, he violated Henderson’s
right under the Fourth Amendment to be free from excessive force.
Next, the court must determine if the law was clearly established on March
6, 2010 that Dudley’s use of force was unreasonable. The court concludes that it
was. The Eleventh Circuit has repeatedly said that an officer’s use of significant
force against a restrained, non-resisting suspect is unreasonable. See Reese v.
Herbert, 527 F.3d 1253, 1274 (11th Cir. 2008) (“In view of the fact that [plaintiff]
was lying face down on the ground, was not suspected of having committed a
serious crime, did not pose an immediate threat of harm to anyone, and was not
actively resisting or evading arrest, the defendants’ use of force was a wholly
disproportionate response to the situation.”); Vinyard v. Wilson, 311 F.3d 1340,
1355 (11th Cir. 2002) (suspect was handcuffed and secured in back of police
cruiser when officer used pepper spray); Slicker v. Jackson, 215 F.3d 1225, 1233
(11th Cir. 2000) (suspect was handcuffed and was not resisting officers when they
beat his head into the pavement, kicked him in the ribs, and knocked him
unconscious); Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 927 (11th Cir.
2000) (suspect surrendered immediately and was lying on the ground when officer
allowed police dog to attack him for two minutes). Moreover, these cases have
17

also said that this principle is so far “beyond the hazy border between excessive
and acceptable force” that every reasonable officer would have known it violated
the Fourth Amendment. Harbert, 527 F.3d at 1274 (citing Priester, 208 F.3d at
926); see Vinyard v. Wilson, 311 F.3d 1340, 1355 (11th Cir. 2002); Priester v.
City of Riviera Beach, Fla., 208 F.3d 919, 927 (11th Cir. 2000)
In this case, Dudley repeatedly pistol whipped the head and face of a
nonthreatening and non-resisting suspect. Harbert, Vinyard, and Priester all
establish a broad principle that this conduct violates the Fourth Amendment.
Moreover, these cases establish that Dudley’s conduct would clearly violate the
Fourth Amendment, even in the absence of factually similar case law. Thus, this
is both a broad principle and obvious clarity case. Because Dudley had fair
warning that his use of significant force against Henderson would violate the
Fourth Amendment, he is not entitled to qualified immunity on the excessive force
claim. The Motion is due to be DENIED as to that claim.
ii.

False Arrest

Turning to Henderson’s false arrest claim, Dudley has established his
entitlement to qualified immunity. An officer is entitled to qualified immunity on
a false arrest claim if the officer had arguable probable cause for the arrest.
Durruthy v. Pastor, 351 F.3d 1080, 1089 (11th Cir. 2003). Here, Dudley had at
18

least arguable probable cause—if not actual probable cause—to arrest Henderson.
Henderson was with a group of friends, one of whom got into an altercation in
Wal-Mart. Alabama Code § 13A-11-7 (Disorderly Conduct) punishes individuals
who engage in fighting, make unreasonable noise, or use abusive or obscene
language in a public setting. Although Henderson himself was not involved in the
altercation, one of his friends was. And, though Dudley did not witness the
altercation, he apparently had reason to believe that Henderson’s group was
involved in it. Otherwise, the officers would not have confronted the young men
inside the mall. When they did, Henderson ran. Based on that information, Dudley
could reasonably have believed that Henderson was involved in the altercation.
Furthermore, when Henderson fled, Dudley yelled at him to stop and lay
down. Henderson disobeyed that order. At that point, Henderson arguably
violated Alabama Code § 13A-10-41 (Resisting Arrest), which punishes
individuals who “prevent[] or attempt[] to prevent a peace officer from affecting a
lawful arrest of himself or of another person.”
Because Dudley had arguable probable cause to arrest Henderson for either
Disorderly Conduct or Resisting Arrest, he is entitled to qualified immunity on
Henderson’s false arrest claim. Therefore, Dudley’s Motion is GRANTED as to
this claim.
19

2.

State Law Claims

Henderson alleges state law claims for (1) assault and battery (Count 9), (2)
intentional infliction of emotional distress (Count 9), (3) abuse of process and
malicious prosecution (Count 10), and (4) false imprisonment (Count 10). Ms.
Henderson also asserts a state law claim for loss of services of a minor (Count 12).
Dudley asserts state-agent immunity as to each of these claims.
Henderson cannot seriously dispute that Dudley was engaged in a
discretionary function. In fact, the Supreme Court of Alabama has clearly said
that a police officer’s decision to arrest a suspect is a discretionary function. See
Ex parte City of Tuskegee, 932 So. 2d 895, 905 (Ala. 2005). Therefore, the
question becomes whether Henderson adequately alleges that Dudley acted
willfully, maliciously, or in bad faith as to each of his claims.
a.

