Norman v. Norman et al

Filing 81

MEMORANDUM OPINION. Signed by Judge Inge P Johnson on 3/13/13. (ASL)

FILED
2013 Mar-13 PM 03:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PATRICK NOAH NORMAN,
Plaintiff,

)
)

vs.

)

TRACEY C. NORMAN, et al.,

)

Defendants.

CV 12-J-2136-S

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Memorandum Opinion
Pending before the court are defendants Chief Nicholas C. Derzis and Captain
Janie Neill’s motion to dismiss plaintiff’s amended complaint (doc. 65), plaintiff’s
response to said motion (doc. 77), and defendants’ reply (doc. 80). Having considered
the foregoing, the court finds as follows:
Factual Background1
This action involves the alleged actions of defendant Detective Lennie Sams,
Jr., a detective employed by the Hoover Police Department, and defendant Tracey C.
Norman. Amended Complaint ¶¶ 6 & 8 (doc. 61). Janie Neill is a Captain employed
by the Hoover Police Department. Id. at ¶ 9. Nicholas C. Derzis is the Chief of Police
for the Hoover Police Department and held that position at the time of the events
made the basis of this lawsuit. Id. at ¶ 7. Derzis was the commanding officer of
defendants Sams and Neill. Id.
Chief Derzis and Captain Neill are named as a defendants to Counts XVII and
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“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” therefore, the facts presented here, unless
otherwise noted, are taken from the Amended Complaint (doc. 61). See Erickson v. Pardus, 551
U.S. 89, 94 (2007).

XVIII of the Amended Complaint pp. 31-37 (doc. 61). Count XVII is titled
“Negligent and Inadequate Training and Supervision by Defendants Derzis, Neill and
Rector.” Id. at 31. Count XVIII is titled “Deliberate Indifference Through Custom by
Defendants Derzis, Neill and Rector.” Id. at 34.
Count XVII alleges that Chief Derzis is sued “both individually and in his
capacity as Chief of Police.” Id. at ¶ 124. With respect to Captain Neill, Count XVII
alleges that she is sued “individually and in [her] capacit[y] as [a] supervising police
officer[].” Id. at p. 31. Count XVIII alleges that “[t]he standard disciplinary review
process in the Hoover Police Department is so inadequate and subjective in nature
that it amounts to deliberate indifference to the rights of citizens with whom the
Defendants come into contact.” Id. at 37.
Standard of Review
A pleading must contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When considering a motion
to dismiss, the court must “accept the allegations of the complaint as true and
construe them ‘in the light most favorable to the plaintiff.’” Simmons v. Sonyika, 394
F.3d 1335, 1338 (11th Cir. 2004) (citing Hill v. White, 321 F.3d 1334, 1335 (11th Cir.
2003)). Rule 8 does not require “‘detailed factual allegations,’ but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555, 127 S.Ct. 1955, 1964-65 (2007)). “In order for the plaintiff to satisfy his

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‘obligation to provide the grounds of his entitlement to relief,’ he must allege more
than ‘labels and conclusions’; his complaint must include ‘[f]actual allegations
[adequate] to raise a right to relief above the speculative level.’” Financial Sec.
Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1282 (11th Cir. 2007) (citing Twombly,
127 S.Ct. at 1964-65).
Legal Analysis
Plaintiff’s amended complaint names Defendants Derzis and Neill in their
official and individual capacities. Defendants have moved to be dismissed from this
suit because plaintiff has failed to state a claim under 42 U.S.C. § 1983 upon which
relief can be granted. Plaintiff responds that the complaint is sufficient to state a claim
under 42 U.S.C. § 1983 against the defendants in their official and individual
capacities.
I. Plaintiff has failed to state a claim under 42 U.S.C. § 1983 against
defendants Neill and Derzis in their official capacities.
Defendants correctly assert that suits against municipal officials in their official
capacity are the functional equivalent of suits against a municipality itself. Busby v.
City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991). Defendants further assert that
this court’s previous dismissal of the City of Hoover2 also necessarily dismissed all
2

The court previously dismissed the City of Hoover in an order providing:

Pending before the court is defendant City of Hoover's motion to dismiss (doc. 3), to
which the court allowed the plaintiff twenty-one days to respond. The deadline for
such a response having passed, and no response having been received, the court takes
the same as tacit agreement by the plaintiff that said motion is due to be granted. It
is therefore ORDERED by the court that the City of Hoover's motion to dismiss be
and hereby is GRANTED. Said defendant is DISMISSED from this action.
DONE and ORDERED this the 16th day of July, 2012.
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official capacity claims, because those claims are the same. See Benefield v. City of
Albertville, Ala., 2013 WL 28051, at *1 (N.D. Ala. 2013) (“The official capacity
claims against individuals were dismissed because they are the same as being against
the City of Albertville.”); Johnson v. City of Canton, Ala., 2005 WL 1618557, at *2
(M.D. Ala. 2005) (dismissing all claims against the City of Canton and holding that
“all remaining claims against [the individual defendants] in their official capacities
are hereby dismissed with prejudice as such claims are in fact claims against the City
of Canton”) (emphasis in original). Plaintiff responds that the dismissal of the City
of Hoover was not a dismissal based on the merits of the case and therefore cannot
be a dismissal in favor of defendants Neill and Derzis in their official capacities.
Because the official capacity claims against defendants are the same as a claim
against the City of Hoover, see Busby, 931 F.2d at 776, the question is whether the
court’s order granting the City of Hoover’s 12(b)(6) motion and dismissing the City
from this action was with, or without, prejudice. [T]he Supreme Court has clearly
stated that ‘[t]he dismissal for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6) is a judgment on the merits.’” N.A.A.C.P. v. Hunt, 891 F.2d 1555,
1560 (11th Cir. 1990) (quoting Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394,
399 n. 3 (1981). There was nothing in the courts order indicating that it was not with
prejudice. The claims against defendants Neill and Derzis in their official capacities
are therefore foreclosed under Busby and defendants motion to dismiss for failure to

