Norman v. Norman et al

Filing 94

MEMORANDUM OPINION. Signed by Senior Judge Inge P Johnson on 4/22/13. (ASL)

FILED
2013 Apr-22 PM 04:07
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.

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TRACEY C. NORMAN, et al.,

)

Defendants.

CV 12-J-2136-S

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Memorandum Opinion
Pending before the court is defendant Captain D. Gregg Rector’s motion to
dismiss plaintiff’s amended complaint (doc. 83), brief in support of said motion (doc.
84), and plaintiff’s response in opposition (doc. 86). 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). Gregg Rector is a Captain
employed by the Hoover Police Department. Id. at ¶ 10.
Captain Rector is named as a defendant to Counts XVII and 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
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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).

31. Count XVIII is titled “Deliberate Indifference Through Custom by Defendants
Derzis, Neill and Rector.” Id. at 34.
Count XVII states Captain Rector is sued “individually and in [his] 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
‘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,
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127 S.Ct. at 1964-65).
Legal Analysis
Plaintiff’s amended complaint names defendant Rector in his official and
individual capacity. Defendant has 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 defendant in his official and individual capacity.
The court previously granted a motion to dismiss, (doc. 81), with respect to
Count XVII and XVIII against defendant Chief Nicholas C. Derzis both in his official
and individual capacity. Memorandum Opinion dated March 13, 2013 (doc. 80). The
court also dismissed Count XVII with respect to defendant Captain Neill in her
official and individual capacity and dismissed Count XVIII against Captain Neill in
her official capacity. Id.
I. Plaintiff has failed to state a claim under 42 U.S.C. § 1983 against
defendant Rector in his official capacity.
Defendant correctly asserts 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). Defendant further asserts 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
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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 defendant Rector in his official capacity.
Because the official capacity claim against defendant is 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
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.
(doc. 5) (emphasis in original).
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prejudice. The claims against defendant Rector in his official capacity are therefore
foreclosed under Busby and defendants motion to dismiss for failure to state a claim
against Rector in his official capacity is due to be granted.
Plaintiff next discusses the doctrine of res judicata, contending that the official
capacity claims against Captain Rector are not due to be dismissed by virtue of this
doctrine. (See doc. 86, pp. 1-6). Plaintiff asserts, both in his brief and in a motion for
reconsideration, (see doc. 87), that defendant failed to assert res judicata in a
responsive pleading and therefore waived this defense under Federal Rule of
Procedure 8(c). (doc. 86, p. 2). To support this assertion, plaintiff points to
defendant’s motions to dismiss the original complaint. See doc. 35 & 42. These
motions were found moot because plaintiff filed an amended complaint. See doc. 58
& 60.
Res judicata has no applicability here, as it is “a doctrine of claim preclusion
which operates to prevent litigation of matters that were raised or should have been
raised in an earlier suit.” Maldonado v. U.S. Atty. Gen., 664 F.3d 1369, 1377 (11th
Cir. 2011) (quoting McKinnon v. Blue Cross & Blue Shield of Ala., 935 F.2d 1187,
1192 (11th Cir. 1991)). In the instant matter, there is no “earlier suit,” id., and the
doctrine of res judicata was never mentioned during any prior briefing. The doctrine
has absolutely no bearing on the propriety of this court’s earlier dismissal of the City
of Hoover, the official capacity claims brought against Chief Derzis and Captain
Neill, or defendant’s motion to dismiss Captain Rector.
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Plaintiff’s argument appears to be that while the City of Hoover’s dismissal
was with prejudice, it was not a dismissal on the merits, and therefore this court
should ignore controlling federal law precedent and allow him to bring official
capacity claims in his Amended Complaint. The court dismissed the City of Hoover
for plaintiff’s failure to comply with the court’s unequivocal order and respond to the
City’s 12(b)(6) motion. (doc. 5). The court then denied Plaintiff’s motion for
reconsideration of that dismissal. (doc. 9). This court was well within its discretion
to dismiss the City of Hoover for plaintiff’s failure to comply with its order and
timely respond to the City’s 12(b)(6) motion. See, e.g., Bell v. Florida Highway
Patrol, 476 F. App’x 856 (11th Cir. 2012). Plaintiff’s argument is nothing more than
a belated attempt to convince this court that he deserves a second bite at the apple
with respect to suing the City of Hoover.
Plaintiff’s response fails to set forth any cogent legal argument as to why the
official capacity claims against Captain Rector should not be dismissed for the same
grounds already set forth in this court’s earlier memorandum opinion disposing of
those claims against both Chief Derzis and Captain Neill. (doc. 81, pp. 3-5). The
official capacity claims against Captain Rector are therefore due to be dismissed.
II. Count XVII is not a Cognizable Claim under Alabama Law.
Count XVII is due to be dismissed as against Captain Rector, in his individual

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capacity, because it is not a cognizable claim under Alabama law.3 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 is sufficient to state a claim against Rector 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.) The plaintiff alleges Rector
“tolerated, institutionalized and ratified the misconduct of Detective Sams by” failing

3
Plaintiff concedes that Count XVII is due to be dismissed “in so much as the
court interprets it to pertain to the defendant’s individual capacity.” (Doc. 86, p.6.)

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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).
Plaintiff has alleged that
On or about October 7, 2010, Mr. Norman met with Neill’s superior
officer, Captain Rector, and notified him in writing of Mr. Norman’s
claims of inappropriate behavior on the part of Detective Sams and
again requested an investigation. Mr. Norman further provided Rector
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with information which did or should have given Rector reasonable
cause to believe that Detective Sams was having an inappropriate
relationship with Mrs. Norman and/or that his relationship had otherwise
become unprofessional. Mr. Norman alleges that on or about October
11, 2010, Rector refused to conduct an investigation, refused to speak
to Mr. Norman’s witness or to the Assistant District Attorney
prosecuting Mrs. Norman, and refused to look at any further evidence
against Detective Sams. Rector demonstrated complete and total
indifference to Detective Sams behavior and to whether such behavior
even occurred.
Amended Complaint at ¶ 23 (doc. 61). Plaintiff further alleges that Rector “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 this
stage, plaintiff’s allegations are sufficient to allege a causal connection or that Rector
personally participated in the unconstitutional conduct, therefore, plaintiff’s Count
XVIII claim against Rector 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).
Rector asserts that he 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

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act was within his discretionary authority merely by showing that the acts “(1) ‘were
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 Rector has not established that he
was acting within his discretionary authority. Rector is therefore not entitled to
qualified immunity at this stage.
Conclusion
Defendant’s motion is due to be granted with respect to Captain D. Gregg
Rector in his official capacity and Count XVII is dismissed against Captain Rector.
Defendant’s motion to dismiss Count XVIII against Captain Rector in his individual
capacity is due to be denied. The court shall so order by Separate Order.
DONE and ORDERED this 22nd day of April 2013.

INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE

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