Assault and Battery

The court has already determined that every reasonable officer would
conclude that Dudley’s use of force under the circumstances violated Henderson’s
Fourth Amendment rights. See Section III.A.1.b.i. If every reasonable officer
would reach this conclusion, then Henderson has adequately alleged that Dudley
willfully or maliciously acted beyond his authority. Dudley’s Motion is, therefore,
due to be DENIED on Henderson’s assault and battery claim.
20

b.

Intentional Infliction of Emotional Distress

Dudley offers no argument for the dismissal of Henderson’s intentionalinfliction-of-emotional-distress claim. (See Doc. 15 at 14–17.) In fact, it appears
that Dudley overlooked the emotional distress claim entirely. (See Doc. 15 at 15)
(“remaining state law claims against Officer Dudley are Counts Nine and Ten,
which are for ‘Assault and Battery’ and ‘Abuse of Process and False
Imprisonment–Malice”) (emphasis added). However, Count 9 of the Amended
Complaint clearly states that it is for “Assault and Battery — Intentional Infliction
of Emotional Distress.” (See Doc. 12 at 21.) Because Dudley offers no argument
on the intentional-infliction-of-emotional-distress claim, the Motion is DENIED
as to this claim.
c.

Abuse of Process / Malicious Prosecution

Henderson’s abuse-of-process claims hinges on Dudley’s efforts to
prosecute Henderson for Disorderly Conduct and Resisting Arrest. To establish a
malicious prosecution claim, Henderson must show, among other things, that “in
instituting the prior proceeding the present defendant acted without probable cause
and with malice.” See Wal-Mart Stores, Inc. v. Goodman, 789 So. 2d 166, 174
(Ala. 2000). In this situation, probable cause means “a state of facts in the mind of
the prosecutor as would lead a man of ordinary caution and prudence to believe or
21

entertain an honest and strong suspicion that the person arrested is guilty.” See id.
The court has already determined that Dudley had arguable probable cause—if not
actual probable cause—to arrest Henderson for disorderly conduct and resisting
arrest. See Section III.A.1.b.ii. Therefore, Dudley had arguable probable cause to
press charges against Henderson. The Motion is due to be GRANTED as to this
claim.
d.

False Imprisonment

Like Henderson’s abuse-of-process claim, Henderson’s false-imprisonment
claim fails if a reasonable officer in Dudley’s position could have believe he had
probable cause to arrest Henderson. See Walker v. City of Huntsville, 62 So. 3d
474, 492 (Ala. 2010). The court has already determined that Dudley had
arguable—if not actual—probable cause to arrest Henderson. See Section
III.A.1.b.ii. Therefore, the Motion is due to be GRANTED as to this claim.
e.

Loss of Services of a Minor

This claim is not asserted by Henderson, but by his mother. Alabama law
recognizes that a parent may recover damages for the loss of her child’s services.
See Hannon v. Duncan, 594 So. 2d 85, 93 (Ala. 1992). However, a loss-ofservices claim is derivative of the injured party’s claim for damages. See Flying J
Fish Farm v. Peoples Bank of Greensboro, 12 So. 3d 1185, 1196 (Ala. 2008).
22

Therefore, Ms. Henderson’s claim will stand or fall with Henderson’s claims.
Because Henderson’s claims for excessive force, intentional infliction of
emotional distress, and assault and battery remain pending against Dudley, Ms.
Henderson could recover damages from him for her son’s injuries. Therefore, the
Motion is DENIED as to Ms. Henderson’s loss-of-services claim.
B.

Claims Against the City

As noted earlier, the court assumes that each count alleged against Dudley
includes an official capacity claim. Therefore, the court will address each count
against Dudley as if the claim was alleged against the City.
1.

Federal Claims
a.

Inadequate Pleading

Because the court assumes all claims against Dudley include an official
capacity claim, there are eight federal counts against the City—Counts 1
through 8. All eight counts fail for the same reason: Henderson has failed to
adequately allege that the City had a policy or custom which caused Dudley to
violate his constitutional rights.
To hold a municipality liable under § 1983, “a plaintiff must show: (1) that
his constitutional rights were violated; (2) that the municipality had a custom or
policy that constituted deliberate indifference to that constitutional right; and (3)
23