(doc. 5) (emphasis in original).
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state a claim against Neill and Derzis in their official capacities is due to be granted.
II. Count XVII is not a Cognizable Claim under Alabama Law.
Count XVII is due to be dismissed as against Chief Derzis and Captain Neill,
in their individual capacities, because it is not a cognizable claim under Alabama law.
In Smith v. City of Sumiton the court stated:
Plaintiffs’ claims against Defendant Burnett for negligent retention,
training and supervision are due to be dismissed because Alabama does
not recognize a cause of action for a supervisor’s negligent training or
supervision of a subordinate. See e.g., Doe v. City of Demopolis, 799 F.
Supp. 2d 1300, 1312 (S.D. Ala. 2011) (“Alabama law does not
recognize a cause of action against a supervisor or municipality for
negligent training or supervision.”); Ott v. City of Mobile, 169 F. Supp.
2d 1301, 1314–15 (S.D. Ala. 2001) (dismissing a negligent retention,
training, and supervision claim against a municipality because “Alabama
recognizes no cause of action against a supervisor for negligent failure
to supervise or train a subordinate....”). Accordingly, Plaintiff’s claims
for negligent retention, training, and supervision fail to state claim upon
which relief can be granted and those claims are due to be dismissed.
2013 WL 122627, at *5 (N.D. Ala. 2013) (Proctor, J.). Count XVII is therefore due
to be dismissed for failure to state a claim upon which relief can be granted.
III. Count XVIII has failed to state a claim under 42 U.S.C. § 1983
against defendant Derzis in his individual capacity.
Count XVIII, is titled “Deliberate Indifference Through Custom by Defendants
Derzis, Neill and Rector.” Amended Complaint at 34 (doc. 61). Count XVIII
repeatedly references alleged “policies,” “practices” and “customs” of the Hoover
Police Department. (See, e.g., Id. at ¶¶ 136 & 137.) Count XVIII further alleges that
Derzis “institutionalized and ratified the misconduct of Detective Sams” by failing
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to properly train and/or supervise City of Hoover police officers and by failing to
implement policies or procedures designed to deter Detective Sams’ alleged conduct.
See Id. at ¶ 136. The plaintiff alleges Neill “tolerated, institutionalized and ratified the
misconduct of Detective Sams by” failing to properly train and supervise him, and by
failing to perform an investigation of the plaintiff’s alleged complaints. Id. at ¶¶ 138
& 139.
“It is well established in this Circuit that supervisory officials are not liable
under § 1983 for the unconstitutional acts of their subordinates on the basis of
respondeat superior or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360
(11th Cir. 2003) (quoting Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)).
Rather, supervisory liability under § 1983 only attaches “either when the supervisor
personally participates in the alleged unconstitutional conduct or when there is causal
connection between the actions of the supervising official and the alleged
constitutional deprivation.” Id.
A causal connection for purposes of supervisory § 1983 liability may be
established in three ways:
A causal connection may be established when: (1) a “history of
widespread abuse” puts the responsible supervisor on notice of the need
to correct the alleged deprivation, and he or she fails to do so; (2) a
supervisor’s custom or policy results in deliberate indifference to
constitutional rights; or (3) facts support an inference that the supervisor
directed subordinates to act unlawfully or knew that subordinates would
act unlawfully and failed to stop them from doing so.
Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007).
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Plaintiff has alleged that “[o]n or about September 13, 2010, Mr. Norman
informed Detective Sams’ superior officer, Captain Neill (then Lieutenant Neill)
about his suspicions and requested an investigation. Mr. Norman avers that Neill took
no action and conducted no investigation. Neill demonstrated complete and total
indifference to Detective Sams behavior and to whether such behavior even
occurred.” Amended Complaint at ¶ 19 (doc. 61). Plaintiff further alleges that Neill
“conspired to conceal [his] actions and inactions from the Plaintiff, and further
attempted to intimidate the Plaintiff from pursuing any claims against Detective
Sams.” Id. at ¶ 23. At this stage, plaintiff’s allegations are sufficient to allege a causal
connection or that Neill personally participated in the unconstitutional conduct,
therefore, plaintiff’s Count XVIII claim against Neill is not subject to dismissal. See
also Bd of Cnty. Comm’rs of Bryan Cnty, Okla v. Brown, 520 U.S. 397, 410 (1997)
(deliberate indifference exists when supervisor disregards a known or obvious
consequence of his action).
Neill asserts that she is entitled to qualified immunity on plaintiff’s section
1983 claims. “To invoke qualified immunity, an official must first show that he was
acting within his discretionary authority when the alleged violation occurred.”
Depalis-Lachaud v. Noel, 2013 WL 336359, at *3 (11th Cir. 2013) (citing Courson
v. McMillan, 939 F.2d 1479, 1487 (11th Cir. 1991)). “An official may show that an
act was within his discretionary authority merely by showing that the acts “(1) ‘were

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undertaken pursuant to the performance of his duties,’ and (2) were ‘within the scope
of his authority.’” Hardy v. Town of Hayneville, 50 F. Supp. 2d 1176, 1189 (M.D.
Ala. 1999) (quoting Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994)). Assuming
that plaintiff’s allegation of conspiring to conceal actions and intimidation are true,
as the court must in a motion to dismiss, defendant Neill has not established that she
was acting within her discretionary authority. Neill is therefore not entitled to
qualified immunity at this stage.
Plaintiff has not alleged sufficient facts to establish that defendant Derzis
personally participated in the alleged unconstitutional conduct or that there is a causal
connection. Plaintiff has stated that defendant Derzis institutionalized and ratified the
conduct of Detective Sam’s, failed to train and supervise, and implemented a policy
of practice that allowed Detective Sam’s conduct. Amended Complaint pg 34-37
(doc. 61). However, “a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555
(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986). Plaintiff has only plead a
“recitation of the elements of a cause of action” against Derzis and has failed to plead
any facts that support a claim for supervisory liability against Derzis. Derzis is,
therefore, due to be dismissed in his individual capacity.
Conclusion

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Thus defendants’ motion is due to be granted with respect to Chief Nicholas
C. Derzis both in his official and individual capacity; Count XVII and XVIII are
dismissed against Chief Derzis. Defendants’ motion is due to be granted with respect
to Captain Janie Neill in her official capacity and Count XVII is dismissed against
Captain Neill. Defendants’ motion to dismiss Count XVIII against Captain Neill in
her individual capacity is due to be denied. The court shall so order by Separate
Order.
DONE and ORDERED this 13th day of March 2013.

INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE

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