that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d
1283, 1289 (11th Cir. 2004); see Gold v. City of Miami, 151 F.3d 1346, 1350 (11th
Cir. 1998) (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 694–95, 98 S.
Ct. 2037–38 (1978)). A plaintiff can show an official policy either by (1) alleging
“an officially promulgated [municipal] policy” or (2) alleging “an unofficial
custom or practice of the [municipality] shown through the repeated acts of a final
policymaker for the [municipality].” Grech v. Clayton County, Ga., 335 F.3d
1326, 1329 (11th Cir. 2003).
In this case, Henderson’s Amended Complaint uses the buzzwords policy,
custom, and practice. (See Doc. 12 at 19.) However, Henderson has alleged no
facts which even remotely suggest that Dudley’s alleged use of excessive force
was more than an isolated incident. The Amended Complaint offers nothing more
than legal conclusions to support Henderson’s claims against the city. (See Doc.
12 at 19) (“The violation of Henderson’s rights was pursuant to a long standing
custom and practice of implicit approval by the City of Fairfield and Mardis’ of
the unofficial use of excessive force and unlawful arrests by members of the
Fairfield Police Department . . . .”). But, legal conclusions are insufficient to state
a claim under the Federal Rules of Civil Procedure. See Iqbal, 556 U.S. at 679,
129 S. Ct. at 1950 (stating that legal conclusion are “not entitled to the assumption
24

of truth.”). Because Henderson has alleged no facts which show a policy or
custom by the City regarding Dudley’s use of excessive force or unlawful arrest,
the Motion is due to be GRANTED on all federal claims against the City.4
b.

Unlawful Arrest Claim

Counts 2 and 3 allege that Dudley made an unlawful arrest. However, as
determined in Section III.A.1.b.ii above, Dudley had arguable probable cause to
arrest Henderson. Therefore, Henderson has not shown that Dudley committed a
constitutional violation related to his arrest. For this additional reason, Counts 2
and 3 against the City are due to be DISMISSED.
c.

Ratification of Dudley’s Actions

Count 5 alleges that Mardis (and thereby the City) ratified Dudley’s use of
excessive force. The Amended Complaint does not explain how Mardis could
ratify Dudley’s use of excessive force. However, even if Mardis could, and did,
ratify Dudley’s use of excessive force, Henderson’s claim would still fail.
Henderson must show that the City’s policy or custom caused the constitutional

4

Count 4 alleges a § 1983 claim against the two officers who failed to stop Dudley’s
assault. Because these officers are not named in the Amended Complaint, the counts against
them are due to be dismissed at this time. However, even assuming that this claim is viable
against them in the individual capacity, and even assuming this claim includes an official
capacity claim against the two officers, the claim would still fail as to the official capacity claim
and as a claim against the City. Henderson alleges no facts which show the City had a policy,
practice, or custom of officers refusing to stop other officers from assaulting suspects.
25

violation. See McDowell, 392 F.3d at 1289. Ratification of an act, by definition,
comes after the act has already occurred. See Black’s Law Dictionary 1289 (8th
ed. 2004) (“confirmation and acceptance of a previous act, thereby making the act
valid from the moment it was done.”) (emphasis added). Therefore, any
ratification could not have caused Dudley to use excessive force. For this
additional reason, Count 5 is due to be DISMISSED.
d.

Failure to Train or Supervise

Count 6 alleges that the City failed to adequately train Dudley and the other
arresting officers. To be liable under § 1983 for failure-to-train its employees, a
municipality’s policymakers must make a conscious decision which “evidences a
‘deliberate indifference’ to the rights of [the municipality’s] inhabitants . . . .” City
of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S. Ct. 1197, 1205 (1989). “To
establish . . . ‘deliberate indifference,’ a plaintiff must present some evidence that
the municipality knew of a need to train and/or supervise in a particular area and
the municipality made a deliberate choice not to take any action.” Gold v. City of
Miami, 151 F.3d 1346, 1350 (11th Cir. 1998).
Henderson’s Amended Complaint is devoid of any facts which show that
the City’s policymakers knew of a need to train its officers and failed to act.
Instead, Henderson relies on legal conclusions that the City’s training was
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inadequate. These allegations are not entitled to a presumption of truth, and
therefore, Henderson’s failure-to-train claim must fail. For this additional reason,
Count 6 is due to be DISMISSED.
e.

Failure to Respond to Ms. Henderson’s Complaint

Counts 7 and 8 allege that the City violated § 1983 by failing to discipline
Dudley and the other arresting officers. Counts 7 and 8 also allege that the City
violated § 1983 by failing to investigate and respond to Ms. Henderson’s
complaint about Dudley. To the extent Counts 7 and 8 challenge the City’s failure
to investigate, respond to, or act on Ms. Henderson’s complaint (or otherwise
discipline Dudley), these counts are due to be DISMISSED because Henderson
has not shown these actions violated a constitutional right.
2.

State Claims Against the City
a.

Assault and Battery and Intentional Infliction of
Emotional Distress

Count 9 alleges a claim against Dudley for assault and battery and
intentional infliction of emotional distress. Assuming that this claim is also
against Dudley in his official capacity (and therefore against the City), the claim
must fail. Ala. Code § 11-47-190 limits the City’s liability to wrongs “done or
suffered through the neglect, carelessness, or unskillfulness of some agent, officer,

27

or employee of the municipality engaged in work therefor and while acting in the
line of his or her duty.” Count 9 specifically alleges that Dudley acted “willfully,
maliciously, outrageously, recklessly, deliberately, and with the intention to inflict
personal injuries . . . .” (Doc. 12 at 21, ¶ 101.) Therefore, Dudley could not have
acted negligently, carelessly, or unskillfully in apprehending, arresting, and
prosecuting Henderson. The City’s Motion is due to be GRANTED as to
Count 9.
b.

Abuse of Process and False Imprisonment

The court has already determined that Officer Dudley had sufficient
probable cause to arrest and press charges against Henderson. See Section
III.A.1.b.ii. Because Henderson’s abuse-of-process and false-imprisonment claims
against Dudley fail on the merits, the City cannot be vicariously liable. Therefore,
the City’s Motion is due to be GRANTED as to Count 10.
c.

Respondeat Superior Liability

Count 11 alleges, in general terms, that the City is vicariously liable for
Dudley’s actions. This claim also fails. First, to the extent Dudley is entitled to
state-agent immunity under Ala. Code § 6-5-338, this immunity extends to the
City as well. See Ala. Code § 6-5-338(b); Brown v. City of Huntsville, Ala., 608
F.3d 724, 742 (11th Cir. 2010); see also Ex parte City of Gadsden, 781 So. 2d
28

936. For that reason, the City cannot be liable for Henderson’s arrest and
prosecution. See Section III.A.2.c & III.A.2.d (determining that Dudley is entitled
to state-agent immunity on Henderson’s abuse of process and false imprisonment
claims).
Additionally, on the facts alleged by Henderson, the City is not liable for
Dudley’s use of force. Under Ala. Code § 11-47-190, the City can only be liable if
Dudly acted “negligently, carelessly, or unskillfully.” Put simply, the City is not
liable for the “intentional torts of its employees.” Brown, 608 F.3d at 743; see
also Quainoo v. City of Huntsville, No. 5:10-CV-104-AKK, (N.D.Ala. December
9, 2011), Doc. 51 at 32–34, affirmed by, No. 12-10106, 2013 WL 382712 (11th
Cir. February 1, 2013) (unpublished).
Here, Henderson has alleged no facts which suggest that Dudley acted
unskillfully. In fact, the act of pistol whipping Henderson multiple times after he
had stopped and raised his hands clearly alleges intentional acts. No reasonable
officer would believe this degree of force was permitted by the Fourth
Amendment. And, Henderson has alleged no facts which suggest that Dudley had
a mistaken understanding of the Fourth Amendment. At the very least, Henderson
never alleges that Dudley’s actions were unintentional. Therefore, the City’s
Motion is due to be GRANTED as to Count 11.
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d.

Loss of Services

As discussed in Section III.A.2.e above, Ms. Henderson’s claim for loss of
services is derivative of Henderson’s claims. Because none of Henderson’s claims
against the City remain pending, Ms. Henderson’s claim for loss of services
against the City also fails. Therefore, the City’s Motion is GRANTED as to
Count 12.
C.

Punitive Damages

The court has dismissed all claims against the City. However, the court
notes that, even if Henderson had a viable claim against the City, he would not be
entitled to punitive damages from it. See City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 271, 101 S. Ct. 2748, 2762 (1981) (“[W]e hold that a municipality is
immune from punitive damages under 42 U.S.C. § 1983.”); Ala. Code § 6-11-26
(“Punitive damages may not be awarded against the State of Alabama or any
county or municipality thereof . . . .”); see also Carson v. City of Prichard, 709 So.
2d 1199, 1206 (Ala. 1998).
IV.

CONCLUSION
For the foregoing reasons, Dudley’s Motion is hereby GRANTED IN

PART and DENIED IN PART as follows:
A.

The Motion is DENIED as to the excessive force claim in Counts 1
30

and 2;
B.

The Motion is GRANTED as to the false arrest claim in Counts 1, 2,
and 3;

C.

The Motion is DENIED as to Count 9;

D.

The Motion is GRANTED as to Count 10;

E.

The Motion is DENIED as to Count 12.

The City’s Motion is hereby GRANTED. All claims against the City are
DISMISSED for failure to state a claim.
DONE and ORDERED this the 13th day of February, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

31